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Showing 61 to 80 of 707 Records
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2008 (3) TMI 727 - SUPREME COURT
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... ... ..... vant materials for the purpose of arriving at a correct fact. Such an order would amount to misdirection in law. o p /o p We are, therefore, of the opinion that the matter requires reconsideration. Having regard to the facts and circumstances of this case and particularly keeping in view the fact that the matter relates to pure interpretation of document which gives rise to question of law and instead and in place of remitting the matter to the named arbitrator, we would direct that the disputes in relation to Claim item Nos.3, 7 and 11 be referred to Hon’ble Mr. Justice D.N. Prasad, a retired Judge of the Jharkhand High Court on such terms and conditions as may be mutually agreed upon by the parties. The learned arbitrator is requested to consider the desirability of making his award as expeditiously as possible keeping in view the fact that the matter has been pending for a long time. o p /o p These appeals are allowed to the aforementioned extent. No costs. o p /o p
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2008 (3) TMI 726 - ITAT AHMEDABAD
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... ... ..... 29th Dec., 1993 about the conversion of capital asset being his share in the immovable property into stock in trade and its consequential effect, in view of query raised by the AO. o p /o p Accordingly, it was held that the AO clearly had reason to believe that income chargeable to tax had escaped assessment. But in the case under consideration, facts are altogether different. Thus, the cited case is not of any help to the Revenue. o p /o p 7. In view of the foregoing, we have no hesitation in concluding that initiation of proceedings under s. 147/148 in this case is without jurisdiction and is vitiated and thus, reopening of the assessment was not valid in the eyes of law. Therefore, the order of learned CIT(A) is vacated and assessment is annulled. Accordingly, ground No. 1 of the appeal is allowed. Since assessment has been annulled, ground Nos. 2 to 5 of the appeal do not survive for adjudication. o p /o p 8. In the result, appeal is allowed as indicated above. o p /o p
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2008 (3) TMI 725 - CESTAT NEW DELHI
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... ... ..... Tribunal while passing the remand order held that the adjudicating authority has to pass an order which is speaking and well reasoned one. In the present impugned order only reason for denying the cross examination of the above witnesses is that Tribunal has not given any such direction. The requirement of principles of natural justice is that the statement of witnesses which are being relied upon while confirming the demand an opportunity of cross examination has to be given to the assessee. In view of this, we find merit in the contention of the appellant that present impugned order is passed in violation of the principles of natural justice. The matter is remanded to the adjudicating authority after setting aside the order and to decide in accordance with law after affording an opportunity of cross examination of the above three witnesses and after affording an opportunity of personal hearing. The appeals are disposed of by way of remand. Order dictated in the open Court.
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2008 (3) TMI 724 - SUPREME COURT
Huge of Delay 2205 days in filing a review application - Whether suppression of a material fact would entail allowing of an application for condonation - HELD THAT:- We are not oblivious of the fact that the authorities of the State have made a complete goof up with the situation. By its action, it allowed subsequent events to happen, viz. sales of the lands have taken up, constructions have come up, but the question which arises for our consideration is as to whether even in such a situation, this Court would allow a suppression of fact to prevail.
It is now a well settled principle that fraud vitiates all solemn acts. If an order is obtained by reason of commission of fraud, even the principles of natural justice are not required to be complied with for setting aside the same.
The allottees have acquired a statutory right. Only because the State was not aware of the factual position and/or the legal implication of the 1999 Act which led to withdrawal of the writ petition from the High Court, the same by itself may not be sufficient to deprive the allottees from their legal right to hold the said land.
Therefore, we are of the opinion that the merit of the matter as also the question in regard to adjustment of equities may be considered by the High Court. We, for the foregoing in exercise of our jurisdiction in Article 136 of the Constitution of India refuse to interfere with the impugned judgment.
The appeal is dismissed with costs.
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2008 (3) TMI 723 - RAJASTHAN HIGH COURT
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... ... ..... r several assessment years, inasmuch as, in asst. yr. 1987-88. ₹ 15,05,007 was spent, while in asst. yr. 1990-91, ₹ 2,16,000 was spent, and in those facts, considering various other judgments of Hon'ble the Supreme Court, it was held it to be deductible revenue expenditure. 13. In our view, in view of the above judgments, this question No. 3 is also required to be answered in favour of the assessee, and against the Revenue, to the effect, that the amount incurred in reconstruction of the boundary wall is required to be considered as revenue expenditure. 14. Then, the last question remains is, about exclusion of driver's salary, depreciation on car and repairs of car, for computing disallowance under section 37(3A)/(3B). In our view, this question is also squarely covered by a decision of this Court, in CIT vs. Udaipur Distillary Co. Ltd. 2003 183 CTR (Raj.) 614 2004 266 ITR 667 (Raj.). Thus, for the same reason, this question is also answered accordingly.
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2008 (3) TMI 721 - ALLAHABAD HIGH COURT
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... ... ..... unable to decide that application for any valid reason, it would not entitle the petitioner to move an application in contempt, but the petitioner's right to raise other challenges which have been made in this writ petition will revive to the petitioner. The writ petition is disposed of as above. A copy of this order will be presented before the Settlement Commission by Monday i.e. 17.03.2008. Let a certified copy of this order be issued to the learned counsel for the petitioner on payment of requisite charges within 24 hours.
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2008 (3) TMI 720 - BOMBAY HIGH COURT
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... ... ..... Advocate General. As the counsel for the Revenue seeks time to file affidavit in reply, by way of interim relief, we direct that during the pendency of this petition, Settlement Commissioner not to consider the Settlement Application filed by the Petitioner No. 1 having abated under section 245HA of the Act for want of compliance with Section 245D(2D) of the Act as amended by the Finance Act 2007. Respondent waives service.
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2008 (3) TMI 719 - DELHI HIGH COURT
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... ... ..... hed which we do. Also, in T.T. Antony v. State of Kerala, the Supreme Court disapproved the filing of a second criminal case on the same set of facts, in respect of which an FIR already stood registered. 12. On the facts of the present case, it is clear that the ratio of the aforementioned judgments of the Supreme Court would apply. The third complaint is certainly an abuse of the process of the court since it is based on the same set of facts on which the earlier two complaints were filed. To permit the complainant to pursue third complaint in the facts and circumstances of the case, would be impermissible in law. 13. For the aforementioned reasons, the complaint case CC No. 458 of 2001 titled 'Air Force Group Insurance Society (AFGIS) v. PAAM Pharmaceuticals Ltd. and Ors.' and all proceedings consequent thereto including the summoning order dated 12th November 2003 hereby stand quashed. 14. The petition is allowed but in the circumstances with no order as to costs.
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2008 (3) TMI 718 - ITAT DELHI
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... ... ..... and dealers in other various products that could be identified and imported. The assessee company also furnished copy of invoice. These details have not been doubted. It was also found that on similar facts in assessee's case for assessment year 2004-05 the expenditure amounting to ₹ 12,26,658/- was allowed. It was pointed out by the assessee that this assessment order has attained finality. This fact could not be controverted by the learned DR. In view of the above and on the facts and circumstances of this case, we are unable to concur with the findings of the learned CIT(A) in sustaining the disallowance. In our considered opinion the expenditure on foreign travel undertaken by the director was incurred for the business activity of the assessee and the same is allowable. We, therefore, set aside the finding of the learned CIT(A) and allow this ground of the assessee. 22. In the result, the appeal is partly allowed. Pronounced in the Open Court on 28 March 2008.
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2008 (3) TMI 717 - CESTAT AHMEDABAD
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... ... ..... be attracted only in respect of goods, which have been bonded. In this case, the bonded goods namely, the raw materials were not found cleared unauthorisedly or in contravention of the Customs Act. On the other hand, we find that the raw materials were admittedly issued for manufacture and a portion of the finished goods have been held to be rejects and waste and they were cleared in the domestic market as per the permission granted by the Development Commissioner. Under these circumstances, no case of diversion or use of the raw materials procured duty free for a purpose other than intended purpose, has been made out. Therefore, no valid grounds have been adduced to interfere with the findings of the Commissioner insofar as non-demand of duty on the raw materials and not taking the consequential penal action.” 4. By following the above order, we find no infirmity in the view adopted by the Commissioner. The appeals are accordingly rejected. (Pronounced in Court)
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2008 (3) TMI 716 - ALLAHABAD HIGH COURT
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... ... ..... owance whereas, deduction under section 32AB can be availed of even before the ship is acquired or plant and machinery is installed. Therefore, we cannot see as to how the benefit under section 32AB would not be allowed to an assessee who sends an advance for purchase of new machinery. In the circumstances, section 32AB(1)(b) is applicable to the facts of this case and the assessee was entitled to claim benefit of the said section." (p. 297) 9. Learned Standing Counsel is not able to show any decision to the contrary. We respectfully agree with the view taken by the Division Bench of the Bombay High Court and it is accordingly held that the amount given in advance for the purchase of plant and machinery amounts to utilisation of amount in the year advance was given for the purpose of clause (b) of section 32AB. 10. In view of the above, the question referred is answered in favour of the assessee and against the revenue. 11. In the circumstances, the appeal is dismissed.
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2008 (3) TMI 715 - ITAT DELHI
Taxability of income - Mercantile System of Accounting - In the year the assessee got the right to receive the income or the year of accrual as per the system of accounting followed by the assessee - interest payable under ss. 234B and 234C - HELD THAT:- We conclude that payment of royalty to the assessee by GGL was fixed by the IDBI, for which assessee had also consented, and the same was dependent on the terms and conditions of no overdue debt to the financial institution and there being availability of sufficient cash flow in the hands of GGL, at the time of payment of instalment, can be considered as sufficient riders for postponing the assessee's rights to receive the royalty and the same was to be received only when GGL was having sufficient cash flow and no overdue to any financial institution. Both these conditions could be complied only at the time of payment of instalments of royalty and prior to the said date there existed uncertainty as to the ultimate payment of the royalty amount.
Therefore, notwithstanding the mercantile system of accounting being followed by the assessee, royalty income accrued in favour of assessee only in the years the right to receive such royalty income accrued in favour of assessee as per the terms of consent letter.
Accordingly, royalty accrued in favour of the assessee in the AY 2003-04 and AY 2004-05. As the assessee was in receipt of royalty of from GGL for the period 1st April, 1993 to 31st March, 1995 during the relevant assessment year under consideration, the same is liable to be taxed accordingly in the AY 2002-03 under consideration. We direct accordingly.
Charging of interest under ss. 234B and 234C is consequential in nature, the AO is directed to give due credit for the TDS pertaining to the income received by the assessee and recompute the interest chargeable under ss. 234B and 234C of the Act.
In the result, the appeal of the assessee is allowed in terms indicated hereinabove.
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2008 (3) TMI 714 - ITAT CHENNAI
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... ... ..... eceipt as held by the Tribunal in IBM India Ltd. case cited supra. It is further noted that the sister concern paying the so-called non-compete fee was also having licence from the RBI to deal in forex business. Hence it was already engaged in this line of business. Hence, in case if it is accepted for argument's sake that it feels some obstruction and restriction in its business due to the presence of the assessee due to common customers, etc. and pays some amount to remove the same, the same cannot be said to be in the capital field. This view finds support from Hon'ble Supreme Court decision in the case of Bikaner Gypsums Ltd. vs. CIT 187 ITR 39 (SC). In the background of aforesaid discussion and precedents, in our opinion, the impugned sum has to be brought to tax as revenue receipt. Hence, we set aside the order of the learned Commissioner of Income Tax (Appeals) and restore that of the Assessing Officer. 18. In the result, this appeal by the Revenue is allowed.
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2008 (3) TMI 713 - ITAT DELHI
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... ... ..... e allowed although the liability may have- to be quantified and discharged at a future date. What should be certain is the incurring of the liability. It should also be capable of being estimated with reasonable certainty though the actual quantification may not be possible. If these requirements are satisfied the liability is not a contingent one. The liability is in presenti though it will be discharged at a future date. It does not make any difference if the future date on which the liability shall have to be discharged is not certain. " 58. Considering the claim of the assessee in view of the above-mentioned observations of their Lordships, we find that the ld. CIT (A) has rightly held that such claim of the assessee is allowable. Therefore, we decline to interfere and the departmental appeal is dismissed. 59. In the result, assessee's appeal is allowed for statistical purposes and departmental appeal is dismissed. Order pronounced in the open court on 20.3.2008
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2008 (3) TMI 712 - DELHI HIGH COURT
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... ... ..... e appeal filed by the Assessee in the absence of Mr. Mittal having been served or made available for cross-examination by the Assessee? 2. Whether the Income Tax Appellate Tribunal was correct in law in placing reliance on Section 33 of the Indian Evidence Act while denying an opportunity to the Assessee to cross-examine Mr. Mittal? Filing of paper books is dispensed with.
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2008 (3) TMI 711 - SUPREME COURT
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... ... ..... re, reject point No. 2." The jurisdiction of the Industrial Court being wide and it having been conferred with the power to interfere with the quantum of punishment, it could go into the nature of charges, so as to arrive at a conclusion as to whether the respondent had misused his position or his acts are in breach of trust conferred upon him by his employer. 18. It may be true that quantum of loss may not be of much relevance as has been held in Suresh Pathrella Vs. Oriental Bank of Commerce (2006) 10 SCC 572 , but there again a question arose as to whether he was in the position of a trust or not. 19. Furthermore, however, the respondent is out of service since 1987. He has already suffered a lot being out of service for more than 20 years. All the courts have held in his favour. We, thus, do not think that it would be a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. This appeal is dismissed. No costs.
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2008 (3) TMI 710 - PATNA HIGH COURT
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... ... ..... the decision of this Court in the case of Mithila Properties Publication & Contractor Enterprises (P.) Ltd. (supra ) to contend that rental income comes under income from house property. As this decision itself, as stated earlier, has been reversed by the Supreme Court it loses its efficacy and hence reliance on this judgment is clearly misplaced. 29. The discussions aforesaid, lead me to conclude that the rental income derived by the assessee does not come within the head ‘Income from house property’ but assessable under the head ‘Income from business’. 30. Accordingly, all the references are answered in the affirmative and in favour of the assessee but against the revenue. The two appeals filed by the revenue are also dismissed. In the facts and circumstances of the case, there shall be no order as to costs. 31. Let a copy of this opinion be transmitted to the Patna Bench of the Income-tax Appellate Tribunal. References answered in affirmative.
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2008 (3) TMI 709 - SUPREME COURT
Departmental proceeding against Inspector of the Railway Protection Force - suspension on the allegation that he made excess delivery of scrap - Full Bench of High Court held that Rule 153(8) is unreasonable and hence unconstitutional and accordingly it struck down Rule 153(8) - HELD THAT:- It is well settled that ordinarily in a domestic/departmental inquiry the person accused of misconduct has to conduct his own case vide N. Kalindi and others vs. M/s. Tata Locomotive and Engineering Co.[1960 (3) TMI 54 - SUPREME COURT]. Such an inquiry is not a suit or criminal trial where a party has a right to be represented by a lawyer. It is only if there is some rule which permits the accused to be represented by someone else, that he can claim to be so represented in an inquiry vide Brook Bond India vs. Subba Raman 1961 (11) LLJ 417.
Similarly, in Cipla Ltd. and others vs. Ripu Daman Bhanot and another[1999 (4) TMI 622 - SUPREME COURT] it was held by this Court that representation could not be claimed as of right. This decision followed the earlier decision Bharat Petroleum Corporation Ltd. vs Maharashtra General Kamgar Union [1998 (12) TMI 616 - SUPREME COURT] in which the whole case law has been reviewed by this Court.
Following the above decision it has to be held that there is no vested or absolute right in any charge-sheeted employee to representation either through a counsel or through any other person unless the statute or rules/standing orders provide for such a right. Moreover, the right to representation through some one, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice.
In the present case, Rule 153(8) only provides for assistance to a charge-sheeted employee by an agent. Thus, a restricted right of representation has been granted by Rule 153(8). Even if no right of assistance had been granted by the rules, there would be no illegality or unconstitutionality. How then can it be said that when a restricted right is granted, the said restricted right is unconstitutional.
We, therefore, respectfully disagree with the Full Bench impugned judgment of the High Court and we are of the view that Rule 153(8) is constitutionally valid.
Hence, the appeal stands allowed. The impugned judgment of the High Court is set aside. There shall be no order as to costs.
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2008 (3) TMI 708 - SUPREME COURT
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... ... ..... dicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi- judicial performance (See Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar (2003(4) SCC 364) ). 9. That being so, we set aside the impugned order of the High Court and remit the matter to it for fresh consideration in accordance with law. We make it clear that we have not expressed any opinion on the merits of the case. It goes without saying that the High Court shall pass a speaking order recording reasons in support of its conclusions. 10. The appeal is allowed to the aforesaid extent without any order as to costs.
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2008 (3) TMI 707 - SUPREME COURT
Judgment passed by the High Court in exercise of the powers u/s 100 of the CPC - No "Substantial question of law" Involved - Test for determining, Question of law raised in the case is Substantial or Not - HELD THAT:- The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance.
In Guran Ditta v. T. Ram Ditta [1928 (4) TMI 2 - PRIVY COUNCIL], the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 100 (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case.
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial as quoted in Sir Chunilal's case[1962 (3) TMI 77 - SUPREME COURT].
The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
Thus, we set aside the impugned judgment of the High Court and remit the matter to it for fresh consideration. The Second Appeal can be only maintained after formulating substantial question of law, if any and not otherwise. We make it clear we have not expressed any opinion on the question as to whether any substantial question of law is involved or not.
The appeal is allowed to the aforesaid extent without any order as to costs.
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