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Showing 41 to 60 of 1167 Records

• 2012 (7) TMI 1137
  
  Issues Involved: Coverage of the computer industry under the Employees' State Insurance Act, 1948, and whether software development constitutes a "manufacturing process" making such premises a "factory" under the E.S.I Act.
  
  Issue-Wise Detailed Analysis:
  
  1. Whether creation of software or development of software itself is a manufacturing process or not?
  
  The court examined the definition of "manufacturing process" under Section 2(k) of the Factories Act, 1948, which includes various activities like making, altering, treating, adapting any article or substance with a view to its use, sale, transport, delivery, or disposal. The court noted that while the Factories Act was enacted before the widespread use of computers, the activities related to software development can be generally covered under the terms used in the definition of manufacturing process. The court concluded that software development is a manufacturing process, relying on clarifications from the Directorate General, Government of India, Ministry of Labour and Factories, which stated that "software development" falls within the meaning of "manufacturing process" under Section 2(k) of the Factories Act.
  
  2. Whether the premises where computers are involved in manufacturing process is a factory under the E.S.I Act?
  
  The court differentiated between the definitions of "factory" under the Factories Act and the E.S.I Act. The Factories Act uses the term "worker working," while the E.S.I Act uses "person employed for wages," thus giving a broader scope under the E.S.I Act. The court emphasized that the mere installation of computers does not make a premises a factory unless a manufacturing process is carried on. However, if software development is carried out, it constitutes a manufacturing process, making such premises a factory under the E.S.I Act. The court rejected the argument that Explanation II of Section 2(m) of the Factories Act, which excludes premises with only electronic data processing units or computer units from being considered factories, should apply to the E.S.I Act.
  
  Judgment:
  
  First Appeal No. 143 of 2012:
  The court set aside the judgment of the E.S.I Court, which had quashed the demand for contributions from the respondent company. The court held that the respondent company's activities involved software development, which is a manufacturing process, making the premises a factory under the E.S.I Act. Therefore, the respondent is liable to pay the demanded contributions.
  
  First Appeal No. 307 of 2012:
  The court upheld the judgment of the E.S.I Court, which had directed the appellant to pay the contributions. The court found that the appellant was engaged in software development, constituting a manufacturing process, and thus the premises were a factory under the E.S.I Act. The appellant's arguments regarding lack of personal hearing and incorrect calculation of contributions were dismissed.
  
  Conclusion:
  The court concluded that software development constitutes a manufacturing process, and premises where such activities are carried out are factories under the E.S.I Act. The appeals were disposed of accordingly, with the judgment in First Appeal No. 143 of 2012 being set aside and the judgment in First Appeal No. 307 of 2012 being upheld.

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• 2012 (7) TMI 1136
  
  Issues involved: Criminal Revision against conviction and sentence u/s 138 of Negotiable Instruments Act.
  
  Issue 1: Business transaction and issuance of dishonored cheque
  The complainant, a textile business owner, received a dishonored cheque from the accused, the proprietor of "Action Suit," to repay a loan. The cheque was endorsed to the complainant by a third party. The complainant filed a complaint u/s 138 of Negotiable Instruments Act. The trial court examined witnesses and documents to establish the business transaction and dishonored cheque.
  
  Issue 2: Examination of witnesses and documentary evidence
  Witnesses testified to the business dealings and the dishonored cheque. Documents including power of attorney, cheques, notices, and bank statements were presented as evidence. The accused pleaded not guilty, challenging the complainant's status as a holder in due course.
  
  Issue 3: Conviction and appeal
  The trial court found the accused guilty u/s 138 of Negotiable Instruments Act, sentencing imprisonment and a fine. The accused appealed, arguing lack of due course holder status and pending civil suit. The appellate judge upheld the conviction based on evidence and dismissed the appeal.
  
  Issue 4: Revision and modification of sentence
  The accused filed a revision challenging the appellate judgment. The court reduced the sentence from one year to six months of imprisonment and ordered the accused to compensate the complainant with the cheque amount. The accused was directed to pay the compensation or face judicial custody.
  
  This judgment highlights the legal proceedings and considerations in a case involving a dishonored cheque and business transactions, emphasizing the importance of evidence, legal rights, and appropriate sentencing in matters u/s 138 of Negotiable Instruments Act.

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• 2012 (7) TMI 1135
  
  The Supreme Court allowed the appeals after parties settled and permitted compounding of the offence under Section 138 of the Negotiable Instruments Act. The orders of the Trial Court and High Court were set aside.

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• 2012 (7) TMI 1134
  
  Issues Involved:
  1. Enforceability of agreement dated 12.1.1996.
  2. Application of the Right of Children to Free and Compulsory Education Act, 2009.
  3. Validity of actions taken by LDA and Nazul Officer in compliance with the High Court's order dated 4.5.2009.
  
  Summary:
  
  Enforceability of Agreement Dated 12.1.1996:
  The Supreme Court examined whether the High Court was correct in rejecting the prayer for a mandamus to enforce the agreement dated 12.1.1996 between the Lucknow Development Authority (LDA) and City Montessori School (Respondent No. 1). The Court noted that Respondent No. 1 had failed to pay the balance amount of the bid within the stipulated period, leading to the cancellation of the bid. Despite the Governor's subsequent order to restore the plots and accept the balance amount in installments, the Court held that this did not create an enforceable right for Respondent No. 1. The agreement contained a stipulation that failure to pay the installments would void the agreement, which Respondent No. 1 did not comply with, thus terminating the agreement.
  
  Application of the Right of Children to Free and Compulsory Education Act, 2009:
  The Supreme Court scrutinized whether the High Court could invoke the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (the 2009 Act) to grant relief to Respondent No. 1. The Court found that the 2009 Act does not provide for the allotment or sale of land to educational institutions. Therefore, the High Court was not justified in ordering the transfer of the plot to Respondent No. 1 based on the 2009 Act, especially since Respondent No. 1 was a defaulter and the writ petition was filed after a significant delay of 13 years.
  
  Validity of Actions by LDA and Nazul Officer:
  The Supreme Court addressed whether the High Court erred in quashing the actions taken by LDA and the Nazul Officer in compliance with the High Court's order dated 4.5.2009. The Court noted that the garden lease for plot No. 92A/C had expired in 1968, and the plot was not renewed. LDA had accepted the bid from Respondent No. 1 and delivered possession, making the subsequent actions by the Appellants to claim the plot an abuse of the legal process. The High Court's decision to quash the actions taken for converting the leasehold rights into freehold rights was upheld.
  
  Conclusion:
  The Supreme Court partly allowed Civil Appeal No. 10181 of 2011 by setting aside the High Court's direction to hand over possession of plot No. 92A/C to Respondent No. 1 on payment of the current market price. The decision to quash the actions taken by LDA and the Nazul Officer in compliance with the High Court's order dated 4.5.2009 was upheld. Civil Appeal No. 10180 of 2011 was dismissed. Both the Appellants and Respondent No. 1 were directed to deposit costs of Rs. 10 lakhs each with the Supreme Court Legal Services Committee. Respondent No. 1 was ordered to hand over possession of the plot to LDA, which was instructed to dispose of the plot by public auction.

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• 2012 (7) TMI 1133
  
  Issues involved: Appeal against CIT (Appeals) order for Assessment Years 2007-08 and 2008-09.
  
  Issue 1: Charitable object under section 2(15) of Income Tax Act
  The appellant, an Development Authority established by the Uttar Pradesh Government, contended that it was created for general public utility, a charitable object under section 2(15) of the Income Tax Act. The Authority had been granted exemption u/s 12AA by CIT Dehradun. The CIT (A) did not acknowledge this charitable purpose, leading to a dispute.
  
  Issue 2: State Government's power to issue directions
  The appellant argued that the State Government had absolute power to issue directions to the Authority, and by doing so, it intended to override specific provisions of the Act related to the Authority's funds. The appellant claimed that the State Government's order did not have the authority to divert funds by overriding title.
  
  Issue 3: Legal identity of Infrastructure Fund
  The CIT (A) contended that the "Infrastructure Fund" did not have a separate legal identity and was an integral part of the assessee. The appellant challenged this assertion, highlighting the distinct nature of the Infrastructure Fund.
  
  Issue 4: Addition on account of fund diversion
  The CIT (A) upheld the addition of a specific amount by the Assessing Officer due to the diversion of funds to the Infrastructure Development Fund through an over-riding title as per the State Government order. The appellant disputed this addition, emphasizing the legality of the fund allocation.
  
  The ITAT, considering the previous orders and directions, decided to restore the issues back to the Assessing Officer for a de novo assessment. If the appellant obtained registration u/s 12AA for the relevant assessment years, the Assessing Officer was instructed to reexamine whether the expenses were for charitable purposes. If deemed capital, the Assessing Officer should determine the allowance of depreciation. Consequently, both appeals were allowed for statistical purposes, and the matters were set aside to the Assessing Officer for further assessment.

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• 2012 (7) TMI 1132
  
  Issues involved: Disallowance of depreciation on a car for the assessment year 2006-2007.
  
  Summary:
  The appeal was filed against the order of the Commissioner of Income-tax (Appeals)-XIV, Ahmedabad, regarding the disallowance of depreciation on a car amounting to Rs. 50,260. The assessee argued that even though the car was registered in the name of a director, it was purchased using the funds of the assessee-company and was reflected as an asset in its balance sheet, establishing ownership by the company. The Revenue contended that ownership must be proven for depreciation to be allowed. The Tribunal noted that the vehicle was indeed bought with company funds and was an asset on the balance sheet, concluding that the ownership remained with the company. As long as the conditions of section 32 for claiming depreciation were met, the assessee was entitled to the deduction. The Tribunal also highlighted that in a previous assessment year, the claim for depreciation was allowed by the CIT(A) without further appeal to the Tribunal. Despite the lack of evidence regarding business use of the vehicle, the Tribunal ruled in favor of the assessee, stating that the claim of depreciation was valid due to ownership by the company and actual usage during the relevant period. Consequently, the disallowance of Rs. 50,260 as depreciation on the car was overturned, and the appeal of the assessee was allowed.

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• 2012 (7) TMI 1131
  
  Issues involved: Assessment years 2002-03 and 2003-04 - Exclusion of job works receipts u/s 80HHC - Interpretation of gross or net value for exclusion.
  
  Summary:
  In the present case, the appellant, an exporter of fabrics with job works, excluded gross receipts from job works u/s 80HHC. The Commissioner of Income Tax held the exclusion as bad in law, which was upheld by the Appellate Tribunal. The main issue was whether the exclusion should be based on gross or net value. The Appellate Tribunal found the exclusion of receipts as bad in law, not meeting the parameters of the formula. The appeals raised the question of law regarding the correctness of the orders passed by the authorities.
  
  The High Court referred to a previous decision and held that the entire amount of receipts from job work should be excluded from the numerator as per the formula. The Supreme Court's interpretation in another case clarified that only the net amount should be excluded, not the gross amount. The court emphasized the distinction between gross and net receipts in various scenarios. Relying on these decisions, the question of law was answered in favor of the revenue, and the matter was remanded back to the Assessing Authority for reassessment in accordance with the Supreme Court's ruling. Consequently, the appeals were disposed of.

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• 2012 (7) TMI 1130
  
  Issues Involved:
  1. Whether the plaintiff is a permanent resident of Singapore and if so, whether he should be non-suited u/s Foreign Exchange Regulation Act.
  2. Whether the two lease deeds relied upon by the plaintiff have been acted upon and are valid.
  3. Whether the plaintiff is in possession and enjoyment of the suit property as claimed.
  4. Whether the suit is bad for mis-joinder of parties.
  
  Summary:
  
  Issue 1: Plaintiff's Residency and Foreign Exchange Regulation Act
  The trial court framed the issue of whether the plaintiff, being a permanent resident of Singapore, should be non-suited u/s Foreign Exchange Regulation Act. However, this issue was not significantly addressed in the final judgment.
  
  Issue 2: Validity and Execution of Lease Deeds
  The trial court found Exs.A1 and A2 lease deeds to be true, valid, and acted upon, establishing that Thirunavukkarasu was put in possession and enjoyment of the suit property. The lower appellate court upheld this finding, confirming the validity of the lease deeds despite the defendants' challenge based on Section 36 of the Indian Trust Act and Section 23 of the Indian Contract Act. The court also held that the lease deeds did not require prior permission from the Reserve Bank of India u/s 31 of the Foreign Exchange Regulation Act, as the violation of FERA only attracts penal provisions and does not nullify the transfer.
  
  Issue 3: Plaintiff's Possession and Enjoyment of the Suit Property
  The trial court dismissed the suit, finding that the plaintiff failed to prove his possession and enjoyment of the suit property based on Ex.A3 family arrangement, which was not stamped or registered. The lower appellate court reversed this finding, relying on the judgment in O.S. No. 274 of 1995 and accepting the plaintiff's claim of possession. However, the High Court found this reliance erroneous and held that Ex.A3 could not be used to prove possession as it was inadmissible for establishing right, title, or ownership. The court concluded that the plaintiff failed to prove his possession and enjoyment of the suit property.
  
  Issue 4: Mis-joinder of Parties
  This issue was not significantly addressed in the final judgment.
  
  Conclusion:
  The High Court allowed the second appeal, setting aside the judgment and decree of the lower appellate court and restoring the judgment and decree of the trial court, thereby dismissing the plaintiff's suit for permanent injunction.

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• 2012 (7) TMI 1129
  

  Possession (allegedly) of assets disproportionate to known sources of income - offences punishable U/s 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act 1988 (PC Act) - Validity of FIR Lodged by CBI - the Petitioner is aggrieved of second FIR being No. R.C. 0062003A0019 dated 05.10.2003. It is also clear that the Petitioner has assailed the said FIR on the ground that there was no direction by this Court in its order dated 18.09.2003 which could have empowered the CBI to lodge two FIRs.

  HELD THAT:- the 'compilation', we are satisfied that this Court being the ultimate custodian of the fundamental rights did not issue any direction to the CBI to conduct a roving inquiry against the assets of the Petitioner commencing from 1995 to 2003 even though the Taj Heritage Corridor Project was conceived only in July, 2002 and an amount of ₹ 17 crores was released in August/September, 2002. The method adopted by the CBI is unwarranted and without jurisdiction. We are also satisfied that the CBI has proceeded without proper understanding of various orders dated 16.07.2003, 21.08.2003, 18.09.2003, 25.10.2003 and 07.08.2003 passed by this Court. We are also satisfied that there was no such direction relating to second FIR, namely, FIR No. R.C. 0062003A0019 dated 05.10.2003.We are satisfied that there was no such finding or satisfaction recorded by this Court in the matter of disproportionate assets of the Petitioner on the basis of the status report dated 11.09.2003 and, in fact, the Petitioner was not a party before this Court in the case in question. From the perusal of those orders, we are also satisfied that there could not have been any material before this Court about the disproportionate assets case of the Petitioner beyond the Taj Corridor Project case and there was no such question or issue about disproportionate assets of the Petitioner. In view of the same, giving any direction to lodge FIR relating to disproportionate assets case did not arise. CBI is not justified in proceeding with the FIR No. R.C. 0062003A0019 dated 05.10.2003.

  we hold that in the absence of any specific direction from this Court in the order dated 18.09.2003 or any subsequent orders, the CBI has exceeded its jurisdiction in lodging FIR No. R.C. 0062003A0019 dated 05.10.2003. The impugned FIR is without jurisdiction and any investigation pursuant thereto is illegal and liable to be quashed, accordingly quashed. The writ petition is allowed.

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• 2012 (7) TMI 1128
  
  Issues Involved:
  1. Whether there exists a landlord-tenant relationship.
  2. Whether the rent of the premises is Rs. 3,500/- and above.
  3. Whether the tenancy stands validly determined.
  4. Whether the plaintiff is entitled to possession of the property.
  5. Whether the plaintiff is liable to pay damages/mesne profits and interest.
  
  Summary:
  
  Issue 1: Landlord-Tenant Relationship
  The appellant did not deny the jural relationship of landlord-tenant between the parties. The monthly rent was Rs. 10,995/-, which is more than Rs. 3,500/- per month, making the Delhi Rent Control Act 1957 inapplicable.
  
  Issue 2: Rent of the Premises
  The rent of the premises was admitted to be Rs. 10,995/- per month, which is above the threshold of Rs. 3,500/- per month, thus excluding the tenancy from the purview of the Delhi Rent Control Act 1957.
  
  Issue 3: Valid Termination of Tenancy
  The respondents issued a legal notice dated April 1, 1991, terminating the tenancy effective May 15, 1991, or any subsequent date as per the appellant's calculation. The appellant admitted receipt of the notice but claimed it was not in accordance with law without specifying reasons. The court found this plea vague and insufficient to merit an issue.
  
  Issue 4: Entitlement to Possession
  The court upheld the respondents' application under Order 12 Rule 6 CPC, decreeing possession in favor of the respondents. The appellant's contention that a second application under the same provision could not be filed was rejected, as the previous order expressly granted liberty to file afresh if the suit was not disposed of expeditiously.
  
  Issue 5: Damages/Mesne Profits and Interest
  The suit was retained for issues relating to mesne profits and interest. The court noted that the status of the tenant post-termination was reduced to that of a tenant at sufferance, not a tenant holding over, as there was no bilateral consensus to continue the tenancy.
  
  Conclusion:
  The court dismissed the appeal, upholding the decision to decree possession in favor of the respondents. The vague plea regarding the notice's legality did not merit consideration, and the settlement of issues did not preclude the applicability of Order 12 Rule 6 CPC. The proceedings reflected a lackadaisical approach, with a simple suit filed in 1992 remaining unresolved for 20 years.

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• 2012 (7) TMI 1127
  
  Issues involved: Challenge to penalty proceedings u/s 53(3) of APVAT Act 2005 for under-declaration of tax without establishing fraud or willful neglect.
  
  Summary:
  The High Court of Andhra Pradesh heard the case where penalty proceedings u/s 53(3) of APVAT Act 2005 were challenged for under-declaration of tax without proving fraud or willful neglect. The impugned penalty order was based on a show-cause notice dated 4-4-2012, which lacked details regarding fraud or willful neglect by the petitioner. Section 53 of the Act provides for penalty in cases of under-declared tax, distinguishing between situations with and without fraud or willful neglect. The Court noted that the show-cause notice was deficient in providing the necessary information to the dealer, thus denying a reasonable opportunity to be heard. Consequently, the Court allowed the writ petition, quashing the penalty order and the defective show-cause notice. The 2nd respondent was given the option to issue a proper notice in compliance with the law. No costs were awarded in this matter.

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• 2012 (7) TMI 1126
  
  Issues involved:
  Petition filed u/s 391 & 394 of the Companies Act, 1956 for sanction to the Scheme of Amalgamation of two companies.
  
  Details of the Judgment:
  The Petitioner Companies sought sanction for the Scheme of Amalgamation of Grover Chits Pvt Ltd with SKS Buildhome Pvt Ltd. No proceedings u/s 235 to 251 of the Companies Act, 1956 were pending against the Petitioner Companies. Earlier, directions were sought for dispensation/convening of meetings, which were allowed by the Court. Notice of the present Petition was issued to the Regional Director and the Official Liquidator, with citations published in newspapers. The Official Liquidator reported no complaints against the proposed Scheme. The Regional Director highlighted the absence of a Share Valuation Report, which was countered by the Petitioners citing past court rulings. The Petitioners clarified the valuation exercise due to the merger being a wholly owned subsidiary case. The Petitioners also addressed issues regarding e-form filings and the nature of the Transferor Company's business. No objections were received to the Scheme of Amalgamation.
  
  The Court, considering all representations and reports, granted sanction to the Scheme of Amalgamation u/s 391 and 394 of the Companies Act, 1956. The Petitioner Companies were directed to comply with statutory requirements, transfer all property, rights, powers, liabilities, and duties to the Transferee Company. The Transferor Company would stand dissolved without winding up upon the Scheme coming into effect. The order did not exempt from payment of stamp duty or other charges. The Petitioner Companies agreed to deposit a sum in the Common Pool fund of the Official Liquidator. The Petition was allowed accordingly.

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• 2012 (7) TMI 1125
  
  Issues involved: Interpretation of deduction under section 10A of the Income-tax Act, 1961 for travelling expenditure incurred in foreign currency.
  
  Summary:
  The Appellate Tribunal ITAT Chennai considered two appeals filed by the Revenue against the Commissioner of Income-tax(Appeals)-IV's order for the assessment years 2005-06 and 2006-07 u/s 143(3) of the Income-tax Act, 1961. The main contention raised by the Revenue was the treatment of travelling expenditure in foreign currency for the computation of deduction u/s 10A. The Tribunal referred to judgments by the Karnataka High Court, Bombay High Court, and Delhi High Court, all supporting the principle that adjustments in the numerator should be reflected in the denominator for expenses in foreign currency u/s 10A. Additionally, a previous ruling by the Special Bench of the Income-tax Appellate Tribunal, Chennai, in the case of ITO vs. Sak Soft Ltd., supported this interpretation. Consequently, the appeals were dismissed, affirming the consistent view on this issue by various High Courts and Tribunals.
  
  Order pronounced on 31st July, 2012 at Chennai.

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• 2012 (7) TMI 1124
  
  Issues involved: Appeal against orders passed by CIT(Appeals) for assessment years 2006-07, 2007-08, and 2008-09 regarding the addition of provision for rebate for computation of income under sections other than section 115JB of the Income Tax Act, 1961.
  
  Issue 1 - Addition of provision for rebate for computation of income under sections other than section 115JB:
  The assessee raised grounds related to rebate in the computation of book profits u/s. 115JB of the Act and rebate for computing income under normal provisions. The Tribunal considered the submissions and orders of the authorities below. It was observed that the issue concerning the computation of book profits under section 115JB and normal provisions should be remitted back to the Assessing Officer (AO) for a fresh decision. The Tribunal set aside the orders passed by CIT(A) and directed the AO to decide the issue de novo after providing a reasonable opportunity for the assessee to be heard. Consequently, all three appeals filed by the assessee were allowed for statistical purposes.
  
  Conclusion:
  The Tribunal remitted the issue back to the AO for a fresh decision after considering the submissions and orders of the authorities below, allowing all three appeals filed by the assessee for statistical purposes.

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• 2012 (7) TMI 1123
  
  Issues Involved:
  1. Validity of the notification dated 01.03.1988 issued u/s 25 of the Customs Act, 1962.
  2. Alleged violation of terms and conditions of the notification by the appellants/petitioners.
  3. Proposal for an alternative scheme to replace the original notification's conditions.
  
  Summary:
  
  Issue 1: Validity of the Notification Dated 01.03.1988
  The controversy arises from a notification issued on 01.03.1988 by the Central Government u/s 25 of the Customs Act, 1962. This notification allowed four categories of hospitals to import medical equipment without paying customs duty, provided they offered free medical assistance to persons with a monthly family income of less than Rs. 500. The categories were detailed by the learned Single Judge in the impugned order dated 11.02.1999.
  
  Issue 2: Alleged Violation of Terms and Conditions
  The notification also stipulated that benefits could be annulled and equipment impounded if terms were violated. The appellants/petitioners allegedly violated these terms, leading to the impounding of equipment and recovery of customs duty. This resulted in extensive litigation, including the impugned order dated 11.02.1999. The Supreme Court, in Civil Appeal No. 7284/2005, remitted the case back to the DGHS for fresh consideration, emphasizing adherence to natural justice principles.
  
  Issue 3: Proposal for an Alternative Scheme
  The court proposed an alternative scheme to provide succor to the poor, ensuring free medical assistance from the best facilities, as originally intended by the notification. Key points of the scheme include:
  - Free Inpatient Treatment: Hospitals to provide free inpatient treatment for at least 20% of their inpatients annually, covering medical, surgical, and diagnostic procedures, including boarding and lodging.
  - Eligibility Criteria: Extending free treatment to all BPL card-holders, replacing the original income criterion of Rs. 500 per month.
  - Operational Period: The scheme to be operational for 20 years from 01.01.2012, with annual obligations based on the preceding year's inpatient count.
  - Publicity and Records: Hospitals to announce the free treatment facility prominently and maintain detailed records for inspection by the DGHS or a nominated agency.
  
  The proposed scheme was to be considered by the Central Government, with a decision expected by 31.10.2011. Hospitals opting for the scheme would not face further action under the original notification and would have their machinery returned and customs duty refunded.
  
  Conclusion:
  The appeals and writ petitions were disposed of in terms of the proposed alternative scheme. Hospitals not opting for the scheme or if the scheme was not approved by the Central Government, would be proceeded against as per the Supreme Court's order in Sir Gangaram Trust Society's case. Final orders in such cases were expected within six months.

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• 2012 (7) TMI 1122
  
  Issues Involved:
  1. Maintainability of the Writ Petition by the Petitioner.
  2. Direction sought in the Writ Petition filed as a public interest litigation.
  3. Suo motu cognizance taken by the Division Bench.
  4. Direction sought under Article 226 of the Constitution.
  
  Summary:
  
  Issue 1: Maintainability of the Writ Petition by the Petitioner
  The Court examined whether the Petitioner, in his individual capacity or as a representative of any Association of Advocates, is entitled to maintain the Writ Petition. The Court referenced the Supreme Court's decision in Rajasthan High Court Advocates' Association v. Union of India, 2001 (2) SCC 294, which held that an Advocate has no locus standi to file a Writ Petition of this nature. The Court concluded that the Writ Petition is liable to be rejected on this ground.
  
  Issue 2: Direction sought in the Writ Petition filed as a public interest litigation
  The Petitioner sought a direction to the Registrar (Judicial) of the Madurai Bench to number and list Writ Petitions falling within the territorial jurisdiction of the Principal Bench at Madras at the Madurai Bench. The Court noted that the law laid down in Rajasthan High Court Advocates' Association v. Union of India, 2001 (2) SCC 294, settled the matter, emphasizing that the cause of action must be decided based on the facts of each individual case. The Court held that the Petitioner's prayer goes contrary to the Supreme Court's dictum and cannot be granted.
  
  Issue 3: Suo motu cognizance taken by the Division Bench
  The Division Bench had taken suo motu cognizance to address the jurisdictional issue between the Principal Bench and the Madurai Bench. The Court referred to the decision in The Chief Election Commissioner, The Election Commission of India, 2011 (6) CTC 129, which expressed caution about taking suo motu cognizance in public interest litigation. The Court concluded that the Chief Justice alone is the competent authority to decide the posting of matters and that the suo motu cognizance does not arise for consideration in this case.
  
  Issue 4: Direction sought under Article 226 of the Constitution
  The Petitioner sought a Writ of Mandamus directing the Respondents not to number or list Writ Petitions, Writ Appeals, and Habeas Corpus Writ Petitions falling within the Madurai Bench territorial jurisdiction at the Principal Seat, Chennai. The Court referenced several decisions, including Sanjos Jewelers v. Syndicate Bank, 2007 (5) CTC 305, which clarified the territorial jurisdiction of the High Court under Article 226 of the Constitution. The Court held that the Chief Justice is the Master of Rolls, and the jurisdiction of each High Court is well-defined by the Presidential order and various judicial decisions. Therefore, the direction sought by the Petitioner cannot be countenanced.
  
  Conclusion
  The Full Bench dismissed the Writ Petition, stating that the issues raised were already well-settled by the Supreme Court and other judicial decisions. The Court emphasized that the Petitioner, being an Advocate, cannot be considered a person aggrieved and thus cannot question such matters. The Miscellaneous Petition was also closed, and no costs were awarded.

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• 2012 (7) TMI 1121
  
  Issues Involved:
  1. Territorial Jurisdiction
  2. Delay in Raising Jurisdictional Objection
  3. Merits of Jurisdictional Claim
  4. Application of Section 245 (2) Cr.P.C.
  
  Summary:
  
  1. Territorial Jurisdiction:
  The petitioner, Directorate of Revenue Intelligence (DRI), challenged the order dated 8.12.2003 by the learned ACMM, New Delhi, which discharged the accused due to lack of territorial jurisdiction. The ACMM relied on the judgment in Kanwarjit Singh vs. Union of India, where the Punjab & Haryana High Court held that the Delhi Court did not have jurisdiction as the offence was committed in Haryana.
  
  2. Delay in Raising Jurisdictional Objection:
  The DRI argued that the application for discharge was barred as it was filed after 12 years from the date of taking cognizance. The ACMM failed to consider that the accused had participated in the proceedings for 12 years before raising the jurisdictional objection, which should have been raised at the threshold.
  
  3. Merits of Jurisdictional Claim:
  The DRI contended that the Delhi Court had jurisdiction because the substantial actions constituting the offence, such as the search, seizure, and preparation of panchnama, were conducted in Delhi. The ACMM erred in not recognizing the difference between the Panipat case and the present case, where the jurisdictional question was raised after a significant delay.
  
  4. Application of Section 245 (2) Cr.P.C.:
  The ACMM incorrectly applied Section 245 (2) Cr.P.C. to discharge the accused for lack of jurisdiction. The court should have examined whether the charges were groundless, which was not done. The law under Sections 460 and 462 Cr.P.C. indicates that proceedings are not vitiated by lack of jurisdiction unless serious prejudice is shown. The ACMM's order was set aside, and the matter was remanded to the trial court to proceed from where it had discharged the accused.
  
  Conclusion:
  The order of the learned ACMM dated 8.12.2003 was set aside, and the matter was remanded back to the trial court. The parties were directed to appear before the learned ACMM on 31st July, 2012.

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• 2012 (7) TMI 1120
  
  Issues Involved:
  1. Whether the Tribunal was right in holding that a part of share capital is the income of the appellant on the alleged ground that the shareholders are not genuine.
  2. Whether the Tribunal was right in holding that the share capital can be termed as "unexplained investment" by the appellant.
  3. Whether the Tribunal was right in treating the share capital as income of the appellant even though no business was commenced by the appellant.
  
  Summary:
  
  Issue 1: Genuine Shareholders

  The Tribunal held that a part of the share capital is the income of the appellant on the ground that the shareholders are not genuine. The assessment was a block assessment for the period 24-2-1988 to 24-2-1998. During a search by the Enforcement Directorate, certain books and documents were seized and handed over to the Department, leading to a notice u/s 158BC. The assessee filed a nil return, claiming no business commencement and no undisclosed income. The company had acquired property worth Rs. 2.5 crores, mainly funded by share capital from local and NRI/OCB sources. Enquiries revealed that many shareholders were not genuine, leading to the conclusion that the share capital was unexplained income u/s 68. The Tribunal upheld this view, noting that the surrounding circumstances indicated non-genuine transactions.

  Issue 2: Unexplained Investment

  The Tribunal's decision to term the share capital as "unexplained investment" was based on detailed enquiries. Summons issued u/s 131 revealed that many shareholders denied applying for shares, and some were found to be benami investments. The officer added amounts from various locations (Jaipur, Bangalore, Thanjavur, Coimbatore, and Chennai) as undisclosed income. The CIT(A) initially agreed with the assessee, referencing the Delhi High Court's decision in CIT v. Steller Investment Ltd., but the Tribunal reversed this, emphasizing that section 68 permits treating unexplained share capital as income if the shareholders are not genuine.

  Issue 3: Commencement of Business

  The Tribunal treated the share capital as income despite the appellant not commencing business. The assessee argued that without business commencement, section 68 should not apply. However, the Tribunal found that the assessee failed to substantiate the genuineness of the share applicants. The Tribunal noted that the assessee did not file any objection to the proposed addition, leading to the treatment of the amount as unexplained income. The High Court partly allowed the appeal, granting relief for certain amounts but upheld the Tribunal's decision for the rest, emphasizing that unexplained entries were rightly treated as income.

  Conclusion:

  The High Court partly allowed the appeal, providing relief for specific amounts related to Chennai and Thanjavur and subject to verification for Jaipur. The unexplained entries were otherwise rightly treated as unexplained income of the assessee, and the Department was permitted to assess individuals like Pannalal based on verified records.

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• 2012 (7) TMI 1119
  
  Issues Involved:
  1. Maintainability of the revision petition before the High Court.
  2. Examination of the impugned order passed by the CJM on the application u/s 239, Cr.P.C.
  
  Summary:
  
  1. Maintainability of the Revision Petition:

  The respondent-State raised a preliminary objection regarding the maintainability of the revision petition before the High Court, arguing that the order impugned, passed by the Additional Chief Judicial Magistrate (CJM) relating to prosecution for offences u/s 498-A and 506 read with Section 34, I.P.C, is amenable to revision u/s 397, Cr.P.C, before the Court of Session/District Judge.

  The petitioners contended that the High Court and Sessions Court enjoy concurrent jurisdiction u/s 397, Cr.P.C, and therefore, they have the option to choose either Court. The High Court noted that the power u/s 397, Cr.P.C cannot be read in isolation but with the provision of Section 401, Cr.P.C, which confers enlarged or amplified power on the High Court compared to the Sessions Court.

  The Court concluded that there is no bar in Section 397, Cr.P.C prohibiting invoking the power of the High Court without approaching the Sessions Court. However, propriety demands that a litigant must avail the benefit of such revision in the Court lower in hierarchy. The objection of the State that revision u/s 397, Cr.P.C is not maintainable was overruled.

  2. Examination of the Impugned Order:

  The impugned order was passed on an application u/s 239, Cr.P.C. The factual matrix involved allegations of dowry demand and physical torture by the accused, leading to charges u/s 498-A, 506 read with Section 34, I.P.C. The jurisdictional magistrate took cognizance and issued process, which the petitioners sought to discharge.

  The High Court noted that the magistrate's order was based on written arguments without examining the accused as required u/s 239, Cr.P.C. The Court emphasized that the magistrate must examine the records and the accused to ascertain whether a case is made out for framing charge. The impugned order was found to be irrational and against the mandate of Section 239, Cr.P.C, and was set aside.

  The Court concluded that the allegations against the petitioners did not make out any case for trial, and they were entitled to discharge. The revision petition succeeded in entirety, and the petitioners were discharged. The observations made during the course of this order shall not prejudice the prosecution or accused during the trial of other accused.

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• 2012 (7) TMI 1117
  
  Issues Involved:
  The judgment involves two main Issues:
  1. Disallowance of proportionate interest paid on borrowed capital.
  2. Valuation of closing stock of 'rejected quality' of kernels.
  
  Issue 1: Disallowance of Proportionate Interest:
  The Assessing Officer disallowed interest amounting to Rs. 15.58 lakhs, alleging diversion of interest-bearing funds for non-business purposes. The appellant argued that certain investments and deposits were connected to business activities, while a gift to the husband should be considered a personal withdrawal. The Tribunal found investments in South Indian Bank to be for business purposes and not a diversion of funds. However, the Tribunal directed re-examination of funds given to Quilon Medical Trust and Travancore Realtors, lacking explanation. The Tribunal upheld the decision regarding the gift to the husband as a personal withdrawal.
  
  Issue 2: Valuation of Closing Stock:
  The Assessing Officer valued 'rejected quality kernels' at Rs. 6 per kg, differing from the appellant's valuation at Rs. 4.41 per kg. The Ld. CIT(A) directed valuation at Rs. 5 per kg, considering market prices and past valuations. The Tribunal upheld the Ld. CIT(A)'s decision, finding it reasonable and based on relevant submissions.
  
  The judgment was pronounced on 20-07-2012 by the Appellate Tribunal ITAT Cochin, involving appeals related to the assessment year 2007-08. Both parties contested the decision of the Ld. CIT(A) on the two aforementioned issues. The Tribunal provided detailed reasoning for each issue, considering the facts and submissions presented by the parties. The appeal of the assessee was partly allowed for statistical purposes, while the appeal of the Revenue was dismissed.

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