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Showing 41 to 60 of 551 Records
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2006 (4) TMI 546 - SUPREME COURT
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... ... ..... e other hand in fixing the upset price, the Advocate Commissioner had taken into account the certificate of market value in respect of the property issued by the Sub-Registrar Golkunda dated 13th May, 2005 at ₹ 10 lakhs. The respondent No. 1 has never complained that the upset price had been wrongly fixed. The appellant's offer was above the market value. Additionally, the respondent No. 1 was given several opportunities to produce the purchaser, who was allegedly willing to pay a higher price. The purchaser was never produced. As against this, the appellant has duly deposited the entire amount of ₹ 12 lakhs in Court. The District Judge, was in the circumstances correct in rejecting the so called offer of the said Sidhique. 14. In the circumstances, the High Court erred in setting aside the sale in favour of the appellant. The decision of the High Court is unsustainable both in fact and in law. It is accordingly set aside and the appeal is allowed with costs.
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2006 (4) TMI 545 - DELHI HIGH COURT
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... ... ..... in the Year 1999-2000? vi. Whether the Tribunal has correctly interpreted Section 14A of the Income Tax Act and is right in holding that onus under the aforesaid section is upon the Revenue and not on assessee? vii. Whether the Tribunal is right in deleting disallowance of ₹ 4.59 crore on account of interest u/s 14A of the Income Tax Act, 1961? viii. Whether the Tribunal is right in holding that the Assessing Officer was not justified in making addition of ₹ 643.34 crore on account of excessive consumption of raw material and inputs? ix. Whether the Tribunal is right in holding that ₹ 69,12,41,610/- and ₹ 50,28,051/- in respect of customs duty paid and debited to the profit and loss account cannot be included in the value of the closing stock in view of section 43B and 145A of the Income Tax Act, 1961? The appellant shall file the requisite number of paper books within three months in accordance with the High Court Rules. Post for hearing at its turn.
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2006 (4) TMI 544 - HIGH COURT OF BOMBAY
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... ... ..... s to appropriate authorities/court, seeking their sanction and permission. Therefore, this petition can be granted and the scheme could be sanctioned as presented by the transferee company to this Court subject to compliance with parts V and VI of the scheme annexed to this petition. In other words, the scheme would come into effect and operative upon compliance with these conditions alone. 13. In the light of the undertaking and statement that all compliance with the Indian laws, including the Reserve Bank of India Regulations would be made, the third objection also does not survive. It is not the case of the Regional Director that by seeking this court's sanction to the present scheme, interest of shareholders and creditors of petitioner-company is being prejudicially affected. In these circumstances, petition deserves to be granted and it is accordingly made absolute in terms of prayer Clauses (a) to (i). 14. Costs of the Regional Director quantified at ₹ 2,500.
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2006 (4) TMI 543 - BOMBAY HIGH COURT
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... ... ..... rty to the fraudulent activities and that he actively associated himself with the import or any other persons to deceive the revenue. The finding is concluded on facts. No substantial question of law arises. Appeal is dismissed in limine.
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2006 (4) TMI 542 - MADRAS HIGH COURT
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... ... ..... the evidence of bona fide sales between the vendor and the vendee of the lands situated near about that land possessing same or similar advantageous features during the relevant point of time; which is, accordingly, ordered. 21. While the reference was made for Larger Bench, the learned single Judge directed the tenant/revision petitioner to pay a sum of ₹ 1 ,500/- per month commencing from the month of April,2000, towards monthly rent directly to the landlord during the pendency of the above revision petition, which shall be adjusted after final adjudication. 22. We make it clear that the said interim order shall continue till the disposal of the matter by the Rent Controller. 23. Since the R.C.O.P.is of the year 1993 and, by now, thirteen years' period has elapsed, the Rent Controller is directed to dispose of the matter within a period of two months from the date of receipt of copy of this order. 24. Civil Revision Petition is disposed of accordingly. No costs.
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2006 (4) TMI 541 - SUPREME COURT
Challenged the termination order from the service - passed by the Managing Director - HELD THAT:-In the present case, the Managing Director’s order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20th February 1991, and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it.
Thus, this appeal is allowed, the impugned judgment and order of the High Court is quashed, and the dismissal order dated 25.1.1991 is upheld.
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2006 (4) TMI 540 - SUPREME COURT
Suit barred by limitation - demand made by the creditor against the guarantor for payment - continuing guarantees - Date of default - - breach of guarantee - HELD THAT:- The guarantee bond states that the guarantors agree to pay and satisfy the Bank 'on demand'. It specifically provides that the liability to pay interest would arise upon the guarantor only from the date of demand by the Bank for payment. It also provides that the guarantee shall be a continuing guarantee for payment of the ultimate balance to become due to the Bank by the borrower. The terms of guarantee, thus, make it clear that the liability to pay would arise on the guarantors only when a demand is made. Article 55 provides that the time will begin to run when the contract is 'broken'. Even if Article 113 is to be applied, the time begins to run only when the right to sue accrues. In this case, the contract was broken and the right to sue accrued only when a demand for payment was made by the Bank and it was refused by the guarantors. When a demand is made requiring payment within a stipulated period, say 15 days, the breach occurs or right to sue accrues, if payment is not made or is refused within 15 days. If while making the demand for payment, no period is stipulated within which the payment should be made, the breach occurs or right to sue accrues, when the demand is served on the guarantor.
We have to, however, enter a caveat here. When the demand is made by the creditor on the guarantor, under a guarantee which requires a demand, as a condition precedent for the liability of the guarantor, such demand should be for payment of a sum which is legally due and recoverable from the principal debtor. If the debt had already become time-barred against the principal debtor, the question of creditor demanding payment thereafter, for the first time, against the guarantor would not arise. When the demand is made against the guarantor, if the claim is a live claim (that is, a claim which is not barred) against the principal debtor, limitation in respect of the guarantor will run from the date of such demand and refusal/non compliance. Where guarantor becomes liable in pursuance of a demand validly made in time, the creditor can sue the guarantor within three years, even if the claim against the principal debtor gets subsequently time-barred.
The respondents have tried to contend that when the operations ceased and the accounts became dormant, the very cessation of operation of accounts should be treated as a refusal to pay by the principal debtor, as also by the guarantors and, therefore the limitation would begin to run, not when there is a refusal to meet the demand, but when the accounts became dormant. By no logical process, we can hold that ceasing of operation of accounts by the borrower for some reason, would amount to a demand by the Bank on the guarantor to pay the amount due in the account or refusal by the principal debtor and guarantor to pay the amount due in the accounts.
Thus, we hold that the time began to run not when the operations ceased in the accounts in mid-1986, but on the expiry of 15 days from 12.10.1987 when the demand was made by the Bank and there was refusal to pay by the guarantors. The suit filed within three years therefrom is, therefore, in time.
In the view we have taken, it is not necessary to consider the meaning of the words 'live account' used and referred to in Samuel [1978 (9) TMI 180 - SUPREME COURT]. Suffice it to say that the interpretation by the courts below placed on the words 'live account', that they refer to an account which is operational and not dormant, may not be sound. This Court itself had indicated that 'live account' means an account that is not settled. The use of the term 'settled' gives an indication that a 'live account' refers to an account where the balance has not been struck by an "account stated" or "account settled".
Having regard to the fact that the period of limitation is 3 years both under Article 55 and Article 113, and having regard to the binding decision in Samuel (supra), we do not propose to examine the controversy as to whether the appropriate Article is 55 or 113. Suffice it to note that even if the Article applicable is Article 113, the Bank's suit is in time.
In view of our finding that the suit is not barred by time, we allow this appeal and, consequently set aside the judgment and decree of the High Court and that of the trial court. Consequently, the suit is decreed, as prayed for, with costs.
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2006 (4) TMI 539 - BOMBAY HIGH COURT
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... ... ..... icating authority have confirmed the recovery of duty under Rule 9(2) read with Section 11A of the Act and not under Section 11D? (ii) Whether the Customs, Excise & Service Tax Appellate Tribunal was justified in relying on the order No.A/589/WZB/05/C-1 dated 12-05-2005 2005 (190) ELT 408 without discussing the facts of the present case and the facts in the order relied upon? 3. Admit.
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2006 (4) TMI 538 - SUPREME COURT
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... ... ..... ng of 'not guilty' already recorded by the enquiring authority was not liable to be interfered with." (See also State Bank of India v. K.P. Narayanan Kutty AIR 2003 SC 1100 (2003) 2 SCC 449 2003-II- LLJ-1). We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside. 7. The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant indicating his tentative disagreement with the findings of the inquiry officer. No order as to costs.
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2006 (4) TMI 537 - SC ORDER
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... ... ..... dari, JJ. ORDER Appeal dismissed.
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2006 (4) TMI 536 - SUPREME COURT
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... ... ..... e given. Therefore, the impugned order in each appeal cannot be sustained. It is, however, evident from the record in Civil Appeal No.4819 of 2000 the respondent has been paid the amount pursuant to the direction given in the suit as affirmed by the High Court. In the peculiar circumstances, the respondent shall not be liable to refund the amount in the peculiar circumstances of the case. So far as other appeal is concerned, if the appellants have not made the payment, they shall not be liable to make payment. But if the payment has already been made as in the case of Civil Appeal No. 4819 of 2000 then no recovery shall be made. This direction is being given in view of the statement made by leaned counsel for the appellants that considering the small amount involved the appellant will not claim refund, but the position in law has to be set at rest as large number of such claims are being made. The appeals are allowed to the aforesaid extent but without any order as to costs.
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2006 (4) TMI 535 - RAJASTHAN HIGH COURT
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... ... ..... al Mills Vs. Commercial Taxes Officer (2000) 120 STC 593 (Raj.). This matter pertains to only levy of interest. Since the levy of tax itself had been held to be not sustainable in the aforesaid main judgment, the question of levy of interest does not arise. Therefore, this revision petition filed by the revenue has become infructuous and the same is dismissed accordingly.
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2006 (4) TMI 534 - SUPREME COURT
High court jurisdiction u/s 482 Cr. P.C. - Rejection of the application - HELD THAT:- The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.
When the factual scenario is considered in the background of legal principle set out, the inevitable conclusion is that the High Court was not justified in rejecting the application in terms of Section 482 of the Code. This is a case when the cognizance was taken, summons were issued by mistake and the names of the appellants were also mentioned in the order dated 15.2.1999. Since the police have not found any material against the appellants, the learned CJM without following the procedure as indicated above could not have directed issuance of summons so far as they are concerned. There was no indication that learned CJM disagreed with the opinion of the investigating agency and therefore ordered issuance of summons. On the contrary, as noted by learned CJM later that was a mistake and, therefore, he had ordered to strike of the names of the appellants. The High Court's order is set aside. The names of the appellants shall be struck of from the array of accused persons.
The appeal is allowed.
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2006 (4) TMI 533 - GUJARAT HIGH COURT
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... ... ..... had been retained by the revenue. Looking to the law laid down by the Hon'ble Supreme Court in the aforesaid case, so as to compensate the petitioner, we direct that the petitioner shall be paid simple interest 9 p.a. on the amount, which had been retained by the revenue authorities, for the Assessment Year prior to 1993-94. The said amount of interest shall be calculated within one month from the date of receipt of the writ of this court by respondent No. 3 and the amount shall be paid to the petitioner within two months from the date of receipt of writ of this court. If the amount is not paid within two months from the date of receipt of the writ by the concerned respondent, the petitioner shall be entitled to interest 15 p.a. after completion of two months from the date of receipt of the writ. 8. In view of the above direction, the petition stands disposed of as allowed. Rule is made absolute to the above extent with no order as to costs. Direct service is permitted.
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2006 (4) TMI 532 - ITAT AHMEDABAD
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... ... ..... explained investment has to be considered as determined on estimate basis and, therefore, the same cannot be basis for levy of penalty under appeal. 12. Without prejudice to the above, I am further of the opinion that on one hand the Revenue is disputing the savings, but, on the other hand, has assessed the undisclosed income without bringing any material as to the source of such undisclosed income; meaning thereby that undisclosed income was assessed only under the deeming provisions which again cannot be the basis for levy of penalty under s. 158BFA of the Act. 13. In the totality of the facts and circumstances of the case, aforesaid discussion and settled law on this point, I am of the opinion that the assessee's case is not a fit case where penal provisions of s. 158BFA of the Act may justifiably be held applicable. Consequently, the penalty order under appeal is cancelled and order of the CIT(A) is set aside. 14. In the result, the appeal of the assessee is allowed.
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2006 (4) TMI 531 - ALLAHABAD HIGH COURT
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... ... ..... y the First Appellate Authority as well as Tribunal in Second Appeal re-affirming such an assessment order falls automatically as they affirm on an order passed in violation of principles of natural justice. 12. In the opinion of the Court, the order passed by the Assessing Authority, First Appellate Authority as well as by the Tribunal are illegal and are hereby quashed. The matter is remanded to the Assessing Authority for re-assessment strictly in accordance with the order passed by the First Appellate Authority dated 2.7.1998 in Appeal No. 65 of 1998 within four months from the date a certified copy of this order is filed before him. The Assessing Authority shall proceed with the matter on day-today basis and shall not grant any unnecessary adjournment. 13. The present Trade Tax Revision is allowed subject to the observations made herein above. Assessee undertakes to file a certified copy of the order passed today before the Assessing Authority within 15 days from today.
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2006 (4) TMI 530 - ITAT MUMBAI
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... ... ..... n issued by the Board and other Order of the Tribunal in which a consistent view has been taken that while making an addition on account of unexplained investment in jewellery, atleast, a credit of 500 grams per married lady and 250 grams per unmarried girl be given while making an addition on account of unexplained investment in the jewellery. If that is to be considered, we would find that atleast a credit of 1500 grams of jewellery should be given while computing unexplained investment in jewellery. We, therefore, of the view that atleast this much of jewellery should be considered to have been explained and a credit of the same should be given to the assessee. Accordingly, we, set aside the Order of the CIT(A) and direct the Assessing Officer to re-compute the unexplained investment in jewellery, after allowing a credit of 1500 grams from jewellery found during the course of the search. 19. In the result, appeal of the assessee is partly allowed for statistical purposes.
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2006 (4) TMI 529 - ALLAHABAD HIGH COURT
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... ... ..... In view of the aforesaid conclusion, this Court is not required to enter into the merits of the financial difficulties, as expressed by the assessee, issue is left open to be decided by the Tribunal afresh, inasmuch as the order impugned in the present writ petition is being set aside for the reasons referred to above, and the matter has necessarily to be remanded for adjudication of the stay/waiver application filed by the assessee afresh to the Tribunal. 13. Accordingly, the order passed by the Tribunal dated 23rd March, 2006 is quashed, and the present writ petition is allowed. The matter is remanded to the Tribunal for decision of the stay/waiver application afresh in light of the observations made herein above. The aforesaid exercise shall be completed by the Tribunal within one month from the date a certified copy of this order is filed before the Tribunal. Petitioner undertakes to file a certified copy of this order within fifteen days from today before the Tribunal.
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2006 (4) TMI 528 - SUPREME COURT
Jurisdiction - power of a court to modify an award - award was contrary to the price escalation clause contained in the contract - supply of Metallurgical coke (for short ’coke’) - respondent who was earlier using Washery Grade II coal [in regard to the supplies upto 13.7.1992] started using washery grade I coal from 14.7.1992, on the ground that it found it difficult to produce the coke of the required specifications, by using washery grade II coal - HELD THAT:- Having regard to the escalation clause, price escalation had to be worked out by taking the difference between the price of washery grade I coal on 14.7.1992 (Rs.798.98) and the base price of washery grade I on 8.11.1991 (Rs.654.42) that is ₹ 144.56 and multiply it by a factor of 1.65 which works out to ₹ 238.52. But what the respondent claimed was by calculating the difference between the market price of washery grade I coal on 14.7.1992 (798.98) and the base price of washery grade II coal on 8.11.1991 (540.02) that is ₹ 258.96 multiplied by the factor of 1.65 and arrive at the escalation as ₹ 427.28 per MT. This is in clear violation of the provisions of Clause 5 of the purchase order relating to price variation.
The contract only mentioned the specifications of metallurgical coke and did not specify the quality of coal to be used for producing the metallurgical coke. It was open to the respondent to use any grade of coal, provided it supplied the coke of the quality specified. The purchaser was concerned with the specifications of the product it purchased, namely, metallurgical coke. It was not concerned with the quality of the raw material (that is coal) used for producing the metallurgical coal. The price of metallurgical coke was not linked to or based on the basic price of any particular quality of washery coal.
Therefore, neither the respondent nor the Arbitral Tribunal could assume that the contract price of ₹ 2231/- was based on the base price of washery grade II as on 8.11.1991. Having regard to the escalation clause, the price increase should be with reference to the coal that is used. It cannot be worked out by taking the difference between the higher cost of superior quality coal and lower base price of inferior quality of coal.
In the operative portion, the Arbitrators having correctly stated that the respondent will be entitled to price increase as per the escalation clause and that from 14.7.1992, the price escalation will be with reference to change in the price of washery grade I coal, acted in violation of the specific terms of the contract by stating that - "The base price for determining escalation is the price of coking coal washery grade II coal ruling as on 8.11.1991." This sentence should have actually been as follows: "The base price for determining escalation is the price of washery grade I coal ruling as on 8.11.1991, for determining escalation for supplies from 14.7.1992." A reading of the award shows that what was intended to be given was escalation in terms of an escalation clause in the purchase order.
But on account of apparent error in the Award, the calculation of escalation has been done with reference to the prevailing price of superior quality of coal (washery grade I) and the base price of inferior quality of coal (washery grade II) instead of calculating escalation with reference to the prevailing price of the superior quality of coal (washery grade I) and the base price of superior quality of coal (washery grade I). In fact, when queries by us, the learned counsel for respondent could not explain with reference to contrary terms, how the base price of washery grade II coal could be applied to calculate the escalation in coke price produced by using washery grade I coal.
The appellant has given calculation fully and correctly which shows that the escalation was only 11,42,203.90. This was what was awarded by the trial court and this amount had been paid with interest of ₹ 12,75,442 in all ₹ 24,17,646 on 6.2.1999. In spite of our directions on 21.3.2006, the respondent has not given the actual calculations but has furnished only the final figure of claim. The respondent’s memo makes it clear that the respondent wants the escalation to be calculated for supplies from 14.7.1992 with reference to the base price of washery grade II coal and not with reference to washery grade I coal. This is impermissible. The order of the Division Bench is unsustainable as it failed to interfere with the portion of the award which is opposed to the specific terms of the contract.
On the other hand, the trial court had correctly decided the matter. Therefore, we allow this appeal, set aside the judgment of the High Court and restore the judgment of the trial court. Parties to bear their respective costs.
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2006 (4) TMI 527 - SUPREME COURT
Demand - Extended period of limitation - Words and Phrases - "Suppression of facts" - HELD THAT:- We agree with the view taken by the Tribunal that there was no suppression of facts on the part of the respondent-assessee and the department was not entitled to invoke the extended period of limitation. Accordingly, this appeal is dismissed.
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