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Showing 21 to 40 of 1442 Records
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2014 (2) TMI 1426
Review/recall of an order - Recovery proceedings for unrecovered loan - right of the intervenor was not considered - judgment of the Supreme Court in the case of DENA BANK VERSUS BHIKHABHAI PRABHUDAS PAREKH AND CO. AND OTHERS [2000 (4) TMI 36 - SUPREME COURT] is not applied properly - HELD THAT:- The applicant herein admittedly was an intervenor in M.A No. 1153/1999 and they were claiming their right to the property by virtue of the auction held in their favour at the instance of Sales Tax Department. An intervenor cannot claim any relief or decree for himself in the capacity of an intervenor in the appeal under Order 21 Rule 58 of C.P.C, that being the legal position.
It is clear that in M.A No. 1153/1999, the applicant as an intervenor could not claim any relief for himself, accordingly, even if this application is allowed and the appeal proceedings under Order 21 Rule 58 are restored the intervenor cannot get any benefit as he cannot claim any relief for himself. That being so no useful purpose would be served in considering the question of review at the instance of the applicant.
Application dismissed.
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2014 (2) TMI 1425
Seeking to restrain the Respondent from initiating any process of eviction/dispossession against the Petitioner from the said premises in possession and occupation of the Petitioner - also, seeking to restrain from going ahead with the process of calling for tenders vis-a-vis the said premises in possession and occupation of the Petitioner.
HELD THAT:- In the case of Pioneer Publicity Corporation vs. Delhi Transport Corporation & Anr., [2003 (2) TMI 403 - HIGH COURT OF DELHI], this Court speaking through Hon'ble Mr. Vikramajit Sen, J. on the objections raised by the respondents therein under Section 34 of the Specific Relief Act coming into play in these types of cases has held Keeping in view the provisions of Order XXXIX Rule 2 it is no longer possible to contend that the Court does not possess power to prohibit or prevent the breach of contract. If this is possible in the realm of private contracts, it is an obligation in the realm of public enterprises. Furthermore, the provisions of Specific Relief Act relied upon by Ms. Singh are not attracted for the simple reason that the contract itself prohibits the claim of grant of compensation.
Issue notice to the respondent, on filing of process fee and Regd. A.D. Covers within a week, returnable on 20th March, 2014.
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2014 (2) TMI 1424
Execution of decree obtained by the Respondent in Civil Suit - suit for recovery of amount on the property covered by an agreement for sale dated 3.11.2003 between the judgment debtor and decree holder - Petition was contested by the decree holder/Respondent stating that the applicant/objector had no legal right, title or interest and that the execution of the General Power of Attorney and its registration would not confer any ownership right in favour of the Appellant/objector.
As per K.S. Panicker Radhakrishnan, J.
HELD THAT:- The observations made by the Court are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions - the Power of Attorney executed on 12.5.2006 in favour of the Appellant by the wife of Prem Chand Verma is a genuine transaction executed years before the judgment of this Court. Facts will clearly indicate that the Agreement for Sale dated 3.11.2003 was created by none other than the husband of Nirmal Verma, who had executed the General Power of Attorney and possession was handed over to the Appellant. That being the fact situation, in my view, the Objection filed by the Appellant under Order 21 Rule 58 in execution has to be allowed. I, therefore, hold that the Executing Court can execute the decree in Civil Suit No. 407 of 2007, but without proceeding against the property referred to in registered Power of Attorney dated 12.5.2006 - Appeal allowed.
As per Vikramajit Sen, J
The Appellant has not taken any steps for setting aside the ex parte decree against late Shri Prem Chand Verma. This is only to be expected since the Appellant/Objector has no reason to evince or harbour any interest in the inter se dispute between the Decree Holder and the judgment Debtor. Indeed, if the Appellant had made any endeavour to assail or nullify the decree, it would be fair to conclude that she had been put up by the judgment Debtor in an endeavour to defeat the decree - On a conjoint reading of Order XXI Rule 58 Code of Civil Procedure and the fasciculus of Order XXI comprising Rules 97 to 104, it becomes clear that all questions raised by the Objector have to be comprehensively considered on their merits. In the case in hand, the decree from which the Execution proceedings emanate is not one for delivery of possession, but is a simple money decree. Order XXI proscribes the filing of a separate suit and prescribes that all relevant questions shall be determined by the Court. Objection under Order XXI should be meaningfully heard so as to avoid the possibility of any miscarriage of justice.
The Appellant/Objector who has approached the Court under Order XXI Rule 58 is more advantageously or favourably placed inasmuch as she is a third party so far as the decree is concerned, and her property is not the subject-matter of the decree. It is thus clear that the Courts below have in a hurried, if not prejudiced manner, rejected the Objections merely because of some sympathy towards the Decree Holder. The Objections deserved to be allowed without disturbing the decree, leaving all other remedies open to the Decree Holder/Respondent, including proceedings against the Estate of the judgment Debtor.
Appeal allowed.
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2014 (2) TMI 1423
Validity of Arbitral Award - ex-parte award - respondents had failed to appear in the arbitration proceedings - Section 16 of Arbitration & Conciliation Act, 1996 - HELD THAT:- The court below has distinguished this judgment on the ground that in the present case the respondents did not appear before the arbitrator resulting in an ex-parte Award and therefore the Supreme Court judgment in the case of Narayan Prasad Lohia [2002 (2) TMI 1242 - SUPREME COURT] is not applicable. There cannot be a more perverse reading of the ratio of the Supreme Court judgment by the court below in the case of Narayan Prasad Lohia inasmuch as whether the Award is ex-parte or contested. Section 16 of the Act comes into play as also the ratio laid down in para. 16 of the judgment i.e. it is not open to a person who does not contest the arbitration proceedings by remaining ex-parte to raise objections under Section 34 of the Act with respect to jurisdiction because by failing to raise objection as to jurisdiction before the arbitrator objection as to jurisdiction is deemed to be waived.
Trial court is completely unjustified in distinguishing the direct ratio of the judgment of the Supreme Court more so when the basis of distinguishing the ratio is on a wholly unacceptable basis because a person cannot take advantage of his own wrong in failing to appear before the arbitrator and not objecting to the jurisdiction and raising the objection for the first time in a petition under Section 34 challenging the existence of an arbitration agreement. In view of the above, appeal is allowed.
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2014 (2) TMI 1422
Principles of Natural Justice - Fundamental Rights under Part III of the Constitution of India - Whether any reasonable restriction or limitation or exception to this principle (of natural justice) is permissible in the interest of national security - HELD THAT:- It is now settled law that there are some special exceptions to the principles of natural justice though according to Sir William Wade [Administrative Law, 10th Edition, H.W.R. Wade & C.F. Forsyth, Pages-468-470], any restriction, limitation or exception on principles of natural justice is "only an arbitrary boundary".
It is difficult to define in exact terms as to what is national security. However, the same would generally include socio-political stability, territorial integrity, economic solidarity and strength, ecological balance, cultural cohesiveness, external peace, etc. - What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of State or not. It should be left to the Executive.
Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases it is the duty of the Court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.
It has become unnecessary for this Court to go into more factual details and consideration of the appeal on merits - Appeal disposed off.
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2014 (2) TMI 1421
Excess deduction u/s 80IB/80IC - method of allocation consistently adopted by the Appellant and in re-allocating 50% of the following overheads of the non-eligible undertakings to the eligible undertakings of the Appellant, while computing the deduction u/s 80IB/80IC - HELD THAT:- As decided in assessee own case for AY 2006-07 [2014 (4) TMI 520 - ITAT MUMBAI] allocation of expenses made by the assessee between eligible business and non-eligible business for the purpose of computing deduction u/s 80IB/80IC of the Act was reasonable and there was no justifiable reason for the A.O. to disturb the same and make re-allocation on adhoc basis. We, therefore, delete the addition made by the A.O. by restricting the claim of the assessee for deduction u/s 80IB/80IC by reallocating the common indirect expenses and allow ground No. 1 & 2 of the assessee’s appeal.
TP Adjustment - treating the guarantee to a banker as an ‘international transaction’ within the meaning of Section 92B - HELD THAT:- The issue covered in the grounds are covered by the decision of the Coordinate Bench in its own case in [2014 (4) TMI 520 - ITAT MUMBAI] wherein take the rate of guarantee commission at 0.5% as ALP by respectfully following the decision of coordinate Bench of this Tribunal in the case of Nimbus Communications Ltd. [2013 (9) TMI 204 - ITAT MUMBAI]
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2014 (2) TMI 1420
Validity of all the proceedings before the Uttar Pradesh State Micro and Small Enterprises Facilitation Council - direction to the Council to decide the objection filed under Section 8 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Section 18 empowers the Council, upon receipt of a reference, to conduct a conciliation in terms of the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996. Where the conciliation is not successful and is terminated without a settlement between the parties, the Council is empowered to itself take up the dispute for arbitration or refer it to any institution or centre providing alternate dispute resolution services. Sub-section (4) of Section 18 begins with a non obstante clause which operates notwithstanding anything contained in any other law for the time being in force. Under sub-section (4), the Council or as the case may be, the centre providing alternative dispute resolution services shall have jurisdiction to act as an Arbitrator or Conciliator in a dispute between the supplier located within its jurisdiction and a buyer located anywhere in India - The Act thus provides for a statutory remedy of an arbitration in sub-section (4) to Section 18 notwithstanding anything to the contrary contained in any other law for the time being in force.
In the present case, the Council is seized of the reference on a claim petition filed by the second respondent - the relief of certiorari for quashing all the proceedings before the Council is manifestly misconceived. The proceedings had been entertained by the Council in pursuance of the provisions of the Act. Though there may be an arbitration agreement between the parties, the provisions of Section 18(4) specifically contain a non obstante clause empowering the Facilitation Council to act as an Arbitrator. Moreover, Section 24 of the Act states that Sections 15 to 23 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
There are no reason to interdict the proceedings before the Council at this stage. Once the conciliation is unsuccessful, the Council will necessarily have to act in pursuance of the provisions of Section 18. Hence, no case for interference is made out. The petition is, accordingly, dismissed.
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2014 (2) TMI 1419
Income accrued in India - fee for technical services - receipts for supply of design and engineering drawings - Income taxability in India v/s Japan - HELD THAT:- Tribunal, on fact, found that there has been no accrual of income in India and this accrual of income has taken place in Japan. As such, the Income Tax Act cannot be made applicable. We feel that the decision is legally correct and we do not find any element of law to be decided in this appeal.
The appeal is accordingly dismissed.
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2014 (2) TMI 1418
Classification of goods - sun-glasses - to be classifiable under Entry 125 of Schedule IV of Part A as 'Spectacles, parts & components thereof, contact lens and lens cleaner' taxable @ 4% or under the residuary clause under Schedule V @ 12.5%? - HELD THAT:- Issue notice on the prayer for interim relief, returnable on 02.05.2014.
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2014 (2) TMI 1417
Jurisdiction - power of Addl. Secretary to Government - it is contended that the impugned corrigendum was issued by Addl. Secretary to Government who has no authority to change the decision of the High Power Committee - HELD THAT:- After receiving application to accord permission the Prescribed Authority as stipulated in Sub-section 5 of Orissa Education Act may make such enquiry and make a report with recommendation which has been given in the present case as reveals from the counter affidavit - Sub-section 6 of the Act stipulates that if the Committee is satisfied that the educational need of local area justify the establishment of an educational institution that the place where the educational institution is proposed to be established is likely to best serve the educational needs of the area the permission may be granted. The statute does not provide the Committee to make further enquiry or to collect any further data regarding educational needs of the locality except the report furnished by the Prescribed Authority as stipulated in Sub-section 5. In case the Committee takes a different view then it must specify the reason for taking a different view instead of expressing only allowed or rejected.
The corrigendum issued by one of the member i.e. Addl. Secretary to Government of Odisha, Department of Higher Education on 1.6.2013. Accordingly, Rule-5 of the Act has been violated. As per statute no other authority has jurisdiction to change the decision of the High Power Committee.
There is no other document also before the High Power Committee that there was no local need to open such institution rather the inspection report states that the institution situated in a rural area and poor local people will be benefited immensely in case the permission is granted to open the institution. The poor villagers are not able to provide financial help to their children to prosecute science studies in a costly town like Bhubaneswar. Considering all those aspects, the High Power Committee has accorded permission to the petitioner's institution which has been subsequently withdrawn by way of issuing the corrigendum by the Additional Secretary to Government who has no jurisdiction to issue such corrigendum. Statute does not confer jurisdiction on the Additional Secretary to issue such a corrigendum by modifying and altering the decision taken by the High Power Committee.
The impugned order dated 1.6.2013 so far as petitioner's institution is concerned issued by Addl. Secretary to Government of Odisha, Department of Higher Education vide Annexure-5 to the writ petition is quashed - Petition allowed.
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2014 (2) TMI 1416
Modavt credit - duty paid on the capital goods used for the manufacture of final product viz. Sliver falling under heading 52.02 of the schedule to the Central Excise Tariff Act, 1985 - same was specifically excluded from the purview of capital goods under erstwhile Rule 57Q of Central Excise Rules, 1944, prior to 21-10-1994 - HELD THAT:- The question has been answered against the Revenue in COMMISSIONER VERSUS THURAN SPINNING MILLS [2013 (12) TMI 1608 - MADRAS HIGH COURT], following the decision of this Court in the case of COMMISSIONER OF C. EX., SALEM VERSUS SINGARAVELAR SPINNING MILLS (P) LTD. [2009 (2) TMI 195 - HIGH COURT OF MADRAS].
The question is answered against the Revenue - appeal dismissed.
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2014 (2) TMI 1415
Capital gain computation - reference to Valuation Cell under S.50C, S.55A and S.142A - HELD THAT:- Under S.50C in determining the sale value of consideration according to stamp value, if the assessee objects to the valuation, then reference under S.50C can be made to Valuation Officer. This situation does not arise in this case. U/s 55A, with a view to ascertain the fair market value of a capital asset, AO can refer the valuation to Valuation Officer, but the fair market value under this Chapter is adopted for the purpose of cost of acquisition of an asset, while computing the capital gains and not for sale consideration. If S.55A could be invoked to arrive at the sale consideration, then there is no necessity to introduce provisions of S.50C which enables the AO to adopt the SRO value, where the sale consideration is not in accordance with the SRO value.
While computing the capital gains, substitution of sale consideration with fair market value can only be done under S.50C. There is no other provision in the Act to do so. Even the reference u/s 142A of the Act for determining the value of any investment can only be done with reference to S.69, S.69B, S.69A or for the purpose of fair market value of any property under S.56(2). In the given facts of the case, these provisions are not applicable, nor can be invoked by the AO.
What Revenue is contesting can be appropriate if the reference was made in the hands of the builder, who may claim the cost of acquisition to ascertain the investment in the building, but in the assessee’s case, who adopted the actual cost of construction for arriving at the sale consideration, these provisions do not apply. This is what the learned CIT(A) has decided. Therefore, we do not see any reason in the ground raised by the Revenue. Accordingly, the grounds are rejected, and the Revenue’s appeal stands dismissed.
Deduction u/s 54 - proportionate capital gains on each house - HELD THAT:- While calculating the exemption on each of the flats eligible for each of the houses, the AO is directed to take into consideration, the capital gains arising on each of the house. As seen from the development agreement, the assessee is having a house having land of 940 sq. yards; another two houses in joint ownership with wife(items No.(ii) and (iii) on page 2 of the Development Agreement) of 222 sq. yards each; and a fourth house having land of 78 sq. yards, being item no (iv) in the Development Agreement. Since the proportion of capital gains vary according to the land included in the total land surrendered to the developer, AO is directed to work out the proportionate capital gains on each house, according to the land involved in that house and allow exemption under each of the houses under S.54. This aspect of working out of capital gains in respect of each of the houses has to be done by the AO, even though the assessee is entitled for exemption in respect of four houses, as part of the development agreement. Therefore, the computation aspect of exemption u/s 54 is restored to the file of the AO.
Action of AO in including the value of three-bed room accommodation for a period of 24 months - HELD THAT:- As the learned counsel submitted that rent being compensation cannot be brought to tax. This contention, however, cannot be accepted, as bearing cost of rent for dispossessing the house used for residence is part of the same agreement, so it requires to be considered while arriving at the sale consideration of the land given for development agreement. Therefore, the action of considering/adopting the value of providing three bedroom accommodation as part of the agreement, in computing the capital gains is accepted. However, the valuation of the rent requires examination. AO is directed to obtain the actual rent payment by the builder and adopt the same value while computing the capital gains. The assessee shall provide the details of actual rent borne by the builder for this purpose. With these directions, this ground is considered as allowed.
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2014 (2) TMI 1414
Dishonor of Cheque - insufficient of funds - dishonest or fraudulent intention on the part of the petitioner at the time of taking the loan or not - civil dispute or criminal offence - offence under Section 420 IPC - HELD THAT:- The principles that have emerged are that in order to sustain a plea of offence under section 420 IPC, the complaint has to show that the accused had dishonest or fraudulent intention at the time the complainant had parted with the property or that the accused by making a representation at or before the time the complainant had parted with property, deceived the complainant and thereby induced the complainant to deliver property and that the accused knew such representation to be false - When allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of culpable intention at the time of making initial promise, no offence under section 420 IPC can be said to be made out.
It appears from the complaint petition that the petitioner and the complainant had shared a friendly relationship for a long time. The petitioner was in need of Rs. 8 lakhs and he requested the complainant to give him a loan for the said amount. Because of the friendship and bona fide need, the complainant advanced the loan to the petitioner on the understanding that loan will be repaid on or before 12.3.2010 and in token of the assurance and promise, the petitioner also issued one cheque for Rs. 8 lakhs. The complainant had deposited the cheque after 12.3.2010 and the same came to be dishonoured for insufficiency of fund - It appears that the petitioner did not harbour any apprehension that the complainant will not pay the amount and that also perhaps explains why he had not initiated proceeding under Negotiable Instruments Act, 1881 and why he had agreed for re-payment of the loan amount on instalment of Rs. 50,000/- per month. As such, no averment or allegation in the complaint was made that there was any fraudulent or dishonest intention on the part of the petitioner at the time of taking of the loan.
From the averments made in the complaint petition and the initial deposition of the complainant, where the complainant only says that accused did not repay the loan as per promise made despite his many requests and as the accused finally refused to re-pay the loan, he had filed the complaint, it appears to me that the dispute between the parties is purely of civil nature arising out of breach of contract. Subsequent refusal to pay the balance amount does not satisfy the ingredients of cheating inasmuch as dishonest intention at the time of initial transaction is lacking. An offence of cheating would be constituted when the accused had fraudulent or dishonest intention at the time of making promise or representation.
Petition allowed.
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2014 (2) TMI 1413
Eviction order - Appellant had raised the point of not being covered under the Public Premises Act, 1971 at all stages - applicability of Public Premises Act - retrospective or prospective application - HELD THAT:- The judgment in Dr. Suhas Pophale's case [2015 (8) TMI 1220 - SUPREME COURT] accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16.9.1958 when the Public Premises Act became applicable. Paragraphs 42 and 65 which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation.
The eviction proceedings initiated against the Appellant will stand set aside - Appeal allowed.
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2014 (2) TMI 1412
Deduction u/s 80P - assessee states itself to be a cooperative society engaged in the business of providing credit facilities to its members and hence falls within the definition of a cooperative bank - Scope of amendment to sec 80P(4) - whether the assessee, a cooperative society providing credit facility to its members is a cooperative bank or not so as to be covered by section 80P(4) of the Act denying deduction aforesaid? - HELD THAT:- We make it clear that the Revenue has failed to file any paper book or evidence so as to prove that the assessee/co-operative society is a co-operative bank whose claim for deduction u/s 80P is hit by sub-section(4). In these circumstances, we uphold the CIT(A)’s order granting deduction to the assessee u/s 80P of the Act and reject contentions of the Revenue.
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2014 (2) TMI 1411
Rectification of mistake - application filled u/s 10(23C) filled to wrong authority - Grievance of the Revenue through this Miscellaneous Application is that the assessee has not filed any application in the office of the CCIT on 13- 03-2006 - HELD THAT:- From the various pages of the paper book, we find the assessee has filed the application in the prescribed form to the CCIT through the office of the CIT which has even been acknowledged by the ITO, Ward- 9(4), Akurdi, Pune vide his letter dated 23-06-2006. We find the Tribunal has already considered the application filed by the assessee. As per the note below Form No.56D the application form should be sent to the CCIT or DG through the CIT or DIT (Exemption) having jurisdiction over the assessee.
Assessee has precisely done the same. The Tribunal after considering the application filed by the assessee through the office of the CIT has taken a view. Therefore, adjudicating the same on the basis of the Miscellaneous Application filed by the Revenue amounts to review of its own order by the Tribunal which is not permissible under the law. We therefore dismiss the Miscellaneous Application filed by the Revenue being devoid of any merit. The Miscellaneous Application filed by the Revenue is accordingly dismissed.
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2014 (2) TMI 1410
Constitutional validity of the Representation of the People (Amendment and Validation) Act, 2013 - Vires of Constitution of India or not - Whether mala fides can be attributed to the Parliament? - HELD THAT:- The impugned Amendment and Validation Act, 2013 was passed by the Parliament by virtue of the powers conferred under the provisions of the Constitution.
It needs no reiteration that mala fides cannot be attributed to the Parliament/Legislature, as has been held by the Apex Court in a catena of decisions. It has been held by the Apex court in K. NAGARAJ / D. SUBBA RAJU VERSUS STATE OF AP. / CHIEF SECY. OF AP. [1985 (1) TMI 337 - SUPREME COURT] that, "The Ordinance-making power, being a legislative power, the argument of mala fides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if no reasons are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of 'transferred malice' is unknown in the field of legislation".
In KC. GAJAPATI NARAYAN DEO VERSUS STATE OF ORISSA [1953 (5) TMI 14 - SUPREME COURT], and it has been held that "The doctrine of Colourable Legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant.
Thus, there is no merit in the submission raised by the petitioner that the impugned Amendment and Validation Act, 2013 is a fraud upon the Constitution.
Whether the Validation and Amendment Act, 2013 is legally permissible? - Can the Legislature make the impugned amendment by enacting a Validating Act, as contended by the petitioner? - HELD THAT:- It is settled principle of law that the Legislature can change the basis on which a decision is given by the Court and, thus, change the law in general, which will affect a class of persons and events at large. The Legislature can render judicial decisions ineffective by enacting a valid law on the topic within its legislative field, fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the Court; if those conditions had existed at the time of declaring the law as invalid.
Through the impugned Validation and Amendment Act, 2013, it is apparent, the Parliament has sought to widen the definition of "Elector", which is more in the nature of curing the defects pointed out by the Court(s) and to obviate any difficulties that have arisen during the course of implementation of the provisions of the RP Act of 1951.
Right to vote is not a constitutional right; it is only a statutory right - Whether the Legislature can determine the terms on which the right to vote is enjoyed by the people of India? - HELD THAT:- It is trite that 'right to vote' is not a fundamental right or constitutional right, but is only a statutory right. The Legislature can determine the terms on which the right to vote is enjoyed by the people of India. Section 62(5) of the RP Act of 1951 explicitly states, "No person shall vote at any election, if he is confined in a prison, or is in the lawful custody of the police - The right to vote is subject to the limitations imposed by the statute, which can be exercised only in the manner provided by the statute and that challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. The very basis of challenge to the validity of sub-Section (5) of Section 62 of the RP Act of 1951 was, therefore, held to be not available.
Through the impugned Amendment and Validation Act, 2013, the Parliament seeks to amend the definition of the term "Disqualified' as defined under Section 7(b) of the RP Act of 1951 and incorporated proviso to sub-Section (5) of Section 62, which deals with "right to vote". The impugned Amendment and Validation Act, 2013 does not deal with disqualification on account of conviction under certain offences as prescribed under Chapter-III of Part-II of the RP Act of 1951.
Constitutional validity of a statute - Whether the impugned Amendment and Validation Act, 2013 is constitutionally valid? - HELD THAT:- In order to examine the constitutionality or otherwise of a statute and/or any of its provisions, one of the most relevant consideration is the object and reasons as well as the legislative history of the statute. It would help the Court in arriving at a more objective and just approach. It would be imperative for the Court to examine the reasons for enactment of a particular statute/provision so as to find out its ultimate impact vis-à-vis other constitutional provisions.
The legislative competence of the Parliament does not come from Articles 102 and 191, but from Articles 246 and 327 read with Entry 72 of List-I, Schedule-VII of the Constitution, according to which, the Parliament is competent to enact laws with respect to the issues mentioned therein. Thus, one of the criteria for determining the constitutional validity of a law, i.e., the competence of the law-making authority, would depend on the ambit of the legislative power and limitation imposed thereon as also on the mode of exercise of such power. In fact, the RP Act of 1951 was also an enactment, which was enacted by the Parliament by exercising such a power flown from Articles 246 and 327 read with Entry 72 of the List-I of the Constitution - Further, the Parliament has the power, rather an exclusive one, under Article 246 of the Constitution to make laws with respect to any of the matters enumerated in the Union List of the Schedule-VII. In exercise of such a power, the Parliament has enacted the impugned Amendment and Validation Act, 2013 and the same cannot be held to be beyond its legislative competence.
There is no legal basis to hold the impugned Amendment and Validation Act, 2013 as unconstitutional.
Whether the Petitioner's plea that criminalisation of politics would gain momentum as the impugned Amendment and Validation Act, 2013 is a case of remedy being worse than the disease? - HELD THAT:- This Court is also of the view that the petitioner's plea to bar any person who is in jail or in police custody from contesting an election on the ground that it would lead to criminalisation of politics is a case of the remedy being worse than the disease. Extending curtailment of the right to vote of a person in prison to the right to stand in election would, in our opinion, leave the door open for practice of 'vendetta politics' by ruling parties. All that a politician/ruling party-in-power would need to do to prevent rivals from contesting an election, is to ask the police to file a case and to arrest the rivals.
Impugned Amendment and Validation Act, 2013 is consistent with the principle of universal suffrage and the presumption of innocence of the accused until proven guilty or not - HELD THAT:- One must distinguish between convicted prisoners on the one hand and the under trials on the other. Further, as our criminal justice system is based on the principle of 'innocent until proven guilty', we cannot presume our under trials in custody to be guilty as far as right to contest elections is concerned. In fact, Rule 84(2) of the United Nations Standard Minimum Rules for Treatment of Prisoners mandates that prisoners who have not been convicted should be presumed as innocent and treated as such - the impugned Amendment and Validation Act, 2013 is consistent with the principle of universal and equal suffrage and the presumption of innocence of the accused until proven guilty.
The impugned Amendment and Validation Act, 2013 is within the legislative competence of the Parliament. In fact, by the impugned Amendment and Validation Act, 2013, the Parliament has by explicit words overruled the intent which had been read by implication by the Courts into Section 62(5) and consequently, changed the basis of "Court's decision" and is, thus, valid - Petition dismissed.
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2014 (2) TMI 1409
Nature of expenditure - capital or revenue expenses - expenditure incurred was towards repair/replacement of cost of nozzles, buckets, shrouds, bearings, transition pieces and combustion liners which are parts of gas turbines - HELD THAT:- There is no replacement of the gas turbine as a whole but certain repair and replacement to some of the parts of the gas turbine, which does not result in bringing into existence a new asset of enduring nature, rather, the repair and maintenance are of recurring nature and essentially required for smooth running of business of the assessee i.e, generation of power. The other decision of the Hon’ble Supreme Court relied upon by the learned D.R. in the case of CIT V/s. Sri Mangayarkarasi Mills (P) Ltd. [2009 (7) TMI 17 - SUPREME COURT] also following the decision in the case of CIT V/s. Saravana Spinning Mills [2007 (8) TMI 16 - SUPREME COURT] has laid down the same proposition of law. On the other hand, the decisions relied upon by the assessee as noted in the order of the CIT(A) clearly supports the view that the expenditure incurred by the assessee cannot be treated as capital expenditure. Thus we direct the Assessing Officer to delete the addition made on account of disallowance of expenditure.
Addition on account of social welfare expenditure - Revenue or capital expenditure - HELD THAT:- A perusal of the assessment order makes it clear that the Assessing Officer admits the fact that the community hall is in the control of Village Panchayat as its ultimate asset. In such view of the fact it cannot be held that it is a capital expenditure as there is no capital asset created by the assessee for it. That besides, as has been rightly held by the CIT(A) social welfare expenditures incurred by a company helps in improving the working with the native people of the nearby area and it also improves the condition of the area inhabited by its employees and others. Therefore, such social welfare expenditures are to be allowed as business expenditure.
As in Karnataka Financial Corporation [2009 (12) TMI 410 - KARNATAKA HIGH COURT] held that the amount spent by the Corporation towards development of model villages has to be considered as expenditure incurred towards his business promotion and therefore, allowable as a business expenditure. Therefore, considering the totality of facts and circumstances, we are of the view that the CIT(A) was justified in deleting the addition.
Addition of prior period expenditure - A.O. held that as the expenditure has apparently accrued and chargeable to those years as per the clauses of term loan agreement between the parties and the expenditure is apparently interest and penal interest for nonpayment/ deferment by the assessee, the same is not an expenditure allowable for the year - HELD THAT:- After going through the order of the CIT(A) we do not find any infirmity in his finding. As can be seen from the facts on record, the payment of interest on term loan was because of a settlement reached with the bank. It is not the case of the Assessing Officer that the interest paid was either claimed or allowed as expenditure in the earlier years. Therefore, the deduction certainly can be allowed under section 43B of the Act when the amount was actually paid by the assessee. CIT(A) having found that the assessee has paid an amount during the year out of the total expenditure the same has rightly been allowed as a deduction. Accordingly, we confirm the order of the CIT(A) and dismiss the ground raised by the department.
Addition of claims raised towards surcharge - HELD THAT:- Reasoning of the CIT(A) that the assessee had taken unilateral decision for waiver of the surcharge is not correct. That besides, when A.P. Transco is contesting the levy of surcharge, which is very much evident from its letter under reference, and demanding for withdrawal of the levy there is no other option on the part of the assessee but to waive the surcharge levied. In this view of the matter, we are of the view that CIT(A) was not justified in rejecting the claim of the assessee. We, therefore, direct the Assessing Officer to allow the expenditure since the decision to waive the surcharge is taken during the financial year relevant to the assessment year under dispute and the amount has been written off during the year in the books of the assessee. The ground raised is therefore, allowed.
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2014 (2) TMI 1408
Revision u/s 263 - CIT directing AO to make verification/investigation on cash gifts - HELD THAT:- Ld. CIT had not applied his mind but the matter was referred by the AO for initiating the proceeding under section 263 - In the present case it is noticed that the notice dated 17/01/2013 under section 263 of the Act was issued only on receipt of the proposal under section 263 from the ITO, Ward-2(2), Kota and the assessee explained, vide written submission which has been reproduced in para 4 of the impugned order, each and every objection raised by the ITO, Ward-2(2), Kota.
It is well settled that the Ld. CIT while exercising the revisionary powers under section 263 of the Act may call for and examine the records of any proceedings and thereafter if he considers that any order passed therein is erroneous insofar as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justified. Therefore, before taking any action, Ld. CIT himself shall apply his mind after examining the record of any proceedings and his satisfaction is must
As in the present case, the satisfaction was of the ITO (Tech.) who proposed action under section 263 of the Act, but not of the Ld. CIT. Therefore, issuance of notice under section 263 of the Act on the basis of the proposal made by the ITO was void ab initio. We, therefore, set aside the same. Appeal of assessee allowed.
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2014 (2) TMI 1407
Seeking withdrawal of Look Out Circular - fundamental right to travel abroad - HELD THAT:- It cannot be lost sight of that the settled law is that 'Right to Travel Overseas' is a 'Fundamental Right' guaranteed under Article 21 of the Constitution of India, which was held so, in the decision of the Hon'ble Supreme Court in Satwant Singh Sawhney V. D. Ramarathnam, [1967 (4) TMI 196 - SUPREME COURT] and also the same was reiterated in the decision of the Hon'ble Supreme Court in Maneka Gandhi V. Union of India, [1978 (1) TMI 161 - SUPREME COURT].
It cannot be gainsaid that the law of one's right to travel abroad is governed by the tenor and spirit of the Passports Act, 1967 (15 of 1967). Indeed, Section 3 of the Act under the caption 'Passport or travel document for departure from India' specifies that 'No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document' - Section 6 of the Passports Act, 1967 speaks of 'Refusal of Passports, travel documents', etc. In fact, sub-clause (1) of Section 6 of the Passports Act, 1967 enumerates the grounds on which an endorsement on a passport or travel document for visiting any foreign country shall be refused. Likewise, sub-clause (2) also mentions the grounds on which the passport or travel document for visiting any foreign country shall be refused.
It is to be borne in mind that neither Charge Sheet nor Final Report is defined under the Criminal Procedure Code. In whatever term it is mentioned viz., Charge Sheet or Final Report it only means a 'Report' under Section 173 Cr.P.C. which has to be filed by the concerned Police Officer on completion of his investigation. It cannot be gainsaid that the Charge Sheet/Final Report is filed so as to enable the concerned Court of Law to apply its mind whether cognizable offence thereupon ought to be taken or not. The report is ordinarily filed in prescribed format.
The Charge Sheet is nothing but a Final Report of Police Officer under Section 173(2) Cr.P.C. The said report is an intimation to the Magistrate that upon investigation into a cognizable offences, the Investigating Officer was able to procure sufficient evidence for a Court to enquire into the offence. No wonder, the Magistrate must give notice and opportunity of hearing to the Informant before accepting the final report or closing the same - one cannot ignore an important fact that if the Investigating Officer finds sufficient evidence even against an absconding accused, the law does not require the filing of charge sheet must await the arrest of the said accused.
The Look Out Circular which was originally issued by the 1st Respondent on 06.10.2012 and opened for a year against the Petitioner, was further extended for six months period till 26.05.2014 by the Bureau of Immigration, (MHA) Government of India, Chennai 6 as per letter dated 27.01.2014, in terms of the request received from the 1st Respondent dated 16.12.2013.
Admittedly, as against the Petitioner/A2 the investigation is pending in respect of the Crime No. 304 of 2012 originally on the file of the 3rd Respondent and later on transferred to the file of 2nd Respondent. It is the stand of the Respondents that only because of the attitude of the Petitioner/A2, they are unable to proceed further in regard to the investigation of the case - the LOC can be withdrawn by the authorities concerned, who issued the same. Indeed, the Criminal Court's jurisdiction in cancelling LOC or affirming the same is quite in tune with the jurisdiction of cancellation of Non Bailable Warrant.
Petition dismissed.
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