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Showing 61 to 80 of 1288 Records

• 2014 (9) TMI 1235
  

  Grant of registration u/s 80G denied - 12A certificate not submitted alongwith the application - assessee's application was defective and hence rejected for want of statutory compliance - HELD THAT:- CIT in last para itself has mentioned that assessee's 80G certificate was renewed upto 31-03-2003. This could not have been granted upto 31-03-2003 without a valid 12A certificate. We find merit in the arguments of the ld. Counsel for the assessee that if assessee 12A certificate is misplaced then in that case the certified copy is provided to the assessee on payment of requisite fee. Besides when the record of 80G registration is available with the Department upto 31-03-2003 then it will have the copy of 12A Certificate also.

  Assessee contends that 12A certificate is granted without date of expiry. In this eventuality, the department has to verify its records and make the certified copy available to the assessee. The copy may be lying with earlier 80G registration. It is a trite law that if any application is found defective then the assessee should be given adequate opportunity to rectify the procedural defect. In consideration of the above, we are inclined to set aside the matter back to the ld. CIT to reconsider the same, trace 12A certificate granted to the assessee, provide a copy thereof in accordance with law and then decide the issue relating to 80G registration. Appeal of the assessee is allowed for statistical purposes .

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• 2014 (9) TMI 1234
  

  Condonation of delay of 262 days in filing of the appeal - HELD THAT:- The order dated 30th July, 2013 was admittedly received by the appellant on 04/08/13. The appellant admittedly is a proprietorship concern owned by Shri R.P. Pandhi. It is seen that the appellant took about 70 days time in handing over the case papers to their Consultant Shri Vinod Jain and when there was no response from the Consultant, for about one month, no alternate arrangement by engaging other Counsel was made - The Apex Court in another case of OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT] has held that the law of limitation binds everybody including the Government and refused to condone 427 days delay in filing of the appeal by the Postal Department.

  In this case for delay of about three months from 04/08/13 to end of October, 2013 there is absolutely no explanation as to why the appeal was not filed during this period. The conduct of the appellant indicates as if filing of appeal before the Tribunal was the last priority - the delay in filing of appeal is not condonable - Appeal dismissed.

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• 2014 (9) TMI 1233
  

  Capital gain on sale of land - assessment in hands of HUF or assessee - Whether assessee received the consideration in individual capacity and not in HUF status? - HELD THAT:- We find that the ld CIT(A) has clearly made a finding that the land in question belong to the HUF and therefore tax on capital gain can be levied only on HUF and not the individual assessee. It has been brought to our notice by the ld AR that the capital gain in respect to the land in question has been brought to tax in the hands of HUF.

  In the light of the aforesaid submission of the ld AR, it would be fair and reasonable to direct the AO to verify the said claim of the ld AR. And in case it is found that the HUF has been taxed for the capital gain on the land in question, then the AO shall delete the same levied on the individual assessee. Therefore we set-aside the order of the ld CIT(A) and remit the matter back to the file of the AO and direct him to verify whether the HUF has been taxed on the capital gain on the land in question, and if so, the addition made on the individual assessee’s need to be deleted. Appeals of the revenue is allowed for statistical purposes.

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• 2014 (9) TMI 1232
  

  Maintainability of appeal - non-compliance with the requirement of the pre-deposit - HELD THAT:- It is noticed that Shree Nakoda Ispat Ltd. and Anant Dave have deposited the amounts directed by the order dated 22-1-2014 within the further time granted by the Supreme Court vide its order dated 13-8-2014. Shri Kailash Agarwal, appellant in Excise Appeal No. 56500/2013 has however not deposited the amount of Rs. One lakh as directed. No proof of deposit or report of compliance by this appellant is on record.

  The appeal preferred by Shri Kailash Agarwal, commission agent is however rejected for failure of pre-deposit, under Section 35F of the Central Excise Act, 1944 - rest is allowed.

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• 2014 (9) TMI 1231
  

  Maintainability of petition - Territorial Jurisdiction to entertain the petition - HELD THAT:- If the High Court has no territorial jurisdiction to entertain the petition, it has no jurisdiction to decide the case on merits also. It is well settled that the question of territorial jurisdiction should be decided at the threshold specially when the objections is taken at the earliest point of time.

  When the question of jurisdiction was raised in the case of UNION OF INDIA VERSUS ADANI EXPORTS LTD. [2001 (10) TMI 321 - SUPREME COURT], the Supreme Court has held that they would decide the jurisdiction first and then only, they proceed to go into the question of merits under Order XIV Rule 2 of Civil Procedure Code.

  It is a settled law that, if an objection regarding territorial jurisdiction of the Court is raised at the earliest point of time, the said issue being purely question of law ought to be decided as a preliminary issue. If it is found that the petitioner has approached the Court having jurisdiction, then only the Court can go into the merits. If the Court has no jurisdiction, the matter ends there. The approach of the learned Single Judge is not in accordance with law - Appeal allowed - decided in favor of appellant.

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• 2014 (9) TMI 1230
  

  Appeal memo before the Ld. CIT(A) not verified by a competent person as defined u/s. 140 r.w.r. 45 of the Income Tax Rules - HELD THAT:- As carefully perused the contents of the affidavit. Undoubtedly under Rule 45(2), the form of appeal to Ld. CIT(A) is to be signed and verified by the person who is authorized to sign the return of income. However, u/s. 140(c) of the Act “ if for any unavoidable reason such Managing Director is not able to sign and verify the return, then the same can be signed any Director thereof”. As the Managing Director was travelling, the appeal memo was signed and verified by the Executive Director (Finance), the same is in accordance with law. We, therefore, do not find any merit in the additional ground taken by the Revenue and is dismissed accordingly.

  Disallowance u/s. 14A - HELD THAT:- It is the claim of the assessee that the assessee has received dividend from Union Bank of India. The dividend was directly credited to the bank account of the assessee without any effort on the part of t he assessee and therefore the assessee has incurred Nil expenses for earning this dividend income. We find that this issue has been decided by the Hon’ble Bombay High Court in the case of Reliance Industries Ltd. [2009 (4) TMI 516 - BOMBAY HIGH COURT]. Considering all we direct the AO to delete the addition-. Ground No. 3 is accordingly allowed.

  Disallowance on upgradation of application software - HELD THAT:- As carefully perused the orders of the authorities below. Hon’ble Madras High Court in the case of CIT Vs Sundaram Clayton Ltd. [2008 (6) TMI 327 - MADRAS HIGH COURT], following the decision in the case of Southern Roadways [2006 (10) TMI 82 - MADRAS HIGH COURT] has held that “upgradation of computers thereby enhancing the configuration of the computers for improving their efficiency, but without making any structural alterations is not change of an enduring nature. The expenditure incurred by the assessee had to be treated as revenue expenditure”. In the case in hand, it is the upgradation of software already installed for the smooth and efficient working therefore following the ratio laid down by the Hon’ble Madras High Court (supra), we direct the AO to delete the addition and allow the claim of upgradation of software as revenue expenditure. The AO is also directed to withdraw the depreciation allowed by him while treating the expenditure as capital expenditure. Ground No. 4 with its sub-grounds are accordingly allowed.

  Disallowance of interest being attributable to capital work-in-progress - HELD THAT:- AO has gone by the presumption that the assessee must have utilized some part of the borrowed capital towards capital work-in-progress. A perusal of the balance sheet of the assessee shows that the assessee has generated cash to the tune of ₹ 34.50 crores as is evident from the cash flow statement appearing on 43 of the Annual statement of account. The total expenditure incurred towards capital work-in-progress is only ₹ 6.45 crores. This clearly show that the assessee was having sufficient own funds. We, therefore, do not find any merit in attributing the interest towards capital work-in-progress. We, accordingly direct the AO to delete the addition.

  Nature of expenditure - Expenditure on on current repairs of buildings - revenue or capital expenditure - HELD THAT:- The object and purpose of every repair is to improve the bad condition of the building to prevent its further deterioration as far as possible and to keep it wind and water-tight. So long the repair does not bring into existence, an additional advantage or benefit of an enduring nature or change the nature, character or the identity of the building itself, the expenditure has to be considered as revenue expenditure.

  A perusal of the detail shows that no structural alteration was made to the building and the assessee carried out only repairs which were absolutely necessary to preserve and maintain the building and to prevent its further deterioration. The plastering process may have extended the life of the building, it has not extended the original life of the building nor the original condition of the building. The quantum of expenditure by itself cannot be a determining factor for finding out an expenditure as revenue or capital. Considering the facts in totality, in our considered opinion, the expenditure incurred by the assessee have to be allowed as revenue expenditure, we, accordingly, direct the AO. However, the AO is directed to withdraw depreciation which was allowed by him while treating the expenditure as capital in nature

  Deduction u/s. 10(B) - disallowance of Power and Fuel expenses - reallocating the expenditure and estimated the disallowance - HELD THAT:- We find that the assessee has filed complete details of unit-wise power consumption for every unit. The assessee has also filed complete month-wise consumption of power for every unit. This is also evident from the reply filed by the assessee during the course of the assessment proceedings which is exhibited hereinabove. The AO has not pointed out any defect in the independent records nor he has given any adverse findings in the details of the power consumption filed by the assessee. It is also not a case of the revenue that the assessee has shown exorbitant profit from the units which are eligible for deduction u/s. 10(B) of the Act. It is also not the case of the Revenue that there is a diversion of expenditure from exempt unit to taxable unit. The reallocation has been made purely on surmises and conjectures. The reallocation has been made on the basis of respective turnovers of eligible and non eligible units which, in our considered opinion, is unwarranted. We, accordingly set aside the findings of the Ld. CIT(A) and direct the AO to delete the addition

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• 2014 (9) TMI 1229
  

  Bail application - it is the case of the prosecution that the Purchase Committee which was headed by the petitioner purchased Iron Folic Acid tablets at ₹ 26 paise per tablet, which was available in the open market at ₹ 6 paise per tablet, which resulted in the loss of ₹ 11,07,692/- to the Government - HELD THAT:- Inasmuch as the similarly situated persons have been released on bail, we think that the petitioner shall also be released on bail. It is also necessary to note that the charge sheet is already filed in the case and the petitioner is in jail for about 11 months.

  The petitioner Dr. Prem Prakash Verma is directed to be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the conditions imposed - SLP disposed off.

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• 2014 (9) TMI 1228
  

  Deduction u/s 80IA - initial assessment year - Whether earlier depreciation which has already been absorbed can be notionally carried forward and set off against the profits available for deduction under sec.80IA? - HELD THAT:- This issue has been considered by the Hon’ble Madras High Court in the case of Sri Velayudhasamy Spinning Mills P. Ltd.[2010 (3) TMI 860 - MADRAS HIGH COURT] where the court has held that such notionally carried forward and set off past losses and depreciation is not permissible under the provisions of sec.80IA. In view of the decision of the Hon’ble High Court, we set aside the orders of the lower authorities on this issue and direct the Assessing Officer to compute the deduction available to the assessee under sec.80IA without any sort of notionally carried forward and set off past depreciation and losses

  Whether carbon credit receipts are revenue in nature? - HELD THAT: This issue is also now covered by the decision of the Hon’ble Andhra Pradesh High Court in the case of My Home Power Ltd.[2014 (6) TMI 82 - ANDHRA PRADESH HIGH COURT]. As such, this issue is also decided in favour of the assessee. Accordingly, we direct the Assessing Officer to exclude the carbon credits from computing the total income of the assessee.

  Eligibility of deduction u/s 80IA - HELD THAT:- This issue is covered by the decision of case of Sri Velayudhasamy Spinning Mills P. Ltd.,[2010 (3) TMI 860 - MADRAS HIGH COURT] in favour of the assessee and as such, these appeals are liable to be dismissed.

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• 2014 (9) TMI 1227
  

  Disallowance u/s 40(a)(ia) - payments so made in respect of commission paid to sub-franchisees and retailers, on recharge vouchers, and other commission paid to retailers - HELD THAT:- As relying on Rajeev Kumar Agarwal [2014 (6) TMI 79 - ITAT AGRA] we consider it appropriate to remit the matter to the file of the Assessing Officer for fresh examination, on the same lines and in the light of the above legal position. The assessee is directed to furnish all the relevant information and co-operate in expeditious disposal of remanded proceedings.

  Payments which consist of amounts less than the threshold limit for invoking section 40(a)(ia), this aspect of the matter is essentially a factual aspect which needs to be examined by the Assessing Officer. We direct him to do so, and in case it is actually found that the provisions of section could not have been invoked on these amount, the very foundation of disallowance under section 40(a)(ia) will cease to hold good in law. Let this aspect also be examined afresh in the above light.

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• 2014 (9) TMI 1226
  

  Revisional order passed on a non existent company - Company amalgamated with other company - HELD THAT:- Hon'ble Delhi High Court in the case of Spice Infotainment Ltd. [2011 (8) TMI 544 - DELHI HIGH COURT] wherein it is held that assessment in the name of the company which has been amalgamated with another company and stands dissolved is null and void; assessment framed in the name of a non- existing entity is a jurisdictional defect and not merely a procedural irregularity of the nature which can be cured by invoking the provisions of s.292B.

  In the present case also the amalgamation took place vide the order of the Hon'ble Calcutta High Court dated 17.04.2008 w.e.f. 01.04.2007 and this Company Aarcee Holdings Pvt. Ltd. has amalgamated with Padmavati Properties & Trust Ltd. and no revision order can be passed on a non-existent company. Hence, the very premise of the revenue that revision order passed on a non existent company does not stand. Also see IK. AGENCIES PVT. LTD. VERSUS COMMISSIONER OF WEALTH TAX, KOL-III [2011 (3) TMI 690 - CALCUTTA HIGH COURT]

  Since, we find that the issue is a question of fact and/or a technical question, and not a substantial question of law, the application and the appeal are dismissed.

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• 2014 (9) TMI 1225
  

  Process amounting to manufacture or not - credit of additional duty of customs, education cess, secondary and higher education cess and special additional duty of customs paid on the imported Polyurethane Resin - HELD THAT:- The Registrar (Judicial) / Registrar, High Court, Original Side, Bombay to ensure that the original record in relation to this Appeal is summoned from the Tribunal and offered for inspection of the parties. This paper book is treated sufficient for the purpose of admission of this Appeal. However, the Registry must further ensure preparation of complete paper book in accordance with the Rules. The Registry in the first instance must send intimation of admission of this Appeal enclosing therewith a copy of this order so as to enable the Tribunal to act accordingly.

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• 2014 (9) TMI 1224
  

  Addition being bogus/non-genuine/inflated fabrication charges relying on the last year’s order - disallowance was made being @ 2.5% on total Dying & Printing work, Fabrication charges and raw material expenses - CIT(A) deleted the addition - HELD THAT:- Similar relief granted by the CIT(A) was accepted by the revenue authorities and the matter was allowed to reach finality by not challenging the same in appeal. As noted that it is a factual issue and there is no change in the facts or in the legal position.

  In these circumstances, and in the absence of any specific reasons for deviation of stand by the revenue authorities for this assessment year, we are of the considered view that the Assessing Officer was indeed not justified in raising these grievances against correctness of CIT(A)’s order. We, therefore, dismiss the grievances raised by the AO for these short reasons alone, and decline to deal with the merits of these grievances. The preliminary objection raised by the learned counsel is indeed well taken and we approve the same.

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• 2014 (9) TMI 1223
  

  Grant of Bail - Bribe - allegation is that the Petitioner being high rank Officer in prestigious Indian Army offered bribe to senior most Officer of Indian Army - offence punishable under Section 12 of Prevention of Corruption Act, 1988 - HELD THAT:- At no stage, CBI expressed its apprehension that the Petitioner is abusing his position or exploiting his links with his ex-colleagues or had made any attempt to influence the witnesses or tamper with the evidence. Generally, CBI investigates the cases which involves national and international ramifications or where people holding high positions of power and influence or political clout are involved and not the cases of the nature of petty offences. The case of the Petitioner should have been distinguished by learned Special Judge/CBI from other cases wherein learned Special Judge/CBI ordered the release of accused persons on bail who were not arrested during investigation.

  Petitioner directed to be released on bail on his furnishing personal bond in the sum of ₹ 1 lac with one surety in the like amount to the satisfaction of learned Trial Court, subject to the conditions imposed - Bail application allowed.

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• 2014 (9) TMI 1222
  

  Winding up of Company - Petition filed by the appellant was dismissed on the ground that the power deed executed by the trustee is insufficiently stamped and the trustee has not produced the authorisation as required under Clause 10 of the Trust deed - HELD THAT:- Clause 10 of the Trust deed dated 27.12.2002 speaks about the action, proceedings and indemnification by the trustee representing the appellant as against the respondent. Clause 10.1 deals with the rights of the Bond holders vis-a-vis the duties of the trustee. As per clause 10.1, the trustee is not bound to take any action unless he is directed or requested to do so by an extraordinary resolution or in writing of the holders of atleast one quarter in principal amount of the Bonds then outstanding. Therefore, it merely speaks about the action that is required on the part of the trustee when it was sought to be initiated at the instance of the Bondholders. Under clause 9 of the Trust deed, the trustee may, at any time, at its absolute discretion and without any notice, take such proceedings and/or other steps as it may think fit against or in relation to the Company to enforce its obligations under these presents. Therefore, a combined reading of the above said provisions would make it clear that it is a trustee, who can represent either on its own or at the instance of the required Bondholders.

  The appellant has raised a specific plea in the Company Petition that it has been filed both on behalf of the Bondholders as well as in its capacity as a trustee, as there was a breach of covenants and obligations under the Trust deed on the part of the respondents. Furthermore, the authorisation has also been produced. The respondent has not questioned the validity or genuineness of the said authorisation. Therefore, the learned single Judge was not right in rejecting the application on the ground that there was no valid authorisation.

  The execution of the power of attorney is also not in dispute. As rightly submitted by the learned Senior Counsel, the Company Court ought to have impounded the document and send it to the Collector for re-validation. Even otherwise, a fresh document has been filed by the appellant. The genuineness and authenticity of the said document has not been questioned by the respondent - the order passed by the learned single Judge dismissing the petition on the ground of insufficiently stamped power deed is also liable to be set aside and accordingly the same is set aside.

  Matter remanded back to the learned single Judge to decide the matter on merit after hearing the parties as to whether the Company Petition requires to be admitted and to be followed by appropriate consequential directions - petition allowed by way of remand.

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• 2014 (9) TMI 1221
  

  TP Adjustment - international transaction - computation of ALP on the basis of RoCE method - HELD THAT:- Tribunal cannot be taken as an authority in which it can be said that either Tribunal did not accept the decisions relied upon by Ld. AR of the assessee or a different proposition has been laid down as has been canvassed by the Ld. AR of the assessee. Therefore, the decisions relied upon by Ld. AR would be applicable to the facts of the present case.

  Thus, table No. 2 reproduced in para 3.2 will be applicable and operating profit @ 3.81% of Total Cost relating to international transaction would be a sum of ₹ 36,36,787/- and if the same is added and reduced to the extent of 5% from the international transaction of ₹ 9,59,06,519/- then the-5% would be a sum of ₹ 9,11,11,193/- and +5% would be a sum of ₹ 10,07,01,845/-, which would be within either of the above figures as the ALP of the international transaction would be a sum of ₹ 9,90,90,510/- (₹ 59,59,06,519 + ₹ 36,36,787/-).

  Even otherwise if the operating expenses are taken at entity level and operating profit is determined for ALP at entity level then ALP of the total sales would be a sum of ₹ 52,76,94,805/- as described in table-1 in para-3.2 reproduced above and the same would also fall within the safe harbour of ₹ 48,29,94,843/- and ₹ 53,38,36,405/-. Therefore, in both the circumstances the adjustment if counted only on international transactions of the assessee with its AE, then ALP would fall within safe harbour of +/- 5% and no adjustment would be called for. Accordingly, we order to delete the addition and Ground No. 1 is allowed.

  Addition to deemed dividend u/s 2(22)(e) - HELD THAT:- If consolidated account is taken into consideration then on 4/07/2007 and on 29/3/2008 the credit balance of the assessee with Dinurje was much more than the amount obtained by the assessee. Therefore, it cannot be said that any withdrawal made by the assessee from Dinurje could represent as loan or advance within the meaning of section 2(22)(e) of the Act. The reason given by Ld. CIT(A) is also without appreciating the full facts of the case as even after drawing those amounts and giving effect to the trade transactions, the balance, in the accounts of the assessee with Dinurje, was in surplus. The withdrawal made by the assessee from her own credit balance cannot be treated as loan or advance within the meaning of section 2(22)(e). Moreover, the payee company is maintaining one consolidated account of the assessee. Therefore, the sustenance of addition is not justified at all and is not conformity with the provisions of section 2(22)(e) - Decided in favour of assessee.

  Loan or advances given by Dinurje to M/s. Ace Divine Jewellery Pvt. Ltd. (in short Ace Divine), the assessee is a substantial share holder of both these concerns having around 70% share of both the concerns - Applying section 2(22)(e) of the Act this addition has been made in the hands of the assessee.In the present case the amount has rightly been taxed in the hands of the assessee who is substantial share holder of both the concerns and that is in accordance with the decision of ANKITECH PVT LTD. & OTHERS [2011 (5) TMI 325 - DELHI HIGH COURT]. Therefore, addition made under section 2(22)(e) to the extent of ₹ 1,48,37,352/- is up and Ground No. 2 of the assessee is partly allowed.

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• 2014 (9) TMI 1220
  

  Royalty paid to the foreign companies - Disallowance u/s 40A - royalty was excessive or unreasonable - DTAA between the Indian Government and the Switzerland Government - Whether expenditure was neither excessive nor unreasonable, the same could not be disallowed u/s 40 A (2)? - burden as a justifiable and reasonable business expenditure and thus should be allowed under Section 37 - HELD THAT:- We dismiss the appeal following the reasoning and ratio of the decision in Nestle India Ltd. [2011 (5) TMI 566 - DELHI HIGH COURT].

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• 2014 (9) TMI 1219
  

  Royalty paid to the foreign companies - Disallowance u/s 40A - royalty was excessive or unreasonable - DTAA between the Indian Government and the Switzerland Government - Whether expenditure was neither excessive nor unreasonable, the same could not be disallowed under Section 40 A (2)? - burden as a justifiable and reasonable business expenditure and thus should be allowed under Section 37 - HELD THAT:- We dismiss the appeal following the reasoning and ratio of the decision in Nestle India Ltd. [2011 (5) TMI 566 - DELHI HIGH COURT].

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• 2014 (9) TMI 1218
  

  Validity of assessment - non issue of notice u/s 143(2) or 142(1) - HELD THAT:- Hon’ble Supreme Court in the case of ACIT v. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] and case of Sapthagiri Finance & Investments [2012 (8) TMI 523 - MADRAS HIGH COURT] the issuance of notice under section 143(2) of the Act is mandatory. In the present case, there is nothing available on record to show that the Assessing Officer had issued notice under section 143(2) or 142(1)

  CIT(Appeals) cancelled the reassessment as not valid. We, therefore, by following the decisions of the Hon’ble Supreme Court as well as the Hon’ble Jurisdictional High Court, hold that the ld. CIT(Appeals) rightly cancelled the reopening as invalid. Accordingly, the grounds raised by the Revenue are dismissed.

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• 2014 (9) TMI 1217
  

  Allowability of claim of bad and doubtful debts made in the return of income u/s 36(1)(vii) - HELD THAT:- From 1.4.1989, only the debts which is written as bad and doubtful is to be allowed as deduction u/s 36(1)(vii) of the act. It is the duty of the assessee to written off the debts and claim that it is deduction while computing the income. The provisions of sec. 36(1)(vii) has been amended by insertion of Explanation with retrospective effect from 1.4.1989 by Finance Act 2001 and as per this Explanation, bad debts written off in the accounts of the assessee shall not include in the provisions of bad and doubtful debts made in the accounts of the assessee.

  Claim of the assessee that the bad debt was debited into the P&L Account and the same amount was reduced from the total loans and advances in Schedule VII in the balance sheet and it shall be allowed as deduction u/s 36(1)(vii) of the Act. In our opinion, the case of the assessee is squarely covered by the decision in the case of Vijaya Bank [2010 (4) TMI 46 - SUPREME COURT] and Kirloskar Systems Ltd [2013 (12) TMI 9 - KARNATAKA HIGH COURT] had considered similar issue. Being so, the case of the assessee is to be allowed. - Decided in favour of the assessee.

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• 2014 (9) TMI 1216
  

  Demolition of the allegedly illegal constructions raised by the Appellants - Scope of Government's order - interpretation of statute - HELD THAT:- In the present case, the exercise of executive power is traceable to Entry 13 and 14 of List I of the Seventh Schedule to the Constitution. The power to give effect to the guidelines and to penalize violators thereof may not have been available at the time when the guidelines became effective. However, with the enactment of the Environment Protection Act, 1986 with effect from 19th November, 1986, Sections 3 and 5 empowered the Central Government to pass necessary orders and issue directions which are penal in nature. It is in the exercise of the said power under the Act read with the guidelines referred to above that the orders impugned by the Appellants have been passed. Though the Coastal Regulation Zone (CRZ) Notification under the Act was issued on 19th February, 1991 and admittedly is prospective in nature, till such time that the said notification came into force it is the guidelines which held the field being administrative instructions having the effect of law Under Article 73 of the Constitution.

  A Govt. policy may acquire the "force of 'law'" if it conforms to a certain form possessed by other laws in force and encapsulates a mandate and discloses a specific purpose. It is from the aforesaid prescription that the guidelines relied upon by the Union of India in this case, will have to be examined to determine whether the same satisfies the minimum elements of law - In the absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the Government and would really represent an expression of opinion.

  It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognized official channel, namely, the official gazette - If the guidelines relied upon by Union of India in the present case fail to satisfy the essential and vital parameters/requirements of law as the trend of the above discussion would go to show, the same cannot be enforced to the prejudice of the Appellants as has been done in the present case. For the same reason, the issue raised with regard to the authority of the Union to enforce the guidelines on the coming into force of the provisions of the Environment Protection Act so as to bring into effect the impugned consequences, adverse to the Appellants, will not require any consideration.

  The orders impugned in the writ petitions filed by the Appellants cannot be sustained.

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