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2010 (4) TMI 1182
Issues involved: Challenge to order passed by Additional Sessions Judge under Domestic Violence Act, 2005 for amendment in application.
The writ petition challenged the order passed by the Additional Sessions Judge, Kopargaon, Dist. Ahmednagar in Cri. Revision Application No.52/2009. The respondent No. 1 initiated proceedings under the Domestic Violence Act, 2005 against the petitioner and his relatives. The petitioners filed a written statement and the respondent No. I/wife filed an application seeking an amendment. The petitioners requested the Magistrate to hear them before passing the order, but their application for recall was rejected. The revisional Court upheld the amendment, stating that no prejudice would be caused to the petitioners.
The advocate for the petitioner argued that there are no provisions in the Code of Criminal Procedure or the Protection of Women from Domestic Violence Act allowing for the amendment of the application. He referred to Section 12 of the Act and Rule 6 of the Protection of Women from Domestic Violence Rules, 2006, which specifies that applications under the Act should be dealt with in a similar manner as applications under Section 125 of the Code of Criminal Procedure. The Act aims to provide relief to affected women from domestic violence, and the respondent is not considered an accused until breaching a court order under the Act. The proceedings under the Act are quasi-civil in nature, allowing for amendments in applications and written statements.
The judgment concluded that the provisions of the Protection of Women from Domestic Violence Act, 2005, are designed to provide relief to women affected by domestic violence. The respondent is not treated as an accused until breaching a court order under the Act. The Court has the power to allow amendments in applications and written statements in quasi-civil proceedings. The petition was dismissed, and the lower Court was directed to decide on the application within six months from the date of the judgment.
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2010 (4) TMI 1181
Issues involved:
The issues involved in this case are non-issuance of notice to the petitioner and non-furnishing of reasons for transferring the matter from Guwahati to New Delhi.
Non-issuance of Notice:
The petitioner was directed to furnish a true and correct return of income for the assessment year 2000-01 within 15 days after service of the notice. However, the petitioner was not intimated about the order transferring jurisdiction from Guwahati to New Delhi, which led to confusion and lack of communication.
Non-furnishing of Reasons for Transfer:
The order transferring jurisdiction from Guwahati to New Delhi did not provide any specific reasons for the transfer, stating only "administrative convenience and co-ordinating effective investigation." This lack of detailed reasons was contested by the petitioner as being in violation of Section 127(1) of the IT Act, 1961.
Legal Arguments:
The petitioner's counsel argued that the impugned order was illegal and required interference as it did not comply with Section 127(1) of the Act. Reference was made to relevant case laws emphasizing the mandatory requirement of assigning detailed reasons for such transfers.
Court's Decision:
The High Court held in favor of the petitioner on both counts, citing the non-issuance of notice and the lack of detailed reasons for the transfer as grounds for setting aside the impugned order. The writ petition was allowed without any order as to costs, with a note that the respondents could proceed with the matter in accordance with the law if advised.
Significant Legal Observations:
The Court referred to previous judgments emphasizing the importance of recording and communicating reasons for transfer orders, highlighting that vague reasons like "administrative convenience" are insufficient. It was noted that the requirement of assigning reasons is mandatory under the law to enable affected parties to challenge orders effectively.
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2010 (4) TMI 1180
The Appellate Tribunal ITAT AGRA ruled in the case where a difference arose between the Members of the Division Bench hearing the appeal. The matter was referred to the opinion of the ld. Third Member who agreed with the ld. Accountant Member. As a result, the assessee's appeal was partly allowed. The order was pronounced in the open court on 13.04.2010.
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2010 (4) TMI 1179
Issues Involved:
1. Validity of the Arbitrator's Award
2. Interpretation of the Excess Clause in the Insurance Policy
3. Aggregation of Embezzlements for Claim Calculation
Summary:
1. Validity of the Arbitrator's Award:
The Bank sought indemnity from the Insurer for Rs. 3,58,000/- embezzled by an employee. The Insurer assessed the reimbursable loss as Rs. 29,000/-. The Bank appointed an arbitrator who proceeded ex parte and awarded Rs. 2,58,337/40 to the Bank. The Civil Court upheld the award, but the High Court set it aside, remitting the matter for fresh consideration. The Supreme Court upheld the High Court's decision, noting that the Arbitrator's interpretation was contrary to the express words of the contract and insurance principles.
2. Interpretation of the Excess Clause in the Insurance Policy:
The policy's Proviso (1) required the Insured to bear a fixed amount of Rs. 11,500/- for each loss under Contingencies 1, 2, and 3, and 25% of the amount of the loss or Rs. 11,500/-, whichever was higher, for Contingency 4. The Supreme Court emphasized that the term "each and every loss" applied to all contingencies, and the Insured had to bear the stipulated amount for each separate embezzlement.
3. Aggregation of Embezzlements for Claim Calculation:
The Arbitrator aggregated the embezzlements, which the High Court found incorrect. The Supreme Court agreed, stating that each act of embezzlement should be treated separately. For each embezzlement, the Bank had to bear 25% of the amount or Rs. 11,500/-, whichever was higher. The award was set aside due to the lack of detailed records of each embezzlement.
Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision to remit the matter for fresh arbitration. If the Bank chose not to proceed afresh, it could accept the Insurer's offer of Rs. 29,000/-.
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2010 (4) TMI 1178
Issues Involved:
1. Recalling of the winding-up order dated 3rd December 2003.
2. Acceptance of the revival scheme of the company.
3. Dispensation of the requirement of the meeting of the creditors of the company under liquidation for approval of the scheme.
Detailed Analysis:
1. Recalling of the Winding-Up Order:
The promoters of Sunstar Lubricants Ltd. filed CA No. 817/2009 and CA No. 1085/2009 under Sections 391(1) and 394 of the Companies Act, 1956, seeking to recall the winding-up order dated 3rd December 2003 and to accept the revival scheme. The company was originally incorporated on 19th December 1988 and faced financial difficulties due to market conditions and competition. Despite efforts to raise capital and propose rehabilitation schemes, the company's financial position deteriorated, leading to the BIFR recommending winding up under Section 20(1) of SICA. The court, after considering the records and hearing the parties, was satisfied that the net worth of the Company had substantially eroded, leading to the winding-up order.
2. Acceptance of the Revival Scheme:
The promoters identified an investor, M/s. IO Global Services Private Limited, to infuse necessary funds for paying off debts and reviving the company. Several one-time settlement (OTS) proposals were accepted by the secured creditors, including IFCI Ltd., State Bank of Indore, Canara Bank, and Andhra Bank. The promoters deposited significant amounts with the Official Liquidator to show their bona fides. The court noted that all secured creditors had been paid off, and the revival scheme aimed at paying unsecured creditors and statutory dues. The scheme detailed a financial plan for the next six years, projecting sufficient net profits to liquidate unsecured debts. The court found the scheme to be genuine, viable, and in the interest of equity and justice.
3. Dispensation of the Requirement of the Meeting of Creditors:
The promoters filed CA No. 1085/2009 seeking directions to dispense with the requirement of convening meetings of shareholders and creditors for approval of the revival scheme. The court noted that shareholders holding more than 75% of the total equity shares had given their consents/no objections in writing to the proposed scheme. The court referred to the principles laid down in Miheer H. Mafatlal vs. Mafatlal Industries Ltd., which emphasized that the court must ensure statutory compliance, fairness, and feasibility of the scheme. The court found that the scheme met these requirements and noted that no objections were raised by the Official Liquidator. The court emphasized that revival of the company was preferable to winding up, as it facilitated job creation and productive use of assets.
Conclusion:
The court allowed the applications, recalling the winding-up order dated 3rd December 2003, and approved the revival scheme of Sunstar Lubricants Limited subject to conditions ensuring payment of unsecured creditors and statutory dues. The requirement of convening meetings of shareholders and creditors was dispensed with, and the court directed the Official Liquidator to retain funds for settling dues and to seek further orders for adjustments or release of amounts. The court found the promoters' efforts to revive the company to be bona fide and in the interest of equity and justice.
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2010 (4) TMI 1177
The Supreme Court of India issued an order to consider whether the petitioner was served a notice under Section 124 of the Customs Act, 1962. Dasti service was also permitted. (Citation: 2010 (4) TMI 1177 - SC)
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2010 (4) TMI 1176
Issues Involved
1. Jurisdictional error or violation of natural justice by the Division Bench of Punjab and Haryana High Court.
2. Non-compliance with Section 25F of the Industrial Disputes Act, 1947.
3. Legality of the appellant's initial engagement/employment.
4. Reinstatement and back wages entitlement.
Detailed Analysis
Jurisdictional Error or Violation of Natural Justice
The Supreme Court considered whether the Division Bench of Punjab and Haryana High Court erred in upsetting the award dated 1.8.2002 passed by the Industrial Tribunal-cum-Labour Court, Panipat, without recording a finding of jurisdictional error, violation of natural justice, or an error of law apparent on the face of the record. The Division Bench set aside the Labour Court's award without addressing the fact that similar awards for other employees had been upheld by higher courts. The Supreme Court noted that the High Court's approach was contrary to the judicially recognized limitations of its power to issue a writ of certiorari under Article 226 of the Constitution.
Non-Compliance with Section 25F of the Industrial Disputes Act, 1947
The Labour Court concluded that the respondent did not comply with Section 25F of the Industrial Disputes Act, which mandates giving one month's notice or pay in lieu thereof and retrenchment compensation before terminating a workman's service. The Labour Court found that the appellant received compensation months after his termination, and the respondent failed to provide evidence that compensation was offered at the time of retrenchment. The Supreme Court upheld this finding, emphasizing that non-compliance with Section 25F renders the retrenchment null and void.
Legality of the Appellant's Initial Engagement/Employment
The Division Bench of the High Court held that the appellant could not be reinstated as his initial engagement was not against any sanctioned post and did not comply with statutory provisions. The Supreme Court, however, found that the High Court erred in considering the legality of the appellant's initial employment without it being a pleaded case before the Labour Court or the High Court. The Supreme Court noted that the High Court was unduly influenced by judgments related to the regularization of casual or temporary employees, which were not applicable to the interpretation of Section 25F.
Reinstatement and Back Wages Entitlement
The Labour Court had ordered the reinstatement of the appellant with full back wages. The High Court set aside this award, but the Supreme Court restored it, directing the respondent to reinstate the appellant within one month and pay back wages within three months. The Supreme Court also ruled that if the back wages were not paid within the stipulated time, the appellant would be entitled to interest at the rate of 9% per annum from the effective date of reinstatement.
Conclusion
The Supreme Court allowed the appeal, setting aside the Division Bench's order and restoring the Labour Court's award. The respondent was directed to reinstate the appellant and pay back wages, with interest applicable if payments were delayed. The judgment emphasized the mandatory nature of Section 25F and the limitations on the High Court's power to interfere with findings of fact by the Labour Court.
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2010 (4) TMI 1175
Issues Involved:
1. Interim Injunction
2. Ownership and Prior Use of Trademark
3. Territorial Jurisdiction
4. Delay, Laches, and Acquiescence
5. Character Merchandising
Summary:
1. Interim Injunction:
The plaintiff filed an application u/s Order XXXIX Rules 1 & 2 read with section 151 of CPC & section 135 of the Trade Marks Act, 1999, seeking an interim injunction to restrain the defendants from using the trademark NODDY or any deceptively similar mark. The plaintiff claims ownership of the worldwide trademark rights in NODDY, including the name and character image, and has expanded its use through various merchandise in India.
2. Ownership and Prior Use of Trademark:
The plaintiff asserts that the trademark NODDY is well-known and has achieved distinctiveness. The defendants, however, claim to have adopted the term NODDY as their trademark in 1991 and argue that their activities are distinct from those of the plaintiff. The plaintiff's prior history with M/s. Noddy Apparels and the opposition to the trademark registration application in 2000 were highlighted. The plaintiff failed to establish user of the mark prior to 1995, while the defendant established prior user and registration of the mark from 1995.
3. Territorial Jurisdiction:
The defendants questioned the territorial jurisdiction of the Court, stating that the suit for infringement and passing off can lie where the defendant is based. The first three defendants are in Mumbai, and the fourth defendant is a dealer for the first defendant. The plaintiff has not filed any proof of sale of the impugned goods by the fourth defendant.
4. Delay, Laches, and Acquiescence:
The defendants argued that the suit suffers from delay, laches, and acquiescence, as there is an admitted delay of 9 years since the plaintiff became aware of the defendant's existence in 2000. The defendant claims to have created a niche in the market and cites another example of a registered proprietor of the trademark NODDY since 1989.
5. Character Merchandising:
The case involves character merchandising, where the plaintiff's fictional character NODDY is used as a trademark. The plaintiff failed to establish prior user in India before 1995. The Court noted that the plaintiff did not follow up on its opposition to the defendant's trademark application and failed to provide evidence of sales, importation, or advertisements of NODDY books in India prior to 1995.
Conclusion:
The Court dismissed the plaintiff's application for an interim injunction due to a lack of evidence establishing prior use of the trademark in India before 1995. The Court emphasized that both parties hold trademark registrations, and their rights should be determined based on principles applicable for passing off, with the most important component being the establishment of prior use of the mark. The case was listed for further proceedings on 01.09.2010.
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2010 (4) TMI 1174
Issues Involved:
1. Legality and validity of the High Court's order dismissing the appellants' applications for recall of an earlier consent decree.
2. Allegations of fraud and coercion in obtaining the consent decree.
3. Authority of the Power of Attorney holder to enter into the compromise.
4. Compliance with Order 23 Rule 3 of the Code of Civil Procedure, 1908.
5. Estoppel and binding nature of the consent decree.
Detailed Analysis:
1. Legality and Validity of the High Court's Order:
The appellants challenged the High Court's order dated 12.10.2007, which dismissed their applications seeking recall of an earlier order dated 13.06.2006. This earlier order was based on consent terms signed by all parties. The appellants argued that the consent decree was obtained fraudulently and without their knowledge or consent.
2. Allegations of Fraud and Coercion:
The appellants alleged that respondent no. 9 colluded with respondent no. 8 and coerced them into a compromise, which they strongly objected to. They claimed that fraud was played upon the High Court by filing the consent terms without their genuine consent. The appellants filed complaints with the police against respondents 8 and 9, alleging threats and coercion.
3. Authority of the Power of Attorney Holder:
Respondent no. 9, as the Power of Attorney holder, entered into consent terms with respondents 7 and 8. The appellants argued that this was beyond the scope of his authority. However, the court noted that the irrevocable Powers of Attorney executed by the appellants in favor of respondent no. 9 authorized him to act on their behalf, including entering into compromises. The court found that the appellants had confirmed and ratified the deeds and documents entered into by their predecessor-in-interest and respondent no. 9.
4. Compliance with Order 23 Rule 3 of the Code of Civil Procedure, 1908:
The appellants contended that the consent terms did not comply with Order 23 Rule 3, which requires the compromise to be in writing and signed by the parties. The court held that under Order 23 Rule 3, a compromise could be signed by the counsel or the Power of Attorney holder. The court cited the judgment in Byram Pestonji Gariwala Vs. Union Bank of India, which supported this interpretation.
5. Estoppel and Binding Nature of the Consent Decree:
The court emphasized that the appellants were estopped from questioning the acts of respondent no. 9, as they had executed irrevocable Powers of Attorney and affidavits confirming his authority. The court cited several precedents, including Jineshwardas (D) by LRs. Vs. Jagrani and Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke, to assert that a consent decree is as binding as a decree passed by invitum and carries the binding force of res judicata.
Conclusion:
The Supreme Court dismissed the appeals, holding that the consent decree was valid and binding. The court found no merit in the appellants' allegations of fraud and coercion, noting that the appellants had failed to provide full and precise particulars of the alleged fraud. The court also ruled that the Power of Attorney holder acted within his authority, and the consent terms were just and reasonable. The appellants were estopped from challenging the consent decree, and the court upheld the High Court's order dismissing the applications for recall.
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2010 (4) TMI 1173
Issues involved: Determination of Annual Letting Value (ALV) for house property income for Assessment Years 2004-05 and 2005-06.
Summary:
1. The appellant, engaged in manufacturing and trading of industrial gas plant and gases, filed returns declaring total income. The Assessing Officer (AO) observed discrepancies in ALV for previous years and asked for explanation. The AO adopted a higher ALV, resulting in increased income assessment.
2. On appeal, the CIT(A) noted that the rent charged by the appellant from its sister concern was significantly lower compared to the rent received by the sister concern from sub-letting. The CIT(A) determined ALV based on this information, rejecting the appellant's claim for a lower ALV.
3. The appellant contended that the ALV should be determined based on actual rent received by the assessee, citing previous Tribunal orders. The Department supported the CIT(A)'s decision.
4. The Tribunal found that the ALV determined by the CIT(A) was unjustified, as the facts were similar to previous years where a lower ALV was accepted. The Tribunal directed the AO to adopt the lower ALV as claimed by the appellant.
5. Grounds related to the validity of the assessment order and levy of interest were also considered. The Tribunal rejected the ground related to the assessment order but partially allowed relief regarding the levy of interest.
6. For the Assessment Year 2005-06, the Tribunal directed the AO to follow the findings for the previous year, as no distinguishing features were presented by either party.
7. Ultimately, the Tribunal partly allowed the appellant's appeals, with the order pronounced on 20.4.2010.
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2010 (4) TMI 1172
Issues involved: Conviction under Section 15 of the NDPS Act, compliance with Sections 42 and 57 of the NDPS Act, conscious possession of seized Poppy Husk.
Conviction under Section 15 of the NDPS Act: The petitioner was convicted for possessing Poppy Husk without a permit, sentenced to 12 years imprisonment and a fine. The conviction was upheld by the Trial Court and partly reduced by the High Court.
Compliance with Sections 42 and 57 of the NDPS Act: The petitioner challenged the conviction on grounds of non-compliance with Section 42 and Section 57 of the NDPS Act. The defense argued that failure to comply with these sections would vitiate the investigation and trial. Reference was made to relevant case laws to support this argument.
Conscious possession of seized Poppy Husk: The defense contended that the petitioner was not in conscious possession of the Poppy Husk as the mere recovery from his premises did not establish conscious possession. It was argued that non-compliance with Sections 42 and 57 invalidated the trial and conviction.
The State of Haryana countered the defense's arguments by stating that advancements in technology have altered the interpretation of Section 42. They argued that strict compliance may not always be possible in emergent situations and substantial compliance would suffice. The State also highlighted that non-compliance with Section 57 was not mandatory and substantial compliance did not vitiate the prosecution case.
The Court agreed with the State's submissions, emphasizing that advancements in technology have changed the application of Section 42. They noted substantial compliance in sending information to the superior officer and found no prejudice to the accused. The Court also referenced previous judgments to support their decision.
In conclusion, the Court dismissed the Special Leave Petition, finding no merit in the petitioner's arguments regarding non-compliance with Sections 42 and 57, and conscious possession of the seized Poppy Husk.
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2010 (4) TMI 1171
Supreme Court dismissed the appeal in the case with citation 2010 (4) TMI 1171 - SC. Judges were Mr. S.H. Kapadia and Mr. Swatanter Kumar.
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2010 (4) TMI 1170
Issues involved: Petition for winding up of respondent Company u/s 433 and 434 of the Companies Act, 1956.
The judgment pertains to a petition for the winding up of a company under sections 433 and 434 of the Companies Act, 1956. The respondent company, Mahendra Suitings Limited, was reported to have been before the BIFR and AAIFR, leading to a stay in the proceedings. However, upon the Company Petition being taken up for hearing, the respondent company expressed its lack of inclination to contest the petition. The respondent company's advocate conceded that there was no case on merits and that the company had failed before the BIFR and AAIFR.
The Court, after considering the financial position of the respondent company and the lack of contestation, concluded that the company was not viable and was unable to pay its debts to creditors. Consequently, the Court ordered the winding up of Mahendra Suitings Limited. The Official Liquidator attached to the Court was appointed as the Official Liquidator for the respondent company and directed to take possession of its properties, including bank accounts, cash, and account books, after preparing an inventory and Panchnama. The Official Liquidator was instructed to submit a report within three months and authorized to engage the services of the Official Valuer if necessary for the preparation of possession notes. No costs were assigned in this matter.
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2010 (4) TMI 1169
Issues Involved:
1. Entitlement of the plaintiff to 50% of the provident fund amount.
2. Validity of the nomination under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
3. Applicability of general law of succession.
Summary:
1. Entitlement of the plaintiff to 50% of the provident fund amount:
The plaintiff, a cousin of the deceased Joazinho Dias, claimed entitlement to 50% of the provident fund amount based on a nomination dated 23/02/2001. However, the entire provident fund amount was paid to defendant No. 3, the sister of the deceased, based on an earlier nomination dated 29/05/1998. The court held that the plaintiff was not entitled to any share of the provident fund amount as he was not a legal heir under the general law of succession.
2. Validity of the nomination under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952:
The court examined the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, and the Scheme framed thereunder. It was noted that the Act does not have a provision similar to Section 5 of the Provident Funds Act, 1925, which conferred absolute rights to nominees. The court referred to the Apex Court's decision in Smt. Sarbati Devi v. Smt. Usha Devi, which held that a nominee under the Insurance Act, 1938, only had the right to receive the amount on behalf of the heirs and not an absolute right to the money. The court concluded that the same principle applies to the Employees' Provident Funds Act, 1952, and the nominee is merely authorized to receive the amount for the benefit of the heirs.
3. Applicability of general law of succession:
The court held that under the general law of succession and particularly Article 1969 of the Civil Code, 1867, defendant No. 3, being the sister of the deceased, was entitled to succeed to the estate of the deceased Joazinho Dias. The plaintiff, being only a cousin, was excluded from inheriting any part of the estate.
Conclusion:
The court dismissed the appeal, holding that the plaintiff was not entitled to any share of the provident fund amount and that the entire amount rightly belonged to defendant No. 3 as the legal heir of the deceased.
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2010 (4) TMI 1168
Strike of company name - Seeking restoration of the name of the Petitioner Company u/s 560(6) of the Companies Act, 1956 - Registrar of Companies struck the petitioner company's name off the Register due to defaults in statutory compliances, namely, annual returns for the period 30.09.2000 to 30.09.2008 and balance sheets for the period 31.03.2000 to 31.03.2008 - HELD THAT:- Looking to the fact that the petitioner is a running company, that it has filed this petition within the stipulated limitation period, and to the decision of the Bombay High Court in PURUSHOTTAMDASS VERSUS REGISTRAR OF COMPANIES [1984 (4) TMI 247 - HIGH COURT OF BOMBAY] which says that object of section 560(6) of the Companies Act is to give a chance to the company, its members and creditors to revive the company which has been struck off by the Registrar of Companies, within a period of 20 years, and to give them an opportunity of carrying on the business only after the company judge is satisfied that such restoration is necessary in the interests of justice.
To my mind, this petition deserves to be allowed, although a greater degree of care was certainly required from the petitioner company in ensuring statutory compliances. Looking to the fact that annual returns and balance sheets were not filed for almost eight years, the primary responsibility for ensuring that proper returns and other statutory documents are filed, in terms of the statue and the rules, remains that of the management.
To my mind, the expression "shall otherwise order" used in Rule 94, as reproduced above, means that costs may be imposed on the petitioning party which cover the costs of the "Registrar of Companies" involvement in the proceedings, but are not limited to the same, unless the Court otherwise orders.
The restoration of the petitioner's name to the Register maintained by the respondent will be subject to the payment of ₹ 50,000/- as exemplary costs, payable to the common pool fund of the Official Liquidator. In addition, further costs of ₹ 11,000/- be paid to the Registrar of Companies. Costs be paid within three weeks from today. The restoration of the petitioner's name to the Register will also be subject to the completion of all formalities, including payment of any late fee or any other charges which are leviable by the respondent for the late deposit of statutory documents.
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2010 (4) TMI 1167
The High Court of Gujarat allowed the petitioner to withdraw the petition due to mistakes and granted permission to file it again with correct information and annexures. The petition was dismissed as withdrawn with liberty to refile. (2010 (4) TMI 1167 - GUJARAT HIGH COURT)
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2010 (4) TMI 1166
Issues involved: Appeal against order of Ld. CIT(A) for asstt. year 2003-04; Descriptive and argumentative grounds of appeal not in consonance to Rule 8 of ITAT Rules; Delay in appointment of auditor by the office of the CAG leading to filing return on estimate basis; Similar issue previously dealt with by Tribunal in asstt. year 2001-02 and 2002-03.
Summary:
The appellant, wholly owned by the Govt. of Uttrakhand, appealed against the Ld. CIT(A) order for the asstt. year 2003-04. The grounds of appeal were found to be descriptive and argumentative, not complying with Rule 8 of ITAT Rules. The appellant's return was filed on an estimate basis due to delay in the appointment of the auditor by the office of the CAG. The Tribunal had previously set aside similar issues for fresh adjudication in the asstt. years 2001-02 and 2002-03.
In the assessment year 2002-03, the appellant was engaged in multiple business activities, and additions were made by the AO under each activity. The Tribunal's finding in the previous year noted the challenges faced by the appellant in filing returns on an estimate basis due to delayed audit appointments. The Tribunal directed the AO to reexamine the issue upon receipt of audited accounts, allowing the appeal of the assessee for statistical purposes.
Based on the previous year's decision, the Tribunal allowed the appeal of the assessee for statistical purposes in the current case as well. All issues were set aside to the file of the AO for readjudication, with the appellant given the opportunity to provide evidence in support of its explanation. The order was pronounced on 15.4.2010.
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2010 (4) TMI 1165
Validity of notice issued u/s 143(2) beyond the prescribed period - unaccounted income for the block period 1988-89 to 1998-99 - Block assessment u/s 158BC - AO passed an order of assessment - CIT, set aside the assessment order and remanded the matter back to AO - Subsequent to the remand, AO held the same to be suppressed income and completed and assessment for the block period.
HELD THAT:- It is not in dispute that in the instant case, notice was issued u/s.143(2) pursuant to a search conducted on 6.7.1998 in the premises of the respondent-assessee and it was with regard to the block period of 1988-89 to 1998-99 and the said notice though originally issued u/s 158 BC and the assessment order was completed and the same became a subject of remand. We find that subsequently the notice issued on 9.8.2002 is beyond the prescribed period of limitation.
Keeping in mind the proviso to section 143(2) as it then stood, where the limitation period was one year, since the date of filing of the return in the instant case is 4.5.1999 keeping in mind the ration of the decision of the Apex Court in the case of HOTEL BLUE MOON [2010 (2) TMI 1 - SUPREME COURT], wherein it has been stated that if the AO for any reason repudiates the return filed by the assessee in response to a notice u/s 158BC (a) then he must necessarily issue a notice u/s 143(2) within the time prescribed in the proviso to Sec. 143(2). If there is a omission of the part of the Assessing Authority to issue notice u/s 143(2), then it is not a more procedural irregularity and the same is not curable.
Therefore, the notice issued u/s 143(2) was beyond the period of limitation as stated in proviso (2) to the said section and hence the proceedings initiated pursuant to the notice are vitiated. We have to dismiss the appeal.
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2010 (4) TMI 1164
The High Court of Calcutta admitted an appeal regarding the application of Section 50C to depreciable assets under Section 50 of the Income Tax Act, 1961. The stay application was disposed of, and the appellant was directed to file the paper book within three months. Notice of the appeal was to be issued to the respondent, and a certified copy of the order would be provided upon request.
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2010 (4) TMI 1163
Issues involved: Barred by limitation, Jurisdiction of Settlement Commission, Admissibility of appeals before ITAT
Barred by limitation:
The appeals filed by the assessee were found to be barred by limitation, with a significant delay of 2241 days in filing the appeals after the impugned Orders of the Commissioner (Appeals) were communicated. Despite an affidavit explaining the reasons for the delay, the Tribunal held that the delay was not supported by sufficient cause, leading to the dismissal of the appeals on the ground of being time-barred.
Jurisdiction of Settlement Commission:
The Tribunal noted that when applications filed by the assessee are admitted by the Settlement Commission, exclusive jurisdiction vests with the Settlement Commission. In such cases, appeals filed before the Commissioner of Income Tax (Appeals) automatically become infructuous. It was emphasized that under exceptional circumstances, if no orders are passed by the Settlement Commission, appeals or proceedings pending before the Income Tax authorities may get revived, requiring the assessee to approach the Commissioner of Income Tax (Appeals) for appropriate remedy. The Tribunal clarified that in such peculiar circumstances, appeals cannot be directly filed before the Income Tax Appellate Tribunal, and the assessee must seek recourse through the CIT(A).
Admissibility of appeals before ITAT:
In light of the above considerations regarding the jurisdiction of the Settlement Commission and the specific circumstances of the case, the Tribunal dismissed the appeals as un-admitted. The dismissal was based on the dual grounds of being barred by limitation and lacking merit, as the Orders passed by the CIT(A) were deemed to be in accordance with the law. Therefore, the assessee was directed to approach the CIT(A) for any further remedy instead of filing appeals before the Income Tax Appellate Tribunal.
Separate Judgement:
No separate judgment was delivered by the judges in this case.
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