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2012 (7) TMI 1157
Issues involved: Suit for permanent injunction on trademark infringement, copyright infringement, passing off, rendition of accounts, and breach of contractual obligations. Application under Section 8 of the Arbitration & Conciliation Act, 1996 regarding arbitration clause in agreements.
Issue 1 - Suit for Permanent Injunction:
The respondent, a leading player in management entrance test coaching, sought injunction against trademark infringement, copyright infringement, and passing off damages related to the trademark "IMS." The appellant, a business partner, entered agreements with the respondent but breached terms leading to the suit.
Issue 2 - Application under Section 8 of the Arbitration & Conciliation Act:
The appellant filed an application under Section 8 of the Arbitration & Conciliation Act, 1996, based on an arbitration clause in the agreements. The application was dismissed by the single Judge, leading to the appeal.
The appellant argued that the arbitration clause survived the termination of the agreement as per the Exit Paper dated 1.2.2011. Citing legal precedents, the appellant contended that termination due to breach does not end the arbitration agreement. The Supreme Court's judgment in a similar case was referenced to support this argument.
However, the Court disagreed with the appellant's submissions, emphasizing that the Exit Paper, which terminated the agreement, did not contain an arbitration clause. The Court highlighted that the arbitration clause would not survive when a new agreement replaces the original contract, as in this case.
The Court referenced legal principles and previous judgments to support its decision, emphasizing that the Exit Paper represented a novation of the original contract. The Court concluded that the agreements dated 1.4.2007 and 1.4.2010 had been superseded by the Exit Paper, which lacked an arbitration clause for dispute resolution.
In light of the above analysis, the Court upheld the single Judge's decision to reject the appellant's application. The Court also raised a rhetorical question regarding the practicality of enforcing an arbitration clause in cases of trademark infringement after the original agreement has been terminated.
The Court dismissed the appeal and ordered the appellant to pay costs amounting to Rs. 5,000.00.
This summary provides a detailed breakdown of the issues involved in the legal judgment, highlighting the arguments presented by the parties and the Court's reasoning in reaching its decision.
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2012 (7) TMI 1156
Issues Involved:
1. Whether there was a 'transfer' within the meaning of section 2(47)(v) of the Income-tax Act in respect of the Development Agreement.
2. Whether the assessee was liable for long-term capital gain in the year under appeal.
3. Whether the market value should have been determined based on records of the Registrar of Assurance.
Summary:
Issue 1: Transfer u/s 2(47)(v) of the Income-tax Act
The CIT(A) held that there was a 'transfer' within the meaning of section 2(47)(v) of the Income-tax Act in respect of the Development Agreement executed by the assessee. The assessee contended that the Developer had not taken possession of the land, as confirmed by a letter dated 14.10.2009, and thus section 2(47)(v) was not applicable. The Tribunal examined the provisions of S.2(47)(v) and S.53A of the Transfer of Property Act, noting that the term "transfer" includes allowing possession in part performance of a contract. The Tribunal concluded that the developer had acquired bundle of rights and possession, thus constituting a transfer under section 2(47)(v).
Issue 2: Liability for Long-Term Capital Gain
The Assessing Officer computed a long-term capital gain of Rs. 14,32,38,499, which was apportioned among the assessees. The Tribunal upheld the CIT(A)'s decision, confirming that the transaction was liable for capital gain as the conditions laid down in section 2(47)(v) were met. The Tribunal emphasized that the gain should be deemed income of the year in which the transfer took place, irrespective of when the consideration was received.
Issue 3: Determination of Market Value
The assessee argued that the market value should have been determined based on the records of the Registrar of Assurance. The Tribunal noted that this ground did not emanate from the order of the CIT(A) and declined to entertain it.
Conclusion:
The Tribunal dismissed all the appeals of the assessees, confirming the orders of the lower authorities and holding that the transaction was liable for capital gain under section 2(47)(v) of the Income-tax Act. The Tribunal also declined to entertain the ground regarding the determination of market value based on the records of the Registrar of Assurance.
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2012 (7) TMI 1155
Issues Involved:
1. Legality of arrest and compliance with procedural requirements.
2. Grounds for granting or denying bail.
3. Allegations and charges against the petitioner.
4. Impact of the petitioner's political status on the case.
Summary:
1. Legality of Arrest and Compliance with Procedural Requirements:
The petitioner, an elected Member of Parliament, was arrested on 27.05.2012 by the C.B.I. during an ongoing election campaign. The arrest was challenged on grounds of being politically motivated and not complying with Section 170 Cr.P.C., which mandates forwarding the accused under custody to a Magistrate. The court noted that the C.B.I. did not arrest the petitioner when the charge sheets were filed but did so later, which sent wrong signals to the public. The court also addressed the compliance with Section 41A Cr.P.C., which allows for the issuance of a notice for appearance before a police officer. The petitioner argued that the C.B.I. did not provide adequate reasons for the arrest as required by Section 41A(3) Cr.P.C. However, the court found that the reasons provided by the C.B.I. were valid and had already been upheld in a previous order dated 02.06.2012.
2. Grounds for Granting or Denying Bail:
The court considered the gravity of the economic offences alleged against the petitioner, involving a total volume of Rs. 43,000 crores. The court emphasized that while bail is generally a rule and jail an exception, the seriousness of the economic offences and the potential for the petitioner to interfere with the investigation or tamper with evidence warranted a cautious approach. The court referred to the Supreme Court's guidelines on bail, focusing on the likelihood of absconding and tampering with evidence. Given the petitioner's significant public and financial influence, the court found a high likelihood of interference with the investigation.
3. Allegations and Charges Against the Petitioner:
The petitioner faced multiple charges, including offences u/s 120-B, 420, 471 I.P.C., and Sections 9 and 12 of the Prevention of Corruption Act. The charges involved quid-pro-quo arrangements with industrial and business houses for large investments in the petitioner's corporate concerns in exchange for governmental benefits. The court noted that the petitioner amassed a fortune using his late father's position as Chief Minister. The charge sheets detailed specific instances of land allotments and corporate fraud involving inflated valuations and quid-pro-quo investments.
4. Impact of the Petitioner's Political Status on the Case:
The court acknowledged the petitioner's political status and recent electoral successes but deemed these factors irrelevant to the criminal case and the bail plea. The court emphasized that the petitioner's political influence could potentially be used to tamper with witnesses and evidence, further justifying the denial of bail.
Conclusion:
The court dismissed the bail petition, prioritizing the larger interests of society over the petitioner's individual right to bail, given the gravity of the economic offences and the ongoing investigation.
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2012 (7) TMI 1154
Issues Involved:
The judgment involves issues related to the validity of the jurisdiction of the Assessing Officer u/s 147/148 of the Income Tax Act, addition of investments by partners invoking section 68 of the Act, and levy of interests.
Validity of Jurisdiction u/s 147/148:
The appellant challenged the assessment order made by the Assessing Officer, claiming it was unlawful and invalid due to lack of jurisdiction u/s 147/148 of the Act. The appellant sought to quash the impugned orders on this basis.
Addition of Investments by Partners u/s 68:
The Assessing Officer added amounts contributed by partners as undisclosed income of the assessee firm u/s 68 of the Act. The CIT(A) upheld this addition, stating that the source of the investments was not adequately proven. The appellant contended that the contributions were made by partners before the business commenced and should not be treated as income of the firm.
Levy of Interests:
The appellant disputed the levy of various interests, arguing that the issue had been settled in a previous case and therefore the levy was unjustified. The appellant sought to have the interests cancelled.
Decision:
The Tribunal considered the submissions and evidence presented by both parties. Regarding the addition of investments by partners, the Tribunal referred to a similar case and held that such contributions should be added in the hands of the partners, not the firm. As the partners had contributed the amounts before the business started, the additions were deleted.
For the deposit made by Dr. S.C. Soni, the Tribunal noted that confirmation from the creditor was not obtained due to disputes. The matter was remanded to the Assessing Officer for further investigation to establish the genuineness of the transaction. The appeal was partly allowed, and the decision was pronounced on 16-07-2012.
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2012 (7) TMI 1153
Issues Involved:
1. Jurisdiction u/s 263 of the Act.
2. Examination of twin conditions of error and prejudice to the interest of the revenue.
3. Timeliness and validity of the revision order.
4. Consideration of evidence and assumption of facts.
5. Entitlement to deduction u/s 54F.
Summary:
1. Jurisdiction u/s 263 of the Act:
The CIT assumed jurisdiction u/s 263 of the Act to revise the reassessment order dated 31-12-2009. The assessee contended that the CIT erred in assuming this jurisdiction without proper reasons and justification.
2. Examination of Twin Conditions:
The CIT failed to appreciate that the twin conditions of error in the order sought to be revised, which caused/causing prejudice to the interest of the revenue, were not satisfied concurrently on the facts and in the circumstances of the case.
3. Timeliness and Validity of the Revision Order:
The assessee argued that the revision order was passed out of time, invalid, and without jurisdiction. The CIT overlooked the pendency of the First Appeal against the reassessment order.
4. Consideration of Evidence and Assumption of Facts:
The CIT failed to consider the evidence filed in support of the original reassessment proceedings and the revisional proceedings to establish the nature of the property to fortify the claim u/s 54F. The CIT also did not appreciate that the substitution of the decision/view taken by the Assessing Officer in the framing of the income escaping assessment on the assumption of jurisdiction u/s 263 of the Act was erroneous and invalid.
5. Entitlement to Deduction u/s 54F:
The primary issue was whether the assessee was entitled to the deduction u/s 54F. The Assessing Officer initially hesitated but later granted the exemption after examining the evidence that the commercial properties purchased by the assessee were converted into residential properties. The CIT observed that the Assessing Officer did not properly examine the contention and directed the Assessing Officer to verify the evidence by referring the matter to the Bangalore Development Authority.
Conclusion:
The Tribunal found that the Assessing Officer did not apply his mind to the question of how the four flats could be physically converted into a single residential unit and that there were no conclusive evidences on record to show the actual conversion of commercial properties into residential properties. Therefore, the order of the Assessing Officer was deemed erroneous and prejudicial to the interests of the Revenue. The appeal filed by the assessee was dismissed, and the revision order by the CIT was upheld.
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2012 (7) TMI 1152
Issues involved: Interpretation of order of Customs Excise and Gold (Control) Appellate Tribunal, valuation of confiscated betel nuts, determination of refund amount, calculation of statutory interest.
The High Court of Patna, in the case, interpreted the order of the Customs Excise and Gold (Control) Appellate Tribunal dated 29.8.2001, which became final after dismissal of Tax Case No.26 of 2002 by the Court on 8.9.2006. The Tribunal had held that the confiscated betel nuts were not of foreign origin, entitling the writ petitioner to consequential reliefs.
Upon reviewing all relevant facts, the learned Writ Court rejected the customs authorities' argument that the auctioned sale price of Rs.3.64 lakhs should be the payable amount to the writ petitioner. Instead, the Court accepted the valuation of the betel nuts as Rs.21,33,500/- based on the seizure list, directing a refund of this amount with compound interest at 6% per annum from 30.8.2001, the date of the CEGAT decision.
The High Court found no evidence indicating a different market price for the betel nuts or any depreciation due to the writ petitioner's fault. It noted the absence of documentation or disclosure of the auction date when authorities claimed the sale for Rs.3.64 lakhs. Consequently, the Court upheld the Writ Court's decision on the valuation and refund amount.
In light of the circumstances, the High Court declined to intervene and dismissed the appeal, affirming the Writ Court's ruling on the refund and interest calculation.
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2012 (7) TMI 1151
The Supreme Court dismissed the special leave petition after finding no grounds for interference with the impugned order passed by the High Court.
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2012 (7) TMI 1150
Dishonor of Cheque - legally enforceable debt or not - cheque in question was not signed and issued - expert's opinion to ascertain the age of the ink - According to the Petitioner, the cheque in question was not signed and issued by him to the Respondent. It is his further contention that there was neither legally enforceable debt nor liability on the part of the Petitioner impelling him to issue the cheque in question.
HELD THAT:- the defence of the Petitioner/Accused is that the signature in the disputed cheque was not made by him. But, already, RW2-an expert has offered opinion that it would have been made only by him. It is only as an after thought that he has filed the present Petition for forwarding the document to ascertain the age of the ink. This in my considered opinion is only a devise to unnecessarily drag on the proceedings. Thus, the Criminal Revision Petition fails and the same is liable to be dismissed.
In R. Jagadeesan v. N. Ayyasamy, 2010 (1) TMI 1294 - MADRAS HIGH COURT. the learned Single Judge had summoned the Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu, Chennai, to the Court. The said expert informed the Court that there is no scientific method available anywhere in the State, more particularly, in the Forensic Science Department to scientifically ascertain the age of any writing and to offer opinion. The learned Judge has further recorded that the said expert informed the Court that there is one institution known as Neutron Activation Analysis, BARC, Mumbai, where there is facility to find out the approximate range of the time during which the writings would have been made. It is a Central Government Organisation confined only to atomic research.
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2012 (7) TMI 1149
The appeal was sought to be admitted against the Tribunal's order dated 24th February, 2012. After examining the grounds, it was found that no substantial question of law was involved as the Tribunal had followed the decision of the Delhi High Court on the same issue. The appeal was dismissed, and all parties were directed to act on a xerox copy of the order.
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2012 (7) TMI 1148
Issues involved: Appeal u/s 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal regarding the non-admittance of additional evidence.
Summary:
Issue 1: Admittance of Additional Evidence
The appellant, engaged in manufacturing and printing, declared a loss in the assessment year 2002-2003. The Assessing Officer made additions to the income based on unsecured loans without proper confirmations. The Commissioner of Income Tax (Appeals) dismissed the appeal, stating lack of creditworthiness proof. The appellant sought to produce additional evidence, but the CIT(A) rejected it u/s Rule 46A. The Tribunal upheld this decision, citing non-satisfaction of Rule 46A conditions.
Issue 2: Interpretation of Rule 46A
The appellant argued that the confirmation letters were initially submitted but rejected due to technicality. The appellant's explanation for not producing the letters earlier was accepted. Various supporting documents were presented to establish the creditworthiness of the parties. Rule 46A allows for additional evidence under specific circumstances, ensuring a fair opportunity for the appellant to present their case.
Conclusion
The Tribunal erred in upholding the CIT(A)'s decision. The matter is remanded to the CIT(A) for reconsideration, directing the acceptance of the confirmation letters as additional evidence. The CIT(A) is instructed to re-examine the case and issue a new order within a specified timeframe.
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2012 (7) TMI 1147
The Gujarat High Court, in 2012, admitted an appeal questioning whether excise duty incentive refund, sales tax incentive, and VAT on purchase of goods are capital in nature. The court issued notice to the respondent and requested submission of the Paper Book within three months. Connect with Tax Appeal No. 599 of 2011.
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2012 (7) TMI 1146
1. ISSUES PRESENTED and CONSIDERED The core legal questions considered in this judgment are: - Whether the amount of Rs. 91,52,551 received by M/s Shiva Commodities & Derivatives from M/s Jai Siya Ram Commodity Trading (P) Ltd. could be taxed as deemed dividend in the hands of the assessee under Section 2(22)(e) of the Income Tax Act, 1961.
- Whether the assessee qualifies as a beneficial shareholder for the purposes of Section 2(22)(e) of the Income Tax Act, 1961.
- Whether the amount in question was a loan or advance and if it was covered by the provisions of Section 2(22)(e) in terms of accumulated profits.
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Taxation of Deemed Dividend - Relevant legal framework and precedents: Section 2(22)(e) of the Income Tax Act, 1961, defines deemed dividend and specifies the conditions under which loans or advances by a company can be taxed as dividends. The court considered the precedents set by the ITAT in Ankitech Pvt. Ltd. and the Special Bench decision in ACIT vs. Bhaumik Colour (P) Ltd.
- Court's interpretation and reasoning: The court noted that the provisions of Section 2(22)(e) are intended to tax dividends in the hands of the shareholder, not the concern receiving the loan or advance. The court emphasized that the intention behind the provision is to prevent tax avoidance by distributing profits as loans rather than dividends.
- Key evidence and findings: The assessee held 2/3rd of the shares in the company providing the loan and had a 50% interest in the firm receiving the loan. However, the court found that the assessee was not a beneficial shareholder in the context of the transaction.
- Application of law to facts: The court applied the principles from the Bhaumik Colour case, which required the recipient of the deemed dividend to be both a registered and beneficial shareholder. Since the assessee did not meet these criteria, the provisions of Section 2(22)(e) were not applicable.
- Treatment of competing arguments: The Revenue argued that the assessee was both a registered and beneficial shareholder, but the court found this argument unpersuasive based on the precedents and the specifics of the case.
- Conclusions: The court concluded that the amount could not be taxed as deemed dividend in the hands of the assessee.
Issue 2: Beneficial Shareholder Status - Relevant legal framework and precedents: The definition of a shareholder under Section 2(22)(e) requires the individual to be both a registered and beneficial shareholder. The court referenced the Bhaumik Colour case and the Bombay High Court decision in Universal Medicare Pvt. Ltd.
- Court's interpretation and reasoning: The court emphasized that the intention of the legislature is to tax only the shareholder who has a substantial interest in the company and is the actual beneficiary of the loan or advance.
- Key evidence and findings: The court found that the assessee was not the beneficial shareholder of the shares in question, which precluded the application of Section 2(22)(e).
- Application of law to facts: The court applied the principle that both registered and beneficial ownership must be present for the deemed dividend provisions to apply.
- Treatment of competing arguments: The court dismissed the Revenue's assertion that the assessee was a beneficial shareholder, relying on the legal interpretation from previous cases.
- Conclusions: The court concluded that the assessee was not a beneficial shareholder, and therefore, the deemed dividend provisions did not apply.
Issue 3: Nature of Loan or Advance - Relevant legal framework and precedents: The court considered the requirement under Section 2(22)(e) that the loan or advance must be made from accumulated profits.
- Court's interpretation and reasoning: The court noted the necessity of determining the nature of the loan or advance and whether it was made from accumulated profits.
- Key evidence and findings: The court found that neither the Assessing Officer nor the CIT(A) had ascertained the amount of accumulated profits or the exact nature of the loan or advance.
- Application of law to facts: The court remanded the case to the CIT(A) to ascertain the accumulated profits and the nature of the loan or advance.
- Treatment of competing arguments: The court acknowledged the argument that the loan was a trade advance but required further factual determination.
- Conclusions: The court set aside the CIT(A)'s order and remanded the case for further factual determination regarding accumulated profits and the nature of the loan.
3. SIGNIFICANT HOLDINGS - Preserve verbatim quotes of crucial legal reasoning: "The intention behind the provisions of section 2(22)(e) is to tax dividend in the hands of shareholder. The deeming provisions as it applies to the case of loans or advances by a company to a concern in which its shareholder has substantial interest, is based on the presumption that the loan or advances would ultimately be made available to the shareholders of the company giving the loan or advance."
- Core principles established: Deemed dividends under Section 2(22)(e) can only be taxed in the hands of a shareholder who is both a registered and beneficial owner of shares. The provisions are not applicable to non-shareholders or concerns.
- Final determinations on each issue: The court concluded that the deemed dividend provisions did not apply to the assessee as he was not a beneficial shareholder. The case was remanded to ascertain the accumulated profits and the nature of the loan or advance.
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2012 (7) TMI 1145
Issues Involved:
1. Violation of regulation 11(1) read with regulation 14(1) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997.
2. Justification of the penalty of Rs. 1.87 crore imposed u/s 15H of the Securities and Exchange Board of India Act, 1992.
Summary:
Issue 1: Violation of Regulation 11(1) and 14(1) of the Takeover Code
The appellant, a company engaged in the business of builders and developers, was allotted 28,25,000 shares on a preferential basis, increasing its shareholding in the target company from 36.62% to 42.87%. This increase of 6.25% triggered regulation 11(1) of the takeover code, requiring an open offer within four working days as per regulation 14(1). The appellant argued that the overall promoter group shareholding increased by only 4.97%, thus not triggering regulation 11(1). However, the Board contended that the individual increase of more than 5% necessitated compliance with regulation 11(1) and 14(1). The Tribunal upheld the Board's view, referencing the Supreme Court's interpretation in Swedish Match AB vs. SEBI, which mandates a public announcement if an acquirer's voting rights increase by more than 5%, regardless of the total promoter group's shareholding.
Issue 2: Justification of the Penalty Imposed u/s 15H of the Act
The appellant argued that the penalty of Rs. 1.87 crore was excessive and not in line with Section 15H(ii) of the Act, especially since no unfair gain was made, and the loss to investors was notional. The Board maintained that the penalty was calculated based on the notional loss to investors. The Tribunal acknowledged the violation but considered mitigating factors, such as the appellant's bona fide actions based on previous Board interpretations and the lack of actual loss to investors. Consequently, the penalty was reduced to Rs. 10 lakh, emphasizing that while regulatory violations must be penalized, the quantum should reflect the specific circumstances and mitigating factors.
Conclusion:
The Tribunal upheld the finding of violation of regulation 11(1) read with regulation 14(1) of the takeover code but reduced the penalty from Rs. 1.87 crore to Rs. 10 lakh, considering the mitigating factors and the absence of actual unfair gain or loss to investors.
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2012 (7) TMI 1144
Issues Involved:
1. Admissibility of unregistered rent deed for recovery of rent.
2. Relationship of landlord and tenant.
3. Calculation of arrears of rent.
4. Eviction proceedings under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954.
Summary:
1. Admissibility of Unregistered Rent Deed for Recovery of Rent:
The High Court set aside the judgment and decree of the lower courts on the ground that the rent deed marked as Exhibit-69, being unregistered, cannot be legally accepted in evidence for the purpose of recovery of rent. The High Court relied on the precedent set in Anthony v. K.C. Ittoop & Sons & Ors. [2000 (6) SCC 394]. The Supreme Court, however, noted that even if the rent deed was not registered, other uncontroverted evidence on record could support the appellants' claim for recovery of rent.
2. Relationship of Landlord and Tenant:
The Supreme Court emphasized that the relationship between the appellants and the respondent as landlord and tenant was not in dispute. The respondent admitted the tenancy and the rate of rent in his written statement. The Court held that such admissions are the best evidence and do not require further corroboration. The High Court failed to consider this vital aspect, leading to the dismissal of the appeals.
3. Calculation of Arrears of Rent:
The Supreme Court calculated the arrears of rent based on the respondent's admission of the annual rent of Rs. 800/-. The claim period was from October 1971 to November 1980, amounting to 9 years. The arrears were calculated as Rs. 2400/- for each of the three suits (RCS No.167/1974, RCS No.211/1977, and RCS No.240/1980), totaling Rs. 7200/-. The Court upheld the judgment and decree of the trial court and the lower appellate court with this modification.
4. Eviction Proceedings under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954:
The respondent's eviction was sought on the grounds of willful default in rent payment and termination of tenancy. The Rent Controller allowed the eviction application ex parte due to the respondent's failure to file a written statement. The appellate court upheld this decision. However, the High Court remitted the matter back to the Rent Controller, directing the respondent to file a written statement and the appellant to comply with Section 15 (2)(i) of the Hyderabad Houses (Rent, Eviction and Leases) Control Act, 1954. The Supreme Court noted that the Rent Controller had dismissed the application after remittal, and an appeal was pending before the District Judge. The Supreme Court dismissed the Special Leave Petition related to this issue as infructuous, directing the petitioners to pursue their remedies in the pending appeal.
Conclusion:
The Supreme Court allowed the appeals regarding the arrears of rent, setting aside the High Court's order and restoring the trial court and lower appellate court's judgment with modifications. The Special Leave Petition concerning eviction proceedings was dismissed as infructuous. There were no orders as to costs.
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2012 (7) TMI 1143
Issues Involved:
1. Conviction under Sections 302, 201, 379, 411 read with Section 34 of the Indian Penal Code (IPC).
2. Acquittal under Section 379 IPC.
3. Legality and correctness of the High Court's judgment.
4. Reliability of prosecution witnesses.
5. Application of circumstantial evidence.
6. Delay in recording witness statements.
7. Identification of accused.
8. Application of Section 34 IPC.
Summary:
1. Conviction under Sections 302, 201, 379, 411 read with Section 34 IPC:
Eight accused were charged with offences u/s 302, 201, 379, 411 read with Section 34 IPC. The Trial Court found all accused guilty and sentenced them to death for the offence u/s 302 IPC, rigorous imprisonment for seven years u/s 201 IPC, and three years for the offence u/s 379 IPC. The High Court acquitted them of the offence u/s 379 IPC but sustained their conviction u/s 302 read with Section 34 IPC, sentencing them to life imprisonment.
2. Acquittal under Section 379 IPC:
The High Court acquitted all accused of the offence u/s 379 read with Section 34 IPC while sustaining their conviction u/s 302 read with Section 34 IPC and maintained the sentence under Section 201 IPC.
3. Legality and correctness of the High Court's judgment:
The legality and correctness of the High Court's judgment were challenged by the accused before the Supreme Court. The Supreme Court decided to deal with all appeals collectively as they arose from a common judgment and were based on common questions of facts and law.
4. Reliability of prosecution witnesses:
The defense contended that crucial witnesses were unreliable and tutored. However, the prosecution argued that the witnesses were reliable and trustworthy, and their testimonies were corroborated by other evidence. The Supreme Court found the prosecution witnesses credible and their statements consistent with the case's facts.
5. Application of circumstantial evidence:
The defense argued that the case was based on circumstantial evidence and did not establish a complete chain of events. The prosecution countered that there were eye-witnesses to different events, making it not purely a circumstantial evidence case. The Supreme Court found that the prosecution had established the complete chain of events, proving the accused's guilt beyond reasonable doubt.
6. Delay in recording witness statements:
The defense highlighted the delay in recording witness statements, suggesting that the witnesses were tutored. The Supreme Court held that the delay was explained and did not affect the credibility of the witnesses. The Court noted that the delay was due to the accused absconding and the Investigating Officer's efforts to arrest them.
7. Identification of accused:
The defense argued that accused Shyamal Ghosh was not identified in the test identification parade and was not named by some witnesses. The Supreme Court noted that although Shyamal Ghosh was not named by some witnesses, he was identified in court by multiple witnesses, which was sufficient for his conviction.
8. Application of Section 34 IPC:
The defense contended that the prosecution failed to prove common intention and participation of all accused, making Section 34 IPC inapplicable. The Supreme Court found that the ingredients of Section 34 IPC were satisfied as the accused had a common intention and participated in the crime. The Court upheld the application of Section 34 IPC and the conviction of the accused.
Conclusion:
The Supreme Court dismissed the appeals, finding no reason to interfere with the High Court's judgment on merits or the quantum of sentence. The accused were held guilty u/s 302 read with Section 34 IPC and sentenced to life imprisonment.
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2012 (7) TMI 1142
The Supreme Court dismissed the special leave petition in the case. The judges were Justice A.K. Patnaik and Justice Jagdish Singh Khehar. The legal representatives for the petitioner were Mr. Puneet Jain, Ms. Christi Jain, Mr. Anurag Gohil, Ms. Ruchika Gohil, and Mr. Sushil Kumar Jain.
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2012 (7) TMI 1141
Issues involved: Appeal against order of CIT(A)-II, Hyderabad for assessment year 2008-09 regarding deduction u/s 80IB on enhanced profit after disallowance u/s 40A(3).
Summary:
The appeal was filed by the Revenue against the order of CIT(A)-II, Hyderabad, challenging the addition made u/s 40A(3) on the ground of cash payment exceeding a specified limit for land purchase. The assessee contended that the disallowance u/s 40A(3) should enhance the profit, making them eligible for deduction u/s 80IB. The AO disallowed the expenditure incurred in cash, treating it as deemed income unrelated to business profits, thus denying the deduction u/s 80IB. The assessee appealed to CIT(A) seeking allowance of deduction u/s 80IB on the enhanced profit post disallowance.
CIT(A) relied on various Tribunal/High Court decisions, including the Bombay High Court ruling in CIT Vs. Gem Plus Jewellery India Ltd., to support the view that disallowance leading to enhanced profits should entitle the assessee to deduction u/s 80IB. The Revenue challenged CIT(A)'s decision, arguing that the disallowance under u/s 40A(3) was due to non-compliance with the law, not related to housing projects, and thus should not impact the deduction u/s 80IB.
The ITAT, after considering the arguments and precedents, upheld CIT(A)'s decision, citing the law laid down by various ITAT benches and High Courts. The ITAT confirmed that the assessee was entitled to deduction u/s 80IB on the enhanced profit resulting from the disallowance u/s 40A(3). Consequently, the appeal of the Revenue was dismissed, affirming the order of CIT(A).
In conclusion, the ITAT judgment on 27th July 2012 confirmed the entitlement of the assessee to deduction u/s 80IB on the enhanced profit post disallowance u/s 40A(3, in line with established legal precedents.
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2012 (7) TMI 1140
Issues involved: Appeal against order dismissing application to quash FIR u/s 482 of CrPC for offences u/s 467, 468, 471, 420, 120-B IPC.
Summary:
1. Background: The appeal was filed against the High Court's order dismissing the application to quash FIR No. 45 of 2011, which alleged illegal disposal of plots through forged documents.
2. Brief facts: Accused No. 3 purchased plots allegedly disposed of illegally, leading to the filing of the FIR by the President of the Plot Owners' Association.
3. Contentions: Appellant sought to quash the FIR, but High Court's order was challenged in the Supreme Court.
4. Counter affidavit: Respondent No. 2 informed the Court that the Appellant, realizing he was a victim, disclaimed any rights over the plots and withdrew a civil suit, leading to a settlement.
5. Legal consideration: The FIR disclosed non-compoundable offences u/s 467, 468, 471, 420, 120-B IPC, raising the question of quashing under Section 482 of CrPC or Article 136 of the Constitution.
6. Precedent: Referring to a previous case, the Court emphasized that the High Court can quash prosecution even for non-compoundable offences if it serves the ends of justice.
7. Decision: Considering the settlement and the Appellant's actions, the Court quashed the FIR insofar as the Appellant was concerned, citing the need to secure justice and prevent abuse of the legal process.
This judgment highlights the Court's power to quash prosecutions for non-compoundable offences under specific circumstances, emphasizing the importance of securing justice and preventing legal abuse.
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2012 (7) TMI 1139
Issues Involved:
1. Decree of mandatory injunction.
2. Proof of execution of the Gift Deed.
3. Applicability of Section 90 of the Evidence Act.
Summary:
1. Decree of Mandatory Injunction:
The Respondent-Plaintiff filed a suit for a decree of mandatory injunction directing the Appellant to hand over vacant possession of the disputed property, claiming ownership. The Appellant, who was the Defendant, had been unsuccessful in the Trial Court, the First Appellate Court, and the High Court of Punjab & Haryana, which all ruled in favor of the Respondent.
2. Proof of Execution of the Gift Deed:
The Respondent-Plaintiff alleged that the Appellant was initially a licensee and later claimed ownership through a Gift Deed dated 15.05.1970, registered on 18.05.1970. The Respondent denied the execution of the Gift Deed, suggesting signatures might have been obtained through misrepresentation. The Trial Court and the Appellate Court found that the Gift Deed had not been proved u/s 68 and 69 of the Evidence Act, as the evidence provided was insufficient to establish its execution.
3. Applicability of Section 90 of the Evidence Act:
The Appellant relied on Section 90 of the Evidence Act, which presumes the validity of documents thirty years old. However, the document must be proved to be thirty years old from the date it is tendered in evidence. The Appellant's Gift Deed was tendered in evidence on 14.10.1999, only 29 years and 5 months after its execution, failing to meet the thirty-year requirement. The Court emphasized that the thirty-year period should be calculated from the date the document is tendered in evidence, not from the date of judgment or other events.
Conclusion:
The Appellant failed to prove the Gift Deed as required by law and could not benefit from the presumption u/s 90 of the Evidence Act due to the document's insufficient age at the time of tendering. The Appeal was dismissed, and the Interim Order was recalled, but no costs were imposed.
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2012 (7) TMI 1138
Issues Involved:
1. Whether the sale deed executed in 1975 by Defendant No. 3 in favor of Defendant No. 2 was proved.
2. Whether the mere registration of the sale deed can be treated as proof of its execution u/s 60 of the Registration Act, 1908.
3. Whether the courts below ignored material facts related to proceedings u/s 447 IPC and u/s 145 Cr.P.C. while determining adverse possession claims.
Summary:
Issue 1: Proof of Sale Deed Execution
The appellant argued that the execution of the registered sale deed (Ext.2) by Defendant No. 3 in favor of Defendant No. 2 in 1975 was not proved as neither the scribe nor the attesting witnesses were examined, which is required u/s 67 of the Evidence Act. The Trial Court, however, found substantive evidence in a petition dated 26.5.87, where Defendant Nos. 1 and 3 admitted the sale of the suit land to Defendant No. 2, though they denied delivery of possession. The Appellate Court upheld this finding, noting that the purchaser (Defendant No. 2) testified to the presence of Defendant Nos. 1 and 3 during the sale deed execution and proved their signatures. The court concluded that the sale deed was proved through other circumstantial evidence and the testimony of Defendant No. 2.
Issue 2: Registration as Proof
The appellant contended that the mere registration of the sale deed does not ipso facto prove its execution. The court acknowledged that while mere registration is not conclusive proof, the presence of other supporting evidence, such as the admission of sale in the petition dated 26.5.87 and the testimony of Defendant No. 2, sufficed to prove the execution of the sale deed.
Issue 3: Adverse Possession and Ignored Proceedings
The appellant claimed that the courts below ignored proceedings u/s 447 IPC and u/s 145 Cr.P.C., which involved the plaintiffs and Defendant No. 1, while determining adverse possession. The Trial Court found that Defendant No. 1's claim of possession since 1975 was not substantiated by evidence. The Appellate Court noted that the title to the suit land was denied in 1987 when litigation started, and there was no material to establish Defendant No. 1's adverse possession against the true owner. The court emphasized that the concurrent findings of fact by the lower courts were based on substantial evidence and did not warrant interference.
Conclusion:
The High Court dismissed the second appeal, affirming the concurrent findings of the lower courts that the sale deed executed in 1975 was proved through circumstantial evidence and the testimony of Defendant No. 2. The court also upheld the finding that Defendant No. 1's claim of adverse possession was not substantiated. The court reiterated that it would not re-appraise evidence in a second appeal unless the findings were perverse or patently illegal.
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