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Showing 41 to 60 of 1046 Records
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2008 (7) TMI 1089
Issues involved: Challenge to order rejecting petitions under Order 22, Rule-4, setting aside abatement, and condonation of delay u/s 5 of the Limitation Act.
Summary:
The petitioners, plaintiffs in a suit, challenged the order rejecting their petitions for substitution, setting aside abatement, and condonation of delay. The suit involved a claim for right, title, and interest in properties. The main issue arose from the death of Defendant No. 1 during the suit, leading to the rejection of the petitioners' application for impleading the legal heirs of the deceased. Subsequent petitions filed by the petitioners were also rejected, prompting the challenge in the writ application.
The petitioners argued that the trial court should have taken a liberal approach and not rejected their petitions, citing precedents emphasizing the importance of substantial justice. On the other hand, the Opp. parties contended that the delay in taking action after being informed of Defendant No. 1's death justified the trial court's decision.
The judgment highlighted the need for a flexible and just approach in matters of delay, quoting the Supreme Court's stance on "sufficient cause" and the importance of serving the ends of justice. It criticized the tendency of trial courts to adopt a pedantic technical approach to delay issues, emphasizing the need to prioritize substantial justice over technicalities.
Ultimately, the High Court quashed the impugned order and allowed the petitions for substitution, setting aside abatement, and condonation of delay. It directed the impleadment of the legal heirs of Defendant No. 1 and stressed the importance of a justice-oriented approach by trial courts in handling such matters to ensure the effective adjudication of disputes on merits.
In conclusion, the writ petition was allowed with no costs, emphasizing the overarching goal of seeking adjudication of disputes and the judiciary's role in removing injustice and upholding the ends of justice.
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2008 (7) TMI 1088
Issues Involved:
1. Whether a Review Petition u/s 114 read with Order 47 of the Code of Civil Procedure, 1908 is maintainable only before the Judge who has passed the order.
2. Whether the Review Petition can be heard by any other Judge in accordance with Rule 3 of Chapter XXX of the High Court Appellate Side Rules.
Summary:
Issue 1: Maintainability of Review Petition before the Original Judge
The Court considered whether a Review Petition u/s 114 read with Order 47 of the Code of Civil Procedure, 1908 must be heard only by the Judge who passed the original order. The judgment referenced the Supreme Court's decision in Devaraju Pillai v. Sellayya Pillai, which emphasized that a review should not be used to re-appreciate or re-construe findings on the same facts by a different Judge. However, the Court clarified that this does not imply that a review cannot be heard by another Judge if the original Judge is unavailable due to ceasing to hold office or being absent from the Bench. The Court concluded that the judgment in Devaraju Pillai does not establish a legal proposition that a review must be heard only by the original Judge.
Issue 2: Hearing of Review Petition by Another Judge
The Court examined Rule 3 of Chapter XXX of the High Court Appellate Side Rules, which allows for a Review Petition to be placed before another Judge if the original Judge is no longer available. The rule specifies that if the Judge who passed the order has ceased to be a Judge or is not sitting at the particular Bench, the application can be placed before the regular Court of the Single Judge dealing with the relevant category of matters. The Court noted that these procedural rules are not under challenge and must be followed, thereby affirming that another Judge has jurisdiction to hear the review application under the circumstances outlined in Rule 3.
Additional Considerations:
The Court also addressed Order 47 Rule 5 of the Code of Civil Procedure, as substituted in Maharashtra, which stipulates that the same Judge should hear the review if available. However, if the Judge is not available, another Judge assigned by the Chief Justice can hear the matter. The Court emphasized that procedural rules should advance the cause of justice and not result in delays.
Conclusion:
The Court answered Question No. 1 in the negative, indicating that a Review Petition is not maintainable only before the Judge who passed the original order. Question No. 2 was answered in the affirmative, confirming that a Review Petition can be heard by another Judge in accordance with Rule 3 of Chapter XXX of the High Court Appellate Side Rules. The matter was directed to be placed before the Judge assigned to take up Review Petitions.
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2008 (7) TMI 1087
Issues involved: Interpretation of penalty provisions u/s 114 of the Act for attempt to export goods without proper claim for drawback.
Summary:
The High Court of Calcutta, comprising Hon'ble Justice Pinaki Chandra Ghose and Hon'ble Justice Sankar Prasad Mitra, considered an appeal regarding the imposition of a penalty for attempting to export goods improperly. The Court noted that u/s 114 of the Act, a penalty can be imposed if goods are under claim for drawback, with the penalty not exceeding the amount of drawback claimed or Rs. 5,00,000, whichever is greater. The Tribunal found that the penalty provision applied by the adjudicating Commissioner was not applicable in the case at hand, as the goods were exported under free shipping bills without any claim for drawback under Section 74 or Section 75 of the Customs Act, 1962. Consequently, the Court set aside the impugned order imposing penalties on the appellants and allowed their appeals. The Court dismissed the appeal CUSTA No.5 of 2008, affirming the Tribunal's decision. All parties were directed to act on a signed copy of the order, and urgent certified copies were to be provided upon application and compliance with formalities.
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2008 (7) TMI 1086
Issues Involved:
1. Legality of the seizure of cash u/s 132 of the Income Tax Act, 1961.
2. Retention of seized cash beyond 60 days without higher authority approval.
3. Contradictions in the petitioner's statements regarding the source and transportation of cash.
4. Validity of assessment proceedings and retention of seized assets.
Summary:
1. Legality of the seizure of cash u/s 132 of the Income Tax Act, 1961:
The petitioner sought a writ of mandamus to direct the respondents to release Rs.1,00,00,000/- seized on 25.11.2006 and Rs.4,00,000/- seized on 28.11.2006. The petitioner claimed the cash was for purchasing a flat in New Delhi. The Income Tax Department intercepted the petitioner at Chennai Airport and seized the cash, issuing a summon u/s 131 of the Income Tax Act, 1961. The department conducted a search and issued a Panchanama and prohibitory order u/s 132(3), freezing the bank accounts of the Trust and the Chairman. The petitioner argued there was no material to initiate proceedings u/s 132 and that mere possession of cash could not infer undisclosed income.
2. Retention of seized cash beyond 60 days without higher authority approval:
The petitioner contended that retaining the money beyond 60 days without an order from a higher authority or the Central Board of Direct Taxes was unauthorized as per section 132(9). The respondents countered that section 132(9) pertains to making copies or extracts and does not address asset retention. They argued that assets seized u/s 132(1) could be retained until the completion of search-related assessments without any additional approval.
3. Contradictions in the petitioner's statements regarding the source and transportation of cash:
The respondents highlighted contradictions in the petitioner's statements, noting that he initially claimed the cash was unaccounted. The petitioner stated he carried the cash in two bags, but Jet Airways confirmed only one hand baggage was carried. The cash bundles bore seals from banks in North India, contradicting the petitioner's claim of carrying the cash from Chennai. The respondents argued these inconsistencies justified the search and seizure authorization and the initiation of assessment proceedings.
4. Validity of assessment proceedings and retention of seized assets:
The court noted that the assessment proceedings were initiated due to the petitioner's inconsistent statements. The seized amount was deposited in the Reserve Bank of India, and the assessment proceedings were ongoing. Section 132(9A) mandates that seized assets be handed over to the Assessing Officer within 60 days, who can then retain them until the completion of assessment proceedings. The court found that the retention of the money by the Assessing Officer was legal and valid. The assessment proceedings were to be completed by 31.12.2008, and the petitioner could seek a refund with interest u/s 244 if successful.
Conclusion:
The court dismissed the writ petition, holding that no case was made out for issuing a writ of mandamus. The retention of the seized money was deemed legal and valid, and the assessment proceedings were to continue. The petitioner's reliance on the Division Bench judgment of the Madras High Court was distinguished based on the facts of the case.
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2008 (7) TMI 1085
The Bombay High Court heard the case regarding CENVAT credit entitlement even if the process is not considered manufacturing. The court admitted the case based on questions of law related to setting aside the demand and penalty with interest.
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2008 (7) TMI 1084
Issues involved: Determination of whether the price at which excisable goods were sold by one company to another company, both being related persons, was lower than the market price as per the Central Excise and Salt Act, 1944.
Summary:
The case involved a dispute regarding the pricing of excisable goods sold by Cosepal Fiscal Industries Limited to Standard Batteries Limited, both being related entities. A show cause notice was issued to Cosepal Fiscal Industries Limited for not paying central excise duty on the selling price of the goods. The Commissioner confirmed the demand and imposed penalties and interest. The assessee appealed to the Tribunal, which set aside the original order based on the finding that the two companies were not related within the meaning of the Act. The Tribunal's decision was upheld by the Supreme Court, stating that the revenue failed to show any infirmity in the Tribunal's order, which was considered a finding of fact not subject to interference.
The Supreme Court dismissed the appeals, upholding the Tribunal's decision that the companies were not related persons as defined by the Act, and therefore, the pricing was not in violation of the law. No costs were awarded in the matter.
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2008 (7) TMI 1083
Issues involved:
1. Tax treatment of profit earned on redemption of IDBI deep discount bonds.
2. Charging of interest under Sections 234B and 234C of the Act.
Issue 1: Tax treatment of profit on redemption of IDBI deep discount bonds
The appeal was filed against the decision upholding the action of treating the profit earned on redemption of IDBI deep discount bonds as 'income from other sources'. The assessee, a practicing advocate, purchased the bonds as investments and earned a gain of Rs. 2,77,520 upon redemption by IDBI. The assessing officer applied a circular issued by CBDT in 2002, while the assessee argued that an earlier circular from 1996 should apply. The Tribunal held that the profit on redemption of deep discount bonds should be treated as capital gain, not income from other sources, as the bonds were capital assets. The circular was deemed to have prospective effect and the order of the Commissioner (Appeals) was reversed in favor of the assessee.
Issue 2: Charging of interest under Sections 234B and 234C of the Act
The assessee was aggrieved by the decision to charge interest under Sections 234B and 234C of the Act, which was confirmed by the Commissioner (Appeals). However, since the decision on the first issue favored the assessee, it rendered the charging of interest under these sections as inconsequential. Therefore, the Tribunal dismissed this ground as infructuous.
In conclusion, the Tribunal allowed the appeal partly, ruling in favor of the assessee on the tax treatment of profit earned on redemption of IDBI deep discount bonds and dismissing the ground related to charging of interest under Sections 234B and 234C of the Act.
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2008 (7) TMI 1082
Issues involved:
The judgment involves the interpretation of service of notice u/s 138B of the Negotiable Instruments Act and the validity of the order passed by the High Court quashing the proceeding under Section 138 of the Act.
Interpretation of service of notice u/s 138B:
The Supreme Court heard the appeal against the High Court's order quashing a proceeding under Section 138 of the Negotiable Instruments Act. The High Court had ruled that the service of notice was invalid as no notice was served on the respondents. However, the Supreme Court disagreed with this reasoning. It was noted that notice under Section 138B was sent to the respondents through registered post and under a certificate of posting on their correct address. The Court referred to previous judgments emphasizing a liberal interpretation of the Act in favor of the person obligated to give notice. It was held that once notice is sent by registered post with acknowledgment due to the correct address, it is presumed to be effectively served. The Court found that the High Court erred in holding the service of notice as invalid based on the postal peon's endorsement without examining the peon. Therefore, the Supreme Court set aside the High Court's order and restored the proceeding under Section 138 of the Act.
Validity of the High Court's order:
The Supreme Court concluded that the High Court's judgment quashing the proceeding under Section 138 of the Negotiable Instruments Act was not sustainable. The Court emphasized the importance of a liberal interpretation of the Act in favor of the party obligated to give notice. The Court held that the High Court was unjustified in ruling the service of notice as invalid based on the endorsement of the postal peon without proper examination. The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the proceeding under Section 138 of the Act. It was clarified that during the trial stage, the interpretation of the postal endorsement shall be considered based on the background facts of the case.
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2008 (7) TMI 1081
Murder - Challenge the judgment of a learned Single Judge for altered the conviction to Section 304 Part II - What is the object of examination of an accused u/s 313 of the Code? - HELD THAT:- The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab [1962 (7) TMI 38 - SUPREME COURT] Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with.
It is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.
At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in Clause (a) of Sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under Clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.
In certain cases when there is perfunctory examination u/s 313 of the Code, the matter is remanded to the trial Court, with a direction to re-try from the stage at which the prosecution was closed.
In the instant case, the questions put to the accused in his examination u/s 313 read as follows: The witnesses have stated in their evidence that at about 9.30 a.m. on the day of occurrence you caused severe injuries to Khairul Hoque by assaulting him on the head from behind with a piece of timber and that in the evening on the very day he succumbed to the injuries in Guwahati Medical College Hospital. You may say if you have any regarding the evidence.
P.W. 10 Ahindra Kumar Kalita (S.I. of Police) has stated in his evidence that during his investigation into this case when you produced a piece of timber he seized it through Ext.4. You may say if you have any regarding this evidence.
You may say if you have any as regards allegation of committing murder leveled against you and other evidence. You may adduce evidence in defence if you have any. Summon witnesses.
As rightly contended by learned Counsel for the appellant no witness has stated that on the date of occurrence the accused had caused severe injury to the deceased by assaulting him on the head from behind. The circumstances which were relied upon by the trial Court to find the accused guilty were not specifically brought to the notice of the accused. Therefore, in essence, his examination u/s 313 of the Code was rendered an empty formality. On that count alone, the impugned judgment of the High Court cannot be sustained and is set aside. The conviction recorded stands set aside. The bail bond of the appellant who is on bail shall stand discharged.
The appeal is allowed.
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2008 (7) TMI 1080
Issues Involved:
The issues involved in this case include the rejection of production and sale figures by the Tribunal, estimation of production and sales on a theoretical basis, and the application of section 145 for turnover and gross profit estimation.
Rejection of Production and Sale Figures:
The assessee filed a tax appeal challenging the Tribunal's rejection of production and sale figures based on theoretical estimations. The Court decided to hear both parties at length rather than formulating questions of law at the admission stage. The assessee disclosed total income, but the AO computed production and sales of sweets and 'farsan' on a theoretical basis, resulting in alleged suppressed sales. The CIT(A) directed the adoption of a gross profit of 24% based on the assessee's sales. The Tribunal, however, disregarded past accepted assessments and computed fixed production figures, leading to discrepancies in sales quantities.
Estimation on Theoretical Basis:
The Tribunal's order was criticized for estimating production and sales without comparative support or consideration of past assessments. The Tribunal's approach was deemed faulty, resulting in discrepancies between the assessee's figures and the Tribunal's estimations. The Tribunal's decision was challenged as being based on a theoretical approach rather than factual evidence, leading to an alleged incorrect estimation of production quantities.
Application of Section 145:
The Tribunal's method of estimating turnover and gross profit was contested as unreasonable by the assessee. The Tribunal's order was defended by the Revenue, stating that it was based on factual findings and did not warrant interference. The Court noted the exceptional nature of the case due to the assessee's history of assessments and discrepancies in the Tribunal's approach. After considering past assessments and comparative instances, the Court set aside the Tribunal's order and remanded the matter for reconsideration.
This judgment highlights the importance of factual evidence and past assessments in determining production and sales figures, emphasizing the need for a reasoned approach rather than theoretical estimations.
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2008 (7) TMI 1079
Issues involved: Appeal against summary dismissal of appeal under Section 30 of the Workmen's Compensation Act, 1928 by Allahabad High Court.
Summary:
The appellant challenged the order passed by the Allahabad High Court summarily dismissing the appeal filed under Section 30 of the Workmen's Compensation Act, 1928. The primary contention was the lack of evidence establishing the employer-employee relationship and the circumstances of the deceased's injuries under employment. The Commissioner had directed payment to the claimant, which was questioned in the appeal and summarily dismissed by the High Court without proper reasoning. The appellant argued that substantial questions of law were overlooked, including the acceptability of evidence and the liability of the Insurance Company. The absence of suitable evidence regarding the deceased's income was also highlighted. The High Court's non-application of mind and lack of reasoning in the order were criticized, emphasizing the importance of providing reasons in judicial decisions. The Supreme Court set aside the High Court's order and remitted the matter for fresh consideration, directing the parties to submit new evidence for adjudication. The appeal was allowed without costs.
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2008 (7) TMI 1078
Issues involved: Validity of warrant issued by Addl. Director of IT (Inv.) u/s 132(1) of IT Act, 1961 for block period 1996-97 to 2002-03.
Summary:
Issue 1: Power of Addl. Director of IT (Inv.) to issue warrant under Section 132(1) of IT Act, 1961
The appeal concerned the block period 1996-97 to 2002-03 and questioned the authority of the Addl. Director of IT (Inv.) to issue a warrant under Section 132(1) of the IT Act, 1961. The Tribunal found the warrant issued by the Addl. Director to be without authority, rendering the search and subsequent assessment proceedings invalid. The Tribunal's decision was based on the precedent set by the Delhi High Court in the case of Dr. Nalini Mahajan v. Director of IT (Inv.) [2002] 257 ITR 123 (Delhi), where it was concluded that the Addl. Director does not possess the power to issue any authorization or warrant under Section 132(1) of the Act.
Issue 2: Adherence to precedent set by Dr. Nalini Mahajan case
Given that the question raised in the present case was already addressed in the Dr. Nalini Mahajan case, the Court determined that further deliberation was unnecessary. Consequently, the appeal was dismissed in accordance with the precedent established in the aforementioned case.
Conclusion:
The Court dismissed the appeal, emphasizing that the decision in the Dr. Nalini Mahajan case governed the present matter, and no further examination of other issues was deemed necessary based on the aforementioned view.
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2008 (7) TMI 1077
Issues involved: Challenge to order under Section 65(1) of Karnataka Value Added Tax Act, 2003 regarding disallowed refund claim on chassis of goods vehicle for an export-oriented unit.
Summary:
The revision petition was filed challenging the order passed by the Karnataka Appellate Tribunal, which disallowed the refund claim on the chassis of a goods vehicle under Section 11(3) of the Karnataka Value Added Tax Act, 2003. The appellant, an export-oriented unit, purchased the chassis for transporting iron ore for export. The Tribunal held that the chassis purchase was not for manufacturing or processing but solely for transportation, thus denying the refund claim. The High Court, after considering the facts, upheld the Tribunal's decision, stating that no substantial question of law arose in the case.
The appellant, an export-oriented unit, claimed a refund on the input tax for the chassis of a goods vehicle purchased for transporting iron ore for export. The authorities, including the Appellate Tribunal, denied the refund under Section 11(3) of the Act, stating the chassis purchase was not for manufacturing or processing but only for transportation. The High Court concurred with this interpretation, finding no substantial question of law in the matter.
The Tribunal held that the appellant's purchase of the chassis for transporting iron ore did not qualify for a refund under the Act, as it was not for manufacturing or processing but solely for transportation purposes. The High Court affirmed this decision, stating that the chassis purchase was not for business use as defined in the Act, leading to the dismissal of the petition.
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2008 (7) TMI 1076
Issues Involved:
1. Implementation of an award.
2. Satisfaction of the award by deposit.
3. Execution of the award.
4. Interpretation of the award's terms.
5. Application of res judicata.
6. Reciprocal obligations under the award.
7. Role of the executing court.
Summary:
1. Implementation of an Award:
The applications concern the implementation of an award where the judgment-debtor, KND Engineering Technologies Limited, claims satisfaction of the award upon deposit made in Court, while the decree-holders, Fab Leathers Limited and Chroma Business Limited, seek execution in terms of the award.
2. Satisfaction of the Award by Deposit:
The judgment-debtor argues that the award is a money award simpliciter and that the deposit made under Order XXI Rule 1 of the Code of Civil Procedure should satisfy the decree. The decree-holders had previously interpreted the award as a money award, but now assert that the award requires the conveyance of property.
3. Execution of the Award:
The decree-holders had earlier sought a sale of the Shakespeare Sarani property through a receiver, which was dismissed on June 11, 2002. The judgment-debtor contends that the decree-holders cannot now assert a different interpretation due to the principles of res judicata or constructive res judicata.
4. Interpretation of the Award's Terms:
The award provides for payment of Rs. 6,82,62,117/- with interest at 15% per annum. If not paid within three months, the decree-holders are entitled to a conveyance of premises No. 30, Shakespeare Sarani. The judgment-debtor argues that the award's reference to the property was only by way of security and does not convert it into a different nature of award.
5. Application of Res Judicata:
The judgment-debtor cites previous decisions to argue that the principles of res judicata apply, making the earlier interpretation of the award binding. The decree-holders counter that the second paragraph of the June 11, 2002 order, which states that the award provides a particular mode of satisfaction, should also operate as res judicata.
6. Reciprocal Obligations Under the Award:
The judgment-debtor suggests that the decree-holders have failed to act in accordance with the terms of the award, and thus, the judgment-debtor's offer for payment should be accepted. The decree-holders argue that they are entitled to the property and the balance decretal debt upon the expiry of the three-month period.
7. Role of the Executing Court:
The executing court cannot modify the decree but can interpret it. The court finds that the valuation of the property is open to interpretation and should be contemporaneously assessed. The judgment-debtor is directed to convey the property within six weeks, and the valuation should be completed within four weeks. If either party owes money after the conveyance, it should be settled within a fortnight.
Conclusion:
The applications are disposed of with directions for the judgment-debtor to convey the property and for a valuation to be conducted. The parties are to bear their own costs, and the judgment-debtor's request for a stay of operation of the order is declined.
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2008 (7) TMI 1075
Issues Involved:
1. Vesting of property as Evacuee Property.
2. Validity of auction and sale certificate.
3. Claims of tenancy and Zamindari rights.
4. Allegations of fraud and suppression of facts.
5. Jurisdiction and procedural compliance.
Summary:
1. Vesting of Property as Evacuee Property:
The disputed property, Khasra No. 519, village Surjepur, Agra, was declared as evacuee property after Abdul Wahid migrated to Pakistan in 1947-48. It vested in the Custodian of Evacuee Properties u/s Administration of Evacuee Property Ordinance, 1949, later replaced by the Administration of Evacuee Property Act, 1950.
2. Validity of Auction and Sale Certificate:
The property was auctioned in 1955 under the Displaced Persons (Compensation & Rehabilitation) Act, 1955, and sold to Tuljaram. Harnath Chaturvedi challenged the auction, claiming tenancy rights, but his appeals were rejected. The High Court found the orders dated 11.11.1982 and 18.11.1982, which transferred the property to Gulab Chand Mittal, to be mala fide, arbitrary, and invalid, thus canceling them.
3. Claims of Tenancy and Zamindari Rights:
Harnath Chaturvedi claimed hereditary tenancy rights over part of the land, which was initially rejected but later accepted for two bighas ten biswas. He sought transfer of Zamindari rights, which was granted in 1972. The High Court noted that the orders from 1969, 1972, and 1973 regarding these claims were not challenged and thus did not consider their legality.
4. Allegations of Fraud and Suppression of Facts:
The Supreme Court emphasized that fraud vitiates all transactions. It was noted that there was suppression of factual positions and potential fraud in the application moved in 1982 without granting an opportunity to Tuljaram. The Court cited various precedents to highlight the seriousness of fraud and its impact on legal proceedings.
5. Jurisdiction and Procedural Compliance:
The High Court and Supreme Court scrutinized the procedural aspects, noting that the Custodian's actions lacked proper approval and did not follow the required tender process. The Supreme Court upheld the High Court's view that the orders were without jurisdiction and that the procedural lapses rendered the subsequent actions null and void.
Conclusion:
The Supreme Court dismissed the appeal, supporting the High Court's decision to cancel the orders dated 11.11.1982 and 18.11.1982, and emphasized the importance of procedural compliance and the impact of fraud on legal proceedings. No costs were ordered.
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2008 (7) TMI 1074
Issues involved: Petition for quashing order of dismissal from service, challenge to departmental inquiry findings, appeal and revision against dismissal orders, consideration of subsequent mercy petition and representation, delay in challenging orders, application of 'Wednesbury' principle, relevance of criminal acquittal in departmental proceedings.
Summary:
Issue 1: Quashing of dismissal order
The petitioner, an Assistant Sub-Inspector of Police, filed a petition under Article 226 of the Constitution seeking to quash the order dismissing her from service based on a departmental inquiry finding her guilty of accepting money for sending an individual to America. The dismissal order and subsequent appeal and revision were challenged, along with a mercy petition and representation for reinstatement.
Issue 2: Departmental Inquiry and Dismissal
Following an FIR and departmental proceedings, the Enquiry Officer found the petitioner guilty of the charges. The Senior Superintendent of Police dismissed the petitioner from service after providing her with a show cause notice and considering her written reply. The dismissal order was upheld in appeal and revision, with due consideration given to the statements of witnesses and defense witnesses.
Issue 3: Challenge to Mercy Petition and Representation
The petitioner's subsequent mercy petition and representation were dismissed, leading to the argument of delay in challenging the dismissal orders. The court noted that repeated representations do not extend the limitation period for challenging government orders, citing a Supreme Court judgment on the matter.
Issue 4: Application of 'Wednesbury' Principle
The court discussed the 'Wednesbury' principle, emphasizing that administrative decisions must be based on relevant material and not be unreasonable. In this case, the findings were based on relevant material, including witness statements, and the decision to dismiss the petitioner was deemed rational.
Issue 5: Relevance of Criminal Acquittal
The petitioner's acquittal in a criminal case was raised as an argument for reconsideration in the departmental proceedings. However, the court highlighted the different objectives of disciplinary inquiries and criminal prosecutions, concluding that the acquittal in the criminal case did not automatically result in exoneration in the departmental proceedings.
In conclusion, the court found no merit in the petition and dismissed it, upholding the dismissal of the petitioner from service based on the findings of the departmental inquiry and subsequent legal proceedings.
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2008 (7) TMI 1073
Issues Involved:
1. Legality and correctness of the conviction under Section 138 of the Negotiable Instruments Act.
2. Presumption under Section 139 of the Negotiable Instruments Act and its extent.
3. Proof of legally enforceable debt or liability.
4. Financial capacity of the complainant to lend the amount in question.
Detailed Analysis:
1. Legality and Correctness of the Conviction under Section 138 of the Negotiable Instruments Act:
The petitioner challenged the judgment of the Fast Track Court-II, Mandya, which affirmed the conviction and sentence by the Additional Civil Judge & JMFC, Srirangapatna, under Section 138 of the Negotiable Instruments Act. The petitioner was sentenced to six months of imprisonment, a fine of Rs. 2,000, and compensation of Rs. 75,000 to the complainant.
2. Presumption under Section 139 of the Negotiable Instruments Act and Its Extent:
The defense argued that the presumption under Section 139 of the N.I. Act does not extend to the existence of a legally enforceable debt or liability, but only to the issuance of the cheque for discharge of debt or liability. The court referred to the Supreme Court's decision in Krishna Janardhan Bhat v. Dattatraya G. Hegde, which clarified that the presumption under Section 139 is limited to the cheque being issued for discharge of debt or liability and does not cover the existence of the debt itself.
3. Proof of Legally Enforceable Debt or Liability:
The complainant alleged that the accused borrowed Rs. 75,000 and issued a post-dated cheque, which was dishonored due to "payment stopped by the drawer" and "insufficient funds." The accused contended that the cheque was issued as a blank cheque to Mahaveer Financiers and was stolen by an ex-employee, who then misused it. The court emphasized that the complainant must prove the existence of a legally enforceable debt before the presumption under Section 139 can be invoked.
4. Financial Capacity of the Complainant to Lend the Amount in Question:
The accused questioned the financial capacity of the complainant to lend Rs. 75,000. The complainant's income was stated to be Rs. 9,000 annually, and he was below the poverty line, as evidenced by documents such as Ex. D.9 (income certificate), Ex. D.10 (mortgage deed), and Ex. D.11 (allotment order under Ashreya Housing Scheme). The court found that the complainant did not satisfactorily explain how he could lend such a substantial amount, given his financial status.
Conclusion:
The court held that the complainant failed to prove the existence of a legally enforceable debt or liability. The presumption under Section 139 could not be drawn without such proof. The judgments of the lower courts were set aside, and the accused was acquitted of the charges under Section 138 of the N.I. Act. The complaint was dismissed, and the bail and surety bonds of the accused were discharged. The amount deposited by the petitioner was ordered to be returned.
Order:
The Criminal Revision Petition was allowed, and the judgment of conviction and sentence were set aside. The accused was acquitted, and the complaint was dismissed. The bail and surety bonds were discharged, and the deposited amount was ordered to be returned to the petitioner.
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2008 (7) TMI 1072
The Supreme Court of India dismissed the special leave petition on the grounds of delay and merits. (2008 (7) TMI 1072 - SC Order)
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2008 (7) TMI 1071
The Supreme Court considered whether the cost of wooden cases/cardboard boxes for packing electrodes should be included in the assessable value of goods. The Tribunal ruled in favor of the assessee, stating that the packing was necessary for transportation and marketing. The revenue did not dispute this and the Court dismissed the appeals, citing previous decisions.
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2008 (7) TMI 1070
Issues involved: Appeal against disallowance of depreciation on a barge named Jay - II for assessment year 2001-02.
Summary:
Issue 1: Disallowance of depreciation on the barge Jay - II
- The Assessing Officer disallowed depreciation on the barge as it was not used for business purposes after an accident and subsequent sale.
- Assessee argued that depreciation should be allowed on the entire block of assets as per section 43(6) of the Act.
- Assessee cited various judgments supporting the allowance of depreciation on assets forming part of a block.
- CIT(A) held that user of the asset was a condition precedent for depreciation allowance.
- Tribunal noted the change in depreciation system post the Taxation Law (Amendment) Act, 1986, focusing on block of assets for depreciation calculation.
- Tribunal referred to the definition of "block of assets" in section 2(11) and the calculation of written down value under section 43(6).
- Tribunal emphasized that post the amendment, depreciation is allowed on the entire block of assets, not individual assets, based on the principle of user of the block as a whole.
- Tribunal distinguished a previous High Court decision where the asset was not put to use, unlike in the present case.
- Relying on previous tribunal decisions, the Tribunal allowed the appeal, directing the Assessing Officer to allow depreciation on the barge.
This judgment deals with the disallowance of depreciation on a barge named Jay - II for the assessment year 2001-02. The Assessing Officer had disallowed the depreciation on the barge due to it not being used for business purposes after an accident and subsequent sale. The Assessee contended that depreciation should be allowed on the entire block of assets as per section 43(6) of the Act and cited various judgments supporting this position. The CIT(A) held that user of the asset was a prerequisite for depreciation allowance. However, the Tribunal, considering the post-amendment depreciation system focusing on block of assets, allowed the appeal by emphasizing the principle of user of the block as a whole. The Tribunal distinguished a previous High Court decision and directed the Assessing Officer to allow depreciation on the barge.
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