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Showing 61 to 80 of 650 Records
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2007 (5) TMI 638
Imposition of fiscal penalty for non fulfillment of export obligation under the licence as well as for mis-utilization of the goods - Held that: - there was infractions of the conditions imposed under the licence - However, quantum of penalty reduced.
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2007 (5) TMI 637
Issues involved: Appeal challenging order u/s 260A of Income-tax Act, 1961 for block period 1986-87 to 15-9-1995.
Summary:
1. The appellant challenged the Income-tax Appellate Tribunal's order regarding undisclosed income and interest amount additions during block assessment.
2. The Tribunal deleted the additions made by the Assessing Officer, prompting the revenue to file the present appeal.
3. The revenue contended that the assessee failed to provide complete details and confirmations, leading to defective information.
4. The Tribunal held that the undisclosed income additions were duly disclosed in the books of account, thus not qualifying as undisclosed income.
5. The definition of "undisclosed income" u/s 158B of the Act was discussed, emphasizing the requirement of evidence found as a result of search to establish undisclosed income.
6. No material was found to prove that the credits were not genuine or undisclosed, leading to the conclusion that no basis existed for the undisclosed income addition.
7. The Tribunal also deleted the interest amount addition, as it was made without basis or reference to material detected during the search.
8. The Tribunal's decision was upheld, dismissing the appeal as it did not involve any substantial question of law under section 260A of the Act.
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2007 (5) TMI 636
Issues involved:
The appeal concerns the interpretation of provisions of Section 260A of the Income Tax Act, 1961 challenging an order passed by the Income Tax Appellate Tribunal regarding the assessment year 2001-02. The key issues are whether profit estimation for contractors at 10% of gross receipts is justified when proper books of account are not produced, and whether deeming provisions of section 44 AD can be applied beyond the statutory limit of Rs. 40 lakhs.
Estimation of Income:
The assessee did not maintain books of account as per the Act and filed returns based on estimated proof, lacking evidence for expense deductions. The Assessing Officer estimated income due to lack of evidence, but the Tribunal found disallowing entire expenses unjustified. The assessment must be based on material, and payments received by the assessee for authenticated contracts formed a valid basis for income estimation.
Rate of Profit:
Dispute arose over whether the net rate of profit should be 12% or 10%. The Tribunal considered past assessments in the assessee's case where a net rate of profit of 10% was applied, which had attained finality. The net rate of profit of 10% on receipts was deemed reasonable, as no special circumstances were highlighted for a higher rate. Deductions for salary and interest to partners were allowed within limits provided by the Act, but depreciation deduction was declined.
Judgment:
After considering the arguments, the Court found the Tribunal's discretion to be based on relevant considerations and free from legal infirmity. No substantial question of law arose for determination, leading to the dismissal of the appeal as wholly misconceived.
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2007 (5) TMI 635
Issues involved: Interpretation of Notification No. 12/2003-ST for abatement of cost of components/parts under Annual Maintenance Contract (AMC) for elevators.
Summary:
1. The appellants sought benefit under Notification No. 12/2003-ST for abatement of cost of components/parts under AMC from July to December, 2003. The learned Commissioner denied the benefit as there was no sale of components/parts invoiced separately to customers. The appellants argued that Sales Tax was paid on replaced components/parts, supported by relevant documents. The Tribunal's decision in Adlabs v. Commissioner of Central Excise was also cited for deduction of material value in a similar context.
2. The differential Service Tax demanded by the revisional authority was Rs. 1,48,213 on components/parts supplied under AMCs. The AMC did not specify the cost of replacements, indicating free replacements for unspecified components/parts. However, the components/parts supplied were Sales-tax paid as per invoices and assessment orders, raising the principle that Service Tax should not be levied on goods with paid Sales Tax.
3. The issue was deemed arguable, leading to the grant of waiver of pre-deposit and stay of recovery for the small amount of Service Tax demanded by the Commissioner.
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2007 (5) TMI 634
Issues involved: Determination of service tax liability u/s "Security Agency" for "Property Management Services" provided by the appellant.
Summary:
The appellant was required to pre-deposit service tax amount along with penalties for providing "Property Management Services." The Department initiated proceedings for recovery of service tax u/s "Security Agency" from a certain period. The appellant contended that they were registered u/s "Real Estate Agencies" and the service cannot be bifurcated. The appellant referred to a Ministry of Finance letter clarifying that a composite service should be treated as a single service based on the main service. The appellant argued that the show cause notice issued in retrospective effect was not sustainable. The appellant relied on various judgments to support their case.
The learned JDR reiterated the findings of the Commissioner in the impugned order. The Commissioner referred to the major service provided by the appellant as "Management of Immovable Properties." The Revenue initiated proceedings for recovery of service tax u/s "Security Agency," which is a part of the services under "Property Management Services." The Commissioner stated that such bifurcation cannot be done as per the Board's Circular. The stay application was allowed by granting waiver of pre-deposit, and the recovery was stayed till the disposal of the appeal.
In conclusion, the Tribunal found that the appellant had a strong case on merit regarding the determination of service tax liability for "Property Management Services" and granted a waiver of pre-deposit, staying the recovery till the appeal's disposal.
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2007 (5) TMI 633
Issues Involved:
1. Whether the right to manage a temple and/or shebaitship can be a subject-matter of testamentary succession.
2. Validity of the will executed by Lakshmanan Chettiar dated 24.05.1962.
3. Whether the right to hold the office of a pujari and a trust is a personal right that ends with the death of the holder.
Summary:
Issue 1: Testamentary Succession of Shebaitship
The Supreme Court addressed whether the right to manage a temple and/or shebaitship can be a subject-matter of testamentary succession. The Court noted that the trust in question is a private trust, and the terms and conditions of the management of the temple would be subject to the desire of the founder of the trust. The Court held that shebaitship, which includes both elements of office and property, can be subject to testamentary succession. The Court cited Angurbala Mullick v. Debabrata Mullick [1951 SCR 1125], which established that shebaitship is a proprietary right that can be inherited and is subject to the general law of succession.
Issue 2: Validity of the Will
The Court examined the validity of the will executed by Lakshmanan Chettiar on 24.05.1962. It was argued that the will must be held invalid as the right to manage a property and pujariship is a personal right and not transferable within the meaning of Section 6(d) of the Transfer of Property Act. However, the Court held that a will is not a transfer but a mode of devolution. The Court affirmed the findings of the Division Bench of the High Court that the will is valid in law, citing that a testator by his will may make any disposition of his property subject to the condition that it should not be inconsistent with the laws or contrary to the policy of the State.
Issue 3: Personal Right and Devolution
The appellants contended that the right to hold the office of a pujari and a trust being a personal right would come to an end with the death of the holder of the office, whereupon it would devolve upon his heirs and legal representatives. The Court referred to Kakinada Annadana Samajam v. The Commissioner of Hindu Religious and Charitable Endowments, Hyderabad & Others [(1971) 2 SCJ 527], which held that trusteeship and pujariship are properties but not properties within the meaning of Article 19(1)(f) of the Constitution of India. The Court concluded that the right to manage the temple and its properties can be inherited and is not merely a personal right that ends with the death of the holder.
Conclusion:
The Supreme Court dismissed the appeal, affirming the findings of the Division Bench of the High Court that the will executed by Lakshmanan Chettiar is valid and that the right to manage the temple and its properties can be subject to testamentary succession. The Court directed the learned Trial Judge to pass appropriate orders regarding the management and possession of the temple properties. The appeal was dismissed with costs payable by the appellant in favor of Respondent No.1, with counsel's fee assessed at Rs. 50,000/-.
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2007 (5) TMI 632
Issues Involved:
1. Planning permission for construction of a hotel.
2. Quashing of specific annexures.
3. Applicability and interpretation of the Himachal Pradesh Town and Country Planning Act, 1977.
4. Applicability and interpretation of the Himachal Pradesh Municipal Corporation Act, 1994.
5. Whether the temporary freeze on construction activities applied to already approved building plans.
6. Whether the respondents acquired a vested right to construct based on the previously approved building plan.
7. The role and jurisdiction of the Municipal Corporation in granting building permissions.
8. The effect of subsequent notifications and amendments on the respondents' building plans.
9. The concept of deemed sanction under Section 247 of the 1994 Act.
10. The balance between public interest and private rights.
Detailed Analysis:
1. Planning Permission for Construction of a Hotel:
The respondents applied for planning permission to construct a hotel on the Mall Road in Shimla. The application was initially approved by the Government of Himachal Pradesh on 16.01.1998, subject to obtaining further building permission from the local authority.
2. Quashing of Specific Annexures:
The respondents sought to quash certain annexures (PD, PE, PF & PH) dated 24.3.1998, 1.9.1999, 6.6.2000, and 8.2.2002 respectively, which were related to the planning permissions and subsequent rejections.
3. Applicability and Interpretation of the Himachal Pradesh Town and Country Planning Act, 1977:
The 1977 Act provides for planning and development of land, including the preparation of development plans. The Act defines 'development' and 'planning area' and mandates the State Government to publish interim development plans in the official gazette. The Act also vests the overall control of development in the Director once notified in the official gazette.
4. Applicability and Interpretation of the Himachal Pradesh Municipal Corporation Act, 1994:
The 1994 Act requires individuals intending to erect buildings to apply for sanction from the Commissioner. Sections 243 to 247 outline the process for obtaining building permissions, including the grounds for refusal and the concept of deemed sanction if no decision is communicated within sixty days.
5. Temporary Freeze on Construction Activities:
A temporary freeze on construction activities in certain areas of Shimla was imposed by the Government on 17.04.2000. This freeze was communicated to the respondents, and their application for building plans was rejected on 06.06.2000, citing the freeze among other reasons.
6. Vested Right to Construct:
The High Court held that the respondents had a vested right to construct based on the previously approved building plan, as the plan had been sanctioned before the freeze. However, the Supreme Court disagreed, stating that the right to construct is subject to compliance with all applicable laws and regulations, including subsequent amendments.
7. Role and Jurisdiction of the Municipal Corporation:
The Municipal Corporation's role is to grant building permissions in accordance with the 1994 Act and building bye-laws. The Corporation must ensure that building plans comply with all relevant laws, including the 1977 Act. The Supreme Court emphasized that the Corporation could not grant permission in violation of the freeze or subsequent notifications.
8. Effect of Subsequent Notifications and Amendments:
Subsequent notifications and amendments, including those defining 'core area' and 'heritage zone,' imposed additional restrictions on construction activities. The Supreme Court held that these amendments were binding and that the respondents could not claim a vested right to construct in violation of these regulations.
9. Deemed Sanction under Section 247 of the 1994 Act:
Section 247 provides for deemed sanction if no decision is communicated within sixty days. However, the Supreme Court clarified that this provision does not apply if the application is attended to and defects are pointed out. The respondents' application had defects that were not fully remedied, and the freeze order further prevented the grant of permission.
10. Balance between Public Interest and Private Rights:
The Supreme Court emphasized that public interest, including the protection of heritage zones and ecological considerations, must override private interests. The regulations and freeze orders were enacted in public interest and were binding on the respondents.
Conclusion:
The Supreme Court set aside the High Court's judgment, holding that the respondents did not have a vested right to construct based on the previously approved building plan. The appeal was allowed, and the respondents' application for building permission was subject to compliance with all applicable laws, including subsequent amendments and notifications.
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2007 (5) TMI 631
Issues involved:
The issues involved in this case are the demand of Service Tax on "Port Services" and "Business Auxiliary Service" u/s 73(1) of the Finance Act, 1994, for the period 16-7-2001 to 30-9-2005, and the plea of double taxation raised by the appellants regarding the services rendered as sub-contractors of various agencies.
Port Services Tax Demand:
The impugned order demanded Service Tax on "Port Services" directly rendered by the appellants, amounting to over Rs. 9 lakhs. The Tribunal found no grounds for waiver of pre-deposit and stay of recovery for this demand, citing a previous case precedent.
Sub-contractor Services Tax Demand:
Regarding the demand of Service Tax on services rendered by the appellants as sub-contractors of 9 agencies, the appellants argued against double taxation. They referred to departmental clarifications and a Tribunal decision to support their claim that the main service providers should be liable for the Service Tax. The Tribunal directed both parties to produce show-cause notices issued to the 9 stevedore agents within 2 months to verify the plea of double taxation.
Conclusion:
The Tribunal did not grant waiver of pre-deposit and stay of recovery for the demand of Service Tax on "Port Services" directly rendered by the appellants. However, they directed both parties to provide necessary documents to ascertain the plea of double taxation raised by the appellants regarding the services rendered as sub-contractors. The appeal was scheduled for final disposal on 23-7-2007, with a waiver of pre-deposit and stay of recovery until then.
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2007 (5) TMI 630
Appeal against a judgment and decree passed by a Division Bench of the High Court - Entitlement to the share - Partition claiming 2/3rd share in the property - business of joint venture - suit barred by limitation - HELD THAT:- There is no document in writing to prove partnership. Accounts had not been demanded by the plaintiffs or the defendant no. 3 for a long time. Even an oral partnership had not been proved. What was the subject-matter of the partnership had also not been considered by the High Court. A share in a joint venture, in absence of any document in writing, must be determined having regard to the conduct of the parties. The High Court proceeded on the basis that the plaintiffs and defendant No.1 had = share in the property in terms of Section 45 of the Transfer of Property Act. If the said immovable property formed assets of the joint venture, the same would be an india to determine the shares held by the parties thereto. Ordinarily, the extent of an involvement made shall be the criteria for determining the share of the co-entrepreneurs. In absence of terms and conditions of the joint venture having not been reduced to writing, conduct of the parties how they dealt with affairs of the business would be relevant.
If the contents of Ex. B-8 were accepted, it was not for the High Court to consider the consequences flowing therefrom, and, thus, but the fact whether the figure(s) contained therein could be verified from the books of account might not be very relevant. Whether, it would be in consonance with the pleadings of Appellants was again of not much significance if it can be used for demolishing the case of Plaintiffs and Defendant No.1 If the figures contained in Ex. B-8 were accepted, it was for Defendant No. 1 to explain the same and not for Appellants. The High Court, in our opinion, thus, committed a manifest error in not taking into consideration the contents of Ex. B-8 in its proper perspective.
It was for the High Court to frame appropriate points for its determination in the light of the submissions made on behalf of Appellants in terms of Order 41 Rule 31 of the Code of Civil Procedure. The High Court failed to address itself on the said issue. Thus, apart from Issues Nos. 2 and 4, other points which for its consideration including the extent of the share of Plaintiffs and Defendant No. 1 were required to be specifically gone into particularly in view of the fact that such a contention had been considered by the learned Trial Judge. Issue Nos. 2 and 4, in our opinion, therefore, require fresh consideration at the hands of the High Court.
Hence, it may also be necessary for the High Court to consider the applicability of the relevant articles of the Limitation Act. We, therefore, are of the opinion that the impugned judgment to the extent aforementioned cannot be sustained. It is set aside accordingly in part and the matter is remitted to the High Court for consideration of the matter afresh on the said issues, interalia, in the light of the observations made here in before. The High Court shall also formulate appropriate points for its consideration in terms of Order 41 Rule 31 of the Code of Civil Procedure and proceed to hear the appeal on merits on the relevant issues apart from Issue Nos.2 and 4.
This appeal is allowed.
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2007 (5) TMI 629
CENVAT credit - demand of 10% of the value of 314160.229 MTs of exempted goods - non-maintenance of separate records for dutiable and exempt goods - Held that: - Even though the appellants have not maintained separate accounts, they have reversed the credit taken and attributable to the goods cleared free of duty before the removal of the goods from the factory - the condition of non- availment of input credit in respect of Notification 30/2004 is satisfied - appeal allowed - decided in favor of appellant.
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2007 (5) TMI 628
Re-assessment order - grievance of the petitioner is that under sub-section (2) of Section 21 of the Act, the limitation for passing an order of re-assessment has been provided, which is not after the expiration of six years from the end of such year or March 31, 2002, whichever is later, which period having expired long back, the Additional Commissioner could not have authorised the Assessing Authority for making of re-assessment in respect of the assessment years in question
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2007 (5) TMI 627
Qualifications of the Veterinary practitioners - Constitutionality and/ or applicability of the provisions of Section 30 of the Indian Veterinary Council Act, 1984 ("the Central Act") - declaration that the non-graduate Veterinary Practitioners who are registered under the Maharashtra Veterinary Practitioners Act, 1971 ("the State Veterinary Act") are eligible to practice Veterinary medicine in the same manner and on such conditions as they were prior to coming into force of the Central Veterinary Act in the State of Maharashtra - HELD THAT:- The State of Maharashtra issued a notification dated 26th August, 1997 in terms of Section 30 of the Central Act specifying minor veterinary services to be rendered by the Veterinary Science Certificate or Diploma holders in the Government Service or in Semi-Government organizations.
Such qualifications had been laid down by the State Act. If by reason of the Central Act, a higher qualification has been laid down, the same, in our opinion, would prima facie be presumed to have been enacted in the interest of the general public.
We have noticed, that it has been conceded before us and, in our opinion, rightly so, that the provisions contained in Section 30 of the Central Act constitute a reasonable restriction within the meaning of the first part of Article 19(6) of the Constitution of India and the fundamental rights under Article 19(1)(g) thereof.
Veterinary services in terms of the Central Act is in two parts (1) veterinary services and (2) minor veterinary services. What would be the minor veterinary services has been laid down by reason of a notification issued by the respective State Governments in exercise of their power under clause (b) of Section 30 of the Central Act. Once such a notification has been issued, indisputably, those who are not otherwise entitled to resort to veterinary practices within the meaning of the Central Act can be asked to perform the jobs of minor veterinary services.
A distinction exists between a repeal simpliciter and a repeal by an Act which is substituted by another Act.
We are not beset with such a situation in the instant case. The right of the petitioners to practise in the field of veterinary practice has expressly been taken away. When such a right has been taken away upon laying down an essential qualification therefor which the petitioners admittedly do not possess, the right of the petitioners to continue to practice despite the fact that they do not fulfill the criteria laid down under the Parliamentary Act or the Central Act would not survive.
The expression "unless a different intention appears" contained in Section 6 of the General Clauses Act, thus, in this case, would be clearly attracted. A right whether inchoate or accrued or acquired right can be held to be protected provided the right survives. If the right itself does not survive and either expressly or by necessary implication it stands abrogated, the question of applicability of Section 6 of the General Clauses Act would not arise at all. [See Bansidhar and Others v. State of Rajasthan [1989 (3) TMI 379 - SUPREME COURT] and Thyssen Stahlunion Gmbh v. Steel Authority of India Ltd.[1999 (10) TMI 636 - SUPREME COURT]]
We are of the opinion that those who are in service of the State or the semi-government or local self government organizations must be held to have a right to continue in service. The employees of the State enjoy a status. A person who enjoys a status can be deprived therefrom only in accordance with law having regard to the nature of right conferred on him under Article 311 of the Constitution of India. The law in this behalf, in our opinion, is clear. Their nature of duty may change but they would be otherwise entitled to continue in service.
The State of Maharashtra or for that matter even the other States have issued notification (s) in terms of clause (b) of Section 30 of the Central Act. Minor veterinary services, therefore, having been specified in terms of the said notification, those certificate holders who are in the services of the State or the other semi-government organizations are entitled to continue in service, subject of course to, carrying out their duties strictly in terms of the notification issued by the State under clause (b) of Section 30 of the Central Act. In the event, any State has not issued such a notification, they may do so.
Thus, the writ petition and the civil appeal are dismissed.
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2007 (5) TMI 626
Waiver of pre-deposit - credit on Towers and parts of Towers and pre-fabricated shelter for protecting Transmission devices - Held that: - While holding that a prima facie case for waiver has been made out in respect of the credit denial on Towers and parts thereof and pre-fabricated buildings, we accept the offer made of pre-deposit of ₹ 10 lakhs - Compliance is to be reported on 11.7.07.
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2007 (5) TMI 625
Issues involved:
The judgment deals with the interpretation of Section 45(5) of the Income Tax Act, 1961 and whether the amendment to this section affects the outcome of the appeals.
Interpretation of Section 45(5) of the Income Tax Act, 1961:
The counsel for the assessees argued that the question of law raised in the appeals is similar to a previous decision by the Court. The revenue's counsel contended that the amendment in Section 45(5) was not considered in the previous judgment. However, the Court noted that the Division Bench had already addressed the amendment in a previous case and ruled in favor of the assessee. The Court also referenced a judgment by the Karnataka High Court and a Supreme Court decision to support its conclusion. Ultimately, the Court found that the question raised in the appeals aligns with previous decisions and dismissed all the appeals accordingly.
Conclusion:
The Court dismissed all the income tax appeals based on the precedent set by a previous decision, emphasizing that the issues raised in the present appeals were already addressed in earlier judgments.
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2007 (5) TMI 624
Interpretation of the provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam (the Act) - Planning and development and use of land - notification in terms of sub-section (1) of Section 38 of the Act - (i) Whether having regard to notification dated 13.02.1974 vis-‘-vis the expansion of the Indore Development Plan, the District Committee in exercise of its delegated power can automatically extend the area of operation of the appellant despite the notification constituting it by the State whereby and whereunder its area of operation was limited to the one covered by the notification dated 13.02.1974 ? - (ii) Whether the appellant authority can declare its intention in terms of Section 50 of the Act before the development attained finality - HELD THAT:- The essence of planning in the Act is the existence of a development plan. It is a development plan, which u/s 17 will indicate the areas and zones, the users, the open spaces, the institutions and offices, the special purposes, etc. Town planning would be based on the contents of the development plan. It is only when the development plan is in existence, can a town planning scheme be framed. In fact, unless it is known as to what the contents of a possible town planning scheme would be, or alternatively, whether in terms of the development plan such a scheme at all is required, the intention to frame the scheme cannot be notified.
The limit of Indore planning area was specified by a notification dated 13.02.1974 in terms of Sub-section (1) of Section 13 of the Act. Appellant Authority was constituted by the State of Madhya Pradesh in exercise of its power u/s 38(1) of the Act for the area comprised within the Indore planning as specified in the notification dated 13.02.1974. The State in exercise of its jurisdiction under Sub-section (1) of Section 75 of the Act delegated its power conferred upon it under Sections 13 and 47A of the Act upon the District Planning Committee. No power u/s 38 was delegated. The District Planning Committee exercises its jurisdiction pursuant to the said delegation in terms of a notification dated 13.11.2000 extending the Indore Development Planning Area to 152 villages. The villages Bicholi and Kanadia were not included in the notification dated 12.08.1977. They were included only in the notification issued by the District Planning Committee.
The District Planning Committee, however, issued another notification amending the planning area to 90 villages only and deleting 62 villages from its earlier notification.
There cannot be any doubt whatsoever that even a delegatee exercises its power relying on or on the basis of its power conferred upon it by the delegator, its act would be deemed to be that of the principal as has been held by this Court in State of Orissa and Others v. Commissioner of Land Records and Settlement,Cuttack and Others[1998 (8) TMI 601 - SUPREME COURT].
Yet again, the State in exercise of its power u/s 38(1) of the Act notified planning area confirming to the one identified by the District Planning Committee in terms of its notification dated 28.10.2005.
Application of the principle of executive construction would lead to a conclusion that the State and the appellant themselves proceeded on the basis that in terms of the notification issued by the District Planning Committee, the area of operation of the appellant was not extended.
The State exercises its different power for different purposes. Issuing notification of a planning area, whether named or not, for the purpose of Section 13(1) is different from the one for which a development authority is created within the meaning of Section 38(1) of the Act. The State in a given situation may appoint more than one authority for the same planned area.
The State delegated its power upon the District Planning Authority u/s 38 of the Act. The appellant authority was created for a definite purpose. Its jurisdiction was limited to the area notified. When so creating, although 1974 notification was referred to, the same was only for the purpose of limiting the area of operation of the appellant authority. The principle of legislation by incorporation was applied and not the principle of legislation by reference.
The difference between the two principles is well-known. Whereas in the case of the former, a further notification amending the ambit or scope of the statute would be necessary, if the statute incorporated by reference is amended, in the latter it would not be necessary.
It is furthermore a well-settled principle of law that a delegatee must exercise its jurisdiction within the four-corners of its delegation. If it could not exercise its delegated power for the purpose of creation of the appellant authority or extended its jurisdiction, in our opinion, it cannot be done by amendment of a notification issued u/s 13(1) of the Act.
Admittedly, the villages in question had been included by the State in its notification issued on 28.10.2005. Prior thereto, the said villages having not been included within the area of operation of the appellant authority, any action taken either by way of its intention to frame a town planning scheme or otherwise shall be wholly illegal and without jurisdiction. It would render its act in relation to the said villages a nullity.
It is, therefore, difficult for us to accept the submission of Mr. Venugopal and Mr. Gambhir that the notification dated 13.11.2000 subsumes in the notification dated 12.08.1977.
Thus, we do not have any other option but to uphold the impugned judgment of the High Court.
We may, however, observe that several other contentions, as noticed hereinbefore, have been raised before us but we do not find any necessity to go thereinto.
Hence, there is no merit in these appeals which are dismissed accordingly. There shall, however, be no order as to costs.
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2007 (5) TMI 623
Issues Involved:
Appeal against Tribunal's order on value of goods for assessment under Customs Act, 1962.
Analysis:
The judgment concerns an appeal filed by the Revenue against an order passed by the Customs, Excise and Service Tax Appellate Tribunal. The dispute revolves around the value of goods, with the Revenue alleging misdeclaration through over-invoicing, leading to action under Sections 111(m) and 112 of the Customs Act, 1962. The Tribunal set aside the Commissioner of Customs' order and ruled in favor of the respondent, granting consequential relief.
The Revenue, dissatisfied with the Tribunal's decision, filed an appeal under Section 130 of the Customs Act, 1962. However, the High Court noted that Section 130(1) specifies that appeals can be made to the High Court from Tribunal orders, except in cases involving the value of goods for assessment purposes. As the value of goods was the central issue in this case, the High Court concluded that it lacked jurisdiction to entertain the Revenue's appeal.
Consequently, the High Court dismissed the appeal due to lack of jurisdiction. The judgment highlights the importance of understanding the statutory provisions governing appeals and the limitations on High Court jurisdiction in cases involving specific issues such as the value of goods for assessment under the Customs Act, 1962. The parties were directed to take appropriate legal steps as per the law, and all pending applications were disposed of as part of the judgment.
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2007 (5) TMI 622
Excess valuation of stock - discrepancy between stock statements filed in Bank and stock shown in books of accounts - Whether the Tribunal was justified in upholding the order of the CIT(A) who deleted the additions? - HELD THAT:- There is no finding on the fundamental aspect of the matter if there was any discrepancy in the quantity of the stock as stated to the bank and as stated in books. The learned Assessing Officer has merely proceeded on the discrepancy in the two figures in valuation of the closing stock, debtors and advances as per the books of account at ₹ 20,13,748 and as declared to the bank at ₹ 23,37,248; and has directly proceeded to make addition of the difference amount of ₹ 3,23,500. Mere variation in the valuation of assets as declared to the bank and as stated in the books of account was not conclusive; and the amount of difference itself could not have been taken up for addition without further requisite inquiry about the true stock position and value of the assets.
The learned Assessing Officer preferred to rely merely upon the fact that for such discrepancy addition was made in the earlier year; and on that basis alone is founded the addition for the year in question. It has been noted by the appellate authorities that such addition made for the earlier assessment year 1981-82 has not been countenanced in appeal; and the Tribunal has pointed out that under the similar facts and circumstances, reference application moved by the revenue for the assessment year 1981-82 was rejected. Irrespective of that, we are clearly of opinion that for the year in question, i.e., assessment year 1982-83, the Assessing Officer could not have made additions merely with reference to the variation in two valuations without coming to a conclusion that there was actual variance in the quantity of stock; and without finding as to when such discrepancy, if at all, occurred. The appellate authorities cannot be said to have erred in deleting such addition made without requisite inquiry and without essential finding about actual variation in the stock.
We are satisfied with the correctness of the order passed by the Tribunal and find no ground to call for a reference in the present case.
Accordingly, this reference application is rejected.
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2007 (5) TMI 621
The Supreme Court dismissed the appeal in the case with citation 2007 (5) TMI 621. Judges were S.H. Kapadia and B. Sudershan Reddy.
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2007 (5) TMI 620
Stay application - brokerage charges - includibility - Held that: - in similar matter, the stay order has been passed including waiver of pre-deposit of the amount in the case of CHANDRAVADAN DESAI Versus COMMISSIONER OF C. EX., CALCUTTA-I [1997 (9) TMI 1 - CEGAT (CALCUTTA)]. Following ratio of the said order, the stay application is allowed - decided in favor of applicant.
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2007 (5) TMI 619
Validity Of directions issued by the High Court - To Fix salaries and allowances of the members of the State Commissions as well as the District Consumer - Principle of sub silentio - Violation of statutory provisions in Sections 10(3) and 16(2) of the Consumer Protection Act - encroachment of powers into the legislative and executive domain - HELD THAT:- If this Court itself fixes such salaries and allowances, it will be really amending the law, and it is well settled that the Court cannot amend the law vide Union of India Vs. Association for Democratic Reforms & Anr.[2002 (5) TMI 820 - SUPREME COURT] and Supreme Court Employees Welfare Association Vs. Union of India & Ors. [1989 (7) TMI 333 - SUPREME COURT].
If we issue the direction as prayed for by learned Additional Solicitor General in this case, we would be issuing a direction which would be wholly illegal being contrary to Section 10(3) and Section 16(2) of the Consumer Protection Act. This Court is subordinate to the law and not above the law.
We regret to say that the directions of the High Court (which have been quoted in this judgment) are really an encroachment into the legislative and executive domain. Whether there should be one State Consumer Forum or five or more State Consumer Fora is entirely for the legislature and executive to decide. The High Court has directed that the State Government should constitute at least five State Consumer Forums at the State level by making necessary amendments in the Act. In our opinion such a direction was clearly illegal. The Court (including this Court) cannot direct amendment of an Act made by the legislature.
The establishment of the District, State and National level Consumer Fora is done u/s 9 of the Consumer Protection Act by the authorities mentioned in that Act. The composition of these Fora is also prescribed in that section, and so are the salaries and allowances and other conditions of service of the members. It is only the authorities mentioned in the Act who can do the needful in this connection, and this Court cannot arrogate to itself the powers given by the Act to the said authorities.
For instance, the salaries and allowances of member of the State and District Fora can only be prescribed by the State Government. We have been informed that in some States these salaries and allowances are very low. Be that as it may, this Court cannot arrogate to itself the powers and functions of State Government in this connection. Different State Governments have different constraints and considerations e.g. financial constraints, the number of cases, etc. and it is entirely for the State Governments to exercise the powers prescribed to them by the Act.
Similarly it is entirely for the Central Government to perform the functions given to it by the Act, and this Court cannot interfere with the Central or State Government in the exercise of their functions. At best this Court or the High Court can make recommendations for increase of salaries, allowances and betterment of working conditions, etc. but there its jurisdiction ends. It cannot give binding directions in this connection.
We regret to say that even the interim order of this Court dated 26.11.2000 by which it directed the Union of India to file a comprehensive scheme with regard to the structuring of the Consumer Forums at all the three levels does not seem to be within its jurisdiction as it is contrary to the clear provisions of the Consumer Protection Act.
It has been nowhere provided in the Consumer Protection Act that the Central Government has a duty, or power, to prepare a comprehensive scheme with regard to the structure of Consumer Fora at all the three levels.
No doubt the High Court, as well as this Court, are concerned that the Consumer Fora in many parts of the country are not functioning properly, but the Court could at most have given some recommendations to the Central and State Government in this connection, and it is entirely upto the Central and State Governments whether to accept those recommendations or not, at their discretion. This Court cannot amend the Consumer Protection Act by issuing directions contrary to the clear provisions of the Act nor can the High Court do so.
However, the Central and State Governments are requested to consider fixing adequate salaries and allowances for members of the Consumers Fora at all three levels, so that they can function effectively and with a free mind. They are also requested to fill up vacancies expeditiously so that the Fora can function effectively.
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