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Showing 21 to 40 of 1478 Records
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2016 (3) TMI 1469
Exemption u/s 11 - assessee is not entitled to claim of such exemption which was not made in the return - HELD THAT:- As observed that the assessee society is registered u/s 12A of the Act and enjoys its benefits. In our considered view the ld. CIT(A) being an appellate authority ought to have considered the assessee's claim which was purely legal in nature and the reservation as contemplated in the Goetze India Ltd. [2006 (3) TMI 75 - SUPREME COURT] is applicable to AO and not to the appellate authority.
We are of the view that assessee's claim should have been considered and appropriate relief in accordance with law may be provided. We set aside the matter to the file of the AO to consider the assessee's claim afresh by providing adequate opportunity of being heard. If some compliance is further required, the assessee may be allowed to make the same and decide the grounds of appeal in accordance with law. Thus the appeal of the assessee is allowed for statistical purposes.
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2016 (3) TMI 1468
Disallowance of interest - advances granted for acquiring development rights in relation to land situated at Bhandup - interest charged @ 12% on the aggregate loan - as per AO since there is no business during the relevant previous year and the only receipt declared by the assessee is interest on debentures and assessee has advanced interest free loan to Ackruti City Ltd - HELD THAT:- We are of the considered opinion that the disallowance of interest, if any, is to be restricted to the amount of advance actually given by the assessee and should not be in reference to the expenditure incurred for the registration and stamp duty charges for registration of development agreement. We further found that since the advance was granted on 31.12.2009 as per the ‘development agreement’ therefore, the period covered during the year under consideration is only w.e.f 31.12.09 i.e. for 3 months accordingly, the AO is directed to compute the disallowance of interest only on the actual amount of advance and only for the period of three months w.e.f. 31.12.09 to 31.03.10. AO is directed accordingly.
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2016 (3) TMI 1467
Seeking sanction of scheme of amalgamation with Virchow Drugs Limited. - Sections 391 and 394 of the Companies Act, 1956 - HELD THAT:- This Court is of the opinion that the proposed scheme of amalgamation is in conformity with the provisions of the Act. The scheme does not affect the interest of stakeholders and the public or public interest and is intended to further the business interests of transferor and transferee companies for more profit and maximum utilization of available resources. Therefore, the scheme of amalgamation approved in the meeting of Board of Directors of transferor company on 04.01.2016 is sanctioned with effect from the date appointed i.e., 01.04.2015. The transferor company viz., Siri Drugs India Private Limited is ordered to be dissolved without going through the process of winding up.
Petition disposed off.
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2016 (3) TMI 1466
Seeking production of original record relating to the assessment proceedings - proceedings initiated by the Assessing Officer for making a provisional assessment were not correct - violation of principles of natural justice - HELD THAT:- The petitioner was directed to file reply by 10th February, 2016 which was not possible and, accordingly, the petitioner rightly applied for adjournment, which was granted fixing 15th February, 2016. The order sheet shows that the petitioner did not appear on 15th February, 2016, but at the same time, we find that if on the second date the petitioner did not appear, the Assessing Authority had the option to proceed ex-parte or fix another date, which in the instant case did not happen. If the Assessing Officer proceeded ex-parte, he could have fixed another date for ex-parte hearing or after recording the absence of the petitioner could have proceeded ex-parte and passed an assessment order on that date itself, which in the instant case did not happen. Therefore, any assessment order made on the next date i.e. on 16th February, 2016 becomes erroneous, as no date was fixed for 16th February, 2016 for making an assessment. Such assessment order passed on 16th February, 2016 without due notice is apparently in gross violation of the principles of natural justice.
The procedure relating to granting adequate opportunity as provided under Article 25 (1) of the U.P. VAT Act was not followed. Reasonable opportunity of being heard was not given. Proper inquiry was not made and therefore, the ex-parte assessment order cannot be sustained - In exceptional and in extraordinary circumstances as has happened in the instant case, the Court is of the opinion that a writ of certiorari should be issued in order to dispense justice to the assessee. There has been a gross violation of Article 14 of the Constitution of India. Adequate opportunity of hearing has not been provided nor the sufficient time was given to file objections.
In M/S. AROMA CHEMICALS VERSUS UNION OF INDIA & OTHERS [2014 (4) TMI 949 - ALLAHABAD HIGH COURT] a Division Bench of this Court held that a period of 7 days' time given for filing reply to the show cause notice was found to be insufficient and in violation of the principles of natural justice and, accordingly, the order was quashed.
In the instant case, provisional notice was issued on 9th February, 2016 and an assessment order was passed on 16th February, 2016 within a period of one week - undue haste and speed was exercised by the Assessing Officer. The Court fails to fathom as to what was the urgency in proceeding in such a cavalier fashion. There could have been some urgency if the period of limitation was expiring for making an assessment order which in the instant case was not existing.
Tthe assessment orders cannot be sustained and are quashed - The writ petition is, accordingly, allowed at the admission stage.
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2016 (3) TMI 1465
Addition of prior period expenses - In the absence of any supporting evidence/documents, the expenses AO made the addition - CIT(A) deleted the addition - HELD THAT:- The assessee is a public sector undertaking and it has got a vast organization. In its system of account when expenditures are not reported or identified upto the close of the year are subsequently accounted for under prior period expenses. This system of accounting has been regularly followed and the Department has not disputed about this in the past. We also agree with the contention that the AO has clearly erred in drawing adverse inference that these expenditures were not covered by actuarial valuation.
AO's plea that supporting evidences have not been produced is also not cogent as rightly contended by the ld. counsel for the assessee, the particulars supporting against expenditures are duly attached with the concerned vouchers. It is not the case of the Assessing Officer that any voucher of the assessee company has been found to be lacking credibility. We also note that ITAT, Ranchi Bench, in assessee’s own case [2013 (5) TMI 858 - ITAT RANCHI] had upheld the assessee’s claim of prior period expenditure for assessment year 2007-08. Decided in favour of assessee.
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2016 (3) TMI 1464
Jurisdiction of Delhi Special Police Establishment to inquire or investigate into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 - Section 6A(1) of the Delhi Special Police Establishment Act, 1946 - HELD THAT:- The provisions of Section 6A(1) of the Delhi Special Police Establishment Act, 1946 has been held to be unconstitutional being violative of Article 14 of the Constitution of India by a Constitution Bench of this Court in DR. SUBRAMANIAN SWAMY VERSUS DIRECTOR, CENTRAL BUREAU OF INVESTIGATION & ANR. AND CENTRE FOR PUBLIC INTEREST LITIGATION VERSUS UNION OF INDIA [2014 (5) TMI 783 - SUPREME COURT]. The judgment of the Constitution Bench is however silent as to whether its decision would operate prospectively or would have retrospective effect. Though a large number of precedents have been cited at the Bar to persuade us to take either of the above views, as would support the case of the rival parties, we are of the considered view that this question should receive the consideration of a Constitution Bench in view of the provisions of Article 145(3) of the Constitution of India.
The provisions of Section 6A(1) do indicate that for officers of the level of Joint Secretary and above a kind of immunity has been provided for. Whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Court, in the context of Article 20 of the Constitution of India, is the moot question that arises for determination in the present case - having regard to the provisions of Article 145(3) of the Constitution of India, the aforesaid question referred to a larger bench for which purpose the papers may now be laid before the Hon'ble the Chief Justice of India on the administrative side.
Matter referred to Larger Bench.
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2016 (3) TMI 1463
Winding up of company - inability to pay debts under Section 434(1)(a) of Companies Act - HELD THAT:- The learned Single Judge held that this was not an appropriate case for winding-up of the company on the ground of its inability to pay debts under Section 434(1)(a).
In the present case, whilst there is no doubt that the respondent company had made an OTS offer, there is no material to suggest that this offer was accepted by the IDBI and so communicated. On the other hand, the IDBI in fact assigned the debt to Kotak Mahindra Bank, which later assigned it to the present appellant. On the other hand, the company’s counter claim is still pending. The record also shows that the appellant got its “foot into the door” metaphorically speaking, by offering to the Court which was reluctant to entertain the winding up proceeding- that it would be content accepting the said sum of Rs. 250 lakhs. However, the appellant was not agreeable for that amount and demanded a high rate of interest.
This Court is unpersuaded by the submission that the Company Court overlooked the admissions, by way of the balance sheet issued by the respondent; it was shown during the hearing that the explanation for the so called credit liabilities were found in the notes to accounts, which disputed the liability and stated that the matter was pending before the Debt Recovery Tribunal. In these circumstances, it cannot be said that the requirements for entertaining a winding up proceeding, so as to compel the Court to admit the petition, had been made out.
This Court finds no merit in the appeal. Any amounts deposited in Court by the respondent shall be refunded to it, with accrued interest. The appeal is dismissed.
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2016 (3) TMI 1462
Jurisdiction - power of Court under Section 34 of the Arbitration and Conciliation Act, 1996 to remit the matter to the arbitral tribunal after setting aside an arbitral award - HELD THAT:- A plain reading of Section 34 of the Act will show that parliament has not conferred any power of remand to the Court to remit the matter to the arbitral tribunal except to adjourn the proceedings as provided under sub-section (4) of Section 34 of the Act. The object of sub-section(4) of Section 34 is to give an opportunity to the arbitral tribunal to resume the arbitral proceedings or to enable it to take such other action which will eliminate the grounds for setting aside the arbitral award. This provision (sub-section(4)) cannot be invoked, once the arbitral Award is set aside.
The Court below has erred in law in setting aside the arbitral award without examining the matter as laid down in Section 34 of the Act - The matter is remitted to the Court of the Principal District Judge, Dharwad, for reconsideration in accordance with law - appeal disposed off.
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2016 (3) TMI 1461
Seeking revocation of suspension order based on the Government Circular issued in Letter No.13519/N/2015-1, dated 23.07.2015 - HELD THAT:- In the present case, the petitioner was placed under suspension on 26.08.2011 and the respondent had enhanced his subsistence allowance on 23.07.2012. Thereafter, only on 29.07.2013, he was issued with the charge memo to which it is made clear that he has to face an enquiry. Even after lapse of three years, the respondent has not passed a reasoned order of extension of suspension.
However, with regard to the order of suspension, it has been kept pending for a long time. Therefore, as per the judgment of the Hon'ble Apex Court, in the case of AJAY KUMAR CHOUDHARY VERSUS UNION OF INDIA THROUGH ITS SECRETARY & ANR. [2015 (6) TMI 592 - SUPREME COURT] and following the letter mentioned supra issued by the Government in this regard, this Court is of the view that the prolonged suspension is no longer permissible. Hence, this Court finds merit in the contention of the petitioner.
The respondent is directed to consider and pass appropriate orders on the petitioner's representation dated 24.02.2016 on merits and in accordance with law - Petition disposed off.
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2016 (3) TMI 1460
Reopening of assessment u/s 147 - addition u/s 68 - unexplained cash deposits - HELD THAT:- As modus operandi of the transaction is that the moment the cash is deposited immediately the cheques are issued in favour of the somebody. Mostly the name appears of Milap Automotive Pvt. Ltd. - we reject the contention of the assessee that there is no live link between the reasons and the information received.
The assertion of Assessee that on receipt of the information from another AO, AO has simply jumped to the conclusion that the deposit is unaccounted income of the assessee. For this our view is that the moment any person of little bit of common sense looks at this account with the income earning employment of the assessee he will jump to same conclusion. Therefore we upheld that reopening of assessment is validly initiated. Therefore ground no 1 of the appeal is dismissed.
Addition u/s 68 - As it is evident that u/s 133(6) letters have been issued by the AO to them and out of them few responded. This might have happened because of short time available during the remand proceedings and death of Shri Dinesh Prasad who was the main person collecting money from other parties. As the AO himself has stated that the assessee may not be the real owner of the sum so deposited, therefore in the interest of justice we set aside all three appeals back to the file of AO for verification of the details filed and also to enquire from the beneficiaries of the sum received from the bank account of the assessee. Verification from the bank also may be conducted for the companies in which the assessee has made investment. In view of this all the three appeals are set aside to the file of AO to make assessment de novo. Appeal filed by the assessee is allowed for statistical purposes.
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2016 (3) TMI 1459
TP Adjustment - DRP directing the TPO/AO to provide freight subsidy where the figure of freight subsidy is not separately available in the annual report of the assessee company - HELD THAT:- We are not in agreement with the findings of the TPO, in view of the fact that in para-20 schedule to the notes of account of the annual report of global green, it is clearly mentioned that transportation outward expenses are net of freight subsidy. As further observed that by the DRP in such circumstances, in the absence of any contradictory evidence, it cannot be presumed that the freight subsidy has not been reduced from the operating cost and therefore, in the absence of information even though adjustment is not possible, but in such circumstances, for uniform comparability, the freight subsidy in the case of the assessee company has to be considered as operating in nature. The AO is accordingly, directed to consider the said subsidy as part of operating revenue.
Working capital adjustment - As reliance has been placed by the assessee are of the view that the working capital adjustment needs to be allowed. AO is accordingly, directed to allow the working capital adjustment.
Decided against revenue.
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2016 (3) TMI 1458
Deduction u/s 80IA - AO disallowed deduction as Department has filed SLP before the Hon’ble Supreme Court challenging the decision of Velayudhaswamy Spinning Mills P. Ltd. [2012 (10) TMI 1125 - SC ORDER] - HELD THAT:- As decided in Velayudhaswamy Spinning Mills & Others [2010 (3) TMI 860 - MADRAS HIGH COURT] eligible business were the only source of income during the previous year relevant to initial assessment year and every subsequent assessment years. When the assessee exercises the option, the only losses of the years beginning from initial assessment year alone are to be brought forward and no losses of earlier years which were already set off against the income of the assessee.
Looking forward to a period of ten years from the initial assessment is contemplated. It does not allow the Revenue to look backward and find out if there is any loss of earlier years and bring forward notionally even though the same were set off against other income of the assessee and the set off against the current income of the eligible business, once the set off is taken place in earlier year against the other income of the assessee, the Revenue cannot rework the set off amount and bring it notionally. Fiction created in sub-section does not contemplate to bring set off amount notionally. Fiction is created only for the limited purpose and the same cannot be extended beyond the purpose for which it is created - no infirmity in the order passed by the ld. CIT(A) and accordingly, the appeal filed by the Revenue is dismissed.
Nature of receipt - carbon credit - revenue or capital receipt - HELD THAT:- We find that the issue of carbon credits receipts has been considered by the Coordinate Bench of the Tribunal in the case of My Home Power Ltd. [2012 (11) TMI 288 - ITAT HYDERABAD] and held that these receipts are capital receipts. We hold that the carbon credits receipts are capital in nature. So far as case law relied on by the DR in the case of Apollo Tyres Ltd. [2014 (1) TMI 33 - ITAT COCHIN] is concerned, once there is a judgment of is bounden duty of the Tribunal to follow the judgment of the High Court. We find no infirmity in the order passed by ld. CIT(A). Thus, the ground raised by the Revenue for both the assessment years are dismissed.
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2016 (3) TMI 1457
Attribution of income - receipt of arbitration award and interest thereon - allowability of expenses related to award - whether expenses incurred should have been allowed & only net income ought to have been taxed? - HELD THAT:- On verification of computation, it is found that payment of (vi) running bills, principal amount and thereon interest from 01/6/1993 to 31/5/1999 and balance payment (unmeasured work), principal amount and interest thereon from November, 1993 to 31/5/1999 , the Arbitrator has allowed principal amount of Rs. 1,36,983/- and thereafter interest at Rs. 1,80,818/-, thus, total amount has been worked by the Arbitrator at Rs. 3,17,801/-, remaining amount pertained to refund of security deposit of Rs. 76,210/- and interest thereon from November, 1993 to 31/5/1999 Rs. 95,025/- and litigation expenses of Rs. 30,000/-.
Since the identical issue decided by the Coordinate Bench for A.Y. 2006-07 has already been challenged before the Hon'ble Jurisdictional High Court and the Hon'ble High Court has also framed question of law in the case of assessee which is pending for disposal. Assessee’s appeal is allowed for statistical purposes only.
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2016 (3) TMI 1456
Seeking forbearing the respondents from enforcing the provisions of the amended Paragraph 26(2) of the Employees Provident Fund Scheme in so far as temporary and casual and site workers engaged by the members of the petitioner - HELD THAT:- Since the Hon'ble Supreme Court in J.P.Tobacco Products, etc., etc. v. Union of India & Others [1995 (4) TMI 320 - SUPREME COURT] has already dealt with amended paragraph 26(2) of the Employees' Provident Fund Scheme, 1952, the same cannot be challenged in the present Writ Petition and further as per Section 2(f) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, the same is applicable even to casual workers. Therefore the first contention putforth on the side of the appellant/petitioner is sans merit.
It is an admitted fact that under Section 7-A of the Act, the appellant/petitioner is having unfettered right of raising its objection if any and the same right has also been given by the learned Single Judge and this Court need not make any observation with regard to that aspect.
Appeal dismissed.
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2016 (3) TMI 1455
Applicability of notification dated 22.3.2001 - courier service included in the class of establishments to which the EPF & MP Act or not - employer-employee relationship between the petitioner and other 11 agencies - petitioner disputed the liability on the ground that the petitioner had never employed 20 or more persons and hence, the EPF & MP Act is not applicable to the petitioner and requested to conduct an enquiry under Section 7A of the EPF & MP Act, to determine the question of applicability - Sections 2(f) and 2A of the EPF & MP Act - HELD THAT:- According to Clause 4, the agency shall be under obligation to deposit the entire sale proceeds of the day, without any deduction to the account of the petitioner on the very next day. As per Clause 8, the petitioner shall supply stationery to be used by the agency for delivery, booking and for administration for free of charge. The stationery to be supplied by the petitioner only be used for the delivery and booking of the documents. According to Clause 12, the agency shall keep a register of consignment notes issued by the petitioner and the balance stock, which shall be kept up to date at all times and shall be made available to the petitioner at all times for verification. As per Clause 13, the petitioner either himself or through his authorised representative shall be at liberty at all times to inspect and verify the premises and records of the agency and take copies of such records to ensure compliance with the various terms of the Agency Agreement.
According to Clause 19, the agency shall maintain the office records of all documents, control of consignment notes, ledger books, showing the amount due from the sundry debtors, collection statements, delivery run-sheets and stationeries in the proper or orderly manner and to the satisfaction of the petitioner. According to Clause 16, the agency shall not carry on the business of courier or its agency in his own name or in proprietorship or as director of a company nor shall any courier/agency be permitted to be operated from the place of business from which agency of Professional Courier is operated.
This Court is of the opinion that ultimate control; both the financial and human resources, are vested with the petitioner. So also, unity of management and control, functional integrity and unity of purpose, are obviously evident from the above clauses. The above findings are to be appreciated, in view of the definition under Section 2(f) of the EPF & MP Act.
There is no illegality or impropriety in any of the findings, in Exts. P7 and P9 orders and the respondents have correctly and properly appreciated all the evidence collected during the course of enquiry under Section 7A and tested the same with Sections 2(f) and 2A of the EPF & MP Act.
Petition dismissed.
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2016 (3) TMI 1454
Penalty u/s 271B - AO estimated the assessee’s sales outside books of account - no books of account were maintained by the assessee - AO applying estimated profit rate of 5% on such sales - HELD THAT:- Hon’ble Gauhati High Court in Suraj Mal Parasuram Todi [1996 (8) TMI 102 - GAUHATI HIGH COURT] has held that where no books of account are maintained, penalty should be imposed for non-maintenance of books of account u/s 271A and no penalty can be imposed u/s 271B for violation of section 44AB requiring audit of accounts.
Thus Penalty u/s 271B ought not to have been levied because the assessee admittedly did not maintain any books of account as has been recorded in the assessment order itself. We, therefore, order for the deletion of penalty.
Penalty u/s 271(1)(c) - estimation of income at 5% on estimated sales - Delhi High Court in CIT vs. Aero Traders P. Ltd. [2010 (1) TMI 32 - DELHI HIGH COURT] has upheld the view taken by the Tribunal in deleting penalty u/s 271(1)(c) which was imposed on the basis of addition made by the AO on estimated profit.
Thus it is clear that the penalty so confirmed in the instant case cannot be sustained because it was imposed by the AO on the estimate of income made by him. We, therefore, order for the deletion of penalty.
Assessee appeal allowed.
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2016 (3) TMI 1453
Liability to pay a sum of Rs. 8,40,568/- in 40 equal installments payable within 7th of each month, starting from August, 2000 - petitioner assails the award passed by the Arbitrator under Section 7B of the Indian Telegraph Act, 1885, on the ground that the Arbitrator has passed an unreasoned award, more so, the award so passed is without jurisdiction - HELD THAT:- Appointment of the Arbitrator having not been done in consonance with the provisions contained under Section 7B of the Act, meaning thereby, it is the Central Government alone can appoint Arbitrator, the same having not been done in consonance with the said provisions the award so passed in Annexure-5 is without jurisdiction and therefore, cannot sustain in the eye of law.
Similar question came up for consideration in M/s. Fly Wings Travels (P.) Ltd. [1994 (4) TMI 406 - DELHI HIGH COURT] wherein, the Delhi High Court having come to the conclusion that the Arbitrator having not been appointed in consonance with the provisions contained under Section 7B of the Act, set aside the award passed by the said incompetent Arbitrator. In the present case the Arbitrator has not been appointed by the Central Government as required under Section 7B of the Act.
On perusal of the award indicates that no reason has been assigned, rather, the Arbitrator who is obliged under law to pass a reasoned award has resolved the dispute without assigning any reason. It is well settled law that in public law remedy when the order visits with civil consequences, natural justice required recording the reasons as they are bridge between the order and its maker to indicate how his mind was applied to the facts presented and the decision reached.
It is seen that under Section 7B, the award is conclusive but when the citizen complains that he was not correctly put to bill for the calls he had made and disputed the demand for payment, the statutory remedy opened to him is one provided under Section 7B of the Act. By necessary implication, when the arbitrator decides the dispute under Section 7B, he is enjoined to give reasons in support of his decision since it is final and cannot be questioned in a court of law. However, the only remedy available to the aggrieved person against the award is judicial review under Article 226 of the Constitution.
The appointment of Arbitrator, having been made, in derogation of the provisions contained under Section 7B of the Act and such Arbitrator having passed the award in Annexure-5 without assigning any reasons, the same cannot sustain - the impugned award passed by the Arbitrator in Annexure-5 is set aside and the matter is remitted back to the Central Government to adjudicate the dispute in consonance with Section 7B of the Act - Application allowed.
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2016 (3) TMI 1452
Rectification of mistake u/s 154 - Addition u/s.80E - incurring interest expense on the loan taken for the purpose of education for himself/herself or for their relatives - AO has observed that the education loan was taken by the married major son of the assessee, and therefore, cannot claim interest u/s 80E - HELD THAT:- The power of rectification under section 154 can be exercised only when the mistake, which is sought to be rectified, is an obvious patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions.
In the present case, before carrying out rectification as suggested by the AO one has to decide the nature of loan, who has taken the loan etc. It will require long drawn process of hearing. It is a debatable question. The assessee annexed form no.16 along with her return and shown the deduction under section 80E. This step must have been taken by the designated employer or by the assessee after due consideration of section 80E and loan documentation. Such stand can be dispelled after perusal of the loan documents and other details. It cannot be a subject matter of proceedings under section 154. Appeal of the assessee allowed.
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2016 (3) TMI 1451
Approval of reconstitution of the Managing Committee as per the provisions contained under Rule 28(1) of the Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991 - whether the reconstitution of the Managing Committee of the School in question has been done in conformity with the provisions of Rule 28 of 1991 Rules?
HELD THAT:- The reconstitution has to be made under Sub-Rule(1) of Rule 28 of 1991 Rules. As per Sub-Rule (2) of Rule 28 of 1991 Rules, the Headmaster of the school or the teacher-in-charge of Headmaster shall be Secretary of the Managing Committee in his ex-officio capacity. Under Sub-Rule (3) of Rule 28 of 1991 Rules, the Sub-Collector shall nominate the President from among the members specified in Clauses (a) to (d) of Sub-rule (1). Sub-Rule (4) of Rule 28 of 1991 Rules, says that the Inspector shall take all necessary steps to reconstitute the Managing Committee in respect of aided High School and of any such School which becomes aided. Therefore, pivotal role is being played by Inspector of School, who is to take all necessary steps to reconstitute the Managing Committed in respect of aided High Schools.
As it appears from the records, the Inspector of Schools instead of applying his mind independently submitted letter on 01.11.2012 recommending the proposal of Sri Sarat Kumar Mohapatra, senior most Asst. Teacher, who has been allowed to remain-in-charge of the School temporarily, for reconstitution of the Managing Committee to the Director, Secondary Education, Odisha, Bhubaneswar for approval of the Managing Committee. On the basis of such recommendation, the Director has passed the impugned order under Annexure-4 on 08.09.2014 - The 1991 Rules having been framed under the Rule making power under Orissa Education Act, 1969, has got its own statutory force and therefore, the authority has to act in adherence to the provisions contained under the 1991 Rules and for any deviation thereof, consequential order cannot sustain in the eye of law.
The action taken by the Inspector of School is not in consonance with the provisions of Sub-Rule(4) of Rule 28 of 1991 Rules. When a gross illegality has been committed by the authority for reconstitution of Managing Committee, which has been brought to notice of the Court by the present petitioner, without delving into the question of locus standi of the petitioner, this Court is of the considered view that the order passed under Annexure-4 for reconstitution of the Managing Committee of Bapujee Ashram Residential High School, Goradajhari in the district of Khurda under Rule 28(1) of 1991 Rules dated 08.09.2014 cannot sustain in the eye of law - the matter is remitted back to the District Education Officer, Khurda for submission of proposal afresh in-compliance to the Sub-Rule (4) of Rule 28 of 1991 Rules.
The writ petition stands disposed of.
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2016 (3) TMI 1450
Fake encounter - inherent power of the High Court for quashing the criminal proceedings against an offender who had settled the dispute with the victim - compoundable offence u/s section 320 of Indian Penal Code - Locus standi (the right or capacity to bring an action or to appear in a court/direct connection with the offence and only that person can file an application before court), to challenge the order - HELD THAT:- In the instant case, the applicant has invoked the power under Section 482 of Cr.P.C. to challenge the order of discharge dated 30.12.2014 whereby the learned Sessions Judge Gr. Bombay has discharged the respondent no. 1 of the offences under Sections 120B, 364, 365, 368, 341, 342, 384, 302, 218 r/w. 201 of IPC. It is not in dispute that the said order is not an interlocutory order and could be challenged by invoking the revisional jurisdiction of the High Court under Section 397 /401 of Cr.P.C. Hence, in the light of the law laid down by a three Judge Bench of the Apex Court in the case of Madhu Limaye [1977 (10) TMI 111 - SUPREME COURT] and which has been followed in Gian Singh and Mohit [2012 (9) TMI 1112 - SUPREME COURT], the powers under Section 482 cannot be resorted to in view of the said specific provision of the code for the redressal of the grievance particularly when the aggrieved party had already assailed the said order in revisional jurisdiction of this Court.
The Applicant had sought to invoke the power under section 482 of Cr.P.C. mainly on the ground that the Respondent No. 1 through powerful network of forces at his command has prevailed upon the Rubabuddin Shaikh to withdraw the revision application. The Applicant has alleged that the withdrawal appears to be suspicious, under threat, inducement and promise - It is no doubt true that the powers under sections 482 and 483 of the Cr.P.C. are wide. However, it is well settled that these powers should be exercised sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice or to prevent misuse of judicial mechanism or miscarriage of justice. In the instant case, Rubabuddin, the brother of the deceased who is an aggrieved party and at whose instance the crime was registered had by application dated 5.10.2015 which was supported by his affidavit, sought leave to withdraw the revision application as well the application for condonation of delay. Since said Rubabuddin was not represented by an advocate, no order was passed on the said application on the said date. On 6.10.2015 said Rubabuddin had remained present alongwith his counsel and had once again sought leave to withdraw the said applications.
Locus standi (the right or capacity to bring an action or to appear in a court/direct connection with the offence and only that person can file an application before court) - HELD THAT:- The present case does not involve the issue of locus standi of a third party / stranger for setting the criminal law in motion. The issue in the present case is whether the applicant, who is a total stranger to the proceedings can invoke the powers under Section 482 of Cr.P.C. to challenge the discharge order. Hence, the decisions in Antulay [1984 (2) TMI 317 - SUPREME COURT] is not strictly applicable to the facts of the present case.
In Sulochana Devi [1992 (11) TMI 295 - ORISSA HIGH COURT] the Petitioner who was not a party to the proceedings had invoked the powers of the High Court under section 482 of the Cr.P.C. to challenge the order of issuance of proclamation under section 82 of the Code and attachment of the property. Raising the issue of locus standi, preliminary objection was raised to the maintainability of the application at the behest of the Petitioner. The Orissa High Court after considering the scope of section 482 of the Cr.P.C. as well as the decisions of the Apex Court in Madhu Limaye, Simerjeet Singh [1977 (10) TMI 111 - SUPREME COURT] and in the case of the Janata Dal V/s. H.S. Choudhary & Ors. [1992 (8) TMI 301 - SUPREME COURT] citation held that ordinarily, the aggrieved party, which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order unless such party is a minor and in same person or is suffering from any other disability which law recognises as sufficient to permit another person e.g. next friend, to move the court in his behalf.
Reverting to the case in hand, it is not in dispute that the applicant is neither a victim nor an aggrieved person. He is not in any manner connected with the proceedings pending before the learned Sessions Court Greater Bombay. The Applicant has not suffered any prejudice and has not demonstrated that his legal rights are impaired or any harm /injury is caused to him or is likely to be caused. The Applicant has thus not been able to demonstrate that his legal right has been invaded so as to give him locus standi to challenge the order.
he Applicant who claims to be a socially responsible citizen has allegedly filed this application for preventing abuse of process of court. It is pertinent to note that though the alleged incident had occurred in the year 2005, and no case was registered against the respondent no. 1 and the other police officers, the applicant herein had not shown any interest to set the criminal law in motion. The said crime was registered only pursuant to the directions given by the Honourable Supreme Court in view of the letter of grievance made by Rubabuddin, the brother of the deceased.
In the instant case, the State had not challenged the order of discharge. nonetheless the aggrieved person, Rubabuddin Shaikh, the brother of the deceased Shorabuddin had challenged the said order in revision application (st) 413 of 2015 which was filed along with the application for condonation of delay being application No. 355 of 2015. As stated earlier this Court has allowed the aggrieved person to withdraw the said application after being satisfied that the request for withdrawal was voluntary and that the same was not made under threat, pressure, inducement or promise. Hence, this is not one of those rare cases which brings about a situation which is an abuse of the process of the Court, which necessitates exercise of inherent jurisdiction.
The application is dismissed.
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