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2009 (3) TMI 1092
Petition filled without pre-deposit - appeals are pending - Act was amended deleting the condition for pre-deposit for entertaining the appeal - notices issued to the Petitioner to make the deposit of the 50% of the total demand - Entertain' - sale of petroleum products- High Speed Diesel & lubricants - entry tax on the scheduled goods - HELD THAT:- It is the settled legal proposition that taxing statute must be construed strictly. Manish Maheshwari v. Asst. CIT and Ors.[2007 (2) TMI 148 - SUPREME COURT]; The purpose of imposing the pre-deposit condition is that right of appeal may not be abused by any recalcitrant party & there may not be any difficulty in enforcing the order appealed against if ultimately it is dismissed. There must be speedy recovery of the amount of tax due to the authority.
'Entertain' means either "to deal with or admit to consideration". 'Entertain' means when it is admitted & the matter is kept under consideration for hearing i.e. for consideration on merit. State of Haryana v. Maruti Udyog Ltd. and Ors.[2000 (9) TMI 946 - SUPREME COURT].
In CIT, Bombay v. Filmistan Limited [1961 (2) TMI 2 - SUPREME COURT], the Supreme Court examined a case where appeal under the provisions of Income Tax Act, 1922 was filed within limitation without meeting requirement of pre-deposit condition. However, tax was paid after the period of limitation prescribed for presenting the appeal. The provisions read that "no appeal shall lie" in view of the proviso to Section 30(1) of the Income Tax Act & it mean that appeal could not be held have been properly filed until tax was paid & any memorandum of appeal could not be presented.
In view of the above, law can be summarised that if a condition of pre-deposit is imposed, a party while filing the appeal is bound to meet the requirement of the pre-deposit condition. However, it will depend upon the language of statutory provisions & particularly the words use therein as to whether the memo of appeal can be presented/filed or instituted without meeting the pre-deposit condition.
In case "entertaining" the appeal is not permissible, the appeal can be filed, but may not be heard on merit unless the pre-deposit condition is met. The pre-deposit condition is imposed to regulate the procedure of appeal. Therefore, in such an eventuality, where there is no prohibition for filing the memorandum of appeal without meeting "the pre-deposit condition, the appeal can be heard only after meeting it.
In the instant case, as the provision of the pre-deposit condition for entertaining the appeal has been deleted prior to entertaining the appeal being a procedural matter, the amendment would apply retrospectively. The instant case is squarely covered by the Judgment of the Hon'ble Supreme Court in Lakshmi Rattan Engineering Works Ltd.[1967 (9) TMI 116 - SUPREME COURT].
The Writ Petition succeeds & is allowed. The impugned notices dated 28th November, 2006 in connection with Second Appeal are quashed.
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2009 (3) TMI 1091
The Delhi High Court dismissed the appeal as no substantial question of law arose for consideration, citing previous judgments that favored the taxpayers.
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2009 (3) TMI 1090
Issues involved:
1. Addition made by Assessing Officer on account of alleged Benami concerns
2. Non-deposit of ESI and PF within time
Issue 1: Addition made by Assessing Officer on account of alleged Benami concerns
The appellant/department challenged the Income-tax Appellate Tribunal's order partly allowing the assessee's appeal for the assessment years 1991-92 and 1993-94. The controversy revolved around additions made by the Assessing Officer in the assessee's total income due to alleged Benami concerns. It was noted that similar additions were made for the assessment years 1989-90 and 1990-91. The CIT (Appeals) had set aside the addition for 1989-90 and deleted it for 1990-91, concluding that most companies were not Benami of the assessee. The Tribunal found that since the finding for 1990-91 had become final, there was no basis to set aside the issue for 1989-90 as requested by the Department. The order was upheld as the CIT (Appeals) decision for the earlier assessment year had already become final.
Issue 2: Non-deposit of ESI and PF within time
In the appeal for the assessment year 1993-94, it was argued that the ESI and PF deductions were not deposited on time, thus making the deduction unavailable to the assessee-company. Citing a Division Bench Judgment in CIT v. Modi Spg. & Wvg. Mills Co. Ltd., it was contended that if the deposits were made within the extended period, the deductions should be allowed. The appellant/Department acknowledged that the deposits were made within the extended period in this case, rendering the ground for appeal meritless. Consequently, the appeals were dismissed.
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2009 (3) TMI 1089
Issues Involved:
1. Enforcement of guidelines for financial assistance and recognition of National Sports Federations (NSFs).
2. Allegations of mismanagement and financial irregularities in the Indian Hockey Federation (IHF).
3. Legislative competence of the Union of India to regulate sports.
4. Maintainability of writ petition against a private body like IHF.
5. Validity and binding nature of the guidelines dated 14th August 2001.
6. Tenure restriction of office bearers in NSFs.
7. Issuance of writ of mandamus to enforce non-statutory guidelines.
8. Issuance of writ to compel the government to legislate.
Issue-wise Detailed Analysis:
1. Enforcement of Guidelines for Financial Assistance and Recognition of NSFs:
The petitioner sought enforcement of guidelines framed by the respondent for financial assistance and recognition of NSFs, claiming they were binding. The petitioner alleged that IHF, recognized and financially assisted under these guidelines, failed to comply with them. The court noted the guidelines were issued to ensure financial discipline and proper utilization of funds provided by the government.
2. Allegations of Mismanagement and Financial Irregularities in IHF:
The petitioner, a member of the Jammu & Kashmir Hockey Association, raised grievances about mismanagement and financial irregularities in IHF, including unauthorized telephone, travel, and miscellaneous expenses. Despite complaints to the respondent, no action was taken. The court directed the respondent to investigate the complaints and take appropriate action as per the guidelines.
3. Legislative Competence of the Union of India to Regulate Sports:
The respondents argued that sports fell under the State List (Entry 33, List II), and the Union Government had no legislative competence to regulate it. The court, however, held that the Union Government could legislate on national and international sports under Entries 10 and 13 of List I and Entry 25 of List III. The court also noted that the guidelines were issued under executive powers and were binding.
4. Maintainability of Writ Petition Against a Private Body like IHF:
The respondents contended that IHF, being a private body, was not amenable to writ jurisdiction. The court rejected this argument, stating that IHF performed public functions and duties, and thus, was subject to judicial review under Article 226 of the Constitution. The court emphasized that the nature of the duty, not the form of the body, was relevant for determining amenability to writ jurisdiction.
5. Validity and Binding Nature of the Guidelines Dated 14th August 2001:
The respondents claimed the guidelines were merely draft guidelines and not binding. The court found no evidence to support this claim and held that the guidelines were valid and binding. The court noted that the guidelines were issued with the approval of the Ministry of Finance and were applicable for recognition and financial assistance to NSFs.
6. Tenure Restriction of Office Bearers in NSFs:
The guidelines included a tenure restriction for office bearers, limiting them to two consecutive terms of four years each. The respondents argued that this restriction violated their constitutional rights under Article 19. The court rejected this argument, citing precedents where similar tenure restrictions were upheld as reasonable and necessary to prevent vested interests and ensure democratic functioning of associations.
7. Issuance of Writ of Mandamus to Enforce Non-Statutory Guidelines:
The respondents argued that non-statutory guidelines could not be enforced through a writ of mandamus. The court held that while non-statutory guidelines might not create enforceable rights, the government was bound to act fairly and consistently with its guidelines. The court directed the respondent to investigate the petitioner's complaints and take appropriate action as per the guidelines.
8. Issuance of Writ to Compel the Government to Legislate:
The respondents contended that no writ could be issued to compel the government to legislate. The court agreed, stating that it could not direct the government to enact legislation. However, the court noted that the guidelines were issued under executive powers and were binding for the purposes of recognition and financial assistance to NSFs.
Conclusion:
The court directed the respondent to investigate the petitioner's complaints regarding mismanagement and financial irregularities in IHF and take appropriate action as per the guidelines. The court upheld the validity and binding nature of the guidelines dated 14th August 2001, including the tenure restriction for office bearers. The court also affirmed that IHF, performing public functions, was amenable to writ jurisdiction under Article 226.
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2009 (3) TMI 1088
Issues involved:
The issues involved in this case include the liability of the insurance company to reimburse the owner for damages, the validity of the driver's license at the time of the accident, and the burden of proof regarding the driver of the vehicle.
Judgment Summary:
Issue 1: Liability of Insurance Company
The appellant's tractor hit a person resulting in death, and an award was passed in favor of the claimants. The insurance company contended that it had no liability due to the driver not holding a valid license. The Tribunal framed issues regarding the accident, damages, and maintainability of the claim. The High Court upheld the award, stating the insurance company was not liable due to the driver's lack of a valid license.
Issue 2: Validity of Driver's License
The appellant held a learner's license that expired before the accident, and a regular license was granted after the accident. The Court distinguished between a learner's license and a regular license, emphasizing the need for a valid license at the time of the accident. The insurance company was not obligated to reimburse the owner as the learner's license had expired.
Issue 3: Burden of Proof
The appellant claimed he was not driving the vehicle, shifting the burden of proof to him. However, he failed to prove this claim, and evidence indicated he was driving. The insurance company argued the appellant did not have a valid license, relieving them of liability. The Court found no merit in the appeal and dismissed it without costs.
This judgment clarifies the importance of a valid driver's license at the time of an accident for insurance liability and emphasizes the burden of proof on the parties involved.
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2009 (3) TMI 1087
Issues Involved:
1. Whether Section 2 of the Forest (Conservation) Act, 1980 is prospective in operation.
2. Whether the Government of Kerala could grant pattas/leasehold rights to unauthorized occupants/encroachers of forest land without prior approval of the Central Government.
3. The legality of the Kerala Land Assignment (Regularization of Occupation of Forest Lands Prior to 1.1.1977) Special Rules, 1993.
4. The validity of the policy decision taken by the Government of Kerala to regularize unauthorized occupation/encroachment of forest land.
5. The necessity of compensatory afforestation schemes.
6. The locus standi of the appellant to invoke jurisdiction under Article 226 of the Constitution of India.
7. The compliance of the Government of Kerala with the conditions imposed by the Central Government for regularization of forest land.
Detailed Analysis:
1. Prospective Operation of Section 2 of the Forest (Conservation) Act, 1980:
The Supreme Court analyzed whether Section 2 of the 1980 Act, which restricts the de-reservation of forests or use of forest land for non-forest purposes without prior approval of the Central Government, is prospective in operation. The Court held that the 1980 Act is applicable to all forests irrespective of ownership or classification and that no State Government or authority can pass an order for de-reservation or use of forest land for non-forest purposes without prior approval of the Central Government after 25.10.1980. The Court emphasized that the object of the 1980 Act is the conservation of forests and to prevent depletion thereof.
2. Grant of Pattas/Leasehold Rights Without Prior Approval:
The Court considered whether the Government of Kerala could grant pattas/leasehold rights to unauthorized occupants/encroachers of forest land without prior approval of the Central Government. The Court concluded that after the enforcement of the 1980 Act, the State Governments were denuded of the power to deal with reserved forests or forest land and permit use thereof for non-forest purposes without obtaining prior approval of the Central Government. The Court held that any such action taken by the State Government without prior approval is legally unsustainable.
3. Legality of the 1993 Rules:
The Supreme Court examined the legality of the Kerala Land Assignment (Regularization of Occupation of Forest Lands Prior to 1.1.1977) Special Rules, 1993. The Court upheld the validity of the 1993 Rules, noting that they were framed for the regularization of unauthorized occupation/encroachment of forest lands subject to certain conditions, including payment for the value of the land and compensatory afforestation.
4. Validity of the Policy Decision by the Government of Kerala:
The Court reviewed the policy decision taken by the Government of Kerala to regularize unauthorized occupation/encroachment of forest land. The Court found that the State Government had taken a policy decision to regularize such occupations made prior to 1.1.1977 and had obtained approval from the Central Government for the diversion of 28,588.159 hectares of forest land. The Court upheld the High Court's decision that the policy decision did not suffer from any legal infirmity.
5. Compensatory Afforestation Schemes:
The Court considered the necessity of compensatory afforestation schemes as a condition for regularizing unauthorized occupation/encroachment of forest land. The Court noted that the State Government had assured sufficient funds for compensatory afforestation and had formulated a scheme covering an area of 57,180 hectares of degraded forest land. The Court emphasized the importance of compensatory afforestation to mitigate the impact of regularizing forest land for non-forest purposes.
6. Locus Standi of the Appellant:
The Full Bench of the High Court held that the appellant, a society formed for the protection of the environment and ecology, had the locus to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. The Supreme Court did not find any reason to interfere with this finding.
7. Compliance with Conditions Imposed by the Central Government:
The Court examined whether the Government of Kerala had complied with the conditions imposed by the Central Government for regularization of forest land. The Court noted that the Central Government had granted conditional approval for regularization subject to ground verification, demarcation, and compensatory afforestation. The Court held that the State Government had taken steps to comply with these conditions and that any future decisions regarding the assignment of additional forest land must also comply with the conditions and obtain prior approval from the Central Government.
Conclusion:
1. The policy decision taken by the Government of Kerala to assign 28,588.159 hectares of forest land to unauthorized occupants/encroachers after seeking approval from the Central Government does not suffer from any legal infirmity.
2. After the enforcement of the 1980 Act, neither the State Government nor any other authority can make an order or issue direction for de-reservation of reserved forest or any portion thereof or permit use of any forest land for any non-forest purpose or assign any forest land or any portion thereof by way of lease or otherwise to any private person or to any authority, corporation, agency, or organization not owned, managed, or controlled by the Government except after obtaining prior approval of the Central Government.
3. The conclusion by the High Court that the 1980 Act is prospective and not applicable to pre-25.10.1980 use of forest land for non-forest purposes is legally unsustainable and is set aside.
4. Any future decision by the State Government to assign 10,000 hectares of forest land to unauthorized occupants/encroachers must be done only after obtaining prior approval of the Central Government, and the latter shall take appropriate decisions keeping in view the object of the 1980 Act and the guidelines framed for regularization of encroachments on forest land.
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2009 (3) TMI 1086
Issues involved:
The issues involved in this case are the rejection of applications under Section 91 Cr.P.C. and Section 311 Cr.P.C., the refusal to produce certain documents, and the subsequent appeal under Section 397 Cr.P.C.
Summary:
Issue 1: Rejection of applications under Section 91 Cr.P.C. and Section 311 Cr.P.C.
The appellant filed a criminal complaint under Section 200 of the Cr.P.C. regarding a bounced cheque. During the trial, the respondent filed applications under Section 91 Cr.P.C. and Section 311 Cr.P.C. seeking the production of certain documents and recalling the witness for cross-examination. The Trial Court rejected these applications. However, the High Court allowed the respondent's Criminal Revisions without issuing notice to the appellant. The Supreme Court found this action illogical as the appellant should have been given a hearing to contest the production of personal documents. The order of the High Court was set aside on this ground.
Issue 2: Nature of the Trial Court's Orders
The Trial Court's orders refusing to call the documents and rejecting the application under Section 311 Cr.P.C. were deemed interlocutory. The Trial Court had already established that the cheque was signed by the respondent, and the defense raised was regarding the loss of signed cheques. The Trial Court's finding that the documents were unnecessary indicated that the orders were of an interlocutory nature. Therefore, the revision against these orders was not maintainable under Section 397(2) Cr.P.C. The High Court's interference in its revisional jurisdiction was deemed incorrect in law, leading to the setting aside of the impugned judgment by the Supreme Court.
In conclusion, the Supreme Court allowed the appeals, setting aside the High Court's order that had allowed the respondent's Criminal Revisions without giving the appellant a fair hearing and highlighting the interlocutory nature of the Trial Court's orders.
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2009 (3) TMI 1085
Issues involved:
The petition seeks court sanction for a scheme of amalgamation between two companies. The key issues include compliance with procedural requirements, approval of shareholders, potential violations of Sections 295 and 297 of the Companies Act, and the validity of resolutions passed by the board of directors.
Compliance with Procedural Requirements:
The petitioners, part of the same group, propose amalgamation due to the transferor company's sustained losses and dependence on the transferee company for financial resources. The scheme aims to integrate operations, reduce costs, and enhance capacity for future expansion. Meetings of equity shareholders, secured creditors, and unsecured creditors were dispensed with, and necessary notices were served. The Official Liquidator affirms proper conduct of the transferor company's affairs.
Approval of Shareholders:
Equity shareholders of both companies unanimously approved the scheme, and no opposition was raised by members or creditors. The Regional Director, except for potential violations of Sections 295 and 297, found the scheme non-prejudicial to shareholders and the public. The court noted that the violations did not affect the scheme's legitimacy or propose any mala-fide intentions.
Potential Violations of Sections 295 and 297:
The Regional Director highlighted potential violations by the companies, prompting the need for penal action. The court clarified that mere violations of these sections do not automatically invalidate a scheme of arrangement under the Companies Act. The court scrutinized the violations, including loans granted by the transferee company to entities involving interested directors, but found no fraudulent intent or scheme protection.
Validity of Resolutions by Board of Directors:
Concerns were raised regarding the validity of resolutions due to disqualification of directors under Section 283(1)(h) of the Companies Act. The court analyzed the quorum requirements and applicability of Section 290 to save resolutions. Even if directors were disqualified, the resolution was deemed valid, and the court emphasized that scheme approval does not absolve liability for violations.
Conclusion:
The court made both Company Petitions absolute, directing the lodgment of the order and scheme for stamp duty adjudication. Costs were allocated to the parties involved, and the drawn-up order filing was dispensed with. The court instructed all relevant authorities to act upon the authenticated order copy.
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2009 (3) TMI 1084
Issues Involved:
1. Application for impleadment as plaintiff No. 2.
2. Right to unconditional withdrawal of the suit.
3. Interest of the petitioner in the subject matter of the suit.
4. Applicability of Section 52 of the Transfer of Property Act (T.P. Act).
5. Payment of Court-fees by the petitioner.
Summary:
1. Application for Impleadment as Plaintiff No. 2:
The petitioner filed an application u/s Order 1, Rule 10 and Order 22, Rule 10 of the Civil Procedure Code (C.P.C.) to be impleaded as plaintiff No. 2 in Special Civil Suit No. 89 of 2006. The trial Court rejected this application, which was challenged in this petition. The petitioner argued that he had purchased the suit land from the original plaintiff and was interested in the relief prayed for in the suit. The Court found that the petitioner was not a stranger but had a substantial interest in the subject matter of the suit and the relief sought.
2. Right to Unconditional Withdrawal of the Suit:
The original plaintiff's heirs filed a pursis to withdraw the suit unconditionally. The Court observed that an unwilling litigant cannot be compelled to continue with litigation. However, the Court distinguished between withdrawal of the suit and withdrawal from the suit, allowing the original plaintiff to detach himself from the litigation while permitting the petitioner to proceed with the suit as plaintiff No. 2.
3. Interest of the Petitioner in the Subject Matter of the Suit:
The petitioner argued that the sale-deed dated 29-1-2005, which was challenged in the suit, affected his subsequent purchase of the suit land. The Court agreed that the petitioner had a legitimate interest in the cause of action and the relief sought in the suit, making him a proper party to the litigation.
4. Applicability of Section 52 of the Transfer of Property Act (T.P. Act):
The respondents contended that the petitioner's purchase was hit by Section 52 of the T.P. Act (doctrine of lis pendens). The Court referred to the Supreme Court's decision in Amit Kumar Shaw v. Farida Khatoon, which held that a transferee pendente lite could be joined as a party if his interest in the subject matter was substantial. The Court found that the petitioner's interest was substantial and not just peripheral.
5. Payment of Court-fees by the Petitioner:
The respondents argued that the petitioner could not be impleaded without paying Court-fees. The Court held that technical or procedural issues like Court-fees should not prevent the petitioner from being impleaded. The Court stated that Civil Courts have ample powers to address such issues within the four corners of the law.
Conclusion:
The petition was allowed, and the impugned order dated 10-9-2007 was quashed and set aside. The petitioner was permitted to be impleaded as plaintiff No. 2 in Special Civil Suit No. 89 of 2006. The Court made the rule absolute with no order as to costs. The request for a stay of the order was denied.
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2009 (3) TMI 1083
Issues involved: Appeal against refusal of registration u/s.12AA of the I.T. Act, 1961 due to admixture of religious and non-religious objects in the trust.
Summary:
1. The appellant, a trust, sought registration u/s.12AA with objects including religious and charitable activities. Respondent denied registration citing admixture of religious and non-religious objects.
2. Appellant argued that there is no prohibition for a trust to have both religious and charitable objects for exemption u/s.11. Various case laws supported this claim.
3. Respondent contended that satisfaction of charitable or religious objects is a condition precedent for registration u/s.12AA. Definition of charitable purpose u/s.2(15) was highlighted.
4. Tribunal found the objects other than the disputed clauses to be charitable. Trusts with both religious and charitable objects are entitled to exemption u/s.11 as per relevant case law.
5. Tribunal directed respondent to grant registration u/s.12AA to the appellant.
Conclusion: The appeal was allowed, and registration u/s.12AA of the Act was directed to be granted to the appellant trust.
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2009 (3) TMI 1082
Issues Involved:
1. Acquittal by the trial court.
2. High Court's interference with the trial court's acquittal.
3. Legal principles governing appeals against acquittal.
4. Evidence evaluation and credibility of witnesses.
Issue-wise Detailed Analysis:
1. Acquittal by the Trial Court:
The trial court acquitted the appellants, who were accused of offenses under Sections 304B, 306, and 498A read with Section 34 of the IPC. The trial court held that the Investigating Officer, being the complainant, should not have conducted the investigation, thereby tainting the prosecution's case. Additionally, the trial court found the evidence of the witnesses unconvincing.
2. High Court's Interference with the Trial Court's Acquittal:
The High Court reversed the trial court's acquittal, finding the conclusions erroneous. The High Court held that the appellants were guilty of offenses punishable under Sections 306 and 498A IPC. However, the High Court did not record a finding that the trial court's conclusions were perverse or unsupported by reasons.
3. Legal Principles Governing Appeals Against Acquittal:
The Supreme Court reiterated that Section 378 of the Code of Criminal Procedure, 1973, allows the State to appeal against an acquittal. The appellate court has full power to re-appreciate, review, and reconsider the evidence. However, there is a double presumption in favor of the accused: the presumption of innocence and the reinforcement of this presumption by the acquittal. The appellate court must bear in mind that it should not interfere with an acquittal unless the trial court's judgment is palpably wrong, manifestly erroneous, or demonstrably unsustainable.
4. Evidence Evaluation and Credibility of Witnesses:
The Supreme Court analyzed the evidence presented by the prosecution, particularly the testimony of PW-2 (the mother of the deceased). PW-2 stated that the accused were harassing the deceased for dowry and had given a cheque of Rs. 10,000/- to the accused. The defense argued that the cheque was given for truck repairs, not as dowry. The trial court found the defense more probable, creating doubt about the prosecution's case. The High Court's reasoning that there was no evidence showing A-1 owned a truck was contrary to the evidence on record.
The Supreme Court emphasized that the High Court failed to analyze the trial court's conclusions properly and did not provide substantial reasons for reversing the acquittal. The Supreme Court concluded that the High Court's interference with the acquittal was incorrect.
Conclusion:
The Supreme Court set aside the High Court's judgment, reinstating the trial court's acquittal. The bail bonds executed pursuant to the Court's order were discharged, and the appeal was allowed. The judgment underscores the importance of the double presumption of innocence in favor of the accused and the necessity for appellate courts to provide compelling reasons when overturning an acquittal.
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2009 (3) TMI 1081
Issues Involved:
1. Legality of the CIT's order u/s 263.
2. Time limit for passing a revisionary order u/s 263.
3. Applicability of MAT provisions u/s 115JB.
4. Treatment of provisions for NPA and Standard Assets.
Summary:
1. Legality of the CIT's order u/s 263:
The appellant challenged the CIT's order dated 28.03.2011, passed u/s 263 of the Income-tax Act, 1961, for AYs 2003-04 and 2004-05. The CIT had revised the AO's order passed u/s 250, asserting that the original assessment order ceased to exist once the appellate order was passed. The CIT held that the NPA provision had to be added back while computing book profits u/s 115JB of the Act. The appellant contended that the CIT's revision was not tenable on both merits and technical grounds, arguing that the AO's order was neither erroneous nor prejudicial to Revenue.
2. Time limit for passing a revisionary order u/s 263:
The Tribunal examined whether the CIT's order dated 28.03.2011 was barred by the time limit prescribed u/s 263(2) of the Act. The original assessment order was passed on 16.03.2005, and the CIT had jurisdiction to invoke his revisionary power till the end of the Financial Year 2007. Since the CIT passed the order u/s 263 on 28.03.2011, it was beyond the time limit allowed by the Act. The Tribunal quashed the CIT's order, stating it was without jurisdiction.
3. Applicability of MAT provisions u/s 115JB:
For AY 2006-07, the CIT directed the AO to modify the order u/s 154 to add back the provision for Standard Assets to the book profits computed under MAT provisions. The appellant argued that the provisions of Section 115JB were not applicable to them. The Tribunal referred to previous decisions, including Union Bank of India and Kurung Thai Bank PCL, which held that MAT provisions do not apply to certain entities. The Tribunal concluded that the provisions of Section 115JB were not applicable to the appellant, thus rendering the CIT's order u/s 263 invalid.
4. Treatment of provisions for NPA and Standard Assets:
The CIT held that the AO failed to include the provision for NPA while computing book profits u/s 115JB. The appellant argued that the amount was a write-off, not a provision. The Tribunal found that the CIT's reliance on certain cases was not relevant to the issue at hand. For AY 2006-07, the CIT directed the AO to add back the provision for Standard Assets, which the appellant contended was not a provision made for diminution in the value of assets. The Tribunal upheld the appellant's position, stating that the CIT's order was not in conformity with the law.
Conclusion:
The appeals filed by the appellant for AYs 2003-04, 2004-05, and 2006-07 were allowed. The Tribunal quashed the CIT's orders u/s 263, holding them to be barred by the time limit and not in conformity with the law. The Tribunal also ruled that the provisions of Section 115JB were not applicable to the appellant.
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2009 (3) TMI 1079
1. ISSUES PRESENTED and CONSIDERED The legal judgment involves several core issues related to the Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA) concerning the grant of bail: - Whether the appellants are entitled to bail under Section 439 Cr.P.C. and Section 20(8) of TADA, given the circumstances of their detention and the evidence against them.
- The impact of procedural irregularities, specifically the lack of prior approval under Section 20A(1) of TADA before filing the First Information Report (FIR).
- The relevance and reliability of the confessional statements obtained from the appellants, which were allegedly coerced.
- The principle of parity in granting bail, particularly for laborers involved in the alleged offenses without knowledge of the contents of the materials they handled.
- The broader constitutional considerations under Articles 21, 14, and 19 regarding the right to a speedy trial and personal liberty.
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Entitlement to Bail under TADA - Relevant Legal Framework and Precedents: The court considered the stringent provisions of TADA and the precedents set by cases such as Kartar Singh v. State of Punjab and Shaheen Welfare Association v. Union of India, which emphasize caution in granting bail under TADA.
- Court's Interpretation and Reasoning: The court acknowledged the appellants' prolonged detention and the lack of concrete evidence, such as recoveries, against them. It weighed the balance between individual liberty and the need to prevent terrorism.
- Key Evidence and Findings: The confessional statements were the primary evidence, but their reliability was questioned due to allegations of coercion.
- Application of Law to Facts: The court considered the appellants' detention period and the likelihood of their sentence being completed during trial, favoring bail.
- Treatment of Competing Arguments: The court addressed the state's argument on the sufficiency of confessions under TADA but found the procedural lapses and lack of substantial evidence persuasive for granting bail.
- Conclusions: Bail was granted to the appellants, considering the procedural irregularities and the principle of parity with other accused who were granted bail.
Issue 2: Procedural Irregularities under Section 20A(1) of TADA - Relevant Legal Framework and Precedents: Section 20A(1) of TADA mandates prior approval from the District Superintendent of Police before recording an FIR. The case of Mukhtiar Ahmed Ansari v. State (NCT of Delhi) was referenced for its interpretation of this requirement.
- Court's Interpretation and Reasoning: The court noted the absence of prior approval before the FIR, which vitiated the proceedings under TADA.
- Key Evidence and Findings: The discrepancy in the dates of the FIR and the approval was critical in the court's decision.
- Application of Law to Facts: The procedural lapse was deemed significant enough to warrant bail, as it undermined the legality of the proceedings.
- Treatment of Competing Arguments: The state's attempt to justify the procedural lapse was insufficient to counter the established legal requirement.
- Conclusions: The court granted bail, emphasizing the need for strict adherence to procedural safeguards under TADA.
Issue 3: Reliability of Confessional Statements - Relevant Legal Framework and Precedents: The admissibility and reliability of confessions under TADA were scrutinized, with references to past judgments emphasizing caution in relying solely on confessions.
- Court's Interpretation and Reasoning: The court was skeptical of the confessions due to the appellants' claims of coercion and the absence of corroborative evidence.
- Key Evidence and Findings: The lack of corroborative evidence and the context of the confessions weakened their probative value.
- Application of Law to Facts: The court found the confessions insufficient to deny bail, especially in light of procedural irregularities.
- Treatment of Competing Arguments: The state's reliance on the confessions was countered by the appellants' consistent retraction and lack of additional evidence.
- Conclusions: The court granted bail, highlighting the need for caution in cases relying heavily on confessions.
Issue 4: Parity in Granting Bail - Relevant Legal Framework and Precedents: The principle of parity in bail decisions was considered, particularly as it applied to similarly situated laborers.
- Court's Interpretation and Reasoning: The court found no justification for treating the appellant, Jivan Raghu Varli, differently from other laborers granted bail.
- Key Evidence and Findings: The lack of evidence indicating Varli's knowledge of the contents of the boxes was pivotal.
- Application of Law to Facts: The court applied the principle of parity, granting bail to Varli on similar terms as other laborers.
- Treatment of Competing Arguments: The state's arguments for differential treatment were not supported by evidence.
- Conclusions: Bail was granted to Varli, ensuring consistency with other laborers' cases.
3. SIGNIFICANT HOLDINGS - Verbatim Quotes of Crucial Legal Reasoning: "We are inclined to grant bail to the appellant Izharul Haq Abdul Hamid Shaikh, since undoubtedly, approval had not been obtained under Section 20A(1) of TADA before the First Information Report was recorded."
- Core Principles Established: The judgment reinforces the importance of procedural compliance under TADA, the need for corroborative evidence beyond confessions, and the application of the principle of parity in bail decisions.
- Final Determinations on Each Issue: The court granted bail to both appellants, emphasizing procedural lapses, insufficient evidence, and the principle of parity.
This judgment serves as a critical reference for future cases involving TADA, particularly concerning procedural safeguards and the evaluation of evidence in bail applications.
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2009 (3) TMI 1078
Imposing condition for depositing huge amount in fixed deposit for grant of anticipatory bail - Inability of the petitioner to comply with the condition - Within or outside the purview of Section 438 of the CrPC - Anticipatory bail u/s-438 CrPC - Nature and gravity of accusation - Onerous and unreasonable - receipt of ₹ 32.5 lakhs as advance towards sale consideration of the property was alleged to be on misrepresentation - HELD THAT:- It is disclosed from the records that the said property is already mortgaged during the year 2004 with the Punjab National Bank and that in fact parties have already obtained an order of attachment. Even the documents with regard to the ownership of the property are lying with another financial institution from whom the appellants have received consideration. There appears to be hypothecation in respect of the said property which was entered into with the private financer.
It is alleged that the appellants while entering into the said agreement with the complainant never brought to his notice about the mortgage of the property. The aforesaid allegations are serious but the same are required to be considered by the court in accordance with and in the light of correct position of law.
This Court in Amarjit Singh v. State of NCT of Delhi [2002 (1) TMI 1326 - SUPREME COURT], held was held that, "the imposition of condition to deposit the sum of ₹ 15 lacks in the form of FDR in the Trial Court is an unreasonable condition and, therefore, we set aside the said condition as a condition precedent for granting anticipatory bail to the accused/appellant.”
It appears that, High Court passed the impugned order with the intention of protecting the interest of the complainant in the matter. In our considered opinion, the approach of the High Court was incorrect as under the impugned order a very unreasonable and onerous condition has been laid down by the Court as a condition precedent for grant of anticipatory bail.
We accordingly, set aside the impugned order and remit back the matter to the High Court to consider the prayer for anticipatory bail of the appellants afresh in accordance with law taking into consideration the facts and circumstances of the case including the gravity of the offence alleged and analysing the prayer of the appellants whether to grant or not to grant the prayer for anticipatory bail.
Accordingly, the appeal is disposed of.
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2009 (3) TMI 1077
Issues Involved:
1. Disallowance of interest paid.
2. Disallowance of legal expenses.
3. Validity of scrutiny assessment beyond stipulated time.
Summary of Judgment:
Disallowance of Interest Paid:
The Revenue appealed against the deletion of disallowances of Rs. 17,66,956 and Rs. 21,51,448 on account of interest paid. The learned Departmental Representative argued that the interest on borrowed capital could not be allowed as the funds were utilized for non-business purposes, such as investment in shares. The assessee contended that the loans were taken for business purposes, specifically for the Haryana State Lottery business, and the interest expenses were incidental to the business. The Tribunal found that the Assessing Officer (AO) failed to prove the nexus between the borrowed funds and their utilization for non-business purposes. The Tribunal upheld the orders of the CIT(A), dismissing the Revenue's appeals.
Disallowance of Legal Expenses:
The assessees, Sri Om Prakash Chirania and Sri Rajib Chirania, appealed against the disallowance of legal expenses of Rs. 3,28,500 each, claimed as business expenditure. The Tribunal noted that the assessees failed to provide complete details and concrete evidence regarding the litigation expenses before the Revenue authorities. However, the Tribunal restored the issue to the file of the AO for re-examination, allowing the assessees to submit necessary details in support of their claims. The appeals were allowed for statistical purposes.
Validity of Scrutiny Assessment Beyond Stipulated Time:
The assessees raised an additional ground that the scrutiny assessment was made beyond the time stipulated in Instruction No. 10 of 2004 and CBDT instructions. The Tribunal noted that the facts of the cases did not show whether the notice was issued beyond the time limits of the instructions. In the case of Sri Rajib Chirania, the return was selected for scrutiny by CASS, making the instruction inapplicable. The Tribunal found no merit in the additional ground and dismissed it as unadmitted. Consequently, the cross-objections were also dismissed.
Conclusion:
The appeals of the assessees were allowed for statistical purposes, while the cross-objections of the assessees and the Revenue's appeals were dismissed.
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2009 (3) TMI 1076
The Supreme Court of India dismissed the case after condoning the delay. The respondent did not have representation. Key names mentioned include Mr. G.E. Vahanvati and Ms. Rashmi Malhotra for the petitioner.
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2009 (3) TMI 1075
Issues Involved: Challenge to judgment of a learned Single judge of Punjab and Haryana High Court dismissing Criminal Revision, framing charges under IPC, 1860, for alleged offences u/s 409, 420, 120B, validity of power of attorney, conspiracy under Section 120-B IPC.
Issue 1: Challenge to Judgment Dismissing Criminal Revision
The appellants challenged the order of the High Court dismissing the Criminal Revision filed against the framing of charges under Sections 409, 420, 120B IPC. The High Court held that there were sufficient grounds to presume the commission of triable offences based on the complainant's evidence.
Background Facts:
- Appellants entered into agreements for the purchase of property.
- Legal proceedings initiated by the complainant against appellants.
- Charges framed against appellants under Sections 120B, 409, 420 IPC.
- Appellants contended lack of bonafides in the complaint and abuse of court process.
Issue 2: Validity of Power of Attorney
The High Court examined the central document, the power of attorney, and noted discrepancies in details regarding the property. It observed uncertainties in the document's import and suggested the possibility of the appellants being misled by the attorney. The High Court emphasized the importance of the power of attorney containing specific property details to establish bonafides.
Observations on Power of Attorney:
- Power of attorney embossed with stamp of Commissioner, Firozepur.
- Lack of specific property details raised doubts on the document's validity.
- High Court suggested appellants may have lacked bonafides in the transaction.
Issue 3: Conspiracy under Section 120-B IPC
The High Court analyzed the elements of criminal conspiracy under Section 120-B IPC, emphasizing the agreement between parties to commit an illegal act. It highlighted the need for proof of agreement through direct or circumstantial evidence and the continuation of the offence until the conspiratorial agreement is terminated.
Analysis of Conspiracy:
- Definition and elements of criminal conspiracy under Section 120-B IPC.
- Importance of agreement to execute illegal conduct.
- Need for proof of agreement through direct or circumstantial evidence.
Conclusion:
The Supreme Court upheld the High Court's decision, dismissing the appeal challenging the framing of charges. It emphasized the need for charges to be established beyond reasonable doubt and suggested early disposal of the case. The Court acknowledged the validity of the High Court's observations while maintaining the possibility of further challenges during trial proceedings.
Final Decision:
The appeal was dismissed, and the trial court was urged to expedite the case proceedings while considering any petitions for exemption in accordance with the Code of Criminal Procedure, 1973.
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2009 (3) TMI 1074
Issues Involved:
1. Jurisdiction of the Central Electricity Regulatory Commission (CERC) to revise tariff based on subsequent events.
2. Applicability of data from the year 2000-2001 for tariff determination.
3. Timeliness and procedural compliance in filing tariff revision applications.
4. Impact of retrospective salary revisions on tariff determination.
5. Relevance of previous tariff orders and principles of res judicata.
6. Authority of the Appellate Tribunal to interfere with CERC orders.
Detailed Analysis:
1. Jurisdiction of the Central Electricity Regulatory Commission (CERC) to Revise Tariff Based on Subsequent Events:
The Supreme Court affirmed that the CERC has extensive jurisdiction to frame, amend, and revise tariffs, including the power to make additions or alterations as necessary. The CERC's power is derived from the Electricity Regulation Commissions Act, 1998, and the subsequent regulations. The court noted that the CERC can exercise its jurisdiction suo motu or upon application by a generating company. The inherent jurisdiction of the CERC to correct its own mistakes was also emphasized, indicating that the CERC's powers are not strictly limited by procedural constraints.
2. Applicability of Data from the Year 2000-2001 for Tariff Determination:
The court discussed the relevance of operational and financial norms, particularly the order dated 21.12.2000, which allowed for adjustments based on actual expenses once available. The normative expenses for the base years 1995-1996 to 1999-2000 were to be used for tariff determination, with a provision for separate petitions for abnormal expenses. The court found that the CERC's approach to using data from 2000-2001 was justified given the unexpected abnormal increase in expenses.
3. Timeliness and Procedural Compliance in Filing Tariff Revision Applications:
The court highlighted that the applications for tariff determination for the years 1997-1998 to 1999-2000 should have been filed within the relevant period. The delay in filing the application for revision of tariff based on salary arrears paid in 2000-2001 was noted as a significant procedural lapse. The court emphasized that the CERC should not be asked to revisit tariffs after a considerable period, as this would disrupt the settled affairs of stakeholders.
4. Impact of Retrospective Salary Revisions on Tariff Determination:
The court acknowledged that the retrospective salary revisions, effective from 1st January 1997, were a legitimate part of the operation and maintenance costs. However, it was noted that the generating company should have included these costs in the initial tariff applications or filed for a revision within a reasonable time. The court found the claim for additional costs after five years to be unjustified, as it would unfairly impact current consumers who were not part of the original tariff period.
5. Relevance of Previous Tariff Orders and Principles of Res Judicata:
The court discussed the principles of res judicata and their applicability to regulatory proceedings. It was noted that while general principles of res judicata might apply, they were not strictly relevant in this case due to the CERC's continuous regulatory jurisdiction. The court also pointed out that the issue of res judicata was not raised before the CERC or the Appellate Tribunal, and thus, could not be considered at this stage.
6. Authority of the Appellate Tribunal to Interfere with CERC Orders:
The court affirmed that the Appellate Tribunal has wide jurisdiction to review CERC orders, both on factual and legal grounds. The tribunal's role as an expert body was emphasized, and its authority to interfere with CERC decisions was upheld. However, the court found that in this specific case, the tribunal's direction to absorb additional costs in the forthcoming tariff period was incorrect, as it would affect new consumers unfairly.
Conclusion:
The Supreme Court allowed the appeals, setting aside the Appellate Tribunal's order. The court emphasized the need for timely and procedural compliance in tariff applications and upheld the CERC's extensive regulatory powers. The decision clarified the scope of CERC's jurisdiction and the procedural requirements for tariff revisions, ensuring that regulatory processes are fair and transparent for all stakeholders.
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2009 (3) TMI 1073
Issues Involved:
1. Jurisdiction of Special Tribunal and/or Special Court under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982.
2. Definition and scope of "land grabbing" and "land grabber."
3. Powers and procedures of the Special Court and Special Tribunal.
4. Determination of adverse possession within the jurisdiction of the Special Court and Special Tribunal.
5. Conflict in previous judgments regarding the jurisdiction of the Special Court and Special Tribunal on adverse possession.
Detailed Analysis:
1. Jurisdiction of Special Tribunal and/or Special Court under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982:
The Act was enacted to prohibit land grabbing activities in Andhra Pradesh, including lands belonging to the Government, local authorities, religious or charitable institutions, and private persons. The Act constitutes Special Courts and Tribunals with wide jurisdiction to handle cases of land grabbing, making them substitutes for civil courts and appellate authorities. The Special Court and Tribunal have both civil and criminal jurisdiction, and their procedures are governed by the Code of Civil Procedure and Code of Criminal Procedure, subject to the Act's provisions.
2. Definition and scope of "land grabbing" and "land grabber":
Section 2(d) defines "land grabber" as a person or group who commits land grabbing, including those who aid, abet, or finance such activities. Section 2(e) defines "land grabbing" as the illegal possession of land without lawful entitlement, including creating illegal tenancies or constructing unauthorized structures. Section 3 declares land grabbing unlawful, and Section 4 imposes penalties for such activities.
3. Powers and procedures of the Special Court and Special Tribunal:
The Special Court, constituted under Section 7, has the power to make regulations for case procedures. Section 7A empowers the Special Tribunal to try cases not taken by the Special Court and pass necessary orders. Section 8 details the procedure and powers of the Special Court, including taking cognizance of land grabbing cases and determining title and ownership. The Special Court can also award compensation and order the re-delivery of grabbed land. Sections 9 and 10 provide for the application of the Code of Civil Procedure and Code of Criminal Procedure and the burden of proof in land grabbing cases.
4. Determination of adverse possession within the jurisdiction of the Special Court and Special Tribunal:
The key issue is whether the question of adverse possession falls within the jurisdiction of the Special Court and Tribunal. The Act confers wide jurisdiction on these bodies to determine questions of title and possession, including adverse possession. The Special Court and Tribunal have the trappings of a civil court and can handle complicated questions of title. The legal fiction created by the Act allows these bodies to act as both civil courts and courts of sessions.
5. Conflict in previous judgments regarding the jurisdiction of the Special Court and Special Tribunal on adverse possession:
There was an apparent conflict between the decisions in Konda Lakshmana Bapuji v. Government of Andhra Pradesh and N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing (Prohibition) Act. In Konda Lakshmana Bapuji, the court held that the Special Court could determine adverse possession, while in N. Srinivasa Rao, the court opined that the Special Court had no jurisdiction over adverse possession, which fell within the domain of civil courts. The present judgment resolves this conflict by affirming that the Special Court and Tribunal have the jurisdiction to determine adverse possession, as they possess extensive powers and follow the principles of natural justice and fair play.
Conclusion:
The Supreme Court concluded that the Special Court and Tribunal under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, have the jurisdiction to determine questions of adverse possession. The judgment in Konda Lakshmana Bapuji was upheld as laying down the correct law, while the decision in N. Srinivasa Rao was overruled. The case was remitted to an appropriate Bench for determination on merits.
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2009 (3) TMI 1072
Seeking amendment of the plaint in the Chamber Summons and appointment of Court Receiver - injunction restraining from creating 3rd party rights in respect of the Transfer of Development Rights (TDR) on the suit property - utilising and loading the TDR on any property - Whether the Plaintiff's action, followed upon dissolution of the Firm, the notice of which came to be given upon the Development Rights Certificate (DRC) being issued by the MMC, but later not pressed for 2 years could be so tainted with delay as to disentitle the Plaintiff to any equitable relief? - unregistered agreement for transfer/sale of Transferable Development Rights (TDR) - TDR being an immovable property - Respondent No.3 claims to have purchased the TDR from Respondent No.1 through its sister Concern - relief sought for by the Plaintiff is two fold:- Against the Defendant and Against Respondent No.3.
an order of injunction restraining the Defendant as well as the Respondent s from creating 3rd party rights in respect of the Transfer of Development Rights (TDR) on the suit property, utilising and loading the TDR on any property and acting pursua nt to the agreement s entered into by and between the Defendant s and the Respondent s in respect of TDR and for an order against the Defendant to deposit monies received under the transaction relating to the TDR by him.
HELD THAT:- In the case of Sikandar Vs. Bahadur [1905 (1) TMI 1 - ALLAHABAD HIGH COURT] considered in the case of Chheda Housing [2007 (2) TMI 664 - BOMBAY HIGH COURT] it has been held a lease of more than 1 year of a right to collect market dues upon a piece of land, being a benefit which arises out of the land would fall within the purview of Section 3 of the Registration Act, 1877 and must, therefore, be made by a registered instrument .
The consequence of the TDR being an immovable property would be the requirement of registration upon its transfer. The TDR was issued in the name of the Respondent No.2 by the MMC. Even prior to its issue, the Respondent No.2 had claimed the TDR. The Decree on Admission obtained by the Firm of the Plaintiff and the Defendant against Respondent No.2 in Suit No.6736 / 1 999 was to be satisfied partly by payment of money and partly by the agreement to sell the TDR to the Partnership Firm. The TDR is transferred to the Defendant as a partner of the Partnership Firm or to the Firm itself by Respondent No.2 under the Consent Decree for consideration. The Consent Decree is not registered.
The agreement between the Defendant and Respondent No.1 as well as between Respondent No.2 and Respondent No.3 as also between Respondent No.1 and Respondent No.3 all dated 19th January 2007 have all not been registered. None of these parties including the Plaintiff, therefore, can base its claim in an action in law upon the unregistered agreement to transfer TDR which is a benefit arising from an immovable property and consequently immovable property itself.
The reliefs sought under prayers of this Chamber Summons need not be granted. The Respondents are neither necessary or proper parties to the suit which is a suit for dissolution of the suit Partnership Firm and its accounts. No reliefs can be passed against the Respondents for want of registration of the Consent Decree itself. Consequently reliefs under prayers are refused.
The express admission of the Defendant about the Partnership Firm, its dissolution and the account relating to the main, and only one, asset of the Partner ship requires Judgment on Admission itself to be passed under the provisions of Order XII Rule 6 of the C.P.C. Consequently at least the preliminary decree for dissolution of the suit Partnership Firm under the provisions of Order XX Rule 15 of the C.P.C is forthwith required to be passed. The shares of the Plaintiff as well as the Defendant s are required to be declared. They admittedly share 50% in the profits and losses of the Firm.
It is declared that the Partnership Firm stood dissolved on and from 11th January 2007, the date of the notice of dissolution and the date from which the notice in the official gazette came to be made affective. Accounts of the suit Firm shall, therefore, be taken.
The suit is referred to the Commissioner for taking account s under Order XXVI Rule 2 of the C.P.C with directions under Order XXVI Rules 11 and 12 of the C.P.C. The Defendant who has alone been in management of the suit Partnership Firm shall produce the bank accounts as well as any other accounts kept in the normal course of the conduct of the Partnership business by him before the Commissioner for taking accounts.
1) The Defendant shall show all the documents relating to the Creditors of the Firm.
2)The Defendant shall give inspection and xerox copies of these document s to the Plaintiff.
3)The Commissioner for taking account s shall ascertain the genuine and bonafide Creditors, if any, of the Firm.
4)The Commissioner shall allow the parties to lead oral and documentary evidence as required and desired by each of them.
5)The Commissioner shall make his report of the account s of the Firm to the Court upon the evidence.
6)The Defendant shall deposit the amount admittedly received by him in Court within 4 weeks from today. The Prothonotory and Senior Master of this Court to invest the said amount in any Nationalised Bank intially for a period of 37 months.
Chamber Summons is disposed of accordingly. Preliminary Decree is passed in the suit accordingly.
Suit to be placed on board for final decree upon the Commissioner making his report.
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