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Showing 21 to 40 of 592 Records
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2012 (3) TMI 714
Issues involved: Alleged default on a Promissory Note, applicability of Bombay Money Lenders Act, limitation period, authenticity of signature on the Promissory Note, compliance with Money Lenders Act provisions.
Alleged default on Promissory Note:
- Plaintiff filed a summary suit for recovery of Rs. 94,432.87 with interest based on a Promissory Note dated 23rd March, 2008.
- Plaintiff claimed that Defendant failed to repay the sum of Rs. 80,000 as per the Promissory Note despite receiving a notice demanding payment.
- Defendant denied any transaction with the Plaintiff, alleging the Promissory Note was forged and no notice was received.
- Court considered the conflicting claims and found disputed questions of facts, granting Defendant unconditional leave to defend the suit.
Applicability of Bombay Money Lenders Act:
- Defendant argued that the suit is not applicable for summary procedure due to the Bombay Money Lenders Act, 1946.
- Court referred to previous judgments and held that if the Money Lenders Act applies to a suit filed under Order XXXVII, unconditional leave must be given to the Defendant.
- Both parties presented arguments on the applicability of the Act, with Defendant ultimately granted unconditional leave to defend the suit.
Limitation period and authenticity of signature:
- Defendant contended that the suit was barred by limitation and disputed her signature on the Promissory Note.
- Plaintiff claimed to have served a notice demanding payment, which Defendant denied receiving.
- Court noted the conflicting claims regarding the authenticity of the signature and the notice, concluding that triable issues were raised by the Defendant.
Compliance with Money Lenders Act provisions:
- Plaintiff argued compliance with Money Lenders Act provisions, while Defendant raised concerns about non-compliance.
- Court examined the arguments and found that the provisions of the Act had been complied with, allowing the Defendant to defend the suit on the grounds raised.
- Defendant directed to file a Written Statement within four weeks, and the suit was transferred to the list of Commercial Causes for further proceedings.
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2012 (3) TMI 713
Issues involved:
The judgment deals with the issue of assumption of jurisdiction under sec. 143(2)/142(1) of the Income-tax Act.
Consideration of Jurisdiction under sec. 143(2)/142(1):
The case involved the Cane Development Council filing a return of income as a Local Authority and claiming exemption under sec. 2(15) of the Act. The Assessing Officer issued notice u/s 143(2)/142(1) and completed the assessment in the status of Artificial Juridical Person. The assessee contended that the assessment order was illegal as the status was changed without proper notice. The CIT(A) held that the status was indeed that of an Artificial Juridical Person and annulled the assessment, directing remedial action under sec. 150 of the Act.
Interpretation of Legal Definitions:
The definition of "person" under sec. 2(31) of the Act includes a local authority and an artificial juridical person as distinct entities. The income of a local authority is exempt under sec. 10(20) of the Act, with specific criteria defining a "local authority." The Cane Development Council did not meet the criteria for a local authority, thus its status could not be considered as such.
Validity of Assessment Status Change:
The Assessing Officer issued notice under sec. 143(2) in the name of the assessee as a local authority, but later assessed it as an artificial juridical person. The ITAT decision highlighted that jurisdictional defects cannot be cured by obtaining consent, similar to a precedent involving a status change from individual to HUF. The ITAT concluded that the status change was improper, upholding the CIT(A)'s decision to cancel the assessment.
Conclusion:
The appeal by the Revenue was dismissed, affirming the cancellation of the assessment due to the incorrect change in the assessee's status. The judgment was pronounced on 30th March, 2012.
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2012 (3) TMI 712
Issues Involved:
1. Validity of the High Court's order setting aside the assessment of market fee by Krishi Utpadan Mandi Samiti, Ghaziabad.
2. Requirement of gate passes for the removal of goods from the market area.
3. Rebuttal of the presumption under Section 17 of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964.
4. High Court's criticism of the capacity of the officers of the Mandi Samiti and Deputy Director.
5. High Court's introduction of a new procedure for assessment of market fee.
Summary:
1. Validity of the High Court's Order:
This appeal challenges the High Court's order which allowed the Respondent-company's writ petition, setting aside the orders of the Krishi Utpadan Mandi Samiti, Ghaziabad, and the Deputy Director, Rajya Krishi Utpadan Mandi Parishad, Meerut. The High Court directed a fresh assessment of the market fee after providing an opportunity of being heard to the Respondent-company.
2. Requirement of Gate Passes:
The Respondent-company argued that the transfer of stocks to its go-downs outside the mandi area was on a "stock transfer basis" and not a sale within the mandi area. The Mandi Samiti, however, held that obtaining gate passes was necessary and levied a market fee and development fee for the goods taken out from the market area u/s 17(iii)(b) of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964.
3. Rebuttal of Presumption u/s 17:
The Mandi Samiti and the Deputy Director held that the Respondent-company had not adduced sufficient evidence to rebut the presumption that the movement of goods was pursuant to a sale within the mandi area. The High Court, however, found the approach of the Samiti and the Deputy Director biased and arbitrary.
4. High Court's Criticism of Officers' Capacity:
The High Court criticized the capacity of the officers of the Mandi Samiti and the Deputy Director, stating that they were not equipped with the requisite knowledge about the legal principles and procedures. The Supreme Court found this criticism unjustified, stating that the High Court should have pointed out specific errors in the appreciation of law or facts.
5. High Court's New Procedure:
The High Court introduced a new procedure for the assessment of market fee, including the provision of a "revolving bank guarantee" by the Respondent-company. The Supreme Court held that the High Court should have adhered to the procedures established by the Supreme Court in previous cases (Shree Mahalaxmi Sugar Works and M/s Saraswati Cane Crusher) and left any modifications to the Supreme Court.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's order, and restored the orders of the Mandi Samiti and the Deputy Director. The Supreme Court emphasized adherence to established procedures and found no reason to interfere with the concurrent findings of the Samiti and the Deputy Director.
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2012 (3) TMI 711
Issues Involved:
1. Legality of the orders refusing renewal of stone quarry lease.
2. Applicability of Orissa Minor Mineral Concession Rules, 2004.
3. Government's right to auction minor mineral sources.
4. Petitioner's right to renewal of quarry lease.
Summary:
1. Legality of the Orders Refusing Renewal of Stone Quarry Lease:
The Petitioner challenged the orders dated 01.03.2011 and 30.04.2011, passed by the Tahasildar and Sub-Collector, respectively, which refused the renewal of the stone quarry lease. The Petitioner argued that these orders were "illegal, arbitrary & without application of mind & are contrary to the provisions of Rules, 2004."
2. Applicability of Orissa Minor Mineral Concession Rules, 2004:
The Petitioner contended that the quarry lease applied for renewal is not for any of the minerals mentioned in item 1(i) of Schedule-III under Chapter-VI of Rule 35 of the Rules, 2004, which is meant for auction. The Petitioner argued that the quarry lease should be renewed as per Chapter-IV of the Rules, 2004, which provides for long-term quarry leases.
3. Government's Right to Auction Minor Mineral Sources:
The Government's stance, supported by various letters and circulars, emphasized that "all the sources containing minor minerals should be settled through annual auction route only." The Court upheld this view, stating that "the best method of disposal of public property is by way of public auction & not by private negotiation" to ensure transparency and maximize revenue.
4. Petitioner's Right to Renewal of Quarry Lease:
The Court noted that "no person has any right of renewal of the Government property" and cited Supreme Court judgments emphasizing that public property should be disposed of via public auction to secure maximum benefit to the community. The Court found no illegality in the orders refusing the renewal of the lease and stated that the Petitioner could participate in the public auction.
Conclusion:
The Court directed that the application of the Petitioner may be considered by putting the sairat source to auction, allowing the Petitioner to participate. If the Petitioner matches the highest bid, preference should be given to him. The Writ Petition was allowed to the extent indicated, with the Court emphasizing the need for transparency and public interest in the disposal of public property.
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2012 (3) TMI 710
Issues Involved:
1. Legality of playing rummy with stakes.
2. Police authority to raid and take action against the Association.
3. Definition and implications of "common gaming house" and "gaming".
4. Rights of the Association and its guests.
Summary:
1. Legality of Playing Rummy with Stakes:
The primary question was whether the activity of the respondent-Mahalakshmi Cultural Association in allowing its members and guests to play rummy (13 cards) with stakes is legal. The court referenced the Apex Court's judgment in State of Andhra Pradesh v. K. Sathyanarayana, AIR 1968 SC 825, which held that rummy is a game of skill. However, the court noted that if rummy is played with stakes, it would amount to gambling. Consequently, the provisions of Section 49 of the Chennai City Police Act, which exempts games of mere skill from penal provisions, would not apply if stakes are involved.
2. Police Authority to Raid and Take Action:
The court examined the powers conferred under the Chennai City Police Act, particularly Sections 23, 42, and 43, which empower the police to enter, search, and take action against common gaming houses without a warrant. The court upheld the police's authority to raid the Association's premises based on reasonable suspicion or reliable information of illegal gambling activities. The court emphasized that the police must ensure that cards, dice, gaming tables, or other instruments of gaming are found in the premises to presume it as a common gaming house.
3. Definition and Implications of "Common Gaming House" and "Gaming":
The court elaborated on the definitions provided u/s 3 of the Chennai City Police Act, which includes any place used for profit or gain by gaming as a "common gaming house". "Gaming" includes wagering or betting, except on horse races. The court cited Kishan Chander v. State of Madhya Pradesh, AIR 1965 SC 307, to highlight that the possession of instruments of gaming in such premises constitutes evidence of illegal gaming activities.
4. Rights of the Association and Its Guests:
The court acknowledged the Association's right to conduct lawful activities and entertain members and guests. However, it held that allowing members or guests to play rummy with stakes or making any profit or gain from such activities would attract the penal provisions of the Chennai City Police Act. The court directed the Association to refrain from indulging in any illegal activities and instructed the police not to disturb the Association without reliable information of illegal activities.
Conclusion:
The court modified the order of the learned single Judge and issued the following directions:
1. The Association shall not allow its members or guests to play rummy with stakes or make any profit or gain.
2. The police are entitled to take action if any illegal activity is carried out in the Association's premises.
3. The police may proceed with the FIR against those found indulging in illegal gambling during the raid on 10.08.2011.
4. The police should not disturb the Association frequently under the guise of inspection without reliable information of illegal activities.
Consequently, M.P.No. 1 of 2011 was closed with no costs.
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2012 (3) TMI 709
Issues involved: Delay condonation, abuse of judicial process, application of Section 360 of Code of Criminal Procedure, benefit under the Probation of Offenders Act, 1958, and misuse of legal remedies.
Delay Condonation: The judgment highlighted a previous contempt case where derogatory remarks were made about the Supreme Court. It emphasized the importance of ensuring justice for the common man and preventing criminals from abusing the legal system.
Abuse of Judicial Process: The case involved a petitioner, a black-marketeer, convicted under the Essential Commodities Act, 1955. Despite multiple court rejections, the petitioner continued to approach different courts without following proper legal procedures, leading to the dismissal of his appeals.
Application of Section 360 of CrPC: The petitioner sought the benefit of Section 360 of the Code of Criminal Procedure, 1973, and Section 4 of the Probation of Offenders Act, 1958. However, the High Court ruled against granting these benefits, citing legal provisions and previous judgments.
Misuse of Legal Remedies: The petitioner's repeated attempts to modify judgments and seek relief were deemed as an abuse of the judicial process. The court emphasized that easy access to justice should not be misused for filing frivolous petitions, and such actions waste court time and public resources.
Conclusion: The Supreme Court dismissed the petition, stating that the relief sought by the petitioner could not be granted. The court deemed the petition misconceived and untenable, imposing a cost on the petitioner for filing a meritless case.
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2012 (3) TMI 708
Issues Involved:
1. Addition of Rs. 8,70,000/- on account of share application money.
2. Addition of Rs. 5,00,000/- on account of share application money from Money Penny Fincom Pvt. Ltd.
Summary:
Issue 1: Addition of Rs. 8,70,000/- on account of share application money
The assessee appealed against the addition of Rs. 8,70,000/- made by the Assessing Officer (AO) for the assessment year 2005-06. The AO had initially added Rs. 58,40,000/- for unexplained subscription towards share capital/share application money. The Commissioner of Income Tax (Appeals) [CIT(A)] deleted Rs. 49.70 lacs but confirmed Rs. 8.70 lacs, citing the assessee's failure to establish the creditworthiness and genuineness of the transactions. The CIT(A) noted that the assessee only provided certificates of receipt signed by a director, lacking sufficient evidence of the creditworthiness of the share applicants. The tribunal found that the identity of the share applicants was not in doubt as they were income tax assessees with PANs and confirmation letters. Referring to the Supreme Court's decision in the case of Lovely Exports, it was held that once the identity is proved, no addition is warranted in the hands of the assessee company. The tribunal directed the department to proceed against the share applicants as per law and allowed the appeal in part by deleting the addition of Rs. 3,70,000/-.
Issue 2: Addition of Rs. 5,00,000/- on account of share application money from Money Penny Fincom Pvt. Ltd.
The CIT(A) confirmed the addition of Rs. 5,00,000/- received from Money Penny Fincom Pvt. Ltd., as the assessee failed to discharge its onus u/s 68 of the Income Tax Act, 1961. The tribunal referred to a similar case, M/s. Agrawal Coal Corporation Pvt. Ltd., where share application money from non-existent companies was treated as unexplained credit u/s 68. The tribunal found that the assessee did not prove the identity, creditworthiness, or genuineness of the transactions. The tribunal upheld the addition of Rs. 5,00,000/- in the hands of the assessee, confirming that the identity of Money Penny Fincom Pvt. Ltd. was not established.
Conclusion:
The tribunal allowed the appeal in part by deleting the addition of Rs. 3,70,000/- related to four share applicants but confirmed the addition of Rs. 5,00,000/- from Money Penny Fincom Pvt. Ltd. The order was pronounced on 23rd March, 2012.
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2012 (3) TMI 707
Issues involved: Cross appeals and cross objections pertaining to assessment years 2004-05 and 2005-06.
Exemption under section 10(23C)(vi) of the Income Tax Act:
The main issue in the case revolved around the claim of exemption under section 10(23C)(vi) of the Income Tax Act, 1961. The counsel for the assessee pointed out that a similar issue had been dealt with by the ITAT "H" Bench Mumbai in the assessee's case for assessment years 2002-03 & 2003-04. In that case, the matter was sent back to the Assessing Officer (A.O.) for decision after the assessee's application for exemption was rejected by the Chief Commissioner of Income-tax (CCIT) and a Writ Petition was filed. The counsel requested similar directions in the present case, which was not objected to by the Departmental Representative (D.R.). Consequently, all appeals and cross objections were restored to the A.O. with a direction to decide the issue after the decision of the court in the pending Writ Petition before the High Court of judicature at Mumbai. The appeals and cross objections were treated as allowed for statistical purposes.
Conclusion:
The Appellate Tribunal ITAT Mumbai, in a judgment dated 7th March 2012, addressed cross appeals and cross objections related to assessment years 2004-05 and 2005-06. The main issue centered around the claim of exemption under section 10(23C)(vi) of the Income Tax Act, with the Tribunal directing the matter to be decided after the outcome of a pending Writ Petition before the High Court of judicature at Mumbai.
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2012 (3) TMI 706
Issues Involved:
1. Ad-interim injunction for infringement of registered trademark and passing off.
2. Deceptive similarity between trademarks.
3. Validity of assignment of trademark.
4. Use of common trade terms and additional material on packaging.
Summary:
1. Ad-interim injunction for infringement of registered trademark and passing off:
The appeal challenges the order dated 28 November 2012, where the learned Single Judge declined to grant an ad-interim injunction in the appellant's Notice of Motion in a suit for infringement of the registered mark "MERELANE" and passing off. The products involved are playing cards, with the plaintiff owning the mark "MERELANE" and the defendant using "MARICELL No. 7". The Single Judge found no prima facie similarity between "MERELANE" and "MARICELL".
2. Deceptive similarity between trademarks:
The court applied principles from Hiralal Prabhudas v. Ganesh Trading Company to judge deceptive similarity, emphasizing overall similarity rather than microscopic examination. It was concluded that the defendant's products were deceptively similar to the plaintiff's, with both featuring two ducks on their playing cards. The court noted that the addition of "NEW ARRIVAL" and similar color schemes could confuse an average person, leading to a likelihood of deception.
3. Validity of assignment of trademark:
The plaintiff's trademark "MERELANE" was registered in 1971 and assigned to various entities over the years, with the latest being Parksons Games & Sports Pvt. Ltd., which later became PARKSONS Cartamundi Pvt. Ltd. The court considered the Deed of Assignment and the pending application for change of registration. Citing SKOL Breweries Ltd. v. Som Distilleries and Breweries Ltd., the court held that pending registration of assignment does not preclude the court from granting interlocutory reliefs.
4. Use of common trade terms and additional material on packaging:
The defendant argued that "No. 7" is common in the trade of playing cards and cannot be exclusively claimed by the plaintiff. The court, however, viewed the trademark "MERELANE No. 7" in its entirety and found that the defendant's use of "MARICELL No. 7" with similar color schemes and additional material like "New Arrival" was deceptively similar. The court emphasized that marks should be compared as a whole, and the additional material did not negate the deceptive similarity.
Conclusion:
The court found a strong prima facie case in favor of the plaintiff and set aside the impugned order dated 28 November 2011. The Notice of Motion was made absolute in terms of prayer clauses (b) and (d) during the pendency of the suit, allowing the plaintiff to seek further relief if required.
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2012 (3) TMI 705
Issues Involved:
1. Compliance with Order XXXIX, Rule 3 CPC.
2. Use of green color label by the plaintiff.
3. Discrepancy in sales figures.
4. Difference between trademarks "MADHU" and "MADHU BAHAR".
5. Defendant's license for the trademark.
Summary:
1. Compliance with Order XXXIX, Rule 3 CPC:
The defendant argued that the plaintiff failed to comply with Order XXXIX, Rule 3 CPC, which mandates delivering or sending by registered post a copy of the application for injunction, affidavit, plaint, and documents relied upon immediately after the ex parte order. The plaintiff's counsel admitted partial compliance, acknowledging that the complete set of documents was not sent. The court emphasized the mandatory nature of this provision, citing precedents like *Shiv Kumar Chadha v. Municipal Corporation of Delhi* and *M/s. Marbal Udyog Ltd. Vs. M/s. P & O Indian Agencies (P) Ltd.*, which held that non-compliance necessitates vacating the ex parte order. Consequently, the interim order dated 06.02.2012 was suspended due to the plaintiff's failure to comply fully with Order XXXIX, Rule 3 CPC.
2. Use of Green Color Label by the Plaintiff:
The defendant contended that the plaintiff never used the green color label filed in court and did so only to obtain an ex parte order. The plaintiff's counsel undertook to produce relevant records to prove the use of the green color label but failed to provide justification for discrepancies in sales figures.
3. Discrepancy in Sales Figures:
The defendant pointed out inconsistencies between the sales figures presented in court and those filed in the Trade Mark Office. The plaintiff's counsel could not justify these discrepancies, further weakening the plaintiff's position.
4. Difference Between Trademarks "MADHU" and "MADHU BAHAR":
The defendant argued that "MADHU" and "MADHU BAHAR" are different trademarks, and the plaintiff only had registration as a label mark, not for the word per se. Therefore, there was no infringement u/s 17 of the Trade Marks Act, 1999.
5. Defendant's License for the Trademark:
The defendant claimed to hold a license for the trademark through United Traders, challenging the maintainability of the suit for infringement.
Conclusion:
The court vacated the ex parte interim injunction due to non-compliance with Order XXXIX, Rule 3 CPC and dismissed the interim application I.A. No. 2222/2012. Consequently, I.A. No. 2846/2012 was also disposed of. The suit was renotified for further consideration on 24.05.2012.
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2012 (3) TMI 704
Issues involved: Application u/s Article 226 of the Constitution for mandamus to issue refund of Rs.16,00,886/- along with interest to the petitioner under the Gujarat Sales Tax Act, 1969.
Summary:
The petitioner, a registered dealer, sought a refund of specific amounts for different assessment years, alleging no assessment was conducted within the prescribed time limits. Despite reminders and court directions, the State did not process the refund application. The State's reply cited non-compliance with certain rules for refund eligibility. However, the Court found that in the absence of a valid assessment within the stipulated period, the State had no choice but to refund the tax paid. As the tax was paid but not assessed within the specified timeframe, the Court directed the State to refund the claimed amount with 9% interest per annum from the deposit date. Failure to refund within two months would attract 14% interest per annum. The writ-application was disposed of accordingly.
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2012 (3) TMI 703
Issues involved: Reopening of assessment u/s 147 after four years based on judgment of the Apex Court, disclosure of material facts by the assessee, validity of reassessment proceedings.
Summary:
The appeal was filed against the order of the Commissioner of Income-tax (Appeals)-I, Trivandrum for the assessment year 2002-03. The assessee had initially filed the return of income on 27-08-2002, and the assessment was completed u/s 143(3) r.w.s. 147 after reopening the assessment u/s 147 on 14-09-2007. The assessing officer reopened the assessment for the second time based on the judgment of the Apex Court in a specific case. The main contention was whether there was negligence on the part of the assessee in disclosing all the necessary material for assessment.
The ld.representative for the assessee argued that since all the particulars for completing the assessment were disclosed, the assessment should not have been reopened after the expiry of four years. The assessing officer's reasons for reopening the assessment did not mention any negligence on the part of the assessee in disclosing material facts. The ld.DR, on the other hand, contended that mere production of books of account may not amount to full disclosure as per Explanation 1 to section 147.
Upon considering the submissions and perusing the record, it was noted that the assessing officer reopened the assessment after the expiry of four years without establishing any negligence on the part of the assessee in disclosing material facts. The Tribunal referred to a similar case where it was found that the department cannot reopen the assessment after four years without proving negligence on the part of the assessee. Therefore, the reassessment proceedings were deemed invalid, and the orders of the lower authorities were set aside, resulting in the appeal of the assessee being allowed.
In conclusion, the Tribunal held that reopening the assessment after the expiry of four years without proving negligence on the part of the assessee in disclosing material facts necessary for assessment was not valid, leading to the allowance of the appeal.
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2012 (3) TMI 702
Issues involved:
The issues involved in the judgment are the refund of the value of betel nuts, confiscation under Customs Act, 1962, appeal before CEGAT, release of goods, and refund of penalty/fine.
Refund of Betel Nuts Value:
The petitioner filed a writ petition seeking a refund of the value of betel nuts amounting to Rs.21,33,500.00 along with statutory interest. The betel nuts and truck were seized based on the belief of being of foreign origin, leading to a confiscation order. However, the CEGAT allowed the appeal, directing the refund. The Commissioner of Customs accepted the CEGAT's order but failed to refund the amount, leading to the writ petition for redressal.
Confiscation under Customs Act, 1962:
The Customs Officers seized the betel nuts and truck, initiating a proceeding under section 111(d) and section 115 of the Customs Act, 1962. The order of absolute confiscation was passed, which was later set aside by the CEGAT due to wrong assumptions by the adjudicating authority. The subsequent appeal and dismissal of the tax case affirmed the CEGAT's decision.
Appeal before CEGAT and Release of Goods:
The petitioner appealed before the CEGAT, which found the adjudicating authority's assumptions to be incorrect, leading to the allowance of the appeal. The Commissioner of Customs ordered the release of goods and refund of penalties imposed. However, delays and lack of action by the authorities prompted the petitioner to file the writ petition for relief.
Refund of Penalty/Fine:
The petitioner repeatedly claimed a refund of the amount equal to the seizure value, as per the CEGAT's order. The Commissioner of Customs accepted the CEGAT's order but failed to refund the amount promptly, leading to the petitioner seeking redress through the writ petition.
Conclusion:
The High Court allowed the writ petition, directing the Commissioner of Customs to refund the amount of Rs. 21,33,500.00 along with statutory interest from the date of the petitioner's appeal. The Court also permitted the Customs Department to take action against responsible employees/officers for the mishandling of the case and loss to the public exchequer.
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2012 (3) TMI 701
Issues Involved:
1. Rejection of books of accounts u/s 145(3).
2. Addition on account of unaccounted production and sale.
3. Addition on account of alleged capital employed in unaccounted production.
4. Disallowance of interest.
5. Deduction u/s 80IB.
6. Addition on account of expenses of capital nature.
7. Disallowance u/s 40(a)(ia).
Summary:
1. Rejection of books of accounts u/s 145(3):
The assessee's books of accounts were rejected by the AO due to discrepancies, primarily the high consumption of electricity. The CIT(A) upheld this rejection, citing the absence of stock registers and uneven electricity consumption. The Tribunal, however, found that the books could not be rejected solely based on electricity consumption, especially when no defects were found in the stock registers of waste paper and chemicals. Thus, this ground of appeal by the assessee was allowed.
2. Addition on account of unaccounted production and sale:
The AO made an addition based on the high consumption of electricity, assuming unaccounted production. The CIT(A) reduced this addition but still upheld it partially. The Tribunal found no corroborative evidence of unaccounted purchases or sales and noted that no adverse findings were made by the Excise or Sales Tax Departments. Consequently, this ground of appeal by the assessee was allowed.
3. Addition on account of alleged capital employed in unaccounted production:
Following the rejection of the books and the addition for unaccounted production, the AO added for alleged capital employed in this unaccounted production. The CIT(A) reduced this addition. The Tribunal, linking this issue to the unaccounted production, found no merit in the addition as the primary addition was deleted. This ground of appeal by the assessee was allowed.
4. Disallowance of interest:
The AO disallowed interest on borrowed capital used to acquire new assets, which were not put to use. The CIT(A) deleted this addition, but the Tribunal found that the CIT(A)'s reliance on pre-amendment cases was misplaced. The Tribunal upheld the AO's disallowance but noted that the assessee would be entitled to enhanced deduction u/s 80IB. Thus, this ground of appeal by the revenue was allowed.
5. Deduction u/s 80IB:
The CIT(A) dismissed the assessee's claim for deduction u/s 80IB on the total assessed income. The Tribunal found that the assessee was eligible for such deduction on the enhanced income, following the decision in Allied Industries. Thus, this ground of appeal by the assessee was allowed.
6. Addition on account of expenses of capital nature:
The AO treated certain repair and maintenance expenses as capital in nature. The CIT(A) partly upheld this. The Tribunal, after examining the nature and use of the items, found them to be revenue expenses. Thus, this ground of appeal by the assessee was allowed.
7. Disallowance u/s 40(a)(ia):
The AO disallowed expenses for not deducting TDS u/s 194C, treating the transactions as work contracts. The CIT(A) deleted this addition, finding the transactions to be contracts for sale. The Tribunal upheld the CIT(A)'s decision, noting the applicability of the decision in CIT v. Dy. Chief Accounts Officer, Markfed. Thus, this ground of appeal by the revenue was dismissed.
Conclusion:
The assessee's appeal was partly allowed, and the revenue's appeal was also partly allowed. The Tribunal's decision addressed each issue comprehensively, considering the relevant facts, submissions, and legal precedents.
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2012 (3) TMI 700
Issues Involved:
1. Mismanagement and irregularities by trustees.
2. Failure to protect and preserve trust properties.
3. Unauthorized changes and renovations in the temple.
4. Standard of proof required for removal of trustees u/s 41-D of the Bombay Public Trusts Act, 1950.
Summary:
1. Mismanagement and Irregularities by Trustees:
The Petitioner alleged serious irregularities and acts of misfeasance and malfeasance by the trustees, warranting their removal u/s 41-D of the Bombay Public Trusts Act, 1950. The Charity Commissioner, however, found that the charges were not serious enough to justify removal, as the trustees were reappointed even after the District Judge's report.
2. Failure to Protect and Preserve Trust Properties:
The Petitioner emphasized the failure to record the names of trustees in the revenue records of the trust properties. The Charity Commissioner held that the current trustees could not be held responsible for the negligence of the previous board and that the Petitioner failed to prove this charge.
3. Unauthorized Changes and Renovations in the Temple:
The Petitioner claimed that the trustees carried out repairs and renovations without the required permissions, violating the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960. The Charity Commissioner noted that the District Judge had acknowledged these irregularities but did not find them severe enough to warrant removal. The trustees were advised to be more careful in the future.
4. Standard of Proof Required for Removal of Trustees u/s 41-D:
The court emphasized that removal of trustees is a drastic action requiring a high degree of proof. The imputation reflecting on the integrity of trustees must be fortified by proof of a high degree, higher than that required in civil proceedings but less than in criminal trials. The Charity Commissioner found that the errors committed by the trustees were not severe enough to warrant their removal.
Conclusion:
The court agreed with the Charity Commissioner's decision that the case for drastic action for removal of the trustees had not been made out. The errors committed by the trustees were not severe enough to warrant their removal. The Writ Petition was dismissed, and the rule was discharged with no order as to costs.
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2012 (3) TMI 699
Issues Involved:
The judgment involves the jurisdiction of CIT u/s. 263, application of section 50C for computing gains on transfer of industrial unit taxable u/s. 50, and whether the AO's order was erroneous and prejudicial to the interests of revenue.
Jurisdiction u/s. 263:
The appeal was filed against the order passed by CIT-9, Mumbai u/s. 263. The grounds of appeal challenged the exercise of powers u/s. 263, questioning the CIT's assumption of jurisdiction and direction to recompute income on sale of industrial units by substituting Stamp Duty valuation. The CIT held the AO's order as erroneous and prejudicial to revenue, directing re-computation based on Stamp Duty valuation.
Application of Section 50C:
The CIT invoked section 50C for computing gains on transfer of industrial unit taxable u/s. 50. The assessee argued that as the assets were depreciable capital assets, section 50 should prevail over section 50C. The CIT, however, held that if the sale consideration was less than Stamp Duty valuation, section 50C would apply.
Erroneous Order by AO:
The AO had picked up the case for scrutiny and framed assessment u/s. 143(3) after seeking explanations from the assessee. The CIT proposed revision of the order, questioning the applicability of section 50C. The AR argued that the AO had applied his mind on the issue, making the CIT's direction invalid under section 263. The ITAT found that the AO did apply his mind, and the order u/s. 143(3) was not unsustainable in law.
Conclusion:
After considering submissions and legal precedents, the ITAT concluded that the AO had applied his mind on the issue of section 50C, and the CIT's direction was erroneous. The order passed by the AO u/s. 143(3) was restored, setting aside the CIT's direction. The judgment was pronounced on 21st March 2012.
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2012 (3) TMI 698
Issues involved: Technical delay condonation, grant of leave, interim stay on penalty imposition under Section 11AC of the Central Excise Act, 1944.
Technical Delay Condoned:
The Supreme Court condoned the technical delay and granted leave for the appeals to be heard on the SLP Paper Books. Additional documents can be filed by the parties.
Grant of Leave:
The Court directed that on the appellants' depositing 25% of the penalty imposed each on the Firm and its partner under Section 11AC of the Central Excise Act, 1944, and furnishing a solvent security for the balance 75% of the penalty amount, no coercive steps shall be taken for recovery within four weeks from the date of the order.
Interim Stay on Penalty Imposition:
The interim stay was granted on the condition of depositing 25% of the penalty and furnishing a solvent security for the remaining amount as per Section 11AC of the Central Excise Act, 1944. This stay prevents coercive recovery actions for the balance penalty amount.
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2012 (3) TMI 697
Issues involved:
The issues involved in this case are:
1. Disallowance of interest on fixed deposits for deduction u/s. 80IA.
2. Non-allowance of netting off interest income on bank FDRs with interest paid on borrowed funds.
3. Confirmation of interest charged under sections 234C for deferment of advance tax.
4. Compliance with principles of natural justice.
Issue 1: Disallowance of interest on fixed deposits for deduction u/s. 80IA:
The Assessee challenged the disallowance of interest on fixed deposits for deduction u/s. 80IA, arguing that the interest income was derived from the business and should be eligible for deduction. The Assessing Officer held the income as 'income from other sources' and taxed it accordingly. The Ld. Commissioner of Income Tax (Appeals) reversed this decision, stating that the interest income was attributable to business but not derived from it, thus denying the deduction u/s. 80IA.
Issue 2: Non-allowance of netting off interest income on bank FDRs with interest paid on borrowed funds:
The Assessee contended that the interest income should be adjusted against interest expenditure on borrowed funds. The Ld. Commissioner of Income Tax (Appeals) held that no deduction against interest income could be allowed as the expenditure was not incurred 'wholly and exclusively' for earning such income. The issue of netting off interest expenditure for computing profits and gains was remitted back to the Ld. Commissioner of Income Tax (Appeals) for reconsideration.
Issue 3: Confirmation of interest charged under sections 234C for deferment of advance tax:
The Ld. Commissioner of Income Tax (Appeals) confirmed the interest charged under sections 234C for deferment of advance tax in respect of the book tax u/s. 115JB.
Issue 4: Compliance with principles of natural justice:
The Assessee raised concerns about the order lacking proper lawful opportunity and compliance with principles of natural justice. However, the appeal was allowed for statistical purposes without addressing this issue specifically.
In conclusion, the appeal by the Assessee was allowed for statistical purposes, with the issue of netting off interest expenditure remitted back for reconsideration. The judgment addressed the disallowance of interest on fixed deposits for deduction u/s. 80IA, non-allowance of netting off interest income on bank FDRs with interest paid on borrowed funds, and confirmation of interest charged under sections 234C for deferment of advance tax.
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2012 (3) TMI 696
Issues involved: Violation of regulations u/s 4(a), (b), (c) and (d) of Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995 read with regulations 4(1), 4(2) (a), (b), (e), and (g) of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003.
Summary:
1. The appellant, a trader/jobber and short-term investor, was found guilty of violating securities market regulations and was restrained from accessing the market for one year. Allegations included circular/synchronized trades generating artificial volumes in a company's scrip. The appellant denied the allegations, citing lack of complete investigation report and trade logs.
2. The appellant argued that trades were ordinary, anonymous, and automated through a registered stock broker, with no knowledge of counterparties. The appellant's trades were a small portion of alleged irregular trades, not capable of creating an artificial market. The appellant contested findings of reversal trades, claiming misinterpretation by the whole time member.
3. The respondent Board defended providing relevant trade/order logs to the appellant, refuting claims of natural justice violation. The whole time member found the appellant engaged in circular/reversal trades, forming a significant portion of trading in the company's scrip. The order was supported by material linking parties and trade logs.
4. After reviewing the case, the Tribunal upheld the order, stating no interference was warranted. The interconnection between parties, supported by trade logs, was a factor in the Board's findings. Despite the appellant's request for complete documents, the provided extracts were deemed sufficient for defense. The Tribunal found no fault with the whole time member's conclusions, dismissing the appeal.
Separate Judgment: No separate judgment was delivered by the judges.
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2012 (3) TMI 695
Issues involved:
1. Competence of Respondents to examine the Petitioner at Delhi by serving a notice u/s 160 Cr.P.C.
2. Right of the Petitioner to be accompanied by an advocate during the recording of his statement.
3. Whether the Respondents' actions amounted to illegal detention, warranting judicial enquiry and compensation.
Summary:
Issue 1: Competence to Examine at Delhi
The court examined Section 160 Cr.P.C. and Section 3 of the NIA Act. It concluded that the NIA officers have the jurisdiction to investigate and arrest any person related to scheduled offences anywhere in India. The court clarified that the NIA Act, being a special enactment, overrides the provisions of the Code of Criminal Procedure, 1973. It was held that the Petitioner was lawfully served notice to join the investigation at Delhi, and the NIA officers acted within their jurisdiction.
Issue 2: Right to be Accompanied by an Advocate
The court referred to the decision in Senior Intelligence Officer Vs. Jugal Kishore Sharma, which clarified that a person called for interrogation, who is not an accused, does not have the right to be accompanied by an advocate. The court held that the Constitutional protections entitled to the accused will not be available to the Petitioner during the investigation stage.
Issue 3: Allegations of Illegal Detention and Harassment
The court found no merit in the Petitioner's claims of illegal detention and harassment. The evidence, including the register entries, showed that the Petitioner was accompanied by an advocate and allowed breaks during the investigation. The court also noted the absence of any physical injuries and the CFSL report, which did not detect any poison in the Petitioner's gastric lavage. Consequently, the court dismissed the petition, stating that the Petitioner could file a criminal complaint if so advised.
Conclusion:
The petition was dismissed, with the court finding no merit in the claims of jurisdictional overreach, the right to legal accompaniment during interrogation, or allegations of illegal detention and harassment. The Petitioner was advised to pursue a criminal complaint if necessary.
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