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Showing 61 to 80 of 383 Records
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2012 (1) TMI 371
Issues Involved: Appeal against deletion of penalty u/s.271(1)(c) for deemed dividend u/s.2(22)(e) of the IT Act, 1961.
Summary:
The Appellate Tribunal ITAT Mumbai heard the appeal filed by the revenue challenging the deletion of penalty u/s.271(1)(c) for the assessment year 2004-05. The assessee, engaged in the business of Exporter, Manufacturer & trader of readymade garments, had filed a return declaring total income. The AO made an addition u/s.56 r.w.s.2(22)(e) treating advances received as deemed dividend. The CIT (A) confirmed the addition, leading to the penalty imposition by the AO. The CIT (A) later deleted the penalty, citing the conditions for penalty u/s.271(1)(c) as interpreted by the Apex Court in previous cases. The revenue appealed the decision.
The Tribunal considered the arguments of both parties. The revenue contended that the assessee filed inaccurate particulars of income knowingly, while the assessee argued that all details were provided, and a difference in interpretation should not lead to penalties. The assessee also referenced a previous case where a similar penalty was deleted. The assessee explained that the advances were part of business transactions and not undisclosed income. The Tribunal agreed with the assessee, stating that the deemed dividend concept u/s.2(22)(e) did not warrant penalty imposition as the assessee did not conceal income or provide false particulars. The Tribunal upheld the CIT (A)'s decision, dismissing the revenue's appeal.
In conclusion, the revenue's appeal against the deletion of the penalty u/s.271(1)(c) for deemed dividend u/s.2(22)(e) was dismissed by the Tribunal on 31st January 2012.
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2012 (1) TMI 370
Issues Involved:
1. Disallowance u/s 14A of the Income-tax Act, 1961.
2. Disallowance of advances written off.
3. Disallowance of repairs to factory building.
4. Exclusion of certain receipts from profit of business for deduction u/s 80HHC.
5. Deletion of addition made by AO on account of commission payment.
6. Disallowance of software expenses.
7. Disallowance u/s 36(1)(va) on account of late payment of Provident Fund.
8. Provision for warranty.
9. Allowance of CST liability pertaining to earlier years.
10. Addition on account of stock written off.
11. Exclusion of foreign exchange gain and other miscellaneous receipts for deduction u/s 80HHC.
Summary of Judgment:
1. Disallowance u/s 14A of the Income-tax Act, 1961:
Ground No. 1 of the assessee's appeal was dismissed for non-prosecution as it was not pressed by the learned Counsel for the assessee.
2. Disallowance of advances written off:
The Tribunal allowed the assessee's claim of loss of Rs. 1,00,000/- arising on account of write-off of advances given to M/s Vitara Chemicals Ltd. as a business loss u/s 28 of the Act, following the precedent set in the assessee's own case for the assessment year 2000-01.
3. Disallowance of repairs to factory building:
The Tribunal upheld the assessee's plea that the expenditure of Rs. 2,72,628/- on repairs to the factory building was revenue expenditure and not capital expenditure, as it did not result in any enduring benefit.
4. Exclusion of certain receipts from profit of business for deduction u/s 80HHC:
The Tribunal set aside the order of the Commissioner of Income-tax (Appeals) and remitted the matter back to his file to be adjudicated afresh in line with the directions of the coordinate Bench and judgments of the Hon'ble Bombay High Court in the cases of Pfizer Ltd. and Dresser Rand India P Ltd.
5. Deletion of addition made by AO on account of commission payment:
The Tribunal upheld the Commissioner of Income-tax (Appeals)'s decision to delete the addition of Rs. 2,20,84,664/- made by the AO on account of commission payment, as the assessee had substantiated their claim with sufficient proof and justification.
6. Disallowance of software expenses:
The Tribunal affirmed the decision of the Commissioner of Income-tax (Appeals) to allow software expenses as revenue expenditure, following the judgments in CIT v Varinder Agro Chemicals Ltd. and CIT v Sundaram Clayton Ltd.
7. Disallowance u/s 36(1)(va) on account of late payment of Provident Fund:
The Tribunal upheld the Commissioner of Income-tax (Appeals)'s decision to delete the disallowance of Rs. 21,91,994/- as the payments were made within the grace period under the Provident Fund Act.
8. Provision for warranty:
The Tribunal affirmed the Commissioner of Income-tax (Appeals)'s decision to allow the provision for warranty, finding it reasonable and in line with the precedent set in the assessee's own case for assessment year 1998-99.
9. Allowance of CST liability pertaining to earlier years:
The Tribunal upheld the Commissioner of Income-tax (Appeals)'s decision to allow the CST liability of Rs. 10,50,000/- as it crystallized during the relevant previous year.
10. Addition on account of stock written off:
The Tribunal affirmed the Commissioner of Income-tax (Appeals)'s decision to delete the addition of Rs. 2,17,38,129/- on account of stock written off, finding the write-off in line with the regularly followed policy of identifying non-moving stock and its disposal as scrap.
11. Exclusion of foreign exchange gain and other miscellaneous receipts for deduction u/s 80HHC:
The Tribunal set aside the order of the Commissioner of Income-tax (Appeals) and remitted the matter back to his file to be adjudicated afresh in line with the judgment of the Hon'ble Bombay High Court in the cases of Pfizer Ltd. and Dresser Rand India P Ltd.
Decision:
The appeal of the assessee is partly allowed, and the appeal of the Revenue is partly allowed as above. Decision pronounced in the open Court on this 31st Day of January, 2012.
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2012 (1) TMI 369
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Unexplained investment u/s 69 - AO found that the assessee purchased a property for which he passed some amount from the regular sources and the balance amount had been paid from unexplained sources, as during the survey, unsigned draft agreements were found. Also, no revised agreements were found at premises of assessee's company.
HELD THAT:- ld. CIT (A) held that the AO was not right in making impugned addition of the amount in question on the basis of unsigned and undated draft agreement and without bringing any corroborative evidence on record. We found that the agreements and the revised agreement cannot be denied merely for the reason that they were not found during the course of survey at the premises of assessee's company. The assessee claims that the same were there at his residence. The assessee's statements were not recorded during the course of survey otherwise he could have explained the complete facts at that time itself. Further, these agreement are written on the stamp papers issued prior to the date of transactions. No evidence is there on record showing the balance payment of sum by the assessee or his family members. The amount remaining to be paid in terms of the draft agreement also remained payable in terms of the signed agreement but the terms were subsequently revised and payment was made as per the revised terms.
In view of these facts and circumstances of the case, we find that the ld. CIT(A) has given a well reasoned and well founded order after dealing with each and every aspect of the issue and we are in full agreement with the findings of the CIT(A) that the addition of balance amount made by applying the provisions of section 69 is not justified. We therefore, confirm the order of ld. CIT (A) - Decision in favour of Assessee.
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2012 (1) TMI 368
Judgement: Supreme Court of India, 2012 (1) TMI 368. Justices: H.L. Dattu and C.K. Prasad. Delay condoned. Dismissed based on facts only.
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2012 (1) TMI 367
Issues involved: Appeal against cancellation of penalty u/s.271(1)(c) of the Act for assessment year 2005-06.
Summary:
The appeal was filed by the revenue against the cancellation of penalty amounting to Rs. 2,01,960/- u/s.271(1)(c) of the Act for the assessment year 2005-06. The assessee, a doctor practicing as a gynecologist, had undergone a survey u/s.133A, resulting in an additional income of Rs. 6,00,000/- offered by the assessee on an agreed basis during the assessment proceedings. The Assessing Officer (AO) levied the penalty, which was later canceled by the Commissioner of Income-Tax (Appeals) citing various judicial precedents. The Appellate Tribunal upheld the decision of the CIT(A) based on the judgment of the Kerala High Court and other legal authorities, stating that when the AO accepted the additional income offered by the assessee during assessment proceedings, the penalty u/s.271(1)(c) is not leviable. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the appeal of the revenue.
In conclusion, the Appellate Tribunal upheld the cancellation of the penalty u/s.271(1)(c) of the Act for the assessment year 2005-06, based on the legal principles established by the Kerala High Court and other judicial authorities.
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2012 (1) TMI 366
Issues involved: Interpretation of Section 80HHC of the Income Tax Act u/s 28(IIId) regarding exclusion of profit from the sale of DEPB Licenses.
Summary:
The High Court of Delhi heard an appeal related to the assessment year 2001-02, concerning the exclusion of profit from the sale of DEPB Licenses for computing the deduction under Section 80HHC of the Income Tax Act. A substantial question of law was framed regarding the correctness of excluding such profits.
After the appeal was admitted, retrospective amendments were made to the Income Tax Act, including the addition of Section 28(IIId) and corresponding changes in Section 80HHC, Explanation baa. These amendments were introduced by the Taxation Laws (Amendment) Act, 2005, with retrospective effect from 1st April, 1998.
In light of these amendments, the High Court directed the tribunal to reconsider the matter afresh as it necessitates factual examination and details. The tribunal was instructed to decide the issue again in view of the retrospective amendment. The previous tribunal order on the matter was set aside, and there was no order as to costs. The parties were scheduled to appear before the Assistant Registrar, Income Tax Appellate Tribunal to fix a date for the new hearing.
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2012 (1) TMI 365
Issues Involved:
1. Non-placing of relevant documents before the State Advisory Board/Confirming Authority.
2. Delay in execution of the detention order.
Summary:
Issue 1: Non-placing of relevant documents before the State Advisory Board/Confirming Authority
The habeas corpus petition challenged the detention order on the ground that the show cause notice dated 24.11.2010 and the reply to the show cause notice dated 30.11.2010 were not placed before the State Advisory Board/Confirming Authority. The petitioner argued that this omission vitiated the detention order. The court referred to previous judgments, including the decision reported in 2000 (3) CTC 97 (Rajeswari v. Joint Secretary to Government), which held that relevant documents, even if they originated after the passing of the detention order, must be placed before the Advisory Board if they are material to the subject of detention. The court concluded that not placing these documents constituted a material irregularity/illegality, thereby vitiating the order of confirmation.
Issue 2: Delay in execution of the detention order
The petitioner also contended that there was an inordinate delay of 9 months and 18 days in executing the detention order dated 4.11.2010, which was executed only on 22.8.2011. The court noted that the detenu was complying with bail conditions and appearing before the court on all hearing dates. The court found that the detenu was not absconding, as claimed by the respondent, and that the delay in execution was not satisfactorily explained. The court cited several precedents, including the Supreme Court decision in 2000 SCC (Crl) 411 (A. Mohammed Farook v. Joint Secretary to Government of India), which held that unexplained delays in executing detention orders vitiate the detention.
Conclusion:
The court set aside the detention order on both grounds: the non-placement of relevant documents before the State Advisory Board/Confirming Authority and the unreasonable and unexplained delay in executing the detention order. The habeas corpus petition was allowed, and the detenu was ordered to be released forthwith, provided his detention was not required in any other case.
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2012 (1) TMI 364
Issues Involved:
1. Non-joinder of necessary parties.
2. Estoppel against Plaintiffs.
3. Plaintiffs' locus standi.
4. Ownership and entitlement to possession of the suit property.
5. Formulation of substantial questions of law in Second Appeal.
Summary:
Issue 1: Non-joinder of necessary parties
The Trial Court held that the issue of non-joinder of necessary parties was not seriously pressed, and there was no pleading or evidence led in this regard.
Issue 2: Estoppel against Plaintiffs
The Trial Court found that the Plaintiffs were estopped from bringing the suit because they had not objected to the Defendants' actions for many years.
Issue 3: Plaintiffs' locus standi
The Trial Court determined that Plaintiff Nos. 1 and 3, being the heirs of Hardial Kaur, had the locus standi to file the suit.
Issue 4: Ownership and entitlement to possession of the suit property
The Trial Court decided in favor of the Plaintiffs regarding ownership, holding them to be the owners of the suit land. However, the Plaintiffs' suit was dismissed, leading them to file an appeal before the Additional District Judge, which was also dismissed.
Issue 5: Formulation of substantial questions of law in Second Appeal
The Plaintiffs filed a Regular Second Appeal u/s 100 of the Code of Civil Procedure before the High Court of Punjab and Haryana. The High Court formulated substantial questions of law, but the Defendants contended that these were not included in the memo of appeal and that they were not given an opportunity to address these questions. The Supreme Court found that the High Court did not follow the proper procedure of informing the parties about the substantial questions of law and giving them an opportunity to argue on these points. The Supreme Court emphasized that u/s 100(3) of the Code, the memo of appeal must state the substantial questions of law involved, and the parties must be given a chance to address these questions.
Conclusion:
The Supreme Court allowed the appeal to the extent of remanding the matter to the High Court for a fresh decision on merits and in accordance with the law. The High Court was directed to give both parties an opportunity to suggest substantial questions of law and to dispose of the appeal preferably within one year. The parties were instructed to appear before the High Court on a specified date.
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2012 (1) TMI 363
Issues Involved:
1. Whether a bhumidhar can impose a restriction on the legatee's right to transfer land under the U.P. Zamindari Abolition and Land Reforms Act, 1951.
2. Applicability of Section 14(2) of the Hindu Succession Act, 1956.
3. Applicability of the doctrine of 'lis pendens'.
Summary:
Issue 1: Restriction on Legatee's Right to Transfer Land
The Supreme Court examined whether a bhumidhar with transferable rights under Section 169 of the U.P. Zamindari Abolition and Land Reforms Act, 1951, can impose restrictions on the legatee's right to transfer land. The Court noted that Section 169(1) permits a bhumidhar to bequeath his holding by will, provided it is in writing, attested by two persons, and registered. The will executed by Umrao Singh, which created a restricted interest in favour of respondent No.1, was found to be permissible under Section 169(1). The Court held that the learned Single Judge of the High Court erred in interpreting the deletion of Section 169(2) and the applicability of Section 152(1) of the U.P. Act, which did not take away the right of a bhumidhar to bequeath his holding by will.
Issue 2: Applicability of Section 14(2) of the Hindu Succession Act, 1956
The Court referred to Section 14 of the Hindu Succession Act, 1956, which declares that a female Hindu's property is her absolute property under Sub-section (1), but Sub-section (2) provides an exception for property acquired by way of a gift or will. The Court held that the restricted estate created by Umrao Singh's will in favor of respondent No.1 was permissible under Section 14(2). The Court cited precedents such as Navneet Lal Vs Gokul and others and Amar Singh Vs. Assistant Director of Consolidation, which supported the view that a life estate created by a will remains restricted under Section 14(2).
Issue 3: Applicability of Doctrine of 'Lis Pendens'
The Court examined the applicability of the doctrine of 'lis pendens' under Section 52 of the Transfer of Property Act, 1882. The doctrine maintains the status quo of the property during litigation. The Court noted that the sale executed by respondent No.1 in favor of Smt. Poonam Rajput occurred when the first suit and appeal had been dismissed, but within the limitation period for filing a second appeal. The Court held that the sale was subject to the principle of 'lis pendens' as the second appeal was filed within the period of limitation, following the dicta in Krishanaji Pandharinath Vs. Anusayabai.
Conclusion:
(i) The judgments by the Civil Judge, Additional District Judge, and the High Court were set aside. The appellant was granted a declaration that respondent No.1 had no right to sell the disputed parcel of land.
(ii) The second suit filed by the appellant for setting aside the sale deed to Smt. Poonam Rajput, which was dismissed for non-prosecution, was not under challenge before the Supreme Court. The legal representatives of the appellant could apply to the relevant court for appropriate orders.
(iii) The Civil Appeal and I.A. Nos. 3 and 4 of 2010 were disposed of accordingly, with parties bearing their own costs.
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2012 (1) TMI 361
Issues involved: Both the appeals of the revenue are directed against two independent orders of CIT(A) deleting the addition made by the assessing officer and deletion of the penalty levied.
Quantum Appeal:
The appeal concerns the maintainability of the appeal filed by a partner of a partnership firm after the firm's appeal was dismissed by the Appellate Commissioner. The argument revolves around whether the partner's appeal is maintainable independently. The Commissioner of Income-tax(A) deleted the addition based on the grounds of advance-tax payment, while the assessing officer computed undisclosed income. The High Court directed the Appellate Commissioner to dispose of the appeal filed by the partner, indicating the appeal's validity. The Tribunal upheld the Commissioner's decision regarding the undisclosed income, considering advance-tax payment and disclosed income.
Penalty Appeal:
The penalty appeal questions the levy of penalty on the undisclosed income confirmed by the Commissioner of Income-tax(A). The Commissioner deleted the penalty citing no deliberate concealment of income, which was based on material found during a search operation. The Tribunal examined the provisions of section 158BFA(2) and noted the need to consider the Second Proviso to this section. Consequently, the Tribunal set aside the Commissioner's order and remitted the issue back for reconsideration in light of the Second Proviso.
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2012 (1) TMI 360
Issues involved: Appeal u/s 260-A of Income Tax Act against ITAT's order for assessment year 2005-06.
Assessment Order under Section 144:
- The assessee, a private limited Company, filed a return for the assessment year.
- AO found discrepancies and passed an assessment order u/s 144 invoking provisions of section 145(3) and made additions on an estimate basis.
Appeal before Commissioner and CIT(A)'s Decision:
- Assessee appealed before Commissioner and submitted books of accounts.
- CIT(A) called for a remand report from AO, who found no defects in the accounts.
- CIT(A) deleted the addition as AO made no adverse comments.
- Tribunal upheld CIT(A)'s order.
Violation of Rule 46-A:
- Appellant claimed CIT(A) violated Rule 46-A of Income Tax Rules.
- CIT(A) had called for remand report from AO, who found no defects in accounts.
- CIT(A) acted within powers u/s 250(4) and did not violate Rule 46-A.
Appellate Authority's Powers:
- Appellate Commissioner's power is co-terminus with AO's power.
- Appellate authority has all powers subject to law, as per precedents cited.
- No substantial question of law in Tribunal's order.
- Appeal dismissed at admission stage.
In summary, the High Court upheld the Tribunal's decision in an appeal u/s 260-A of the Income Tax Act for the assessment year 2005-06. The AO had passed an assessment order u/s 144 due to discrepancies in the assessee's return. The CIT(A) deleted the addition after finding no defects in the accounts during scrutiny. The appellant alleged a violation of Rule 46-A, but the Court held that the CIT(A) acted within powers u/s 250(4) and did not breach the rule. The Court emphasized that the Appellate Commissioner's powers are equivalent to the AO's powers, citing relevant case law. Ultimately, the appeal was dismissed at the admission stage as no substantial question of law emerged from the Tribunal's order.
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2012 (1) TMI 359
Issues involved: Appeal against order of CIT(Appeals)-IV, Chennai in ITA No. 88/08-09/A-IV dated 30-08-2011 for the assessment year 2004-05.
Summary:
The appeal was filed by the assessee against the order of the CIT(A) regarding gifts and loans received from his nephew, Shri Sushil Jain. The Assessing Officer disputed the gifts and loans, leading to penalty under u/s 271(1)(c) of the Income Tax Act, 1961. The Tribunal allowed the Revenue's appeal, but the High Court admitted the appeal filed by the assessee u/s 260A. The assessee provided explanations and evidence, including a letter from a Dubai company, to support the gifts and loans. The Tribunal found the explanation plausible, leading to the reversal of the penalty.
In reply, the Jr. Standing Counsel supported the orders of the CIT(A) and the Assessing Officer, stating that the gifts and loans were not established by the assessee.
The Tribunal considered the submissions and noted that the gifts and loans came through proper banking channels, with evidence of telegraphic transfers. The explanation provided by the assessee was found plausible by the CIT(A) and had led to a substantial question of law admitted by the High Court. As the explanation was supported by evidence and not proven false, the penalty u/s 271(1)(c) was deemed not leviable. Therefore, the appeal of the assessee was allowed, and the penalty was reversed.
The order was pronounced on 31/01/2012.
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2012 (1) TMI 358
The Appellate Tribunal CESTAT NEW DELHI ruled in favor of the appellant regarding the taxation of rewinding work of electric motor as maintenance and repair service under Finance Act, 1994. The show cause notice lacked specific charges against the appellant, leading to the appeal being allowed.
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2012 (1) TMI 357
The Bombay High Court dismissed the appeal regarding deduction on payments made to retired partners under the partnership deed, citing a previous decision in a similar case. The appeal was rejected based on the court's previous ruling in Income Tax Appeal (L) No.87 of 2011 in the case of CIT Vs. A.F. Ferguson & Co.
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2012 (1) TMI 356
Issues involved: Appeal against block assessment orders, validity of notice u/s 158BD, time limit for issuing notice u/s 158BD.
Validity of Notice u/s 158BD: The issue raised in the cross objections pertains to the validity of the block assessment order. The ld. senior counsel argued that there was a significant delay in issuing the notice u/s 158BD to the present assesses after completion of the assessment in respect of the person searched. Referring to a judgment, it was contended that notices issued after the expiry of three years are barred by limitation. On the other hand, the ld. DR argued that no specific time limit is prescribed for issuing notice u/s 158BD for a person other than the searched person, and as long as the delay cannot be attributed to the assessing officer, the assessment order is valid. The Tribunal observed that while there is no fixed time limit under the Income-tax Act for issuing such notice, the assessing officer must do so within a reasonable period. It was noted that the issue of notice u/s 158BD after three years from the completion of assessment in the searched person's case is beyond a reasonable period. Citing precedents and the scheme of the Act, the Tribunal held that the block assessment order passed against the assessee u/s 158BD is barred by limitation, and accordingly, quashed the same.
Precedents and Observations: The Tribunal referred to a judgment by a Five Member Bench at Delhi and highlighted the interconnection between sections 158BD and 158BC, emphasizing the need for a judicious satisfaction before invoking section 158BD. It was noted that the provisions of section 158BE set a time limit for completion of block assessment, and the absence of a finding as to the person to whom the undisclosed income belongs within this time frame ousts the applicability of section 158BD. The Tribunal also cited decisions by other benches and the Gujarat High Court supporting the view that issuing notice u/s 158BD after the prescribed period is barred by limitation.
Conclusion: In conclusion, the Tribunal dismissed the revenue appeals and allowed the cross objections of the assessee, holding that the block assessment order passed u/s 158BD was barred by limitation and therefore quashed.
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2012 (1) TMI 355
The High Court of Andhra Pradesh held that spent solvent undergoing purification in reactors is not a marketable commodity and not liable for central excise duty. The decision is based on a previous case involving Aurobindo Pharma Ltd. and upheld by the Supreme Court. The appeals were dismissed.
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2012 (1) TMI 354
Issues involved: Assessment of long term capital gains, treatment of sale proceeds from building, disallowance of expenses, appeal against CIT(A) order.
Assessment of long term capital gains:
The appellant, an HUF, filed a return of income for the assessment year 2004-05, declaring a loss and long term capital gains. The assessing officer completed the assessment on a taxable income after making additions/disallowances, including in relation to the capital gains disclosed by the assessee. The dispute arose regarding the deduction of indexed cost of a building in the computation of long-term capital gains. The assessing officer held that only the land was transferred, not the building, and re-computed the capital gains accordingly. On appeal, the CIT(A) confirmed the assessing officer's view. However, the ITAT Hyderabad, following a precedent, held that the indexed cost of the building existing at the time of sale had to be deducted while computing the capital gains. The ITAT directed the assessing officer to recompute the capital gains in light of this decision.
Treatment of sale proceeds from building:
The appellant contended that the sale proceeds of the building should not be treated as "income from other sources" but as part of the capital gains. The ITAT, based on the facts that the building was demolished before the land transfer and a specific clause in the sale agreement, agreed with the appellant's argument. The ITAT set aside the lower authorities' orders on this issue and directed the re-computation of the capital gains.
Disallowance of expenses:
The CIT(A) disallowed certain expenses claimed by the assessee against income from other sources. The appellant argued that these expenses were directly related to earning income from the partnership firm and should have been allowed under the head 'business income.' The ITAT agreed with the appellant and directed the assessing officer to verify the details of the expenditure and allow the same against business income if substantiated by the assessee.
Appeal against CIT(A) order:
The appellant raised multiple grounds challenging the CIT(A)'s order, including the treatment of the building sale proceeds and the disallowance of expenses. The ITAT partially allowed the appeal, directing the re-computation of capital gains and the verification of expenses against business income.
This summary highlights the key issues involved in the legal judgment and provides a detailed overview of the ITAT Hyderabad's decision on each issue raised by the appellant.
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2012 (1) TMI 353
The Supreme Court of India ruled that the writ petition should not have been filed before the High Court, and the petitioner should have pursued the normal statutory remedy. The petitioner is allowed to argue points before the CIT (A), and the matter will be decided by CIT (A) without influence from the High Court's observations. The special leave petition is disposed of, and all contentions on both sides are kept open.
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2012 (1) TMI 352
Maintainability of petition - Misappropriation of Sales Tax Forms - Offence punishable u/s 406 IPC - Period of limitation for u/s 468(2)(c) CrPC for taking cognizance - whether the petitioners having availed of the remedy of revision should be allowed to take recourse to section 482 CrPC as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred U/s 397(3) CrPC? - HELD THAT:- The issue regarding filing of petition before the High Court after having availed first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) CrPC laid statutory bar of second revision petition, the courts have held that High Court did enjoy inherent power under section 482 CrPC as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It was all to depend not only on the facts and circumstances of each case
For the purpose of computing limitation, it is the date of the complaint that is material and not the date on which the cognizance come to be taken by the Magistrate and the process was issued against the petitioner. The subsequent stages such as examination of complainant and the witnesses, the consideration of the case, the preliminary inquiry etc. take considerable time and it would therefore, be unreasonable and irrational to compute the period of limitation from the date when the cognizance was taken or the process was issued. Furthermore, these processes are dependent on various factors including the time available to the court which is something over which the complainant has no control.
It would, thus, be wholly untenable to hold that a complaint if presented within the period of limitation would be barred merely because a certain amount of time elapsed until the cognizance could be taken or the order of process could be passed. Since the complainant continued requesting the petitioner to return the file and it was not returned for two years, the complainant was compelled to file a complaint with the police on 30th October 1998. I do not find any merit in the submission that the complaint was time barred.
In view of the discussion and having seen that the present case was at the stage of framing of charges and that both the courts below have appreciated the allegations against the petitioner and have formed a prima facie view of the framing of charges u/s 406 IPC. In view of entrustment and refusal to return the file, I do not find any infirmity or illegality in the impugned order. Not only that, the case does not fall within the parameters of invoking inherent and extraordinary jurisdiction u/s 482 CrPC or under Article 227 of the Constitution of India, even otherwise it does not call for any interference by this court on merits. Hence, the petition is hereby dismissed.
Nothing in this order shall amount to expression of opinion on the merits of case.
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2012 (1) TMI 351
The Bombay High Court heard a case regarding the set off of carried forward unabsorbed depreciation. The substantial question of law was whether it should be dealt with according to provisions for A.Y. 1997-98 to 1999-2000 or for A.Y. 2003-04 and 2004-05.
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9911796707
