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2004 (3) TMI 774
Issues:
1. Whether the Appellate Court can direct acquittal when trial records are not available?
2. Interpretation of Sections 385 and 386 of the Code of Criminal Procedure.
3. Procedure when reconstruction of trial records is not possible.
Analysis:
1. The primary issue in this case is whether the Appellate Court can direct acquittal when the trial records are not available. The accused faced trial for offenses under IPC. The High Court directed acquittal due to the unavailability of trial records, which were destroyed in a fire. The Supreme Court emphasized that the Appellate Court can direct re-trial after reconstruction of records if possible, but if not, it can order a re-trial by a court of competent jurisdiction. The Court highlighted that acquittal is possible only after a finding on merits, which requires consideration of materials on record.
2. The interpretation of Sections 385 and 386 of the Code of Criminal Procedure was crucial in this judgment. Section 386 delineates the powers of the Appellate Court in dealing with appeals from conviction. The Court noted that the Appellate Court can reverse the finding and sentence, leading to acquittal or discharge of the accused. The Court reiterated that the Appellate Court must call for records under Section 385 and dispose of the appeal after due consideration and hearing.
3. The procedure when reconstruction of trial records is not possible was extensively discussed. The Court highlighted that the Appellate Court can order the case to be committed for trial, not limited to Sessions Court cases. The Court cited precedents emphasizing the obligation to reconstruct records when destroyed. The Court criticized the High Court for not taking proactive steps for reconstruction and remitted the matter back for fresh consideration. The judgment stressed the importance of ensuring justice by reconstructing records and conducting a fair trial, even if it requires retrial in the interest of justice.
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2004 (3) TMI 773
Legal judgment from the Supreme Court in 2004 (3) TMI 773 - SC Order, by Justices S.N. Variava and H.K. Sema. The review petition was dismissed as no merit was found.
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2004 (3) TMI 772
Seeking Grant of bail u/s 37 of the NDPS Act based on non-compliance with court orders - HELD THAT:- In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded u/s 67 of the Act. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.
The case is not one to which the exceptions provided in Section 37 can be applied.
Coming to the plea reqarding long passage of time it is to be noted that the two orders passed by this Court in SLP (crl.) do not lay down any principle of law of invariable nature to be universally applied. Furthermore, disposal of SLP against a judgment of the High Court does not mean that the said judgment is affirmed by such dismissal. The order passed in any SLP at threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. This court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal and that too when the SLP was being dismissed. What is impugned before this Court can be reversed or modified only after granting leave and then assuming appellate jurisdiction over it.
If the order impugned before this Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage (see Kunhayammed and others vs. State of Kerala and another [2000 (7) TMI 67 - SUPREME COURT] and Sri Ramnik Vallabhdas Madvane and Ors. vs. Taraben Pravinlal Madhvani [2003 (11) TMI 630 - SUPREME COURT]. The inevitable conclusion is that the judgment has no legal sanction. We, therefore, set aside the impugned judgment of the High Court granting bail to the respondent. The respondent-accused is directed to surrender to custody forthwith.
Appeal is allowed.
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2004 (3) TMI 771
Issues Involved:
1. Deletion of capital gains taxed by the AO.
2. Consideration of the difference in the rate of interest as deemed consideration.
3. Applicability of Sections 45 and 48 of the IT Act.
4. Determination of the reasonableness of the interest rate.
5. Allegation of the lease agreement as a device to evade tax.
Issue-Wise Detailed Analysis:
1. Deletion of Capital Gains Taxed by the AO:
The primary issue in this case was whether the CIT(A) erred in deleting the capital gains of Rs. 51,39,366 taxed by the AO. The AO had taxed the capital gains by treating the difference in the rate of interest as deemed consideration. The CIT(A) held that the concept of adopting the full value of consideration was not applicable to bona fide transactions unless it was shown that the consideration mentioned in the deed had been understated and the assessee had actually received more than what was stated in the document.
2. Consideration of the Difference in the Rate of Interest as Deemed Consideration:
The AO considered the long-term lease of the land as covered by the definition of 'transfer' under Section 2(47) of the IT Act. The AO stated that the assessee received Rs. 2.5 crores as a deposit at a concessional rate of interest of 9% per annum, whereas the normal market rate was 18%. The AO worked out the concessional interest on the deposit and considered it as deemed consideration for the lease. However, the CIT(A) observed that the AO had not analyzed the object of the deposit, nature of the transaction, and the relationship between the parties before concluding that the 9% rate was concessional. The CIT(A) opined that the amount of deposit, period of deposit, and annual rent were pertinent factors to judge the reasonableness of the interest rate.
3. Applicability of Sections 45 and 48 of the IT Act:
The AO computed the capital gains by considering the differential interest as deemed consideration, but the CIT(A) held that the provisions of Sections 45 and 48 could not be invoked on assumptions and presumptions. The CIT(A) emphasized that the charging Section 45(1) could not be construed as a deeming provision but must be strictly interpreted to charge capital gains tax based on statutory legal fiction. The CIT(A) also pointed out that the full value of consideration, which had not been shown to have actually received or accrued to the assessee, could not be computed.
4. Determination of the Reasonableness of the Interest Rate:
The CIT(A) mentioned that the deposits were in the nature of security deposits and the interest was on the refundable advance taken by the assessee for the performance of the agreement. The CIT(A) stated that the refundable advance deposit of Rs. 2.5 crores was almost equal to the value of the land, suggesting that the deposit was not unreasonable as a security deposit. The CIT(A) concluded that the low rate of interest agreed upon between the parties could not by itself cause the provisions of Sections 45 and 48 to be invoked.
5. Allegation of the Lease Agreement as a Device to Evade Tax:
The AO alleged that the lease agreement was a device to evade tax. However, the CIT(A) stated that the AO was duty-bound to unveil the device and determine the true character of the transaction from the documents or the conduct of the parties. The CIT(A) noted that the AO had not gathered any evidence or material to support the finding that the lease agreement was a device to evade tax. The CIT(A) concluded that the transaction was bona fide and the consideration mentioned in the lease deed was genuine.
Conclusion:
The Tribunal upheld the order of the CIT(A), stating that the AO's working was based only on assumptions and presumptions and not on factual positions. The appeal was dismissed, confirming that the differential interest could not be considered as value of consideration for the transfer of the capital asset.
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2004 (3) TMI 770
First Information Report, registered the crime under Sections 420, 201 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act - Whether the High Court was justified in quashing criminal proceedings based on the police officer who lodged the FIR also conducting the investigation - Inspector of Police lodged an FIR against the respondent-accused for corrupt practices - HELD THAT:- We have no hesitation in holding that the approach of the High Court is erroneous and its conclusion legally unsustainable. There is nothing in the provisions of the Criminal Procedure Code which precluded the appellant (Inspector of Police, Vigilance) from taking up the investigation. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, in our view, disqualify him from taking up the investigation of the cognizable offence. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of the Code or any other provisions of the Code. The scheme of Sections 154,156 and 157 was clarified thus by Subba Rao, J. speaking for the Court in State of U.P. vs. Bhagwant Kishore [1963 (4) TMI 74 - SUPREME COURT].
In fact, neither the High Court found nor any argument was addressed to the effect that there is a statutory bar against the police officer who registered the FIR on the basis of the information received taking up the investigation.
Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who ’lodged’ the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer.
Viewed from any angle, we see no illegality in the process of investigation set in motion by the Inspector of Police (appellant) and his action in submitting the final report to the Court of Special Judge.
In the result the impugned order of the High Court is set aside and the appeal is allowed.
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2004 (3) TMI 769
Issues:
1. Conviction under S. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Seizure of contraband without proper sealing and subsequent handling.
3. Legal requirement of sealing seized articles.
4. Possibility of tampering with unsealed contraband.
5. Impact of non-sealing on the prosecution's case.
6. Appellant's argument regarding potential tampering with unsealed contraband.
7. Doubt raised due to non-sealing and potential manipulation of seized articles.
8. Appellate court's decision to acquit based on doubts regarding tampering.
Analysis:
1. The appellant was convicted under S. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, by the Sessions Judge and the High Court confirmed the conviction and sentence. The appellant appealed to the Supreme Court.
2. The main issue considered by the Supreme Court was the handling of the seized contraband. The prosecution claimed that 5 kilograms of ganja were seized from the appellant's room but failed to establish proper sealing of the contraband at the time of seizure or during subsequent handling.
3. The prosecution handed over the contraband to the police without sealing, and it was later sent to the Chemical Examiner without proper sealing, raising doubts about the integrity of the evidence.
4. The appellant's counsel argued that the unsealed contraband was in the possession of the investigating agency for an extended period, creating a possibility of tampering. The courts below dismissed this argument, emphasizing the quantity of the contraband over the legal requirement of sealing.
5. Despite the non-mandatory nature of sealing under S.55 of the Act, the Supreme Court noted that the extended period of non-sealing in this case raised legitimate doubts about potential tampering with the evidence.
6. The trial court's reliance on the contraband being kept in a safe place by the police was deemed insufficient to negate the possibility of prejudice caused by the lack of sealing and potential manipulation.
7. The Supreme Court concluded that the doubt regarding tampering with the unsealed contraband, especially considering the small quantity sent for examination, was significant enough to cast uncertainty on the prosecution's case.
8. Consequently, the Supreme Court allowed the appeal, acquitted the appellant, discharged the bail bonds, and acknowledged the appellant's counsel's services by directing payment towards the amicus curiae.
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2004 (3) TMI 768
Issues:
Violation of Section 269SS and imposition of penalty under Section 271D for accepting cash loans; Challenge to penalty imposition under Section 271D on grounds of reasonable cause as per Section 273B; Consideration of genuine and bona fide nature of transactions; Applicability of penalty provisions in tax law.
Analysis:
1. The appellant, a Tax Practitioner, disclosed construction of a commercial building funded by loans from various sources. The assessing officer accepted the loans as genuine but initiated penalty action under Section 271(d) due to contravention of Section 269SS by accepting loans in cash.
2. The appellant explained the reasons for accepting cash loans, citing urgency, lack of time to obtain cheques/demand drafts, and weekend constraints. The Deputy Commissioner imposed a penalty under Section 271D despite the explanation, leading to appeals before higher authorities.
3. The Tribunal upheld the penalty, emphasizing the pre-planned nature of borrowing and the appellant's awareness of tax laws. The appellant challenged the decision, arguing that genuine transactions and reasonable causes existed for not complying with Section 269SS.
4. Section 269SS prohibits non-account payee cheque/bank draft loans above a specified limit, with Section 271D imposing penalties for violations. However, Section 273B provides relief if reasonable cause for non-compliance is proven.
5. The Supreme Court's interpretation highlights Section 273B's importance in mitigating undue hardship for genuine transactions with valid reasons for non-compliance. In this case, the loans' genuineness is acknowledged, and the appellant provided a reasonable cause for accepting cash loans.
6. Authorities failed to consider the appellant's valid explanation for weekend cash transactions due to work commitments, leading to the penalty imposition. The Tribunal's decision disregarded the reasonable cause presented, focusing solely on the appellant's professional background.
7. Ultimately, the Court found the appellant demonstrated a reasonable cause for accepting cash loans, meeting Section 273B criteria. As both conditions were satisfied, the penalty imposition under Section 271D was deemed unjustified, and the appeal was allowed, overturning the penalty orders.
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2004 (3) TMI 767
Cognizance of offences directly without the case being committed to it by a Magistrate - Commission of offences punishable under Sections 3(1)(iii), 3(1)(v) and 3(1)(x) of the Scheduled Castes and Scheduled Tribes Act, 1989 ('the Act') - HELD THAT:- Neither in the Code nor in the Act is there any provision whatsoever, not even by implication, that the specified Court of Session (Special Court) can take cognizance of the offence under the Act as a Court of original jurisdiction without the case being committed to it by a Magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straight away be filed before such Special Court for offences under the Act. It can be discerned from the hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the Court of Session.
Section 5 of the Code cannot be brought in aid for supporting the view that the Court of Session specified under the Act obviate the interdict contained in Section 193 of the Code so long as there is no provision in the Act empowering the Special Court to take cognizance of the offence as a Court of original jurisdiction.
Hence, we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid down before the Special Court under the Act. We are re-iterating the view taken by this Court in Gangula Ashok and Anr. v. State of A.P. [2000 (1) TMI 975 - SUPREME COURT] in above terms with which we are in respectful agreement. The Sessions Court in the case at hand, undisputedly has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met.
Though the plea relating to lack of jurisdiction was not raised before the lower Courts, in view of the undisputed position on facts and inasmuch as a pure question of law without any factual controversy is involved, we feel interference on the facts of the case is called for.
In conclusion, the appeals were disposed of with the above directions and observations.
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2004 (3) TMI 766
Issues Involved:
1. Applicability of Pension Scheme to Resigned Employees
2. Interpretation of Resignation vs. Retirement
3. Validity of Regulation 22 under Article 14 of the Constitution
4. Nature of Pension Scheme as Self-financing
Detailed Analysis:
1. Applicability of Pension Scheme to Resigned Employees:
The core issue revolves around whether employees who resigned from service are entitled to pension benefits under the UCO Bank (Employees') Pension Regulations, 1995. The respondent resigned in 1988 and sought to opt for the pension scheme introduced later. The bank declined this option, citing Regulation 22, which entails forfeiture of past service for those who resigned, thus disqualifying them from pension benefits.
2. Interpretation of Resignation vs. Retirement:
The judgment elucidates that the terms "resignation" and "retirement" carry distinct meanings. Resignation can occur at any time, even shortly after appointment, leading to a complete cessation of the master-servant relationship. In contrast, retirement occurs after attaining a certain age or completing qualifying service, maintaining the relationship for retiral benefits. The pension scheme is designed primarily for retirees, whose provident fund balances are typically larger, ensuring the scheme's financial viability. Regulation 22 explicitly disqualifies resigned employees from pension benefits, reinforcing the distinction in service jurisprudence.
3. Validity of Regulation 22 under Article 14 of the Constitution:
The respondent argued that Regulation 22, which disqualifies resigned employees from pension benefits, constitutes arbitrary and unreasonable classification, violating Article 14 of the Constitution. However, the court found merit in the bank's argument that the pension scheme, being self-financing and actuarially calculated, necessitates such classification to ensure financial sustainability. The court held that the regulation does not contravene Article 14, as it is based on rational criteria related to the scheme's financial structure and objectives.
4. Nature of Pension Scheme as Self-financing:
The judgment emphasizes that the pension scheme is self-supporting, relying on contributions from both the bank and employees. It is not dependent on budgetary support and is governed by detailed regulations ensuring its financial health. Regulation 22's disqualification of resigned employees is integral to maintaining the scheme's viability, as these employees may not have sufficient provident fund balances to support the pension fund. The scheme is designed to provide a second retiral benefit, distinct from the earlier provident fund scheme, and aims to manage its corpus effectively through actuarial assessments and investments.
Conclusion:
The Supreme Court allowed the appeals, setting aside the lower courts' judgments. It upheld Regulation 22, confirming that employees who resigned are not entitled to pension benefits under the UCO Bank (Employees') Pension Regulations, 1995. This regulation does not violate Article 14 of the Constitution, as it is based on reasonable and necessary financial principles to sustain the self-financing pension scheme. The court also clarified that Regulation 22's disqualification is not a penalty but an eligibility criterion for the pension scheme. The appellant bank was directed to refund the provident fund balance with accrued interest to the respondent if not already done.
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2004 (3) TMI 765
Issues:
Appeal against acquittal under section 15 of the NDPS Act based on lack of evidence of conscious possession by the accused.
Analysis:
The case involved an appeal by the State of Punjab challenging the acquittal of two accused persons by the High Court of Punjab and Haryana at Chandigarh. The accused were alleged to have committed an offence punishable under section 15 of the NDPS Act. The prosecution's case was based on the recovery of 100 bags of poppy husk from the accused. However, the High Court acquitted the accused, stating that the prosecution failed to prove that the accused were in conscious possession of the recovered poppy husk. The evidence primarily relied on the testimonies of two witnesses, PW-1 and PW-2, who found the accused sitting on the bags of poppy husk in a field in Village Lohgarh. The police did not investigate how the poppy husk was transported to the location or establish ownership of the bags. The High Court emphasized that mere presence at the site of recovery did not conclusively prove possession. The court noted that the prosecution did not fulfill its obligation to establish conscious possession by the accused. The High Court's decision was based on the lack of evidence supporting the accused's possession of the poppy husk.
In the judgment, it was highlighted that the police should have conducted a more thorough investigation to establish the accused's conscious possession of the poppy husk. The failure to provide a satisfactory explanation for their presence at the location was not sufficient to prove possession. The Sessions Court did not adequately consider the accused's plea, leading to the High Court's decision to acquit the accused. Ultimately, the Supreme Court upheld the High Court's judgment, stating that there was no evidence to prove the accused's conscious possession of the recovered poppy husk. The prosecution's failure to discharge its burden of proof regarding possession led to the dismissal of the appeal by the State of Punjab.
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2004 (3) TMI 764
Issues Involved:
1. Eligibility for concessional power tariff.
2. Commencement of commercial production.
3. Compliance with conditions for power allocation.
4. Delay in power allocation by Kerala State Electricity Board (KSEB).
5. Validity of supporting documents for commercial production.
Issue-wise Detailed Analysis:
1. Eligibility for Concessional Power Tariff:
The appellant challenged the dismissal of their writ appeal by the Kerala High Court, which upheld the rejection of concessional power tariff for their industrial unit. The policy, as per G.O. (MS) No.4/92/ID dated 6.2.1992, allowed new industrial units established between 1.1.1992 and 31.12.1996 to be exempted from enhanced power tariffs for five years. The eligibility required certification from relevant authorities like KSIDC, KFC, or the Director of Industries and Commerce.
2. Commencement of Commercial Production:
The central issue was whether the appellant had started "commercial production" by 31.12.1996 to qualify for the concessional tariff. The appellant argued that they commenced production on 14.12.1996 using a diesel generator set, supported by invoices, a certificate from KSFC, and other documents. However, both the single Judge and Division Bench of the High Court found against the appellant, noting that commercial production could not have realistically started with a 125 KVA diesel generator set for a factory of such scale.
3. Compliance with Conditions for Power Allocation:
The KSEB sanctioned power allocation with specific conditions, including the construction of a separate 11 KV feeder line under the OYEC scheme, which the appellant had to finance. Despite the appellant's contention of KSEB's tardiness, the court found that the appellant did not fulfill the conditions timely. The remittances for the security deposit and the execution of the power supply agreement were made only after the concession period had expired.
4. Delay in Power Allocation by KSEB:
The appellant claimed that the delay in power allocation by KSEB was deliberate to prevent them from meeting the deadline for concessional tariff eligibility. The court, however, found no undue tardiness on KSEB's part, considering the acute power shortage in Kerala at the time. The necessary remittances and compliance with conditions were completed by the appellant only in December 1996, just before the concession period ended.
5. Validity of Supporting Documents for Commercial Production:
The appellant relied on various documents, including a certificate from KSFC, to prove the commencement of commercial production. The court found these documents unconvincing, noting that the KSFC certificate was based on records submitted by the appellant without independent verification. The High Court also pointed out potential manipulation, suggesting that goods could have been sourced from another factory owned by the promoters in Raipur, Madhya Pradesh, to create an impression of production in Kerala.
Conclusion:
The Supreme Court upheld the findings of the Kerala High Court, concluding that the appellant did not commence commercial production by 31.12.1996 and thus was not entitled to the concessional power tariff. The appeal was dismissed, with no order as to costs. The court emphasized the lack of credible evidence to support the appellant's claims and the adherence to the factual findings of the lower courts.
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2004 (3) TMI 763
Seeking grant of bail - tampering with witnesses - Legal principles governing the grant of bail in non-bailable offences - HELD THAT:- We respectfully agree with the dictum of Puran Vs. Rambilas [2001 (5) TMI 971 - SUPREME COURT OF INDIA] and Another of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with argument addressed by the learned counsel for the accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case.
In such circumstances, the Court was duty bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. Thus, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail because of the serious allegations of tampering of the witnesses made against the respondent.
In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on four occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of superior court rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding character.
Thus, we are of the considered opinion that the High Court was not justified in granting bail to the first respondent on the ground that he has been in custody for a period of 3 years or that there is no likelihood of the trial being concluded in the near future, without taking into consideration the other factors referred to hereinabove in this judgment of ours.
This appeal, therefore, succeeds. The impugned order of the High Court is set aside. The bail-bonds of the first respondent are cancelled and the second respondent is directed to take the first respondent into custody forthwith.
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2004 (3) TMI 762
Issues:
Impugned order passed by the Joint Secretary under Section 129DD of the Customs Act, 1962 challenged by the Commissioner of Customs.
1. Notice Requirement for Customs Authorities:
The petitioner argues that no notice was issued to the Customs Authorities while passing the impugned order. The respondent contends that notice is not mandatory as the competent authority can peruse records and pass orders based on them. Reference to Sections 128 and 129B of the Act is made to support the argument that notice is not required under Section 129DD.
2. Merits of the Controversy:
The petitioner raises concerns about inconsistency in the respondent's stand regarding possession of foreign currency. The revisionary jurisdiction considered various factors, including liberalization in foreign exchange matters, and decided against absolute confiscation, opting for redemption fine and penalty instead. The petitioner challenges this decision on merit.
3. Non-Disclosure of Facts:
The Court notes that interim orders were initially granted but later vacated due to deliberate concealment of facts by the respondent. The Supreme Court's stance on approaching the court with clean hands is cited. The non-disclosure of facts led to the dismissal of the interim application and subsequent dismissal of the writ petition. The aspect of non-disclosure is deemed crucial for both interim and final determinations.
The judgment addresses each issue comprehensively. Firstly, regarding the notice requirement, the Court observes that while no notice was issued, the lack of specific averments regarding unavailability of records leads to no interference with the impugned order. Secondly, on the merits of the controversy, the Court upholds the revisionary jurisdiction's decision based on considerations of liberalization in foreign exchange matters and previous legal precedents. The Court finds no grounds for interference under Article 226 of the Constitution of India. Lastly, the issue of non-disclosure of facts is crucial, as the Court emphasizes the importance of approaching the court with clean hands. The non-disclosure led to the dismissal of the writ petition, highlighting the significance of transparency in legal proceedings. The judgment concludes with the dismissal of the writ petition and the directive to release the bank guarantee within six weeks.
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2004 (3) TMI 761
Deduction u/s 80HHC - Whether sales-tax collected by the assessee should be treated as part of "total turnover" for the purpose of computing profits derived from export for claiming deduction u/s 80HHC - HELD THAT:- The word 'total' is affixed to the word 'turnover', not with the intention of adding sales-tax, entry tax, excise duty etc., to the 'turnover', but in contradistinction from 'export turnover'. When we keep in mind that the 'total turnover' is used in the formula to determine the percentage of export turnover so that the same percentage can be applied to the export profits, it becomes clear that both should have same components. Therefore, if sales-tax does not form part of one, it has to be excluded from the other.
Any attempt by the assessee to increase the export profit, or any attempt by the Revenue to decrease the export profit, should be resisted, having regard to the clear words of Sub-section (3) and the Explanations to Section 80HHC. While logic need not always be the basis for a taxing provision, it does not follow that a taxing provision logically made, should be interpreted illogically or asymmetrically, merely because it is a taxing statute. We therefore respectfully agree with the consistent and logical interpretation adopted by the Bombay and Calcutta High Courts and reject the interpretation put forth by the Revenue.
As a consequence, we find that the order of the Tribunal is in order and does not call for interference. The appeal is, therefore, rejected.
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2004 (3) TMI 760
The Gujarat High Court heard a case where the petitioner raised a grievance about coercive recovery of tax before the period of appeal limitation expired. The court directed authorities not to take coercive action until the appeal is filed within the time limit. The petition was disposed of with the continuation of interim relief until the stay application is heard.
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2004 (3) TMI 759
Whether the accused had the common intention to commit an offence of which they could be convicted?
Whether the two courts below are justified in coming to the conclusion that the appellants are guilty of an offence punishable under section 302 read with section 34 IPC?
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2004 (3) TMI 758
Whether Natural Gas in whatever physical form including Liquefied Natural Gas (LNG) is a Union subject covered by Entry 53 of the List I and the Union has exclusive legislative competence to enact?
Whether States have legislative competence to make laws on the subject of natural gas and liquefied natural gas under Entry 25 of List II of the Seventh Schedule to the Constitution?
Whether the State of Gujarat had legislative competence to enact the Gujarat Gas (Regulation of Transmission, Supply & Distribution) Act, 2001?
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2004 (3) TMI 757
Whether the High Court was justified in going into excruciating details on facts in a second appeal?
Has not the High Court exceeded its jurisdiction under Section 100 of the C.P.C. by reversing a well-considered Judgment of the First Appellate Court on facts especially when no question of law much less any substantial question of law arose for consideration?
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2004 (3) TMI 756
The Supreme Court allowed the appeal and set aside the High Court's order, remanding the matter for consideration on merits regarding the appellant's claim for higher special allowances.
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2004 (3) TMI 755
... ...
... ... ..... ORDER The special leave petition is dismissed.
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9911796707
