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• 2010 (8) TMI 1130
  
  The Supreme Court of India in 2010 (8) TMI 1130 - SC Order, with Justices Mr. D. K. Jain and Mr. H. L. Dattu, condoned delay and admitted the appeal. The legal representatives for both the Appellant and Respondent were listed.

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• 2010 (8) TMI 1129
  
  Issues involved:
  The judgment deals with the submission of a rehabilitation package by the promoters in winding up proceedings initiated based on the recommendation of the Board for Industrial and Financial Reconstruction (BIFR) under the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA).
  
  Summary:
  The judgment addresses the legality of submitting a rehabilitation package in winding up proceedings initiated based on the BIFR's recommendation under SICA. The BIFR recommended winding up of the sick company as rehabilitation was not feasible, a decision not challenged in appeal or writ jurisdiction. The promoters' submission of a revival package was deemed a backdoor method of acquiring the company. The Court held that continuous submission of rehabilitation schemes would stall proceedings to the detriment of creditors and workers. Refusing to sanction the alleged scheme, the Court directed winding up to continue. The Supreme Court's decision in Meghal Homes (P) Ltd. v. Shree Niwas Girni K.K. Samiti was cited, emphasizing the need to prevent disposal of assets through private arrangements. Another Supreme Court decision in Vijay Kumar Karwa v. Official Liquidator highlighted the importance of not admitting frivolous appeals to avoid delaying winding up proceedings. The judgment concluded that the Company Judge was correct in refusing to consider the rehabilitation scheme due to the finality of BIFR's recommendation and the legislative mandate under SICA. Consequently, the Company Petition was dismissed.

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• 2010 (8) TMI 1128
  
  Issues involved: Challenge to the tenability of the order dated 25th January, 2010 u/s WP(C) No. 7992/2008 directing de-freezing of the petitioner's account; Finalization of adjudication proceedings; Setting aside the order passed by the learned Single Judge.
  
  The High Court of Delhi heard an intra-Court appeal challenging the order dated 25th January, 2010 u/s WP(C) No. 7992/2008, directing the de-freezing of the petitioner's account. The Court directed that if the respondent furnished a bank guarantee for the amount in question, the accounts could be de-frozen.
  
  The respondent expressed inability to furnish a bank guarantee, leading to a stalemate. The appellant argued that the blanket order to de-freeze the account was unjust as there was no limitation on the adjudication proceeding. Reference was made to a Supreme Court order directing a bank guarantee in a similar case.
  
  Considering the circumstances, the Court emphasized the need to finalize the adjudication proceedings promptly. It was noted that a show cause notice had been issued to the respondent, who had begun supplying documents. The appellant agreed to provide the remaining documents within two weeks, after which the respondent would have six weeks to file a show cause.
  
  The Court set aside the order of the learned Single Judge, clarifying that this action did not imply any opinion on the case's merits or the release of seized cash. The appeal was disposed of without any costs being awarded.

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• 2010 (8) TMI 1127
  
  Issues Involved:
  1. Legality of the process issued by the trial court.
  2. Validity of evidence recorded by a predecessor magistrate.
  3. Compliance with procedural requirements u/s 200 and 313 of the Criminal Procedure Code.
  4. Timeliness of the complaint under Section 138 of the Negotiable Instruments Act.
  5. Necessity of referring the cheque to a handwriting expert.
  6. Requirement of hearing the accused before sentencing.
  7. Applicability of probation benefits.
  
  Summary:
  
  1. Legality of the Process Issued by the Trial Court:
  The accused argued that the trial court issued process solely based on verification below the complaint, violating Section 200 of the Criminal Procedure Code. The court found that the Magistrate could take cognizance initially u/s 190 of the Criminal Procedure Code and that the subsequent recording of verbatim evidence of the complainant and witnesses complied with the requirements.
  
  2. Validity of Evidence Recorded by a Predecessor Magistrate:
  The accused contended that the provisions of Section 326 could not be availed in summary trials, and thus, the oral evidence recorded by the earlier Magistrate should be discarded. The appellate court held that the accused had no objection to proceeding with the matter based on the evidence already recorded, as per a purshis filed before the trial court. The court found no failure of justice due to this procedural aspect.
  
  3. Compliance with Procedural Requirements u/s 200 and 313 of the Criminal Procedure Code:
  The accused argued that material particulars were not put before them u/s 313 of the Criminal Procedure Code. The court noted that the material details of the evidence were put before the accused in the form of separate questions, and the statement u/s 313 was recorded by the Magistrate. The court found that the accused had waived their right to further cross-examine witnesses and to lead any evidence in defense.
  
  4. Timeliness of the Complaint under Section 138 of the Negotiable Instruments Act:
  The accused raised the plea of limitation, arguing that the complaint was time-barred. The court held that the notice was returned as "unclaimed" on 05.11.1998, and the complaint filed on 15.12.1998 was within the permissible period. The court relied on the endorsement of "unclaimed" to determine the timeliness of the complaint.
  
  5. Necessity of Referring the Cheque to a Handwriting Expert:
  The accused contended that the cheque should have been referred to a handwriting expert. The court found that the accused had admitted his signature on the cheque in his further statement, making the opinion of a handwriting expert unnecessary.
  
  6. Requirement of Hearing the Accused Before Sentencing:
  The accused argued that they were not heard before the order of sentence was passed. The court noted that the accused or their pleader had remained absent on the date fixed for sentencing, and as per Section 255 (2) of the Criminal Procedure Code, it was not necessary for the Magistrate to hear the accused before passing the order of sentence.
  
  7. Applicability of Probation Benefits:
  The accused claimed that the Magistrate had not recorded reasons for not granting probation, violating Section 361 of the Criminal Procedure Code. The court observed that the accused had created numerous hurdles and failed to produce any mitigating circumstances for granting probation, even at the time of the appeal hearing.
  
  Conclusion:
  The court upheld the conviction of the accused u/s 138 of the Negotiable Instruments Act but found the sentence to be inadequate. The matter was remanded to the Magistrate for expeditiously making an appropriate order regarding sentence and compensation, within three months, after giving the parties a reasonable opportunity to be heard. The impugned final order of sentence was set aside, and the rule was made absolute with no order as to costs.

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• 2010 (8) TMI 1126
  
  Issues involved: Appeal against penalty imposed u/s 271(1)(b) of the IT Act for AY 2005-06.
  
  Summary:
  The Appellate Tribunal ITAT Delhi heard an appeal filed by the assessee against the penalty imposed u/s 271(1)(b) of the IT Act for AY 2005-06. The penalty was imposed for seven non-compliances during the assessment proceedings. The CIT(A) deleted the penalty for five non-compliances as no show cause notice was issued for notice u/s 143(2), and also noted that penalty exceeding &8377; 20,000/- required prior approval of JCIT. The penalty of &8377; 70,000/- was reduced to &8377; 20,000/- by the CIT(A). The assessee further appealed against this reduction. The Revenue did not appeal against the deletion of penalty amounting to &8377; 50,000/-.
  
  Upon review, the Tribunal found that various notices were issued by the AO within short intervals. The AO issued a notice u/s 143(2) on 28.2.2007, served on 1.3.2007 for a date on 5.3.2007, but the partner assumed it was inadvertently issued and did not appear. Similar situations occurred with other notices. The assessment was finally completed u/s 143(3) on 17.12.2007. Referring to a previous case, the Tribunal noted that where assessment was done u/s 143(2) and not u/s 144, subsequent compliance was considered good compliance, and earlier defaults were ignored. As the assessment in this case was completed u/s 143(3), the Tribunal held that it was not a fit case for penalty u/s 271(1)(b).
  
  In conclusion, the appeal of the assessee was allowed, and the decision was pronounced on 31st August, 2010.

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• 2010 (8) TMI 1125
  
  Issues Involved:
  1. Disallowance of expenses.
  2. Valuation of closing stock.
  
  Summary:
  
  1. Disallowance of Expenses:
  The assessee appealed against the CIT(A)'s order sustaining the addition of Rs. 6,70,160/- out of total expenses of Rs. 9,35,031/- disallowed by the AO. The AO disallowed these expenses on the grounds that no business activity was carried out by the assessee during the year, thus the expenses were not for business purposes. The CIT(A) upheld the disallowance except for depreciation, which was allowed as the assessee had shown an income of Rs. 4,86,979/- from machine hire charges considered as business income. The Tribunal, after considering the facts and circumstances, held that the assessee's business was temporarily suspended due to adverse conditions but had not been abandoned. Citing precedents, the Tribunal concluded that the business was continuing and allowed the expenses as business deductions, directing the AO to modify the assessment order accordingly.
  
  2. Valuation of Closing Stock:
  The assessee revalued the opening stock from Rs. 1,83,81,266/- to Rs. 1,64,01,070/-, resulting in a reduction of Rs. 19,80,196/-. The AO disallowed this reduction due to lack of evidence or a valuer's report. The CIT(A) confirmed the AO's action. The Tribunal, however, noted that the assessee had consistently followed the method of valuing closing stock at cost or market value, whichever is lower, and that the reduced value was accepted as the opening stock in the subsequent year's assessment. The Tribunal found the assessee's valuation justified, given the perishable nature of the stock and the consistent accounting method, and deleted the addition made by the AO, directing the AO to modify the assessment order accordingly.
  
  Conclusion:
  The appeal filed by the assessee was allowed, and the Tribunal directed modifications to the assessment order in favor of the assessee.

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• 2010 (8) TMI 1124
  

  Money Laundering - proceeds of crime - Earning of unprecedented amount of illicit money - “sting operation” said to have conducted - showing money bargaining being done - misuse of official position - huge investments in foreign countries - transferring investigation from the Enforcement Directorate (ED) to the CBI - Ex. Ministers, including Ex. Chief Minister, are involved - HELD THAT:- In the present case where Ex. Ministers, including Ex. Chief Minister, are involved, investigation by the State Investigating Agency suffers from the same problem as in the case of Rubabbuddin Sheikh [2010 (1) TMI 1156 - SUPREME COURT]. We, therefore, feel that for a proper investigation inspiring public confidence, it is necessary to hand over the investigation to an independent agency like CBI.

  Investigation by CBI where such a huge amount is alleged to have been misappropriated and massive wealth have been accumulated, will lead to exact and accurate charge-sheet in the offences. Innocent persons should not need to worry about accurate investigation. Ultimately, such an investigation is nothing but a good help to the Court conducting the trial. If proper investigation is carried out by well-equipped and unbiased investigating officers it will lead to precise and speedy trial. The type of allegations and the persons alleged to be involved make it necessary in the larger public interest that investigation is done by the CBI. Investigation by CBI is not a punishment. Therefore, the hue and cry made by the private Respondents is uncalled for and unwarranted at this stage.

  An attempt has been made on the part of some of the Respondents to give their defence in the form of counter affidavits. Firstly, this defence might have been capable of being examined if the investigation as well as the evidence at the trial was complete. At this stage, it cannot be said with certainty what other material will be uncovered during investigation. It also cannot be said with certainty as to which of the accused will turn approver thereby corroborating the other material collected during investigation and, therefore, the defence cannot be examined at this stage. More importantly, what is being transferred is investigation into an offence and not in respect of a particular accused. It is possible that during investigation some of the Respondents may not be found guilty and it is equally possible that during investigation some people, who are not the Respondents before us, may also be found involved. Therefore, we decline to consider the defence at this stage.

  So far as the defence about exclusive right of investigation of the Enforcement Directorate is concerned, suffice it to say that it is neither possible nor desirable at this stage to give a positive finding about how much of the crime proceeds have been ‘projected as untainted’. Therefore there is an area of overlap, and the same cannot be allowed to form a tool in the hands of the accused to scuttle investigation.

  Considering the time which has already elapsed, the nature of allegations which have been made and the larger public interest involved, we would expect the CBI to expedite the investigation into this matter to the extent to which it is possible having regard to the resources of the CBI.

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• 2010 (8) TMI 1123
  
  Issues Involved:
  1. Whether the CESTAT has discretionary power under Section 129A(5) of the Customs Act, 1962 to condone the delay in filing the appeal under Section 129D(3) of the Customs Act, 1962.
  
  Issue-wise Detailed Analysis:
  
  1. Discretionary Power of CESTAT to Condon Delay:
  The primary issue revolves around whether the CESTAT has the discretionary power to condone the delay in filing appeals under Section 129D(3) of the Customs Act, 1962, as per the provisions of Section 129A(5).
  
  Factual Background:
  - The Respondent, a Custom House Agent (CHA), had its license suspended due to alleged involvement in smuggling activities and improper declaration of imported goods.
  - The CHA's suspension was later revoked by CESTAT, but an inquiry continued, leading to the Commissioner of Customs dropping proceedings against the CHA.
  - The Committee of Chief Commissioners reviewed this decision and directed an appeal to be filed, which was delayed by 10 days.
  - The CESTAT dismissed the appeal due to the delay, citing lack of power to condone it based on a precedent set by the larger Bench in CCEX Mumbai v. AZO Dye Chemical.
  
  Submissions:
  - For the Respondent:
  - Argued that the appeal is not maintainable since the impugned order follows the larger Bench's decision, which has not been challenged by the Revenue.
  - Cited the Supreme Court's stance in B.J. Akkara, Col.(Retd.) v. Government of India, emphasizing the need for the Government to explain why the first order was accepted without appeal.
  - For the Appellant (Revenue):
  - Contended that Section 129D(4) inherently includes the power to condone delay by referencing the provisions relating to appeals, including Section 129A(5).
  - Argued for a purposive interpretation of the statute to avoid discriminatory treatment and ensure justice.
  - Highlighted that the Legislature's intent was not to treat Section 129D(4) differently from other appeal provisions regarding condonation of delay.
  
  Judicial Pronouncements and Interpretation:
  - The Tribunal's decision in CCEX Mumbai v. AZO Dye Chemical was based on interpreting "such application" in Section 129D(4) to mean applications filed within three months.
  - The High Court examined the statutory provisions and principles of interpretation, emphasizing that the words "provisions of this Act regarding appeals" in Section 129D(4) should include the power to condone delay under Section 129A(5).
  - The Court noted that legal fictions, like "as if such application were an appeal," should be carried to their logical end to fulfill legislative intent.
  
  Ruling:
  - The High Court concluded that applications under Section 129D(4) should be treated similarly to appeals under Section 129A, including the power to condone delay.
  - The Court emphasized the need for a harmonious construction of related provisions to avoid irrational and discriminatory outcomes.
  - It was held that denying the power to condone delay in applications under Section 129D(4) while allowing it for cross objections arising from the same provision would be contradictory and violate Article 14 of the Constitution.
  
  Conclusion:
  - The High Court answered the question in the affirmative, in favor of the Revenue, and remanded the matter back to the Tribunal to consider the application for condonation of delay on its merits.
  - The Tribunal was directed to expedite the process and decide within three months from the receipt of the order.
  
  This comprehensive analysis maintains the legal terminology and significant phrases from the original text while ensuring thorough coverage of all relevant issues.

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• 2010 (8) TMI 1122
  
  Issues Involved:
  1. Quashing of complaints u/s 138 of the Negotiable Instruments Act.
  2. Vicarious liability of non-signatory directors.
  3. Validity of reasons for cheque dishonour.
  
  Summary:
  
  Issue 1: Quashing of complaints u/s 138 of the Negotiable Instruments Act

  All the petitions are filed by the original accused Nos.1, 2, and 3 seeking quashing of the respective complaints pending before the learned Metropolitan Magistrate, Ahmedabad. The cheques in question were signed by the original accused No.5, not by petitioner Nos.2 and 3. The cheques were returned with endorsements such as 'no image found' or 'drawee's signature incomplete/illegible'. The petitioners argued that these reasons do not constitute grounds u/s 138 of the Negotiable Instruments Act, citing the decision in Vinod Tanna v. Zaher Siddiqui and Mustafa Surka v. Jay Ambe Enterprise.

  Issue 2: Vicarious liability of non-signatory directors

  The petitioners contended that neither petitioner No.2 nor petitioner No.3 were signatories to the cheques and that respondent No.2 failed to demonstrate their involvement in the day-to-day functioning of the company. Therefore, the question of their vicarious liability does not arise. The respondent argued that the company, managed by petitioner No.2, cannot shift responsibility and that the cheques were issued for repayment of legal dues.

  Issue 3: Validity of reasons for cheque dishonour

  The court noted that a previous bench had quashed complaints against the original accused No.5, the signatory of the cheques, based on similar grounds. The court concluded that endorsements such as "drawers signature differs from the specimen supplied" and "no image found" do not attract the ingredients of Section 138 of the Act. The court referenced the decision in SMS Pharmaceuticals Ltd. v. Neeta Bhalla, which discussed the liability of directors for cheque dishonour.

  In conclusion, the court found that the complaints did not meet the conditions precedent mentioned in Section 138 of the Act. Therefore, all petitions were allowed, and the respective complaints of cheque bouncing pending before the learned Metropolitan Magistrate, Ahmedabad, were quashed qua the present petitioners.

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• 2010 (8) TMI 1121
  
  Issues involved:
  The judgment involves the interpretation of Section 138 of the Negotiable Instruments Act regarding the issuance of cheques against liabilities at the time of entering into a contract for the supply of goods.
  
  Issue 1: Interpretation of Section 138 of the Negotiable Instruments Act
  
  The petition challenged an order setting aside the summoning order under Section 138 of the Act, contending that the cheques issued at the time of entering into the contract were not against any existing debt or liability. The court analyzed the concept of liability and legal debt, emphasizing that a cheque can be issued against a liability even if no debt exists at the time of issuance. The court referred to previous judgments to support the view that cheques issued at the time of placing an order can be considered against a liability, especially when advance payment is a condition of the contract.
  
  Issue 2: Application of Legal Principles
  
  The court discussed the purpose of Section 138 of the Act, highlighting that the provision aims to enhance the acceptability of cheques in commercial transactions and prevent dishonoring of cheques. Referring to a previous case, the court emphasized that the issuance of an undated cheque implies authorization for filling in the date, and the holder is authorized to complete the negotiable instrument. The court reiterated that the power to quash criminal proceedings should be exercised stringently and that the existence of debt or liability should be proven during trial, not at the initial stage.
  
  Conclusion:
  
  The court found that the order setting aside the summoning order was not tenable, and the petition was allowed. The matter was directed to proceed before the Metropolitan Magistrate as per law, emphasizing the importance of proving the existence of debt or liability during trial.

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• 2010 (8) TMI 1120
  
  The Bombay High Court directed the appellant to apply for discharge within one week and file a private paper book within six weeks, failing which the appeal would be dismissed automatically.

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• 2010 (8) TMI 1119
  
  Issues involved:
  The judgment involves issues related to the addition of grant received by the assessee for the purchase of a capital asset, miscellaneous expenses disallowance, and TDS processing application.
  
  Issue 1: Addition of Grant for Capital Asset Purchase
  The Revenue appealed against the deletion of the addition of Rs. 3,23,73,278 made by the A.O. The assessee, a company in the automobile parts business, received the grant from its parent company for purchasing capital assets. The A.O. treated the grant as a revenue receipt, adding it to the total income. The assessee contended that the grant was for capital assets and should not be taxed as revenue. The ld. CIT(A) agreed with the assessee, stating that the grant was solely for purchasing capital goods and should not be treated as revenue. The Tribunal found that further examination was needed to verify if the grant was used for capital assets, thus restoring the matter to the A.O. for fresh consideration.
  
  Issue 2: Miscellaneous Expenses Disallowance
  The A.O. disallowed Rs. 2,50,000 of miscellaneous expenses due to a perceived personal element. The ld. CIT(A) upheld the disallowance. However, following a precedent where no disallowance can be made for personal elements in a company's expenses, the Tribunal deleted the disallowance and allowed this ground of the assessee's appeal.
  
  Issue 3: TDS Processing Application
  The assessee's appeal included a ground related to TDS of Rs. 47,66,381. The Tribunal noted that the ld. Counsel did not press this ground during the hearing, leading to its dismissal.
  
  In conclusion, the appeal of the Revenue was treated as allowed for statistical purposes, while the appeal of the assessee was partly allowed.

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• 2010 (8) TMI 1118
  
  Issues involved: Appeal against orders of ld. CIT(A) for Assessment Years 2001-02 and 2006-07, validity of reassessment proceedings u/s 148, provision for warrantee disallowed by Assessing Officer.
  
  Issue 1: Validity of reassessment proceedings u/s 148 for Assessment Year 2001-02
  
  The Revenue contended that the ld. CIT(A) held the reassessment proceedings to be invalid, arguing that production of account books or evidence does not amount to disclosure. The Revenue relied on the decision of the Hon'ble Delhi High Court in Consolidated Photo and Finvest Ltd Vs. ACIT 281 ITR 394. The assessee argued that all particulars were furnished during original assessment proceedings, and reopening was beyond four years after the relevant Assessment Year. The ld. CIT(A) found no failure on the part of the assessee to provide complete particulars during the original assessment, deeming the reassessment invalid. The Tribunal upheld the decision, emphasizing the requirement of 'reason to believe' even after the amendment to section 147, and the absence of new material supporting the change in opinion by the Assessing Officer.
  
  Issue 2: Disallowance of provision for warrantee for Assessment Year 2006-07
  
  The Revenue challenged the deletion of a provision for warrantee of &8377; 10,06,000 by the Assessing Officer, which was allowed by the ld. CIT(A). The assessee based the provision on actual expenditure for earlier years, calculating an average percentage of sales for warrantee claims. The ld. CIT(A) allowed the provision, noting the reversal of a previous decision by the Hon'ble Apex Court. The Tribunal upheld the decision, stating that if the provision was made on a scientific basis and in accordance with actual warrantee expenses, it should be allowed. The Tribunal emphasized the validity of the provision based on the decision in the case of Rotor Control Ltd and dismissed the appeal of the Revenue.
  
  The Tribunal dismissed the appeal of the Revenue for both Assessment Years 2001-02 and 2006-07, upholding the decisions of the ld. CIT(A) in both cases.

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• 2010 (8) TMI 1116
  
  Issues Involved:
  1. Concluded Contract or Wish List
  2. Suit Barred by Prescription
  3. Court Fees Valuation
  4. Leave of Court for Fresh Action
  5. Maintainability of Suit u/s 41(h) of Specific Relief Act
  
  Summary:
  
  1. Concluded Contract or Wish List:
  The Appellant argued that no concluded contract existed between the parties, claiming the document was merely a 'Wish List'. The Court referred to the legal enunciation in Kale v. Dy. Director of Consolidation (1976) 3 SCC 119, which emphasized upholding family arrangements. The Court found no reason to disturb the Single Judge's view that the document represented a concluded contract.
  
  2. Suit Barred by Prescription:
  The Appellant contended that the Suit was barred by limitation, asserting that the cause of action arose in 2002, making the 2006 Suit time-barred. The Court noted that events related to the Rai Family Agreement continued past 2002, requiring evidence to be recorded. The Single Judge's decision to await trial for a final decision on this point was upheld.
  
  3. Court Fees Valuation:
  The Single Judge ruled against the Respondent/plaintiff regarding court fees, leading to an appeal. The Appeal was disposed of on 10.8.2010, with the plaintiff agreeing to affix court fees as determined by the Single Judge.
  
  4. Leave of Court for Fresh Action:
  The Appellant argued that the Suit should be rejected as no leave was obtained for filing a fresh action after the dismissal of CS(OS) No. 118/2005. The Court noted that the previous suit was filed by the plaintiff's relatives, and the present plaintiff was a Defendant therein, making the provisions inapplicable. This objection was not pressed before the Court.
  
  5. Maintainability of Suit u/s 41(h) of Specific Relief Act:
  The Appellant raised an additional ground u/s 41(h) of the Specific Relief Act, arguing the Suit was not maintainable as it sought a mandatory and permanent injunction. The Court questioned the propriety of raising this ground at the appellate stage. The Court found that the argument did not support the Appellant's stand and emphasized that all legal points must be raised at the trial stage. The Court rejected the Appellant's argument, noting that contradictory pleas could not defeat the Suit at the threshold.
  
  Conclusion:
  The Court found no reason to interfere with the impugned Order and dismissed the Appeal and pending application.

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• 2010 (8) TMI 1115
  
  The Delhi High Court dismissed the appeal as the Revenue Department confirmed that the issue would not affect the income of the assessee, making the matter tax neutral. The question of law raised was left open.

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• 2010 (8) TMI 1114
  
  Issues involved:
  The judgment involves issues related to permission to lead secondary evidence regarding an agreement to sell and pronote and receipt, and the admissibility of photostat copies as secondary evidence in a criminal case.
  
  Regarding Cr. Rev. No. 1788 of 2010:
  The petitioner faced trial for offenses under Sections 302, 201, 120-B, and 34 IPC based on an FIR reporting the discovery of a dead body with signs of foul play. The petitioner sought permission to lead secondary evidence regarding an agreement to sell and pronote and receipt, which were allegedly destroyed by witnesses Balwant Singh and Chandgi Ram after repayment. The prosecution opposed, citing lack of proper documentation and custody of the photostat copies. The trial court dismissed the application, leading to the criminal revision petition challenging the decision.
  
  Analysis of the judgment:
  The petitioner argued for the allowance of secondary evidence under Section 65 of the Evidence Act, emphasizing the destruction of the original documents. However, the court noted that the witnesses who destroyed the documents were also in possession of the photostat copies, raising concerns about authenticity and manipulation. The court highlighted the importance of producing the best evidence available, with the original document being the primary source. Referring to legal precedents, the judgment emphasized that allowing secondary evidence when the original document has been destroyed by a party could lead to risks of fraud and contractual disputes. In this case, since the agreement and pronote-receipt had been destroyed by the witnesses who were parties to the transactions, the court upheld the trial court's decision to decline the application for secondary evidence.
  
  Conclusion:
  The criminal revision petition was found devoid of merit and dismissed, affirming the trial court's decision regarding the admissibility of secondary evidence in the form of photostat copies.

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• 2010 (8) TMI 1113
  
  The Supreme Court issued notice in a case with citation 2010 (8) TMI 1113 - SC. Justices D.K. Jain and H.L. Dattu presided over the case. The petitioner was represented by Mr. M Chandrashekharan, Mr. H Shankar, and Mr. Sudarshan Singh Rawat.

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• 2010 (8) TMI 1112
  
  Issues Involved:
  1. Jurisdiction of the Court to entertain and try the suit.
  2. Validity of the exclusive jurisdiction clause in the distributorship agreement.
  3. Applicability of foreign law and the necessity of filing an affidavit of an expert on Italian law.
  
  Detailed Analysis:
  
  1. Jurisdiction of the Court to entertain and try the suit:
  The primary issue was whether the Delhi High Court had jurisdiction to entertain and try the suit filed by the plaintiff. The plaintiff argued that since all activities related to the distributorship agreement occurred in India, the Delhi High Court had jurisdiction under Section 20 of the CPC. The defendant contended that the exclusive jurisdiction clause in the distributorship agreement, which designated the Italian Court in Milan as the exclusive forum for dispute resolution, should be upheld. The court noted that the distributorship agreement explicitly stated that any dispute, including those concerning validity, interpretation, performance, and termination, would be subject to the exclusive jurisdiction of the Italian Court in Milan. The court emphasized that such clauses are generally upheld unless they violate domestic law or public policy.
  
  2. Validity of the exclusive jurisdiction clause in the distributorship agreement:
  The court examined whether the exclusive jurisdiction clause in the distributorship agreement was valid and enforceable. The plaintiff argued that the clause should be ignored as it was contrary to public policy, given that all activities related to the agreement occurred in India. The court referred to the Supreme Court's judgment in Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd., which upheld the validity of exclusive jurisdiction clauses, even if they designated a foreign court as the forum for dispute resolution. The court concluded that the clause was clear and unambiguous, and the parties had freely negotiated and agreed to submit to the jurisdiction of the Italian Court in Milan. The court held that such clauses are not contrary to public policy and should be enforced unless there are strong reasons to the contrary.
  
  3. Applicability of foreign law and the necessity of filing an affidavit of an expert on Italian law:
  The defendant argued that the suit was not maintainable as the plaintiff had not filed an affidavit of an expert on Italian law, which was the governing law of the distributorship agreement. The court noted that the distributorship agreement explicitly stated that it would be governed by and construed in accordance with the laws of Italy. The court held that the issue of the applicability of foreign law and the necessity of filing an affidavit of an expert would only arise if the court decided to entertain the suit. Since the court decided not to entertain the suit based on the exclusive jurisdiction clause, it did not delve into the necessity of filing an affidavit of an expert on Italian law.
  
  Conclusion:
  The court concluded that it did not have jurisdiction to entertain and try the suit due to the clear and unambiguous exclusive jurisdiction clause in the distributorship agreement, which designated the Italian Court in Milan as the forum for dispute resolution. The court held that such clauses are generally enforceable unless they violate public policy or there are strong reasons to the contrary. Consequently, the court returned the plaint to enable the plaintiff to file the action in an appropriate court in Italy.

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• 2010 (8) TMI 1111
  
  The Supreme Court condoned delay and allowed the petitioner to withdraw the Special Leave Petition, which was then dismissed as withdrawn. (Case citation: 2010 (8) TMI 1111 - SC)

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• 2010 (8) TMI 1110
  
  Issues Involved:
  1. Business connection/Permanent Establishment (PE) in India.
  2. Attribution of income to the PE.
  3. Reopening of assessments for AY 2001-02 and 2002-03.
  
  Summary:
  
  1. Business Connection/Permanent Establishment (PE) in India:
  The primary issue was whether the assessee, a Singapore-incorporated company engaged in airline reservations through a computerized reservation system (CRS), had a business connection or PE in India. The assessee argued that it did not have a PE in India, as the CRS operations were conducted outside India, and only marketing activities were performed by its wholly-owned subsidiary, Abacus Distribution System (India) Ltd. (ADSIL). However, the AO and CIT(A) concluded that the assessee had a business connection and PE in India through ADSIL, which provided computer hardware and software to travel agents and executed contracts on behalf of the assessee.
  
  2. Attribution of Income to the PE:
  The assessee contended that even if it had a PE in India, only a minimal portion of income could be attributed to it. The assessee relied on the case of Galileo International Inc. Vs DCIT, where only 15% of revenue was attributed to operations in India. The Tribunal agreed with the assessee, noting that the functions performed in India were minimal and that the payment to ADSIL (25% of gross receipts) exceeded the 15% threshold. Therefore, no additional income was attributable to the PE in India.
  
  3. Reopening of Assessments for AY 2001-02 and 2002-03:
  The assessee also challenged the reopening of assessments for AY 2001-02 and 2002-03. However, since the appeals were decided in favor of the assessee on merits, the Tribunal did not address the issue of reopening the assessments.
  
  Conclusion:
  The Tribunal held that only 15% of gross receipts could be attributed to operations in India, and since the assessee had already incurred expenditure at 25% of gross receipts on account of payments to ADSIL, there was no income taxable in India. Consequently, the appeals of the assessee were allowed.

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