Review Application - Error Apparent on the Face of Record - Application for Appointment on 'Compassionate Ground' - HELD THAT:- On an overall assessment of the entire conspectus of the attendant facts and circumstances of the present case in an encircling manner and also this Court bearing in mind yet another fact that from the side of first wife there is no rival claim in regard to the compassionate appointment, (she died being issueless) and in view of the well settled legal position that the purported new issues/alleged new facts, viz., (a) the statement of Respondent's/Petitioner's mother, Vijayakumari dated 06.02.1995 before the Sub-Inspector of Namakkal Police Station and (b) the undated Petition/Application of Chinnu (his father's brother) addressed to the Sub Inspector of Namakkal Police Station, this Court comes to an irresistible conclusion that these issues were not raised before the Learned Single Judge at the time of disposal of the main Writ Petition nor before the Appellate Court at the time of hearing or at the time of passing the Judgment and viewed in that perspective, these new facts/issues cannot be allowed to be raised before this Court.
The Review Applicants' cannot heighten or improve their case, which was not there either in the Original Writ Petition or in the Writ Appeal by placing heavy reliance on the alleged statement of the Respondent/Petitioner's mother dated 06.02.1995 before the Sub Inspector of Police, Namakkal Police Station and the Application/Petition of the Respondent/Petitioner's father's brother, one Chinnu, son of Arumugam, Unjanai of Thiruchengode circle etc., Also the well settled legal proposition to be borne in mind is that 'Review' erases the Original Judgment or Order passed by a competent Court of Law from the inception.
In the instant case, based on the facts and circumstances of the present case and on an overall assessment of the same in a real and proper perspective, a proper course of action available/open to the Applicants' in Law, is to prefer a Special Leave Petition before the Hon'ble Supreme Court of India as against the Impugned Judgment passed by the Learned Single Judge. Looking at from any angle, the present Review Application filed by the Review Applicants' sans merits.
Circle rates is made the basis for determination of the compensation - It was submitted by learned counsel appearing for the parties that it would be appropriate to permit the parties to adduce additional evidence. The High Court may permit the parties to adduce the evidence before the Reference Court and call for the finding of the Reference Court.
HELD THAT:- The circle rates for purpose of stamp duty could not have been made the basis for determining the market value. Resultantly, the judgment passed by the High Court is set aside - The appeals are allowed and the matters are remitted to the High Court for deciding afresh.
Denial of Additional depreciation claim - plant and machinery used for a period less than 180 days - Assessee had claimed only 50% of the additional depreciation for which it was eligible, since the new plant and machinery on which such depreciation was claimed was put to use for a period less than 180 days in the previous year but Claim of the assessee for the balance additional depreciation for the impugned assessment year was declined - HELD THAT:- Issue in our opinion is squarely covered in favour of the assessee by the judgment of Jurisdictional High Court in the case of CIT vs. T.P. Textiles (P) Ltd [2017 (3) TMI 739 - MADRAS HIGH COURT]wherein as held upon a plain reading of the unamended provision, it could not be said that the Assessee could not claim balance depreciation in the A.Y., which follows the A.Y., in which, the machinery had been bought and used, albeit, for less than 180 days’’.
We, are therefore of the opinion that assessee was eligible for claiming balance 10% of the depreciation in the impugned assessment year. AO is directed to allow such claim. Decided in favour of assessee.
Invocation of inherent power of this Court under Section 498 CrPC - HELD THAT:- It is pertinent to note that in the garb of Crl.M.C. under Section 482 Cr.P.C impugning the order passed by the learned ASJ in Criminal Revision No. 29/2012 is a second revision petition which is barred under Section 397(3) Cr.P.C. being filed by the same persons, who had already invoked the revisional jurisdiction of the Sessions Court. This Court cannot act as the second revisional Court in the garb of exercising inherent power.
Finding no illegality or perversity in the impugned orders so as to call for any interference by this Court in exercise of inherent power under Section 482 Cr.P.C., the petition is dismissed.
Principles of Estoppel - seeking promotion on the basis of seniority in another school (in the Light to the Blind School, Varkala) after having applied for being considered for appointment as Music Teacher in the Samuel LMS High School - whether both the schools are same or distinct identity.
An objection was raised that since Respondent No. 1 herein had taken part in the selection process, she could not, after being not selected, be permitted to turn around and claim that the process of direct recruitment could not have been resorted to by the Management of Samuel LMS High School.
HELD THAT:- In MADAN LAL & ORS VERSUS THE STATE OF JAMMU & KASHMIR AND ORS [1995 (2) TMI 441 - SUPREME COURT], the Petitioner laid challenge to the manner and method of conducting viva-voce test after they had appeared in the same and were unsuccessful. This Court held It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted.
As far as the present case is concerned an advertisement was issued by Respondent No. 6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent No. 1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the Appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court.
The order dated 25.07.2003 of the learned Single Judge is set aside - appeal allowed.
Refund of excise duty paid on the coal at notified price at the time of clearance which had been subsequently reduced - Price variation clause - HELD THAT:- It appears that an identical issue has come up before this Tribunal in the assessee-Appellants’ own case M/S SOUTH EASTERN COAL FIELDS LTD. VERSUS CCE & ST, RAIPUR [2016 (12) TMI 221 - CESTAT NEW DELHI], where the matter was remanded to the adjudicating authority.
The impugned order is set aside - matter remanded to the original authority - the appeal filed by the assessee Appellants is allowed by way of remand.
CENVAT Credit - molasses is bye product arising in the course of manufacturer of sugar and it is used for other dutiable as well as non dutiable goods - HELD THAT:- The substantial question of law framed on 18th February, 2015 is accordingly answered in the negative, in favour of the assessee and against the revenue.
Allowable business expenditure - expenditure on gradation & certification of diamonds - absence of correlation of the expenditure on gradation & certification of diamonds with the sale and stock of diamonds - CIT (A) restricting the disallowance of such expenditure to 30% - HELD THAT:- As pointed out by the CIT(A) the assessee has produced the party wise details of grading and certification charges along with ledger statements. The payments were made after deducting tax at source.
CIT(A) has rightly pointed out that grading and certification are the essential part of business and how much expenditure was required to be made on certification and grading was to be decided by the assessee.
AO has not made any comparison to falsify the claim of the assessee. Since, payments to the parties are not in dispute, ad hoc addition cannot be made without establishing that either the transaction was sham or the expenditure was made for the purposes other than the business of the assessee. Hence, we do not find any reason to interfere with the order passed by the Ld. CIT(A). The order passed by the Ld. CIT(A) is upheld and all the grounds of appeal of the revenue are dismissed.
Estimation of income - bogus purchases - HELD THAT:- We notice that the assessee has purchased various items from the suspicious dealers and the same was consumed in various orders. Accordingly it was submitted that the assessee could not maintain stock register. As already observed that, in the absence of stock register, it would be difficult to prove the consumption of materials. Hence we are unable to understand as to how the CIT(A) has held that the assessee has proved the consumption.
In our view, the submission of the assessee that it would be difficult to maintain stock register in this kind of trade cannot be rejected altogether. Hence there is merit in the view taken by Ld CIT(A) that the profit element embedded in the impugned purchases alone should be assessed to tax.
Since the suppliers have accepted that they have not actually supplied goods, the natural corollary is that the assessee might have purchased goods from some other source. In that case the inference is that the assessee might have made profit in such purchases by inflating the purchase bills. In fact, it is the case of the sales tax department that the suspicious dealers have not paid VAT tax. Hence there is a possibility that the assessee might have saved VAT tax and also obtained some discount in purchase price. The vat rates applicable to the purchases made by the assessee are 5% and 12.5% depending upon the product.
We notice that the G.P rate of the assessee has also fallen down, i.e., in AY 2008-09, the G.P rate was shown at 24.94% and the same has fallen down to 23.76% in AY 2009-10, to 17.24% in AY 2010-11 and to 21.66% in AY 2011-12. In AY 2012-13, the G.P rate has again risen to 27.73%. The reduction in G.P rates, inter alia, supports the case of the revenue that there might be inflation of purchase rates.
Thus the profit is generally made at Gross profit level and hence the Ld CIT(A) was not justified in adopting N.P rate for sustaining the addition - Addition may be sustained at 12.50%. Accordingly, we modify the orders passed by Ld CIT(A) and direct the AO to sustain addition to the extent of 12.50% of the value of alleged bogus purchases in all the three years under consideration. Appeals of the revenue are partly allowed
TDS u/s 194A - Disallowance u/s 40(a)(ia) - non-deduction of tax in respect of interest paid by the assessee co-operative bank - assessee contended that the assessee being co-operative society involved in the business activity of banking is exempt from TDS on interest payment to the members of the assessee-society - HELD THAT:- As decided in in assessee's own case for the Assessment Years 2010-11 & 2011-12 [2015 (7) TMI 614 - ITAT BANGALORE] wherein as held that Assessee which is a cooperative society carrying on banking business when it pays interest income to a member both on time deposits and on deposits other than time deposits with such co-operative society need not deduct tax at source under section 194A by virtue of the exemption granted vide clause (v) of sub-section (3) of the said section. Decided in favour of assessee.
Amortization of premium/depreciation provided in respect of investment in Government securitiesHeld to Maturity (HTM) - whether allowable expenditure? - HELD THAT:- Following the decision of Sir M. Visweswaraya Co-operative Bank Ltd [2012 (9) TMI 774 - ITAT, BANGALORE] we hold and direct that the assessee's claim for amortization of premium on investments in Govt. Securities is to be allowed. Decided in favour of assessee.
Service of notices - HELD THAT:- The 3rd Respondent is the State of Maharashtra through its Secretary (Finance) and will need to be separately served. Hamdast permitted. In addition to service through the Court private service is permitted.
Dishonour of Cheque - existence of legally enforceable debt or not - failure to apply presumption, as provided under Section 139 of N.I. Act - HELD THAT:- Statutory presumptions under Sections 118 and 139 of the N.I. Act, have been duly rebutted by the accused herein not only by bringing out vital admissions during cross-examination of PW 1, but also by stepping into witness box that the cheque was not issued for any alleged debt or liability. The accused herein, in order to disprove the presumption has sufficiently brought on record the facts and circumstances, upon consideration of the same one has to believe that the consideration and the debt did not exist or their non-existence is so probable that a prudent man would under the circumstances of the case act upon the plea that it did not exist. The complainant has failed to bring on record any evidence in the form either Books of Accounts as he has been carrying the business of scrap or returns of Sales Tax or Income Tax in order to substantiate his contention that he had, in fact, delivered scrap worth Rs. 10 lakhs to the accused.
In the case at hand the accused has rightly rebutted the presumptions on the basis of complaint, reply to the notice as well as from the cross-examination of the complainant. After having rebutted the presumption, which is acceptable in all the circumstances of the case and on preponderance of probabilities, the burden shifted back to the complainant, which he failed to discharge and there is no question of presumption again under Sections 118 and 139 of N.I. Act, coming to the rescue of the complainant.
In the case of RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT], the Hon'ble Supreme Court held that the presumption under Section 139 includes the presumption that there exists legally enforceable debt or liability. Nevertheless, such presumption is rebuttable in nature and it depends on the facts and circumstances of each case. As such, there is no doubt that there is an initial presumption which always favours the complainant.
The learned trial Court has thus, considered all the aspects of the case and rightly reached a conclusion that the complainant has failed to prove the case under Section 138 of the N.I. Act and thereby rightly acquitted the accused. The acquittal passed by the trial Court, therefore, cannot be set aside without any sound and sufficient ground. It is a settled law that if two views are possible, then a view which supports acquittal of the accused should not be interfered with lightly.
There is no substance in the appeal. The impugned judgment does not call for any interference and, therefore, the appeal stands dismissed.
TP Adjustment - comparable selection - omission by the ITAT of Celestial Labs Ltd. from the list of comparables - HELD THAT:- This Court finds that the ITAT has itself undertaken a detailed analysis of the functional profile of the tested company vis-a-vis that of the comparable and has given cogent reasons for excluding the said comparable. The Court is not persuaded to hold that this factual finding is perverse. It accordingly declines to frame a question on this issue.
Nature of expenses - Expenditure incurred on software licenses - capital or revenue expenditure - HELD THATR:- The decision of this Court in CIT v. Asahi India Safety Glass Ltd [2011 (11) TMI 2 - DELHI HIGH COURT] answers this very issue against the Revenue. The Supreme Court dismissed the Special Leave Petition filed by the Revenue against the said decision. [2012 (7) TMI 1075 - SC ORDER] In view of that matter, the Court declines to frame a question on this issue as well.
Sanction of Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair, reasonable and is not violative to any provisions of law nor is contrary to public interest - Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition Nos. 535, 536 and 538 of 2017 are made absolute.
Murder - Conviction of appellant for an offence punishable under Section 302 of IPC - site plan has not disclosed the places from where the witnesses have witnessed the occurrence - evidence that the pistol was not tampered with, present or not - country-made pistol, empty shell and live cartridge were sent for forensic science examination after delay - HELD THAT:- The failure of the Investigating Officer to produce the bloodstained clothes of Satish Kumar Chourasiya (PW-1) or to produce evidence of safe custody of country-made pistol, empty shell and live cartridge will not prejudice the trial as the statements of eye-witnesses such as Satish Kumar (PW-1) and Shivprasad (PW-2) and even the witnesses namely, Jogendra Tamrakar (PW-9) and Dilip Kumar (PW-10), who have been declared hostile, clearly implicates the appellant as the one who fired the fatal shot from a country-made pistol in his possession.
In respect of the argument that Shiv Prasad (PW-2) and Lala (PW-3) were not present at the time of occurrence, it is seen that though the said witnesses have suggested that they were not present at the time of occurrence but a cumulative reading of the entire lengthy cross examination does not lead to any doubt on the presence of the witnesses at the time of occurrence.
The argument that no independent witness from the market has been examined is again not tenable. Satish Kumar Chaurasiya (PW-1) is the only relative witness. Shiv Prasad (PW-2) and Lala (PW3) are not related to the deceased. Still further, the quantity of witnesses is not relevant but the quality thereof. The witnesses including the hostile witnesses have deposed that the accused fired from his pistol upon the deceased. To that extent, their testimony stands corroborated by the prosecution story.
There are no error in the findings recorded by the learned Trial Court - the findings recorded by the learned Trial Court are based upon correct appreciation of law and facts - appeal dismissed.
Violation of provisions of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) - HELD THAT:- As pursuant to the interim orders, SEBI conducted a detailed investigation of the entire scheme employed in the instant matter, role and connection amongst the concerned entities, funds used for the price manipulation of the scrip of Radford, etc., so as to ascertain the violation of securities laws.
Upon completion of investigation by SEBI, investigation did not find any adverse evidence/adverse findings in respect of violation of provisions of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (PFUTP Regulations) in respect of following 82 entities (against whom directions were issued vide the interim orders as confirmed vide the above said confirmatory orders) warranting continuation of action under Section 11B r/w 11(4) of SEBI Act.
Considering the fact that there are no adverse findings against the aforementioned 82 entities with respect to their role in the manipulation of the scrip of Radford, directions issued against them vide interim orders dated December 19, 2014 and November 9, 2015 which were confirmed vide Orders dated October 12, 2015, March 18, 2016 and August 26, 2016 are liable to be revoked.
As in exercise of the powers conferred upon me under Section 19 of the Securities and Exchange Board of India Act, 1992 read with Sections 11, 11(4) and 11B of the SEBI Act, hereby revoke the Confirmatory Orders dated October 12, 2015, March 18, 2016 and August 26, 2016 qua aforesaid 82 entities (paragraph 9 above) with immediate effect.
The revocation of the directions issued vide the abovementioned orders (at paragraph 11) is only in respect of the entities mentioned at paragraph 9 of this order in the matter of Radford Global Limited. As regards remaining entities in the scrip of Radford, violations under SEBI Act, SCRA, PFUTP Regulations, etc., were observed and SEBI shall continue its proceedings against them.
Hence, the directions issued vide Orders against the remaining 24 entities shall continue. This revocation order is without prejudice to any other action SEBI may initiate as per law
Suit is barred by time limitation or not - rejection of plaint - Order VII, Rule 11 read with Section 9A and Section 151 of the Code of Civil Procedure - HELD THAT:- In the oral evidence adduced by the appellant also, the appellant admits that in the year 2011, he learned about the Will. So, the own pleadings of the appellant and his admissions given in his oral evidence, would together show that on 26.7.2011, he was well aware that the suit property could not be alienated in any manner by its occupant and that there were attempts made by the occupant to sell the suit property. Such knowledge of the appellant constituted a clear right to sue to get a relief which is the main relief in prayer clause (1) to the effect that as per Will dated 4.3.1946, the suit property cannot be let out, sold, mortgaged, bequeathed or alienated in any manner. For getting such a declaration, it was enough for the appellant to apprehend, founded on reasonable basis, that the suit property was likely to be alienated and such apprehension would have constituted and in fact, it being already there has constituted in the present case, a cause of action for filing of a suit seeking such a relief by the appellant.
So, the limitation for this relief in the present case began to run on 26.7.2011 and that means, suit for this relief should have been filed on or before 25.7.2014. But, suit has been filed in January 2015 and, therefore, the main relief sought in the present suit would have to be said as barred by law of limitation as prescribed under Article 58 of the Limitation Act - Once it is found that the main relief sought in the suit itself is barred by limitation, the other reliefs being consequential in nature, could also not be granted and thus, for those reliefs also, the suit would not be maintainable in law.
There are no error of fact or law could be noticed in the impugned judgment and there is no need to make any interference with it. The suit filed by the appellant is barred by the law of limitation - there is no merit in the appeal and it deserves to be dismissed - Appeal is dismissed.
Refund claim - Petitioner clarifies that the refund amount claimed by the Petitioner for the fourth quarter of 2013-14 is Rs.2,64,77,458/- and not the figure stated in the prayer clause - HELD THAT:- If the Petitioner has any grievance regarding non-compliance with the directions and/or the interest amount paid, it would be open to the Petitioner to seek further appropriate remedies, as may be available to the Petitioner, in accordance with law.
Nature of expenses - expenditure incurred by the assessee for renovation of the lease hold premises for setting up a new show room - revenue or capital expenditure - HELD THAT:- We noted that the said issue is duly covered in favour of the assessee in assessee’s own case [2014 (6) TMI 80 - KERALA HIGH COURT].
The only submission of Learned D. R. was that the appeal has been filed as the Revenue has gone in appeal by way of SLP before Hon'ble Supreme Court against the decision of Hon'ble High Court in assessee’s own case for assessment year 2007-08. In our view, merely because the Revenue has gone in appeal against the decision of Hon'ble High Court in assessee’s own case by which the issue is duly covered in the earlier year, we cannot take the view that the issue is not covered by the decision of Hon'ble High Court. We, therefore, dismiss the ground taken by the Revenue. Consequently, the appeal filed by the Revenue stands dismissed.
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