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2020 (5) TMI 735
Grant of Anticipatory Bail - it is alleged that the applicant had made a tweet on website Twitter.com which was allegedly defamatory towards the Chief Minister of Uttar Pradesh - HELD THAT:- The concept of anticipatory bail was introduced in Cr.P.C. by 1973 amendment. The said provision can be invoked by a person who has a "reasonable apprehension" that he may be arrested for committing a non-bailable offence. The main purpose for incorporating Section 438 in Cr.P.C. was that the liberty of an individual should not be unnecessarily jeopardised. Right to life and personal liberty are one of the important fundamental rights guaranteed by the constitution and therefore, no person should be confined or detained in any manner unless he has been held guilty.
From the collection and scheme of Chapter XXXIII and Section 438 Cr.P.C., it becomes explicitly clear that the legislature intended to bring anticipatory bail within the category of bail and not to treat it as something different from bail - The 'bail' means as per Wharton's Law Lexicon, to "set at liberty a person arrested on security being taken for his appearance'.
In Nagendra v. King Emperor [1923 (10) TMI 1 - CALCUTTA HIGH COURT], it is held that the object of the bail is to secure the attendance of the accused at the time of the trial and that the proper test to be applied for the solution of the question whether bail should be granted or not is whether it is probable that the party will appear to take his trial.
Thus, it is clear that the object of the bail is to secure the attendance of the accused at the trial. The accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in, the trial than if he is in custody. In other words, as the Apex court holds, a presumed innocent person must have his freedom in the form of bail to enable him to establish his innocence at the trial - In Savitri Agarwal and Ors. vs. State of Maharashtra & Ors. [2009 (7) TMI 1383 - SUPREME COURT], the Hon'ble Supreme Court has held that while exercising the power under sub-section 1 of Section 438 Cr.P.C., the Court must be satisfied that the applicant invoking the provision has reasons to believe that he is likely to be arrested for committing non-bailable offence and such believe must be founded for reasonable grounds.
The applicant has stated on the affidavit that there are very reasonable and sufficient apprehension of being arrested for non-bailable offence. In the affidavit accompanying accompanying the bail application, it has been contended that the apprehension of the applicant is further fortified by the conduct of Uttar Pradesh Police, which has already sent two notices under Section 41(A) of Cr.P.C. - there are merit in the argument advanced by learned Additional Advocate General.
The instant anticipatory bail application under Section 438 Cr.P.C. is allowed.
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2020 (5) TMI 734
Seeking grant of Bail - allegation of idol theft - benefit of Section 167(2) of Cr.P.C - COVID-19 situation - HELD THAT:- On considering the antecedent of the accused, crime alleged, abscondance of few more accused persons and non-recovery of the remaining stolen property this court finds that the petitioner does not deserve bail at this juncture.
Whether the petitioner is entitle to avail the benefit of Section 167(2) of Cr.P.C? - HELD THAT:- Taking note of the Covid-19 situation and realising the gravity of the pandemic, the Hon'ble Supreme Court in IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] passed order extending the period of limitation to obviate the difficulties faced by the litigants who are supposed to personally come to the court and file their petition/application/suits/in all other proceedings until further orders - No doubt in the above order the Honourable Supreme Court has not specifically mentioned that police investigation should also be covered by the said order. However, the Apex Court while invoking its extraordinary power conferred in Article 142 of the Constitution during an extraordinary circumstances has clearly expressed his intention and reason for passing such order. The order has been passed to obviate the difficulties faced by the litigants across the country in filing their petitions/applications/suits/appeals/ all other proceedings(emphasis added). Therefore it is appropriate for any prudent person to appreciate the order of the Honourable Apex Court in a holistic perspective.
Section 167 of Cr.P.C envisages completion of investigation within the period of 60 days or 90 days, as the case may be, depending upon the gravity of the offence and the extent of punishment. If the investigation not completed within period prescribed, the person accused of the offence is entitled for bail as if he has committed bailable offence. Thereafter the Provisions of Chapter XXXIII of the Code will apply. In other words, Section 167 of the Code of Criminal Procedure mandates the investigating agency to complete the investigation within the time prescribed. If they fail to complete the investigation, statutory right blossom to the person in custody to seek release from prison on bail as matter of right.
Currently, the State has restricted free movement of the Public. The Law Enforcing Agencies are directed to ensure complete lock down. Access to places restricted either partially or absolutely. Government mechineries has almost come to stand still. Courts gates are locked. Public access is prohibited. All judicial proceedings are conducted through video conference. Administration wings of the Court yet to resume the physical functioning. In such a circumstances, the wings of the investigating agency are clipped; their legs are tied. They are unable to conduct the investigation and complete the same. Even if they complete the investigation, courts are not open to receive it. This is not their fault. Covid-19 situation is the cause for not completing the investigating within the time fixed under the Statute.
Violators of law cannot take undue advantage of the extra ordinary situation and enjoy the liberty while the entire nation is under lock down and crippled from carrying on their normal activities - The spirit behind the order of the Apex Court is to do complete justice. Conscious to the fact that there are several legislations prescribing limitation, the Honourable Supreme Court has generally stated the period of limitation prescribed under general law of limitation or under special laws shall be extended until further order. Therefore it is needless to mention that the limitation under Section 167 for investigation also get extended.
The petitioner is arrested for the theft of three idols in the temple. One idol has been recovered based on the confession of the co- accused and two idols are yet to be recovered. Out of seven accused four have been arrested and three more are at large. In view of the order passed by the Honourable Supreme Court extending the limitation, the time prescribed for completing investigation under Section 167(2) gets eclipsed. The petitioner cannot harp on the limitation prescribed under Section 167(2) of Cr.P.C and pray release on bail.
Petition dismissed.
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2020 (5) TMI 733
Domestic award between two Indian entities - Patent illegality - HELD THAT:- After considering the Constitution Bench decision in DURGA SHANKAR MEHTA VERSUS THAKUR RAGHURAJ SINGH AND OTHERS. [1954 (5) TMI 25 - SUPREME COURT] and number of other judgments, in BUSSA OVERSEAS & PROPERTIES (P) LTD. & ANOTHER VERSUS UNION OF INDIA & ANOTHER [2016 (1) TMI 914 - SUPREME COURT], the Court held that consistency is the cornerstone of the administration of justice and courts have evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review, the Supreme Court is obliged not to entertain such special leave petitions.
Patent illegality as a ground for setting aside a domestic award was first expounded in the judgment of OIL & NATURAL GAS CORPN. LTD. VERSUS SAW PIPES LTD. [2003 (4) TMI 438 - SUPREME COURT] where this Court was dealing with a domestic award. This Court gave a wider interpretation to the ‘public policy of India’ in Section 34(2)(b)(ii) in Part I of the 1996 Act. The Court held that an award would be “patently illegal”, if it is contrary to the substantive provisions of law; or, provisions of the 1996 Act; or, terms of the contract.
The present case arises out of a domestic award between two Indian entities. The ground of patent illegality is a ground available under the statute for setting aside a domestic award, if the decision of the arbitrator is found to be perverse, or, so irrational that no reasonable person would have arrived at the same; or, the construction of the contract is such that no fair or reasonable person would take; or, that the view of the arbitrator is not even a possible view - In the present case, the High Court has referred to the judgment in ASSOCIATE BUILDERS VERSUS DELHI DEVELOPMENT AUTHORITY [2014 (11) TMI 1114 - SUPREME COURT] at length and arrived at the correct conclusion that an arbitral award can be set aside under Section 34 if it is patently illegal or perverse.
In the present case, the High Court in paragraph (51) has held that no reasonable person could have arrived at a different conclusion while interpreting Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract. Any other interpretation of the above clauses would definitely be irrational and in defiance of all logic - Even though the High Court referred to various judgments, the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view.
While dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity.
SLP dismissed.
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2020 (5) TMI 732
TP Adjustment - AMP expenditure - International transaction - HELD THAT:- In the instant case, there is not an iota of material on the file apart from applying the BLT and by taking the view that the taxpayer has incurred huge AMP/sales expenses to the tune of 6.42%, no cogent material is there to treat the incurring of AMP expenses as international transaction more particularly when basis for treating the AMP expenses as international transaction i.e. BLT is not a legally sustainable method.
Undisputedly, there is no change in the FAR of the taxpayer company since AY 2010-11 and the taxpayer is performing same functions. In AY 2010-11, the coordinate Bench of the Tribunal vide [2019 (4) TMI 1774 - ITAT DELHI] held that the Revenue has failed to prove that AMP expenditure by the taxpayer is a separate international transaction.
In view of what has been discussed above and following the order passed by the Tribunal in taxpayer’s own case in AY 2010-11, when there is no international transaction no separate benchmarking qua AMP expenditure can be made, hence liable to be deleted.
In view of what has been discussed above, the appeal filed by the taxpayer is allowed.
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2020 (5) TMI 731
TP Adjustment - comparable selection - RPT filter @ 25% - HELD THAT:- We are of the considered opinion that this matter requires verification at the level of TPO for determination of the inclusion and/or exclusion of this comparable on the basis of RPT filter as adopted by the assessee and the TPO. We, therefore, deem it proper to restore this issue to the file of the AO/TPO for deciding this issue afresh after verification of the RPT from the financials already furnished by the assessee. Ground of appeal No.1 is accordingly allowed for statistical purposes.
Adjustment on account of difference of working capital employed by the assessee company and the comparables - HELD THAT:- Both the sides agreed that this issue needs to go back to the file of AO/TPO for correct determination of computation of working capital adjustment. We, therefore, deem it proper to restore the issue to the file of AO/TPO for determination of the working capital adjustment. Ground No.3 of the assesseee is accordingly allowed for statistical purposes.
Inclusion/exclusion of certain comparables - Companies functionally dissimilar with that of assessee or any extraordinary events on account of amalgamation need to be deselected from final list.
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2020 (5) TMI 730
Seeking approval of the ‘Resolution Plan’ - Categorized as ‘Unsecured Financial Creditor’ - correct or not - Section 30(6) r/w Section 31 of the Insolvency and Bankruptcy Code, 2016
NCLAT has dismissed the appeal [2019 (12) TMI 1490 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], stating that, "As the case of the Appellant- ‘Tourism Finance Corporation of India Limited’ was not covered by any of the grounds mentioned in Section 61(3) and this Appellate Tribunal cannot decide the question of fact relating to whether it is a ‘Secured Creditor’ or ‘Unsecured Creditor’, we are not inclined to interfere with the impugned order dated 27th February, 2019."
Supreme court dismissed the appeal stating that, "We find no merit in this appeal. "
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2020 (5) TMI 729
Dishonor of Cheque - accused is guilty for the offence punishable under Section 138 of the Negotiable Instruments Act or not - acquittal of the accused - statutory notice received by the accused does not contain the signature of the Advocate - whether a lawyer notice issued, without the signature of the lawyer can be treated as a defective notice?
HELD THAT:- There is no form of notice is prescribed under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act. The proviso only says that "the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque". There is nothing in clause (b) of the proviso to Section 138 of the Negotiable Instruments Act to show that, it should be a lawyer notice and the notice should be a signed notice. The literal meaning of 'notice' as per Chambers 20th Century Dictionary is "intimation:announcement:information:warning:a writing, placard, board etc. conveying an intimation or warning." - From the literal meaning of 'notice', it is clear that, nowhere it is stated that, a notice should be in a signed form. As stated above, Clause (b) of proviso to Section 138 of the Negotiable Instruments Act also not stipulates a signed notice in writing. What is stated in the proviso is "giving a notice in writing" and not "by giving a notice in writing with signature." For this simple reason, the finding of the learned Magistrate that Ext. P5 notice issued by the complainant is defective, cannot be accepted.
The omission on the part of a lawyer to put his signature in the notice issued under Clause (b) of proviso to Section 138 of the Negotiable Instruments Act, cannot be treated as defective notice. That is not a reason to acquit an accused in a prosecution under Section 138 of the Negotiable Instruments Act, especially when the Section does not stipulate that, a signed notice in writing is necessary for initiating a prosecution under Section 138 of the Negotiable Instruments Act.
The defective notice is the main reason for acquitting the accused in this case. In this case, even though notice was issued by this Court to the accused, the accused refused to appear before this Court. Since the offence involved in this case is under Section 138 of the Negotiable Instruments Act and if the accused is intending to settle the issue, it is opined that, an opportunity is to be given to him - After giving an opportunity to adduce evidence to both sides, the learned Magistrate should hear the parties and pass appropriate orders in accordance to law, in the light of the findings in this judgment.
The case is remanded to the trial court. The trial court will dispose of the same in accordance with the law - appeal allowed.
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2020 (5) TMI 728
Territorial Jurisdiction - part of cause of action has arisen within the jurisdiction of this Court or not - Article 226(2) of the Constitution of India - HELD THAT:- The place of residence or work of petitioner and/or respondent may not be much relevant in determining the jurisdictional aspect. The determinative fact is the place of accrual of cause of action or part of cause of action. This Court can issue directions against the respondents situated beyond the territorial jurisdiction of this Court provided part of cause of action has arisen within the jurisdiction of this Court.
The Apex Court in case of Election Commission Vs. Venkat [1953 (2) TMI 39 - SUPREME COURT] and subsequent judgments took a view that it was location or residence of the litigant which gave territorial jurisdiction to the High Court under Article 226. The situs of the cause of action being immaterial. It appears that, judgment of the Apex Court propelled, the parliament to amend Article 226 and insert clause 1A by the 15th Amendment 1967 and subsequently renumbered clause 2 of Article 226 of the Constitution by Constitution's (Forty Second) Amendment Act. The said amendment provided that the High Court within which the cause of action arise wholly or in part would also have jurisdiction to entertain the petition under Article 226 of the Constitution.
Seeking employment with Municipal Council, Roha, Dist. Raigad on compassionate ground - HELD THAT:- The area of operation of Municipal Council, Roha is limited to Roha taluka. It does not extent beyond Roha taluka. Roha Taluka is beyond the territorial jurisdiction of this Court. No part of cause of action arose within the territorial jurisdiction of this Court. As even small fraction of cause of action has not arisen within the jurisdiction of this Court, this Court would not exercise its territorial jurisdiction.
Seeking information under the Right to Information Act with respondent Nos. 4 and 5 - HELD THAT:- The office of the respondent Nos. 4 and 5 is situated at Pune. The appeal filed before the respondent No. 3 is allowed. The same is also situated at Pune. The petitioner seeks directions against respondent Nos. 4 and 5 to provide for the information. In the said writ petition also no part of cause of action has arisen within the territorial jurisdiction of this Court.
The writ petitions need not be entertained - The petitioners are at liberty to file appropriate proceedings for the same cause of action before appropriate forum possessing territorial jurisdiction - writ petition disposed off.
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2020 (5) TMI 727
Effect of enactment of National Green Tribunal Act, 2010 - Solid Waste Disposal and Management project - harmful to the health of the citizens of the Panchkrosh - Suit property is not convenient for the Solid Waste Disposal and Management Project or not? - Plaintiffs have established that objections and obstructions have been caused in his legal rights or not? - Plaintiffs are entitled to seek relief in the Civil Court or not? - Plaintiffs are entitled to get the Permanent injunction Order or not?
HELD THAT:- 2010 Act is an Act to provide for establishment of a National Green Tribunal (NGT) for effective and expeditious disposal of cases relating to, amongst others, environmental protection including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. Chapter III of the Act delineates the jurisdiction, powers and proceedings of the Tribunal.
The question is whether the suit as filed in the year 2005 would be affected by the coming into force of the 2010 Act with effect from 2.6.2010 and in particular consequent to establishment of the Tribunal (NGT) on 18.10.2010. Indeed, the present suit was filed prior to that date. However, it was pending before the civil Court even after the establishment of the Tribunal (NGT). For, the trial Court decided the suit only on 31.1.2011. Concededly, the trial Court has not even adverted to the express provision in the form of Section 29 regarding bar of jurisdiction of the civil Court. On perusal of the tenor of the plaint and the subject matter of the present suit, it is indisputable that the case plainly involved substantial question relating to environment including enforcement of legal right relating to environment - The fact that the suit was filed in earlier point of time, does not mean that the civil Court could have continued with the action (in this case, first appeal before the first appellate Court and the second appeal before the High Court being continuation of the suit) concerning the substantial question relating to environment including enforcement of legal right relating to environment. In any case, there remained no tittle of doubt after the exposition of this Court that such pending cause/action ought to be transferred to the NGT for adjudication thereof.
The civil suit, as filed by the respondent Nos. 1 to 19 (plaintiffs) ought to have been dismissed, as was rightly done by the trial Court. Indeed, the dismissal of the suit would not come in the way of the plaintiffs or any other person affected by the proposed Project to make representation to the appropriate authority, considering the proposal for grant of statutory permissions under the concerned environment laws, and if that decision is not acceptable, to carry the matter further in appeal before the NGT or any other forum, as may be permissible by law.
Appeal allowed.
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2020 (5) TMI 726
Seeking quashing of Look Out Circulars issued - petitioners are willing to co-operate in the proceedings - case of the petitioners is that based on a complaint of their estranged daughter-in-law Mrs.Natasha Kapoor against them and their son namely Mr.Dirshan Vanmali Patel, under Sections 498A/406/34 of the IPC - HELD THAT:- In view of the fair stand taken by the learned counsel for the respondent as also for the complainant, the petition is allowed and the captioned two LOCs issued against the petitioners are quashed; the same would be subject to the petitioners remitting a sum of Rs.40 lakhs to the complainant’s bank account by 3 P.M. tomorrow, i.e. 21.05.2020.
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2020 (5) TMI 725
Replacement of the Resolution Professional - whether this application without supporting any resolution for removal/replacement of the RP is maintainable u/s 22(2) or 27(2) of the Code? - HELD THAT:- Admittedly the applicant had never moved any resolution in the CoC as per section 22(2) or u/s 27(2) of the Code, and therefore, there was no resolution being adopted for such replacement. It appears that in the said circumstance this Adjudicating Authority could not entertain an application of this nature.
It is significant to note that this application was heard by the Bench No 2 and Ld. Bench vide its interim order dated 12/03/2020 observed that "we require more than 66% of CoC members for changing the Resolution Professional" and for want of proof of passing a resolution for replacement of the RP the Bench has not granted the relief asked for and adjourned the application for hearing the RP and listed on 13.04.2020. Since there was no regular court sitting due to disruption of judicial work due to COVID-19 pandemic, this application was not taken up for hearing on 13.04.2020 and taken up on today at the request of the applicant. Admittedly the CoC was reconstituted. After reconstitution, the applicant holds only 25.07% voting share while the other financial creditor is holding 74.93% voting share.
Whether the reconstitution is proper or legal is not at all to be determined in this application.
If the applicant is disputing the integrity of the RP, it can approach IBBI. It can also moves resolution before the CoC for replacement of the RP at any time during the CIRP, and can file appropriate application for removal if the applicant succeeds in getting required vote share for his removal. This application being found not maintainable for want of passing a resolution by the CoC for the replacement of the RP, is liable to be dismissed, with a liberty to move fresh application if applied for in accordance with the provisions of the Code and Regulations.
Application dismissed.
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2020 (5) TMI 724
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - application of time limitation - HELD THAT:- Section 19 of the Limitation Act, 1963 provides that where a party, on account of an outstanding debt, makes payment prior to the expiration of the prescribed period of limitation, a fresh period of limitation shall be computed from the time when the payment was made - In the light of the position of section 19 of the Limitation Act, the limitation period for filing the present claim, as calculated from the date of last payment, that is, 04.01.2016, will end on, 03.01.2019, whereas the present Petition was filed before this Bench on 06.11.2018. Therefore, the claim made in the Petition is not barred by the limitation.
The IBC is a complete Code in its itself, and sec 60(1) thereof is not subject to contract between parties so as to dispossess this Bench of its territorial jurisdiction. Therefore, the objections raised in this behalf by the Corporate Debtor in oral submission are untenable and therefore rejected. The judgments cited by the Ld. Counsel for the Corporate Debtor pertain to the period prior to commencement of the IBC and involve situations where more than one court has jurisdiction. In such cases, any agreement between parties that only one of them shall have jurisdiction, shall have to be given due cognisance. However, such is not the case here, and sec 60(1) of the Code is unambiguous that it is the situs of the Registered Office of the Corporate Debtor alone that would confer jurisdiction on the NCLT - No defence has been raised by the Corporate Debtor vis-à-vis the merits of the case, in spite of many opportunities given in this regard.
The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees that was the limit stipulated under section 4(1) of the IBC at the relevant point of time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Petition admitted - moratorium declared.
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2020 (5) TMI 723
Validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 - seeking permission to female devotees between the ages of 10 to 50 years to enter the Sabarimala temple without any restrictions - violative of Article 25 of the Constitution of India or not - interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14 - HELD THAT:- Though the preliminary point for adjudication is the reference of questions of law to a larger bench in a review petition, submissions were made by both sides regarding the maintainability of the review petitions. Presumably, this was done because no reference can be made in review petitions which were not maintainable. Admittedly, the review petitions are kept pending awaiting the pronouncement on the questions of law which were referred to this Bench. Therefore, we refrain from expressing any view on the merits of the review petitions. However, it is necessary to decide the maintainability of the review petitions in view of the submissions made by the parties.
Article 137 of the Constitution of India empowers the Supreme Court to review any judgment pronounced or order made by it subject to the provisions of any law made by the Parliament or any rules made under Article 145. No law has been made by the Parliament as contemplated in Article 137. Article 145 of the Constitution of India gives power to the Supreme Court to make rules for regulating the practice and procedures in the Court. Article 145 (1) (e) pertains to the rules relating to the conditions subject to which any judgment or order pronounced by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entertained - It is clear from a plain reading of Order XLVII, Rule 1 that there are no restrictions on the power of this Court to review its judgment or order. The exceptions to the general power of review relate to review of civil proceedings which can be entertained only on grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 and to review of criminal proceedings which can be entertained only on the ground of an error apparent on the face of record.
Undoubtedly there is no bar on the exercise of jurisdiction for referring questions of law in a pending review petition. Therefore, the reference cannot be said to be vitiated for lack of jurisdiction. This Court has acted well within its power in making the reference.
Proviso to Article 145 (3) - HELD THAT:- Article 145 of the Constitution of India empowers this Court to make Rules for regulating the practice and procedure of the Court. Article 145 (3) provides that the minimum number of Judges to decide any case involving substantial questions of law as to the interpretation of the Constitution or for the purpose of hearing a reference under Article 143 shall be five - the contention is that reference to a larger bench in accordance with the proviso to Article 145(3) can be made only in Appeals and not in any other proceedings. However, the proviso deals with a situation when reference has to be made by a bench of less than five Judges. The present reference is made by a bench of five Judges and, therefore, the proviso to Article 145 (3) is not applicable.
The instant review petitions and the reference arising from the review petitions are maintainable.
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2020 (5) TMI 722
Seeking permission to submit Expression of Interest (EoI) and Resolution Plan for the Corporate Debtor - HELD THAT:- By virtue of mandatory contents of resolution plan, the same is in accordance with Section 30 and 31 of the Code, and also complies with the requirement of the Regulations 38 and 39 of CIRP Regulations - The resolution applicant has sought certain reliefs and concessions in the resolution plan. The said relief and concessions are mentioned in Para No. 27 (a) to (r) of the Resolution Plan annexed to the application. This bench is not inclined to allow any of the said reliefs and concessions prayed by the Resolution Applicant.
The resolution plan is approved with modifications, which shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors, Resolution Applicant and other stakeholders involved in the resolution plan - application allowed.
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2020 (5) TMI 721
Seeking a writ of mandamus to appoint an SIT, or any other investigating agency, to inquire into the matter regarding mis-utilization and misappropriation of public money, and to take action against the culprits - Seeking declaration directing the State authorities to take appropriate action against the private respondent, to seize his financial powers thereby preventing him from misappropriating public money, and to declare his continuance in office as illegal - petitioners were not given an opportunity of being heard before placing them under suspension.
Whether the first proviso to Section 138(4) of the Act, whereby an opportunity of hearing is required to be given, would apply even in the case of suspension, or whether it would apply only where the services of the Village Pradhan are sought to be terminated?
Whether the power, to place a Village Pradhan under suspension, is a quasi-judicial power?
Whether such a power, conferred on the State Government under Section 138(4) of the Act, can be delegated by them to the District Magistrate under Section 146 of the Act?
Whether the provisions of the Panchayati Raj Act can be applied for taking action against a Village Pradhan for alleged irregularities on his part in the execution of MGNREGA works?
HELD THAT:- The validity of the notification dated 09.06.2017, delegating powers under Section 138 of the Act to the District Magistrate, is upheld. Since the requirement of the first proviso to Section 138(4) would apply in the case of suspension also, the Village Pradhans, whom the District Magistrates seek to place under suspension, must be given a show cause notice furnishing details as to why such action is proposed to be taken. The Village Pradhan should also be given a reasonable opportunity of submitting a representation thereto, a reasoned order should be passed by the District Magistrate thereafter, and only then may action, if need be, be taken by the District Magistrate to place the concerned Gram Pradhan under suspension.
Petition disposed off.
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2020 (5) TMI 720
Changing the method of accounting of the company from Project Completion Method to Percentage Completion Method Project - Scope of Accounting Standard - Whether the method of accounting followed consistently and regularly and accepted by the Revenue in earlier year can be disturbed by the A.O? - HELD THAT:- No infirmity in these findings of the ld. CIT(A) - Completion Method is a well recognised and accepted method of accounting. This method is consistently and regularly followed by the assessee since this project was undertaken and the method has been accepted by the department for the Assessment Year 2014-15 in an assessment order passed u/s 143 of the Act. The principle of consistency has to be applied. Nothing needs to be added to the detailed finding of the ld. CIT(A). The case law discussed is appropriate. Thus, we uphold the finding of the ld. CIT(A) and dismiss this appeal of the revenue.
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2020 (5) TMI 719
Seeking to stay all further proceedings pursuant to ex-parte order - territorial Jurisdiction - HELD THAT:- The fact of change in the Registered Office of the Corporate Debtor from the State of Telangana to the State of Andhra Pradesh was not brought to the notice of this Adjudicating Authority at any point of time during the proceedings. If any information regarding change of address was submitted by way of counter affidavit, this Adjudicating Authority would have definitely considered the same before passing any orders.
The real question to be answered here is that once the order of admission of the CP(IB) No. 374/7/HDB/2019 was passed by this Adjudicating Authority, which is an appealable order under the provisions of the Code, whether this Adjudicating Authority has powers to recall and set aside the same? - It is opined that this Adjudicating Authority has no such powers under the provisions of the Code. Since the Order of Admission of the CP is an appealable order, the powers of Appellate Authority cannot be circumvented by recalling our own order.
Application disposed off as not maintainable.
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2020 (5) TMI 717
Dishonor of Cheque - insufficiency of funds - discharge of legally enforceable debt or not - rebuttal of presumption - whether the accused-respondent No.1 could rebut the fact in respect of a legally enforceable debt, by deterring presumption under Section 139 of the NI Act? - HELD THAT:- From the evidence it appears that after receipt of the demand notice which was delivered on 02.07.2013, the accused-respondent No.1 did not make payment to the complainant. The trial court has clearly observed that the court has condoned the delay that occurred in filing the complaint within one month from the day of expiry of 15 days from the day of receipt of the demand notice. Hence, the trial court has observed that the requirement of Section 138 of the NI Act for convicting any person has been complied but the complainant according to the trial court has failed to prove the existence of legally enforceable debt or liability and no presumption under Section 139 of the NI Act can be drawn.
This court finds that sufficient justification has been given by the trial court while drawing inference in respect of financial capacity of the complainant. Even if, the other inference is capable of being drawn, this court, in view of the settled position of law as enunciated by the apex court in CHANDRAPPA AND ORS. VERSUS STATE OF KARNATAKA [2007 (2) TMI 704 - SUPREME COURT] should not embark upon to disturb the finding of acquittal recorded by the trial court.
In RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT] the apex court has clearly held that it is the settled position of law for that rebutting the fact that might lead to the presumption under Section 139 of the NI Act, the standard of proof is of preponderance of probabilities. From the evidence of the complainant it has been shown that the debt, for discharge of which the cheques were issued may not be real, if seen in the light of the financial capacity of the complainant. Thus, in the considered view of this court, the accused-respondent No.1 has discharged his onus by creating a serious doubt in respect of financial capacity of the complainant.
This court is not inclined to disturb the finding of the trial court by acquitting the respondent No.1 - Appeal dismissed.
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2020 (5) TMI 716
TDS u/s 194A - Motor Accident Claims - Insurance claim award with interest @ 9% per annum from date of claim - whether interest liability would be subject to Tax Deducted at Source (TDS) under Sec. 194 A? - HELD THAT:- Where the Claimants produce the proof of PAN Card, TDS is applied at 10%. In the absence of such PAN Card, it shall be 20%. Not so, insignificant amounts and when refunds are not made to the poor victims, the issue is exacerbated. Following these difficulties for the innocent motor accident victims, a few High Courts have ruled that Sec 194 A was not applicable in these claims. They appear to have done so after due notice and hearing the Income Tax Department.
As Transport Corporations are facing Execution Petitions before Claims Tribunals, where TDS was applied and apparent conflict between the decisions and as insurance companies and TDS issue flagged requires to be elevated to a Division Bench or a larger Bench as may be deemed fit by the Hon’ble Chief Justice for a clear cut verdict on the applicability of TDS on interest in Motor Accident Claims atleast in sofar as Tamil Nadu is concerned.
Going by the above discussion and the obvious and apparent disagreement between two learned single judges on the issue and unnecessary pendency of EPs and CRPs and difficulties faced by all the stakeholders, I am more than satisfied that it is a fit case to order a blanket stay of all Execution Petitions pending before all Motor Accident Claims Tribunals in Tamil Nadu in relation to and confined to the issue of Tax Deduction at Source vide 194 A of the Income Tax Act, 1961. In respect of EPs which may include the TDS issue and not solely confined to it, only the dispute relating to TDS issue will stand suspended, awaiting a verdict from the larger bench.
TDS is in application in millions of motor accident cases since 01.06.2003. Huge sums may have accumulated in the coffers of Income Tax Department. Not all victims may have sought and/ or obtained refunds. Many victims may belong to such strata of society that they may not be in a position to pursue the refund. I deem it fit to leave it to the larger bench to allude to this issue also, and examine the possibility of proper utilization of the unrefunded amounts for the benefit of motor accident victims. The Income Tax Department could be asked to provide statistics relating to the TDS amounts, refunds sought and pending, refunds ordered and no refunds sought for at all, and the period for the same, for this purpose.
This is a fit and proper case to direct the Registry to place this matter before the Hon’ble Chief Justice for considering the issues for resolution by a larger bench, as found fit and proper by the Hon’ble Chief Justice.
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2020 (5) TMI 715
Addition on account of surrender made at the time of search u/s 132 - AR submitted that the surrender was made at the pressure of the search party and it does not have any evidence. The statement was retracted and therefore, could not have been relied upon by the ld AO to make the addition - HELD THAT:- Apparently, in assessment order as well as in the appellate order no evidence was disclosed based on which the father of the assessee disclosed the sum - in the statement u/s 132(4) of the Act of the assessee in reply to question No. 35, where assessee has disclosed ₹ 20 lacks on his own, also does not have any discussion about the material based on which the disclosure is made.
No doubt the disclosure made for the firm of Golden Manor may have other evidence, however in the case of the impugned addition of ₹ 20 lakhs; we do not find any mention about evidence of unaccounted income - also admitted by revenue that the assessee has retracted the statement immediately after the search that is almost within 10 days of the search - circular of CBDT dated 10.03.2003 also discourage revenue from making an addition merely on the basis of statement or confession without any evidence. Further had there been any evidence ld AO should have made addition of that amount and not ₹ 20 Lakhs. In view of this, we do not find any reason to sustain the order of the lower authorities. Accordingly, the ld AO is directed to delete the addition - Appeal of the assessee is allowed.
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