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Case Laws
Showing 41 to 60 of 665 Records
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2005 (8) TMI 707 - SC ORDER
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... ... ..... eported in (2003) 5 SCC 113. It is fairly admitted that in these Appeals also the Department has not discharged the burden to show that price got depressed. The Appeals are dismissed accordingly. No order as to costs.
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2005 (8) TMI 706 - PATNA HIGH COURT
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... ... ..... not declined to renew the licence on this ground, hence same is not fit to be considered to judge the validity of the order. ( 6. ) We make it clear that we have not expressed our opinion on this issue and that shall be decided by the Collector in accordance with law, while considering the prayer of renewal. For the reasons aforesaid, we are of the opinion that the order passed by the Collector, refusing to renew the licence is illegal and accordingly, we set aside the same and remit the matter back to him for reconsideration of the prayer of the petitioner, bearing in mind the observation aforesaid. As the matter is hanging fire since long, we direct the Collector to take decision within two months from the date of receipt/production of a copy of this order. In the result, this writ application is allowed, the impugned order dated 12.7.2005 (Annexure-8) is set aside with the direction aforesaid. In the facts and circumstances of the case, there shall be no order as to cost.
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2005 (8) TMI 705 - SUPREME COURT
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... ... ..... ons, privileges and treatment as part of constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic state based on multi- nationalism. Our concept of secularism, to put it in a nut shell, is that 'state' will have no religion. The states will treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual rights of religion, faith and worship. Let the Commission gear its activities to keep them in right direction with the above constitutional perspective, principles and ideals in its view. With these observations and concluding remarks, this appeal stands disposed of as we do not find that any case is made out for grant of any relief to the appellants in exercise of writ jurisdiction of the High Court and hence, the appellate jurisdiction of this Court.
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2005 (8) TMI 704 - DELHI HIGH COURT
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... ... ..... evidence, argued Mr. Goel, the deductions of excise duty and sales tax from the said turnover were legally impermissible. There is, in our view, no merit in the submission of the learned counsel. A reading of the order passed by the Assessing Officer would show that the assessee had, during the course of the assessment proceedings, in writing claimed that the turnover figure as per profit and loss account for the year 1994-95 included the excise duty of ₹ 2,41,19,042/- and sales tax of ₹ 49,07,992/-. This amount had, therefore, to be deducted out of the total turnover while granting deductions under Section 80HHC. The CIT (Appeals) and the Tribunal have, in that view, correctly followed the decision in Sudarshan Chemicals Industries Ltd.'s case (supra) and granted deduction under Section 80HHC after excluding from the turnover, the component of sales tax and excise duly paid by the assessee. No substantial question of law arises for consideration. Dismissed.
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2005 (8) TMI 703 - GUJARAT HIGH COURT
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... ... ..... d hence, allowable as a deduction. 8. Accordingly, question No. 1 which is common for all the three years is answered in the affirmative i.e., in favour of the assessee and against the Revenue. 9. Insofar as question No. 2 is concerned, the learned standing counsel has submitted that the issue raised by the said question stands concluded in favour of the assessee by the apex Court decision in the case of Allied Motors (P) Ltd. vs. CIT (1997) 139 CTR (SC) 364 (1997) 224 ITR 677(SC). Following ratio of the said decision it is held that the Tribunal was right in law and on facts in holding that unpaid sales-tax liability, if paid before the due date of filing the return of income-tax under s. 139(1) of the Act, cannot be disallowed under the provisions of s. 43B of the Act. Accordingly, the second question is answered in the affirmative i.e., in favour of the assessee and against the Revenue. 10. The reference stands disposed of accordingly. There shall be no order as to costs.
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2005 (8) TMI 702 - SUPREME COURT
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... ... ..... on 115 of the Code of Civil Procedure in that context? Of course, the High Courts have to act with circumspection while exercising these jurisdictions. Certainly, it is for the Parliament to take into account all the relevant aspects. We are making these observations only with a view to highlight the position that has emerged in the light of the amendments to Sections 100 and 115 of the Code of Civil Procedure as they are now obtaining. 8. In view of our conclusion in the present case that the High Court was not justified in dismissing the second appeal by a non- speaking order, we allow the appeal, set aside the judgment and decree of the High Court and remand the second appeal to the High Court for a fresh hearing and disposal and we make it clear that we have not decided whether the second appeal involves any substantial question of law or expressed any view on any of the aspects on the merits of the case. The parties are directed to appear in the High Court on 26.9.2005.
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2005 (8) TMI 701 - ITAT AHMEDABAD
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... ... ..... ation of sugar-cane from the fields of the farmers to the assessee’s factory’s gate. The "Samiti" was just a collection centre of the assessee. In view of above discussions and facts and circumstances of the case, we do not find any reason to interfere with the order of the CIT(Appeals) which is well reasoned and has dealt every aspect of the issue in a judicious, elaborate and legal manner. The order of the CIT(Appeals) is confirmed. 28. In view of aforesaid totality of the facts and circumstances of the case, we are of the opinion that so far as the present case is concerned, since, on facts we have found that the "Samiti" was assessee’s own branch and payment to it were not on account of purchase price payable to farmers, the accounting for of the same by the Assessee in farmer’s accounts or other entries in the books of account were not relevant. This plea is rejected. 29. In the result, the appeal of the Assessee is dismissed.
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2005 (8) TMI 700 - CESTAT BANGALORE
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... ... ..... ’ contention that ‘Mines’ is part of factory in terms of definition in Section 2(e) of the CE Act and hence the benefit should be extended. This Bench, after due consideration, disagreed with the assessees’ contention and held that in terms of the Apex Court judgment rendered in the case of CCE v. J.K. Udaipur Udyog Ltd. - 2004 (171) E.L.T. 289 (S.C.), the assessee will not be eligible to get the benefit of the Modvat credit in respect of explosives used in mines. 4. On our careful consideration, we find that the issue is no longer res integra. The Apex Court has held in the case of CCE v. J.K. Udaipur Udyog Ltd. (supra) that the explosives used in mines will not be eligible for the Modvat credit. Respectfully following the ratio of the citations referred to by the learned SDR as noted supra, we do not find any merit in these appeals and the same are rejected. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (8) TMI 699 - SUPREME COURT
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... ... ..... goes without saying that the parties shall be free to place all relevant aspects for consideration of the High Court when the matter is taken up afresh. It appears that no interim orders were passed by this Court. While the writ petition is being heard by the High Court, the relief that was granted to the writ petitioners, would be continued. By granting this protection, it shall not be construed as if we have expressed by opinion on the merits of the case. It would be relevant to note one further fact, as contended by the respondent that a Notification containing similar stipulation as was impugned, has been issued on 03.01.2002. The relevance and effect thereof, it goes without saying, shall be considered by the High Court if brought to its notice with appropriate pleadings. Since the dispute raised in the writ petition filed in the year 1994, we request the High Court to dispose of the writ petition as early as practicable. The appeal is disposed of accordingly. No costs.
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2005 (8) TMI 698 - CESTAT KOLKATA
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... ... ..... enalty under Sections 76 and 77 of Finance Act, 1994 not mandatory for late filing of returns - Plea of appellant that late receipt of payment from customers resulted in delayed payment of service tax, taken into consideration and penalty set aside by Commissioner (Appeals) - Order of Commissioner (Appeals) proper.” In the present case also, the Service Tax and interest had been deposited prior to issuance of show-cause notice and adjudication order. The penalty under Sections 76 & 77 of Finance Act, 1994 is not mandatory. Their plea was that they had not received the payments from their customers in time and that resulted in delayed payment of Service Tax. The present case is squarely covered by the case of Top Detective & Security Services Pvt. Ltd. referred to above. I do not find any infirmity in the order of the Commissioner (Appeals). The appeal filed by the Revenue has no force. Consequently, it is dismissed. The appeal is disposed of in the above terms.
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2005 (8) TMI 697 - ANDHRA PRADESH HIGH COURT
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... ... ..... sional authority but had not expressed its own opinion in the matter. In the circumstances, we find it difficult to sustain the order. The impugned order is accordingly set aside. The stay petition filed by the petitioner shall stand revived to its file for disposal in accordance with law and in the light of the observations made in this order. (3) WE hope and trust that the appellate authority henceforth shall consider each application on its own merits and pass appropriate orders. (4) WE may, however, hasten to clarify that we have not expressed any opinion as to whether the case on hand is a fit case for granting any stay as prayed for since the same is required to be gone into by the appellate authority. That an appropriate order shall be passed by the respondent -appellate authority within three weeks from the date of receipt of a copy of this order, after providing an opportunity of being heard to the petitioner or its counsel. The Writ Petition is accordingly allowed.
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2005 (8) TMI 696 - KARNATAKA HIGH COURT
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... ... ..... I am not examining any of the questions which was sought to be agitated, but make it clear that all questions are left open and any finding one way or the other in the impugned order may not be binding on either of the parties so that the commission may be enabled to proceed with the matter and arrive at the settlement as it deems fit in accordance with the provisions of the Act. A finding or interpretation by this court at this stage should not become a stumbling block for the settlement commission to conclude the proceedings. 12. Accordingly, this writ petition is disposed of observing that notwithstanding the impugned order dated 11-12-2000, it is open to the parties to urge all their contentions before the commission at the stage of disposal of the application itself and the commission may independent of the findings which it has given under the impugned order, examine all the contentions and proceed to pass orders on merits in accordance with the provisions of the Act.
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2005 (8) TMI 695 - SC ORDER
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... ... ..... otice. Stay, in the meantime. Tag with Civil Appeal Nos. 4294-4295 of 2002
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2005 (8) TMI 694 - CESTAT NEW DELHI
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... ... ..... under the Service tax and in the refund claim the appellants challenging the assessment under the Service tax on the ground that certain services are not covered under the scope of Service tax. Therefore, they are entitled for refund. 6. The Revenue raised the issue that without challenging the assessment, refund claim is not maintainable. This issue is settled by the Hon’ble Supreme Court in the case of Collector of Central Excise v. Flock (India) Pvt. Ltd. and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) (supra) where the Hon’ble Supreme Court held that order of assessment could not be challenged in the refund claim without filing the statutory appeal against the assessment order. In this case also the assessment order is appealable order and no appeal has been filed by the appellant. Therefore, in view of the above decision of the Hon’ble Supreme Court, I find merit in the contention of the Revenue and the appeal is dismissed.
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2005 (8) TMI 693 - CESTAT KOLKATA
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... ... ..... Technical) has held in that case is as follows “Service tax - Delay in filing of returns - Penalty - Service tax and part of interest accrued paid even before adjudication of case - Penalty under Sections 76 and 77 of Finance Act, 1994 not mandatory for late filing of returns - Plea of appellant that late receipt of payment from customers resulted in delayed payment of service tax, taken into consideration and penalty set aside by Commissioner (Appeals) - Order of Commissioner (Appeals) proper”. In the present case also, the Service tax and interest had been deposited prior to issuance of show cause notice and adjudication. The penalty under Sections 76 & 77 of Finance Act, 1994 is not mandatory. The present case is squarely covered by the case of Top Detective and Security Services Pvt. Ltd. referred to above. I do not find any infirmity in the order of the Commissioner (Appeals). The appeals filed by the Revenue have no force. Consequently, it is dismissed.
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2005 (8) TMI 692 - BOMBAY HIGH COURT
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... ... ..... es, period is extended by another 6 weeks. Respondents are put on notice that no further extension would be granted. Notice of Motion is disposed of with no order as to costs.
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2005 (8) TMI 691 - SUPREME COURT
Challenged the judgment passed by the High Court - rejection of the plaint in terms of Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 (’CPC’) - suit barred by limitation - Claim related to execution of the lease deed - Prayer in the plaint was to pass a decree - Period beyond 51 years from the date of agreement in 1983 and not for any period prior to that - HELD THAT:- The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised.
Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word ’shall’ is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.
When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo [2004 (1) TMI 726 - SUPREME COURT], the inevitable conclusion is that the Division Bench was not right in holding that Order VII Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years need evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that is barred by any law to attract application of Order VII Rule 11. This is not so in the present case.
We do not intend to go into various claims in detail as disputed questions in relation to the issue of limitation are involved. The appeal is accordingly allowed with no order as to costs. We make it clear that we have not expressed any opinion on the merits of the case which shall be gone into in accordance with law by the Trial Court.
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2005 (8) TMI 690 - CESTAT KOLKATA
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... ... ..... enalty under Sections 76 and 77 of Finance Act, 1994 not mandatory for late filing of returns - Plea of appellant that late receipt of payment from customers resulted in delayed payment of service tax, taken into consideration and penalty set aside by Commissioner (Appeals) - Order of Commissioner (Appeals) proper." In the present case also, the Service tax and interest had been deposited prior to issuance of show-cause notice and adjudication. The penalty under Section 76 and 77 of Finance Act, 1994 is not mandatory. Their plea was that they had not received the payments from their customers in time and that resulted in delayed payment of Service tax. The present case is squarely covered by the case of Top Detective and Security Services Pvt. Ltd. referred to above. I do not find any infirmity in the order of the Commissioner (Appeals). The appeals filed by the Revenue have no force. Consequently, these are dismissed. All the appeals are disposed of in the above terms.
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2005 (8) TMI 689 - BOMBAY HIGH COURT
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... ... ..... of us (J.P.Devadhar, J.) was a party. 3. The learned counsel appearing for the appellant tried to distinguish the above Judgment delivered by this Court in the Ace Builders, however, he could not take his submissions to the logical end. 4. We are of the confirmed view that the issue sought to be raised is squarely covered by the aforesaid Judgment of this Court. There is thus no merit in the appeal. The same is dismissed in limine with no order as to costs.
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2005 (8) TMI 688 - SUPREME COURT
Benami transaction - Prohibition of the right to recover property held benami - Scope of Section 4(1) of the Benami Transaction Act, 1988 - Litigation between a father and his married daughter on the right of ownership of a house - Whether the appellant was entitled to raise the plea of benami in view of introduction of the Benami Transaction (Prohibition) Act, 1988 ("Act") - Act was retrospective in operation Or Not ? - HELD THAT:- We are of the view that the presumption that the suit property was purchased for the benefit of the respondent only was amply rebutted by the appellant by adducing evidence that the suit property, though purchased in the name of the respondent, was so purchased for the benefit of the appellant and his family. As noted herein earlier, the appellate court as well as the trial court on consideration of all the materials including oral and documentary evidence and on a sound reasoning after considering the pleadings of the parties came to concurrent findings of fact that purchase of the suit property by the appellant in the name of the respondent was benami in nature.
Keeping these concurrent findings of fact in our mind which would conclusively prove that the transaction in question was benami in nature, let us now consider whether the appellant was entitled to raise the plea of benami in view of introduction of the Benami Transaction (Prohibition) Act, 1988 ("Act").
Admittedly, the transaction in question was registered on 24th August, 1970. The suit was filed on 5th of July 1984 which was long before coming into force of the Act. It is an admitted position that the written statement in the suit taking plea of benami was also filed by the appellant long before the Act had come into force. Therefore, it was not a case where Section 4(2) of the Act will have a limited operation in the pending suit after Section 4(2) of the Act had come into operation.
In this case, the trial court as well as the appellate court concurrently found that although the suit property was purchased in the name of the respondent but the same was purchased for the interest of the appellant. We are therefore of the opinion that even if the presumption under section 3(2) of the Act arose because of purchase of the suit property by the father ( in this case appellant ) in the name of his daughter ( in this case respondent ), that presumption got rebutted as the appellant had successfully succeeded by production of cogent evidence to prove that the suit property was purchased in the benami of the respondent for his own benefit.
It is true that the judgment of the trial court was delivered after the Act had come into force but that could not fetter the right of the appellant to take the plea of benami in his defence. Since the Act cannot have any retrospective operation in the facts and circumstances of the present case, we are therefore of the view that the appellant was entitled to raise the plea of benami in the written statement and to show and prove that he was the real owner of the suit property and that the respondent was only his benamidar.
It is equally settled that High Court in second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact were perverse and not based on sound reasoning. We ourselves considered the evidence on record as well as the findings of fact arrived at by the two courts below. From such consideration we do not find that the concurrent findings of fact arrived at by the appellate court as well as the trial court were either perverse or without any reason or based on non-consideration of important piece of evidence or admission of some of the parties. We are therefore of the view that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the appellate court as well as the trial court which findings were rendered on consideration of the pleadings as well as the material ( oral and documentary ) evidence on record.
Thus, this appeal is allowed. The judgment of the High Court impugned in this Court is set aside and the judgments of the trial court as well as the appellate court are affirmed. The suit filed by the respondent shall stand dismissed.
There will be no order as to costs.
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