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Showing 41 to 60 of 1407 Records
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2015 (2) TMI 1376
Constitutional concept of equality - grant of fresh permits in favour of new operators - Bogey of liberalized policy relating to grant of permits under the Motor Vehicles Act, 1988 - HELD THAT:- The Motor Vehicles Act, 1988 and the rules or policy guidelines framed thereunder bind the transport authorities to act in a particular manner in the matter of grant of permits or allowing commercial plying of vehicles. Several of these statutory provisions have been noticed in the first order of reference and have been referred to by the writ petitioners in course of the present proceedings. Since statutory authorities are bound to act in accordance with law, and the manner in which the law requires them to act, the actions of the statutory authorities are justiciable. If there is a complaint that the grant of a permit or like action is in derogation of the statutory provisions or the rules or policy guidelines framed thereunder or in colourable exercise of authority, the acts complained of can be subjected to judicial review, subject to the complainant suffering or being likely to suffer a degree of prejudice thereby. If the complaint is of the irregular or illegal exercise of authority which results in the complainant being affected or likely to be affected, the status of the complainant as a business rival of the beneficiary of the irregular or illegal executive largesse will not stand in the way of the complaint being received for judicial review.
The primary question raised in the two orders of reference is answered thus: subject to the considerations as to there being an efficacious alternative remedy, a writ petition at the instance of existing operators providing stage-carriage services on different routes, who seek to challenge the grant of fresh permits in favour of new operators (either on the self-same routes on which they have been operating or touching a portion of the same) by the transport authorities is maintainable if the challenge is on the ground of illegality or arbitrariness or colourable exercise of power or otherwise being violative of Article 14 of the Constitution, notwithstanding that the action may be impelled by the commercial interests of the existing operator; provided that, the substance of the challenge is not founded only on the commercial interests of the existing operator being prejudiced by the acts complained of.
Subject to the considerations as to there being an efficacious alternative remedy, the court exercising jurisdiction under Article 226 of the Constitution of India may entertain applications by holders of stage or contract-carriage permits under the Motor Vehicles Act, 1988 questioning any action or inaction on the part of the transport authorities in dealing with complaints or allegations in relation to acts of other operators in plying their vehicles for carrying passengers, whether holding permits or not, which acts constitute violation of the provisions of the Act or the rules or policy guidelines framed thereunder; provided that, the substance of the challenge is not founded only on the commercial interests of the existing operators being prejudiced by the acts complained of.
The reference is disposed of.
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2015 (2) TMI 1375
Refusal to consider petitioner's application for issuance of Duty Credit under the DFCE Scheme - refusal on the ground that only on submission of Status House Certificate for the base year 2002-03 is produced - violation of principles of natural justice - HELD THAT:- It is to be pointed out that though an opportunity of personal hearing was granted, the impugned order does not reflect as to how and in what manner the public notice No.69/2004-09 dated 07.04.2005 is not applicable to the petitioner and in what way still the petitioner has to satisfy the recognition for the base year. Therefore, the impugned order is passed without sufficient reasons calling for interference of this Court. This court is of the view that the matter should be remanded back for fresh consideration by the respondent duly taking note of the amendment and also after affording an opportunity of personal hearing.
The matter is remanded back to the 1st respondent for fresh consideration who shall hear the petitioner in person and pass appropriate orders on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order - petition allowed.
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2015 (2) TMI 1374
Condonation of delay in filing appeal - whether by invoking Section 5 of the Limitation Act, the Tribunal can condone the delay, if the applicant satisfies the Tribunal that he was prevented by sufficient cause in not preferring the application for review within the prescribed period of limitation? - HELD THAT:- On a cursory perusal of Section 22 of the Act it is vivid and luminescent that the Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure. For the purpose of discharging its functions under the Act, the Tribunal shall have the same powers as are vested in a civil court under the Code of Civil Procedure while trying a suit in respect of the matter enumerated in clause (f) of sub-section (3) of Section 22 of the Act. The Tribunal while entertaining an application for review, is conferred with the same power as are vested in a Civil Court under the Code of Civil Procedure, 1908 that is to say for the purpose of entertaining an application for review, the Tribunal in our view acts as a Civil Court and is conferred to exercise all powers as are vested in a Civil Court - On a plain reading of Section 5 of the Limitation Act, 1963, it is evident that the prescribed period of limitation can be extended if Court is satisfied that the applicant had sufficient cause for not preferring the appeal or making the application within the period of limitation.
In INDUSTRIAL CREDIT AND INVESTMENT CORPN. OF INDIA VERSUS GRAPCO INDUSTRIES LTD. [1999 (5) TMI 613 - SUPREME COURT], the Apex Court, while dealing with Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which is pari materia with the Section 22(3) of the Act, held that Recovery of Debts Due to Banks and Financial Institutions Act, 1993 also confers power on the Tribunal to travel beyond the Code of Civil Procedure and only fetter that is put on its power is to observe the principles of natural justice.
The provision regarding period of limitation provided in Rule 17 howsoever peremptory or imperative the language may be, is not sufficient to displace the applicability of Section 5 of the Limitation Act. It is true that the language of Rule 17 is mandatory and compulsive, in that, it provides in no uncertain terms that no application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed. But the same is the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section of the Act in order that the application may be entertained despite such bar.
The logical sequitur on the analysis made in the preceding paragraphs is that neither Section 22 of the Act nor Rule 17 of the Rules expressly excluded the applicability of Section 5 of the Limitation Act. In the event an application for review is filed beyond the period of limitation along with an application for condonation of delay and the applicant satisfies the Tribunal that he had sufficient cause for not preferring an application within the time, the Tribunal can condone the delay.
The reference is answered accordingly. The Registry is directed to place the matter before the assigned Bench.
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2015 (2) TMI 1373
TDS u/s 194A - Obligation on Insurance Company to deduct the TDS from the entire interest component - HELD THAT:- The court below was not justified in directing the petitioner-Insurance Company to deposit a sum of Rs.10,000/- deducted by it towards TDS. Section 194-A(3)(ix) of the Income Tax Act, 1961 grants exemption from payment of tax on the interest component up-to a sum of Rs.50,000/-. This exemption has to be claimed by the respondent/claimants by filing necessary returns before the assessing authority. It is the statutory obligation of the petitioner-Insurance Company to deduct the TDS from the entire interest component and deposit the same before the competent authority, which has been done in this case. A certificate to that effect has been issued to the respondent/claimants. The respondent/claimants have to make a claim for refund of the aforesaid amount before the competent authority. With these observations, writ petition is allowed.
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2015 (2) TMI 1372
Disallowance of deduction for gains on sale of investment - HELD THAT:- As in own case [2014 (5) TMI 729 - ITAT MUMBAI] Tribunal has considered the issue at para- 3 of its order and at para 5.4 the Tribunal following the earlier orders of the Tribunal in assessee’s own case decided the issue in favour of the assessee and against the Revenue. Respectfully following the decision of the Co-ordinate Bench we decide this issue in favour of the assessee and against the Revenue and confirm the findings of Ld. CIT(A). Ground No.1 is accordingly dismissed.
Disallowance under section 10(15) - HELD THAT:- Tribunal in the case of ICICI Prudential Insurance Company Ltd. [2012 (11) TMI 13 - ITAT MUMBAI] has considered the decision of Life Insurance Corporation of India [1977 (11) TMI 25 - BOMBAY HIGH COURT] and in the case of New India Assurance Company Ltd. [1967 (10) TMI 16 - BOMBAY HIGH COURT] the assessee is entitled to get exemption under section 10 of Act, 1961. A similar issue was considered by the Hon’ble Jurisdictional High Court in Writ Petition [2011 (12) TMI 70 - BOMBAY HIGH COURT] has quashed and set aside the notice issued for reopening of the assessment when the Revenue sought to reopen the completed assessment for disallowing the claim of deduction allowed under section 10 of the Act. In the original assessment order. Respectfully following the aforementioned judicial decision we confirm the findings of the Ld. CIT(A) on this issue and dismiss ground No.2 of the appeal.
Disallowance made under section 14A - HELD THAT:- We find that similar issue was considered by the Tribunal [2013 (10) TMI 1130 - ITAT MUMBAI] concluded by holding that the issue is decided in favour of the assessee.
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2015 (2) TMI 1371
Seeking grant of Bail - rejection of bail on the ground that charge-sheet was not received within time - HELD THAT:- Admittedly, the Appellant surrendered before the Magistrate on 5.7.2013. It is also not disputed that on 3.10.2013 the Appellant moved an application for his release on bail under proviso (a) to Sub-section (2) of Section 167 of the Code. However, the order sheet of the case shows that there is endorsement of the Magistrate on 3.10.2013 that the charge sheet has already been received.
The charge sheet against the Appellant, in the original record, shows that the Investigating Officer signed it and submitted the same on 30.9.2013. Though the clerk concerned has not made any endorsement as to when actually the charge sheet was received, but there is endorsement of the Chief Judicial Magistrate which shows that he has mentioned "seen" on 3.10.2013 and signed at the top of the first page of the charge sheet. Order sheet of the court of the Magistrate also corroborates that on 3.10.2013 the clerk concerned reported to Chief Judicial Magistrate that the charge sheet had already been received.
In CHAGANTI SATYANARAYAN VERSUS STATE OF AP. [1986 (5) TMI 265 - SUPREME COURT], it has been held by this Court that period of ninety days Under Section 167(2) of the Code shall be computed from the date of remand of the accused and not from the date of his arrest Under Section 57 of the Code. However, in the present case, we have to see the relevant date as the date when the accused surrendered and remanded by the court.
The High Court has not erred in law in dismissing the petition Under Section 482 of the Code, and upholding the refusal of bail to Appellant prayed by him Under Section 167(2) of the Code - Appeal dismissed.
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2015 (2) TMI 1370
Dishonor of Cheque - legally enforceable debt or liability or not - acquittal of the accused - complaint was properly presented and prosecuted or not? - HELD THAT:- The Power of Attorney Holder who presented the complaint in his sworn statement did not utter anything as to how he acquired the knowledge about the transaction. Verifying the complainant and swearing to an affidavit in the capacity of legal consultant and Power of Attorney does not necessarily mean that he has witnessed the transaction in due course in the capacity of agent or possess due knowledge of the transaction. In the absence of specific assertion in this regard, in the complaint and his sworn statement placed by way of affidavit, the court is under no obligation to draw favorable presumption about the competency of the deponent of the affidavit. That vitiates the very cognizance taken by the Magistrate and issue of process ordered.
The cheque is issued by the accused in respect of the loan availed by her husband. The hire purchase loan agreement is not produced in evidence. The copy of the hypothecation agreement deed authorizes the payee for presentation of the postdated cheques issued towards installment payments of the loan amount. That being so, it is clear that the cheque in question was taken as security to the loan amount which had to be paid in installments - There is no evidence from his side about the actual amount due after the vehicle in question was seized. Basic requirement of offence under Section 138 of the N.I. Act, is, the Cheque ought to have been issued for discharge in whole or in part of any debt or other liability, but that is not established by the complainant.
It needs to be asserted that the case of the appellant fails for another reason also i.e. not making out a case for an offence punishable under Section 138 of N.I. Act. and the impugned judgment does not call for interference - Appeal dismissed.
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2015 (2) TMI 1369
Disallowance of payment to the sub-contractors @ 30% - payment was made by the respondent-assessee to the sub-contractors, who in turn made payment to the labourers for clearing goods on the port - assessee has submitted the very fact that 70% of the payment made has been allowed by the Assessing Officer would be a admission on the part of the Department that the sub-contractors were carrying on the business of providing labourers to the respondent-assessee and hence the genuineness of the transaction cannot be doubted - THAT:- Once 70% of the payment made to the sub-contractors by the respondent-assessee is accepted, the business nexus between the respondent-assessee and the sub-contractors cannot be disputed. The Assessing Officer also did not doubt the genuineness of the business relationship but the only question which was decided by the Assessing Officer was with regard to the quantum of the transaction. In our opinion, there was no reason given by the Assessing Officer to disallow 30% of the payment made by the respondent-assessee to the sub-contractors.
Merely because in the earlier years the respondent-assessee had made payment to the labourers directly and for the assessment year in question they had shifted the mode of payment through the sub-contractors, cannot make the entire transaction doubtful. The expenditure incurred by the respondent-assessee for the purpose in question through the sub-contractors cannot be said to be prohibited by law. Unless the payment through a sub-contractor is prohibited by law, merely because the assessee has switched over from direct payment mode to payment through sub-contractor cannot be said to be a reason for attracting the provisions of Section 37 of the IT Act and disallowing the expenditure incurred by the assessee. It is not disputed that the normal practice in the line of the business of the assessee is to pay certain extra amounts to port labourers as speed money for promptly and speedily carrying out the labour work of handling cargo beyond working hours.
In our opinion, the ratio of the decision in the Konkan’s case[2008 (7) TMI 362 - KARNATAKA HIGH COURT]applies to the facts of the present case. The only difference in the said case is that the payment was made directly to the labourers whereas in the present cases the payment has been made through sub-contractors, which would not make any difference as making payment to labourers through sub-contractors is not prohibited by law and thus would be permissible. No substantial question of law.
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2015 (2) TMI 1368
Dishonor of Cheque - insufficiency of funds - arraigning of a company as an accused - section 141 of N I Act - HELD THAT:- It was held in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] where it was held that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
The judgment rendered in Aneeta Hada's case is also applicable to the case of the accused-appellant - Appeal allowed.
Dishonor of Cheque - Appellants-accused have taken the defence that the alleged cheque was not duly recovered but it was security of loan - HELD THAT:- Though judgment in Aneeta Hada's is prospective but is applicable in all pending cases, including the trial, appeal, revision and special leave petition/appeal pending before this Court. The case of the Appellant being covered by the decision in Aneeta Hada's case, we set aside the impugned judgment and conviction passed by the trial court as affirmed by the appellate court - Appeal allowed.
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2015 (2) TMI 1367
Dishonor of Cheque - It is contended that in absence of impleadment of the Company as per Section 141 of NI Act, the punishment Under Section 138 on the Director cannot be sustained - HELD THAT:-In ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] the question that arose for determination by this Court was whether an authorized signatory of a company would be liable for prosecution Under Section 138 of the Act without the company being arraigned as an accused. As there was a difference of opinion between the two learned Judges regarding the interpretation of Sections 138 and 141 of the Act reference was made to the larger Bench of three Judges. In the said case, this Court noticed the ratio laid down in the case of STATE OF MADRAS VERSUS CV. PAREKH [1997 (10) TMI 389 - SUPREME COURT] and the view expressed in the case of SHEORATAN AGARWAL & ANOTHER VERSUS STATE OF MADHYA PRADESH [1984 (9) TMI 300 - SUPREME COURT] while interpreting Section 138 and 141 of the Act, this Court observed that we arrive at the irresistible conclusion that for maintaining the prosecution Under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
After analyzing all the provisions and having noticed the different decisions rendered by this Court, the three Judges' Bench arrived at the irresistible conclusion that for maintaining the prosecution Under Section 141 of the Act, arraigning a company as an accused is imperative. Hence in this case, we find no reason to refer the matter to the larger Bench.
In the present case, only the Appellant was impleaded as an accused. In that view of the matter, we are of the view that complaint with respect to the offence Under Section 138 read with 141 of the Act was not maintainable following the decision in Aneeta Hada - Appellant stands acquitted.
Appeal allowed.
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2015 (2) TMI 1366
Dishonor of Cheque - defence evidence is being produced by the petitioner to establish that the cheque had not been given to discharge any liability - measure of security - HELD THAT:- The petitioner has already set his defence as is apparent from his statement under Section 313 Cr.P.C. He has also examined two defence witnesses. The question which the petitioner wants to put to the witness by re-summoning him can be established by him while producing his defence evidence.
The presumption under Section 139 of the Act can be rebutted by even producing defence evidence. No ground is made out at this stage to allow the application under Section 311 Cr.P.C. to re-summon the complainant - it is not deemed appropriate to allow the application under Section 311 Cr.P.C. as the defence available with the petitioner has already been put on the record.
Application dismissed.
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2015 (2) TMI 1365
Deduction u/s.80HHC - HELD THAT:- It is the assessee who had preferred the appeal before the Tribunal for claim of netting of the expenditure in relation to other income. Tribunal had remanded the matter to the AO for the limited purpose of verifying the claim of the assessee. In this respect, the AO has observed that assessee has failed to furnish convincing evidences, under such circumstances, the proper course for the AO was to make/uphold the disallowance to that extent only. There was no jurisdiction to the AO to further enhance the income of the assessee on some other ground while computing the deduction u/s.80HHC. The issue relating to the deduction except on the ground agitated by the assessee before the Tribunal, had become final. Hence the action of the AO enhancing the income on some other issue, while giving effect to the order of the ITAT, was not justified. By doing so, the AO in this case has exceeded his jurisdiction. Hence the enhancement of the income of the assessee on this issue is hereby set aside.
Disallowance of claim of weighted portion u/s. 35(2AB) - HELD THAT:- Tribunal has held that cut-off date mentioned in the certificate issued by the DSIR would be of no relevance. Once a certificate by DSIR is issued and it is proved that the assessee is indulging in R&D activity and had incurred the expenditure thereupon, then the assessee is entitled to deduction u/s.35(2AB). The Ld. Counsel has further invited our attention to the another order of the ITAT relevant to assessment year 2003-04 where in the Tribunal while adjudicating the identical issue has observed that the assessee since then has got formal approval from DSIR in form 3CM, in respect of Vapi unit, has been received on 5th August 2011 and hence the assessee has been entitled for weighted deduction under section 35(2AB) for said unit. It has also been directed that since certificate has been received after passing of orders of the CIT(A), therefore, the matter has been remanded to the AO for the limited purpose of verification of the certificate. As regards Thane unit, since no such order of approval in form no. 3CM was available with the assessee, therefore, disallowance of the weighted deduction under section 35(2AB) with respect to Thane unit has been upheld.
As brought our attention to the copy of the certificate dated 5th August 2011 wherein a composite approval for the purpose of section 35(2AB) has been issued by the department from 06.07.2001 to 31.03.2012 for the Vapi unit. In view of above we accordingly restore the matter to the AO for the limited purpose of verification of the above stated certificated dated 05.08.2011 and if verified to be correct, the AO to allow the claim of the assessee accordingly. Since no such certificate is available for the Thane unit hence, the claim for Thane unit on this issue is not allowable.
Depreciation on assets purchased from Pravin Metal Corporation - HELD THAT:- The issue for this year is accordingly restored to the file of the AO to decide it in the light of the directions as reproduced above and after providing due opportunity of being heard to the assessee.
Disallowance u/s.14A - HELD THAT:- As in the earlier assessment years i.e. A.Y.1999-2000, 2001-02 & 2002-03 and A.Y. 2005-06 disallowances have been restricted by the Tribunal to 2% of dividend income received by the assessee. The relevant year before us being 2005-06, rule 8D of the income Tax Rules is not applicable for this year as has been held in the case of “Godrej & Boyce Mfg. Co. Ltd.[2010 (8) TMI 77 - BOMBAY HIGH COURT] that the same is applicable from assessment year 2008-09 on words. In view of the consistent finding of the Tribunal for earlier assessment years, restricting disallowance u/s.14A to the extent of 2% of dividend income, we accordingly restrict the disallowance of the expenditure u/s.14A to 2% of dividend income accordingly.
Depreciation claimed under rule 5(2) - AO and CIT(A) have disallowed the claim of additional depreciation solely on the ground that no certificate was produced as required under rule 5(2) - The said certificate dated 10.10.2011 has now been received by the assessee from department of Scientific and Industrial Research (DSIR). The matter is accordingly restored back to the file of the AO for limited purpose of verification of certificate and if verified to be correct, to allow the claim accordingly.
Disallowance of bad debts - HELD THAT:- We find that the Ld. CIT(A) has deleted the disallowance on account of bad debts while relying on the decision in the case of “TRF Limited vs. CIT” [2010 (2) TMI 211 - SUPREME COURT], wherein the Hon’ble Supreme Court has held that it is not necessary for the assessee to establish that the debt in fact has become irrecoverable. It is enough, if the bad debt is written off as irrecoverable in the accounts of the assessee. We are also in agreement with the finding of the CIT(A) that it is the assessee who as a prudent business man has to decide as to whether there are any chances of the recovery of debts or the same has actually become bad. In view of this, we do not find any infirmity in the order of CIT(A) on this issue. This appeal of the Revenue is accordingly dismissed.
Treatment of Computer software expenses as capital in nature - HELD THAT:- The software purchased vide/Bill dated 7.9.06 was valid from 7th Sept. 06 to 6th Oct. 06, whereas, the software purchased vide invoice dated 31st July 2006 was for one year auto updates. The Ld. Counsel has further invited our attention to other bills to show that the relevant software expenses, in fact, were for the annual or monthly support services and thus were periodical expenditure. It was not for long term having enduring benefit. Even otherwise, it is commonly known that now a days, the software version has short duration value, as the moment, new software comes into market, old software loses its value in this developing scenario especially in the software market. It cannot be said that said expenses incurred by the assessee were on long term basis giving enduring benefit. In view of above, this ground is allowed in favour of the assessee and it is directed that the software expenses be treated as Revenue in nature.
Disallowance of weighted deduction u/s.35(2AB) - AO has disallowed the claim of deduction u/s 35(2AB) of the Act on the ground that no approval was obtained from the prescribed authority in form No.3CL and 3CM - HELD THAT:- The said forms were received by the assessee during the course of appellate proceedings and were submitted to the CIT(A). At the same time, assessee filed an application u/s.154 of the Act with the AO to allow the said deprecation. However, the same has not been disposed off by the AO. In view of our finding given above, this ground is decided accordingly. If the assessee has moved any application u/s.154 on this issue, the AO will dispose off the said application also while giving effect to our order on this issue.
Interest on loans and advances given to subsidiary company - HELD THAT:- No infirmity in the order of the Ld. CIT(A) in deleting this disallowance. This issue is accordingly decided against the Revenue.
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2015 (2) TMI 1364
Unexplained investment - difference in the investment disclosed by the assessee and as estimated by DVO in purchase of house property - condition precedent for making reference to the DVO u/s.142A - HELD THAT:- As in the present case the revenue could not establish that there is any material suggesting that the assessee paid any amount over and above the declared consideration. In term of the provisions of section 142A the reference to DVO can be made only when there is a requirement by the AO for making such reference and such requirement would arise when there is some material with the AO to show that whatever estimate or consideration declared by assessee is not correct or not reliable. The use of the word ‘require’ is not superfluous but signifies a definite meaning, whereby formation of mind even preliminary on objective basis by the AO is very much necessary.
From the bare reading of assessment order, it does not suggest that there is any material which indicates that the assessee has paid any amount over and above the declared consideration for the purpose of making addition of unexplained investment u/s. 69 or 69B of the Act. In the absence of the same, the CIT(A) has rightly deleted the addition. We confirm the same. This issue of revenue’s appeal is dismissed.
Low drawing for household expenses - CIT(A) directed the AO to delete the addition on account of low withdrawals since the AO made the addition on suspicion without considering the submission that apart from his drawings that there are drawings by his wife as well as drawings from HUF of which assessee is the Karta - HELD THAT:- The household drawing has merely been estimated by the AO without pointing out any specific expenditure being incurred by the assessee. We have gone through the provisions of section 69C of the Act and we noted that there must be evidence on record which may prove that the assessee had incurred expenses much more than what has been shown by the family members. In case the Revenue got shifted to the assessee to offer explanation about the source of such expenses to the satisfaction of the AO. Apparent is real onus is on the person who alleges apparent is not real. Our aforesaid view is duly supported by the decision of Daulat Ram Rawatmall ([1972 (9) TMI 9 - SUPREME COURT] - Hence, we find no infirmity in the order CIT(A) and the same is hereby upheld. This ground of revenue’s appeal is dismissed.
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2015 (2) TMI 1363
Declaration of title and possession of immovable property - suit for specific performance - Order VII Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- Rejection of the plaint Under Order VII Rule 11 of the Code of Civil Procedure is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power Under Order VII Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law.
In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the Plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application Under Order VII Rule 11 the stand of the Defendants in the written statement would be altogether irrelevant.
The order of the High Court dated 26th June, 2003 has to be reversed - Appeal disposed off.
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2015 (2) TMI 1362
Benami transaction - ownership of the plaintiff over the suit property - right of coparcener in the Hindu Undivided Family - father of the plaintiff has gifted the suit property in favour of the plaintiff - case of the defendant is that there was an oral family settlement by virtue of which the suit property has come into the favour of the defendant - HELD THAT:- The defendant has admitted in his pleading that the father of the plaintiff was the owner of the suit property which has been admittedly gifted to the plaintiff by her father. In case any amount is spent for the purpose of construction of the suit property as alleged by the defendant, the suit for recovery of said amount ought to have been filed. There is no written document at all between the two families of any nature. On the otherhand, the gift deed is a registered document which is within the knowledge of the defendant and other family members. All the pleas raised by the defendant are dishonest defence, which has no bearing in the eyes of law. The entire defence is moonshine which are raised in order to confuse the Court. Hence, no trial in the matter is required. In the present case, as the defendant is merely a licensee, the suit filed by the plaintiff for mandatory injunction is maintainable in view of peculiar facts and circumstances. Thus, the objection of the defendant is rejected.
It is a rule of law of evidence, which is also known as the "best evidence rule" that in case a written document is available, no oral evidence can be lead in that regard. In the present case, in the face of a document in writing, the pleas of the defendant cannot be permitted to be taken and are barred by the provision of Section 92 of the Evidence Act.
As defendant has no right or interest in the suit property. It appears to the Court that the contention raised by the defendant is an afterthought and the defence raised by the defendant is moonshine. Therefore, trial in the matter is not required in view of registered titles in favour of the plaintiff for the last thirty years which are unchallenged by the defendant. On the contrary, the defendant has failed to enforce an alleged oral family settlement which is denied by the plaintiff and the materials placed on record do not give any indication to establish the pleas raised by the defendant. Therefore, a decree is liable to be passed in favour of the plaintiff and against the defendant in view of the settled law.
Order - Pass a decree in favour of the plaintiff and against the defendant for mandatory injunction whereby directing the defendant to remove all his belongings from the portion of the property bearing No.205, AGCR Enclave, Delhi.
Pass a decree of permanent injunction in favour of the plaintiff and against the defendants whereby permanent restraining the defendants for creating any third party interest in the said suit property and further permanently restraining them to part with the possession of the suit property and further permanently restraining the defendant from interfering with the peaceful possession of the plaintiff in the suit property
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2015 (2) TMI 1361
Depreciation on non compete fee at 25% - Depreciation on intangible assets - According to the ld. DR right to personal services under a contract of service is un-assignable; it cannot be bought or sold and as no actual marketable value and so it cannot be an asset - HELD THAT:- As decided in Pentasoft Technologies Ltd. [2013 (11) TMI 1057 - MADRAS HIGH COURT] where assessee carrying on business in software development etc. entered into an agreement with one ‘P’ for hiving off and transfer of software development and training divisions from ‘P’ and paid certain amount to ‘P’ towards acquisition of intellectual property rights and non compete fee, since agreement between parties was a composite agreement, assessee was entitled to depreciation on intellectual property rights as well as on non compete fee. Therefore, the assessee is entitled for depreciation in non-compete fee paid - Decided against revenue.
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2015 (2) TMI 1360
Reopening of assessment u/s 147 - validity of notice issued u/s 148 - reason to believe or reason to suspect - suppression of sales - As per AO sale found by the Excise Department to have been suppressed for levy of excise duty has escaped assessment under the Income Tax Act - whether the reasons as recorded in the instant case was a valid reason for forming a belief of escapement of income tax of the income, which is otherwise assessable to income-tax? - HELD THAT:- AO conclusion that the show cause notice issued by the Excise Department is foolproof and substantial material evidence of suppression of sales is contrary to the decision of Futura Ceramics Pvt. Ltd.[2012 (12) TMI 955 - GUJARAT HIGH COURT] wherein held that Merely because the Excise Department issued a show cause notice, that cannot be a ground to presume and conclude that there was evasion of excise duty implying thereby that there was also evasion of tax under the VAT Act.
Show cause notice issued by the Excise Department contains the allegation of the Excise Department that the assessee has suppressed sales for the purpose of making payment of excise duty. A perusal of recorded reasons does not show that the AO verified the particulars declared by the assessee in its income-tax return. Nowhere in the recorded reasons, the sale declared by the assessee in its income-tax return, has been brought on record.
Information contained in the show cause notice of the Excise Department can be reason to suspect by the AO, but without verifying the relevant particulars declared in the income-tax return, it cannot be reason to believe about the escapement of taxable income under the Income Tax Act. Reopening of the assessment based on the above recorded reasons, is bad in law and cannot be sustained - Decided in favour of assessee.
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2015 (2) TMI 1359
Seeking reduction of the share capital - HELD THAT:- There is no impediment to accept the said resolution. Consequently, the petition is allowed.
The order including the minutes shall be delivered to the Registrar of Companies within twenty one days from the date of receipt of a certified copy of this order. The notice of reduction of paid-up equity share capital and securities premium account, shall be published in the English Daily ‘The Hindu’ and Kannada Daily ‘Udaya Vani’ Bangalore edition within fifteen days from the date of registration of the order and minutes by the Registrar of Companies and a copy thereof shall be filed by the petitioner with the Registry.
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2015 (2) TMI 1358
Sanction of Scheme of Amalgamation - Sections 391 to 394 of the Companies Act, 1956 - HELD THAT:- The Scheme states that there is no objectionable feature in the Scheme of Amalgamation detrimental either to the employees of the Transferor Company or of the Transferee Company. The said Scheme is not violative of any statutory provisions. The Scheme is fair, just, sound and is not against any public policy or pubic interest. No proceedings are pending under Sections 231 to 237 of the Companies Act, 1956. All the statutory provisions are complied with.
It is apt and appropriate to point out that the Court is given wide powers under Section 391 of the Companies Act, 1956, to frame a Scheme for the revival of a Company. Section 391 is a complete Code under which the Court can sanction a Scheme containing all the alterations required in the structure of the Company for the purpose of carrying out the Scheme. In considering a Scheme under Section 391, the Court should be satisfied (1) that the statutory provisions are complied with, (ii) that the class affected by the Scheme has been properly represented and (iii) that the arrangement is such that a man of business would reasonably approve - the Scheme is passed through the procedure laid down under Section 391 of the Companies Act and approved by the majority of the shareholders, there do not exist any necessity to have a repeated compliance of the same in terms of Section 21 of the Companies Act, as amended as Section 13 of the 2013 Act.
Application allowed.
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2015 (2) TMI 1357
Rejection of application for grant of land line connection - rejected on the ground that the area is not feasible - HELD THAT:- The petitioner is running an Educational Institution, said to be an International School with 650 students. For the safety of the students, the land line connection is essential and the respondent organisation being the limb of the Government should extend all supports to enable persons more particularly Schools and Educational Institutions to take land line connections. The petitioner being International School should bear the cost of cable connection charges. Therefore, the respondent should approach the matter in a pragmatic way so that they can extend the land line connection to the said Educational Institution at the earliest.
Further, the reference to clause 7 B of Indian Telegraph Act by the respondent, that the petitioner has to refer to Arbitration, is thoroughly misconceived, as section 7 B of the Act would be permitted only in case of dispute between the subscriber and the BSNL/service provider. In the instant case, the connection is yet to be provided and no agreement has been entered and therefore the petitioner need not be driven to refer to arbitration proceedings.
The matter is remanded to the respondent for fresh consideration - Petition allowed by way of remand.
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