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2006 (12) TMI 507
TDS u/s 195 - consideration received on sale of computer software programme - Commercial income under Article 7 Or Royalty under Article 12 of the Treaty - No Permanent establishment in India - DTAA between India and US - HELD THAT:- According to learned counsel for assessee, Reference was drawn to the commentary on Article 12 (royalties) of model treaties issued by OECD with regard to payments for computer programmes. By reading that, It can therefore be noted that under the OECD model commentary also, payments for acquiring a copy of a computer programme will not be treated as payments for rights to use the copyright in the computer programmes. Accordingly, such payments are to be considered as commercial income under Article 7 and not as royalty under Article 12 of the Treaty.
Further, it is to be noted that computer programme may be copy-rightable as intellectual property does not alter the fact that once in the form of a floppy disc or other medium, the programme is tangible, movable and available in the market place. The fact that some programmes may be tailored for specific purposes need not alter their status as 'goods' because the code definition included 'specially manufactured goods'. In yet another decision in the case of Tata Consultancy Services v. State of Andhra Pradesh [2004 (11) TMI 11 - SUPREME COURT] held that the purchaser of a computer programme does not receive mere knowledge but receives an arrangement of matter which makes his computer perform a desired function. This arrangement of matter recorded on a tangible medium constitutes a corporeal body. A software recorded in physical form becomes inextricably inter-wined with or part and parcel of the corporeal object upon which it is recorded, be that a disc, tape or hard drive or other device.
Apex Court has also noted its earlier decision in the case of Associated Cement Co. Ltd. [2001 (1) TMI 248 - SUPREME COURT] and held that once a computer programme embodied in a medium, it takes the character of goods even under the narrow definition of the said term under the Customs Act. The Apex Court further held that a software programme, which is put in a medium like a disc or floppy, takes the character of goods. The medium and the programme become inseparable and cannot be split up. The Apex Court had relied on the definition of the term 'goods' as used in Article 366(2) of the Constitution of India and held that the term is very wide and covers all types of movable properties. The Apex Court further held that acquisition of a copy of such computer programme, which is a copyrighted article, amounts to sale of such article.
Therefore, considering all the judicial pronouncements and relevant provisions of law we find much force in the stand taken by the assessee. Therefore, the payments are not in the nature of royalty but are subject-matter of Article 7 of the India-USA Tax Treaty. Further it is an admitted fact that Hewlett Packard Co., USA does not have any permanent establishment in India. Therefore, the assessee had no obligation to deduct tax at source on such payments made to Hewlett Packard Co., USA. Therefore, the claim of the assessee has to be accepted and it is ordered accordingly.
In the result, the appeals filed by the assessee are allowed.
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2006 (12) TMI 506
Issues involved: Challenge to extension of time granted u/s 110(2) of the Customs Act, 1962 by the CESTAT.
The High Court disapproved of the practice of impleading a judicial/quasi-judicial Tribunal/Authority as a Respondent in a case challenging its orders, unless specific mala fides are alleged against a member of such Tribunal/Authority. The Registry was directed not to register any Petition with such impleadment.
The Writ Petition challenged the extension of time granted u/s 110(2) of the Customs Act, 1962. The Tribunal noted the Petitioner's lack of cooperation in the investigation despite multiple opportunities, leading to the extension. The Petitioner argued that the six-month period was expiring soon and no adjournment was granted beyond a certain date, risking the proceedings becoming non est.
The Petitioner relied on a decision emphasizing the importance of a well-informed decision on granting extensions beyond six months. The decision highlighted the need for issuing a notice to the concerned party to show cause against the proposed extension.
Although a notice was issued in the present case, the Petitioner contended that adequate time for response was not given. The judgment acknowledged the possibility of a post-decisional hearing for a party not heard initially. Consequently, the Petitioner requested a post-decisional hearing.
The Writ Petition was disposed of with a direction to the Commissioner of Customs to grant a post-decisional hearing to the Petitioner on the matter of time extension u/s 110(2) on a specified date. The Commissioner was instructed to pass a reasoned order following the post-decisional hearing.
The Writ Petition was thus disposed of, and a copy of the Order was directed to be given to the counsel for the parties.
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2006 (12) TMI 505
Issues Involved:
1. Maintainability of the assessee's appeals on the question of jurisdiction of the Assessing Officer before the Commissioner of Wealth-tax (Appeals).
2. Legality of the order passed by the Commissioner of Income-tax u/s 127(1) read with section 125(1) of the Income-tax Act and the jurisdiction of the Inspecting Assistant Commissioner of Income-tax (Assessment) over the wealth-tax cases of the assessee.
Summary:
Issue 1: Maintainability of Appeals on Jurisdiction
The Tribunal held that the assessee's appeals on the question of jurisdiction of the Assessing Officer were maintainable before the Commissioner of Wealth-tax (Appeals). The Revenue argued that the objection to jurisdiction should not be raised for the first time in appeal after the assessment, as it was not a case of inherent lack of jurisdiction but rather a situation where both parties believed the officer had jurisdiction. The court examined various judgments, including *Rai Bahadur Seth Teomal v. CIT [1959] 36 ITR 9 (SC)* and *Jaipur Udhyog Ltd. v. CIT [1992] 198 ITR 282 (Raj)*, which indicated that objections to jurisdiction should be raised at the earliest opportunity and not after the assessment has been finalized. The court concluded that the assessee, having participated in the assessment proceedings without objection, could not raise the plea of lack of jurisdiction for the first time in appeal. The appeal filed by the assessee on the question of jurisdiction was not maintainable. Thus, question No. (i) was answered in favor of the Revenue and against the assessee.
Issue 2: Legality of the Order u/s 127(1) and Jurisdiction of the Inspecting Assistant Commissioner
Since question No. (i) was answered in favor of the Revenue, question No. (ii) regarding the legality of the order dated December 21, 1978, passed by the Commissioner of Income-tax u/s 127(1) read with section 125(1) of the Income-tax Act, and the jurisdiction of the Inspecting Assistant Commissioner of Income-tax (Assessment) over the wealth-tax cases of the assessee, was rendered academic and need not be addressed.
Conclusion:
The reference was disposed of accordingly, with question No. (i) answered in favor of the Revenue, making question No. (ii) academic.
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2006 (12) TMI 504
Issues involved: Appeal challenging demand of service tax on Goods Transport Operators' (GTO) service and imposition of penalties.
Summary:
1. The judgment addresses two appeals, one by the department challenging the order setting aside the demand of service tax on GTO service and vacating penalties, and the other by an assessee challenging the order demanding service tax and imposing penalties for the same service during a specific period.
2. Both M/s. Orient Abrasives and M/s. Jayalakshmi Exports received GTO service during a certain period but did not pay tax on it. Later, they paid the tax on different dates.
3. During the relevant period, the assessees were not liable to pay service tax on GTO service as per the decision of the apex court in Laghu Udyog Bhartati v. Union of India. The Finance Act, 1994 was amended in 2000 to make GTO service beneficiaries liable to pay service tax retrospectively from the period in question. Show-cause notices were issued to the assessees accordingly.
4. A previous Tribunal decision held that GTO service recipients were not covered by certain provisions of the Finance Act, 1994, and show-cause notices issued to them were not maintainable. This decision was affirmed by the Supreme Court.
5. Following the Supreme Court decision, civil appeals were filed against similar Tribunal decisions, but there was no claim of a stay on those decisions.
6. The settled legal position based on the previous Tribunal decision is applied in the present case, leading to the dismissal of the department's appeal and the allowance of the assessees' appeal.
7. The respondents filed "cross-objections" seeking a refund of the service tax and interest paid, but the prayer was not entertained due to lack of prior claim and voluntary payment without protest. The amounts paid were deemed non-refundable as per a previous Tribunal decision.
Separate Judgment: None.
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2006 (12) TMI 503
Issues involved: Challenge to imposition of penalties under Section 76 and Section 77 of Finance Act, 1994 for failure to pay Service Tax on time.
Issue 1: Penalty under Section 76 of Finance Act, 1994
The appellant, engaged in paper printing industries, challenged the penalty of &8377; 51,481/- imposed under Section 76 for failure to pay Service Tax for the months of January to March 2005 on time. The appellant deposited the entire tax amount with interest before the show cause notice was issued. The advocate cited a CBEC letter stating penalties should not be imposed unless there is deliberate fraud or willful misstatement. Referring to a Tribunal case, it was argued that no penalty is imposable if the tax liability and interest are paid before the show cause notice is issued. The Tribunal found in favor of the appellant, noting compliance with the CBEC circular and the precedent set by the Tribunal in a similar case, and thus set aside the penalty.
Issue 2: Penalty under Section 77 of Finance Act, 1994
Additionally, a penalty of &8377; 1,000/- was imposed under Section 77 for the same failure to pay Service Tax on time. The appellant's argument regarding the payment before the issuance of the show cause notice was reiterated. The Departmental Representative supported the Commissioner (Appeals)'s decision. The Tribunal, after considering both sides and the records, concluded that the appellant had indeed paid the tax before the show cause notice, aligning with the CBEC circular and the Tribunal's previous ruling. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief.
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2006 (12) TMI 502
Issues Involved:
1. Legality of the demand and penalty imposed u/s 11(a)(2) of the Central Excise Act, 1944 and Rule 171Q(1) of the Central Excise Rules, 1944.
2. Alleged non-supply of documents to the petitioner.
3. Availability and exhaustion of alternative remedy.
Summary:
1. Legality of the Demand and Penalty:
The petitioner, a Public Limited Company, challenged the Annexure-L order dated 28.09.01 by the Commissioner of Central Excise, Shillong, which confirmed a demand of Rs. 1,82,67,650.99 and imposed a penalty of Rs. 2,50,000/- u/s 11(a)(2) of the Central Excise Act, 1944 and Rule 171Q(1) of the Central Excise Rules, 1944. The demand was based on alleged evasion of Central Excise duty through misstatement, suppression of material facts, and misclassification of goods from 1981 to 24.02.84.
2. Alleged Non-Supply of Documents:
The petitioner argued that they were not provided with necessary documents to submit an effective reply to the show cause notice. Despite multiple requests and court orders, the petitioner claimed that not all documents were supplied. However, the respondents countered that all documents were provided, and the petitioner had ample opportunity to inspect them. The court found that the petitioner had indeed received the documents and that their plea of non-supply was misleading. The court noted that the petitioner failed to specify which documents were not supplied and how their absence prejudiced their defense.
3. Availability and Exhaustion of Alternative Remedy:
The court emphasized that the petitioner should have exhausted the alternative remedy of appealing to the Customs, Excise, and Gold Control Appellate Tribunal instead of invoking the writ jurisdiction. The court cited precedents, stating that the High Court should not interfere if an effective and efficacious alternative remedy is available. The court concluded that entertaining the writ petition would be an abuse of the court process and not in the interest of justice.
Conclusion:
The court dismissed the writ petition, upholding the impugned order dated 28.09.01, and ruled that there was no violation of the principles of natural justice. The petitioner was directed to bear their own costs.
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2006 (12) TMI 501
Issues Involved:
1. Doctrine of priority of crown debt over secured creditors.
2. Maintainability of writ petitions by Union of India for recovery of excise duty.
3. Applicability of the doctrine of priority of crown debt in the context of secured creditors.
4. Legal provisions and precedents supporting or contesting the priority of crown debt.
5. Specific statutory provisions giving priority to government dues over secured creditors.
6. Impact of previous judgments on the current case.
Detailed Analysis:
1. Doctrine of Priority of Crown Debt Over Secured Creditors:
The primary issue in these writ petitions is whether the doctrine of priority of crown debt, which gives precedence to government dues such as taxes and excise duties over other creditors, applies to secured creditors like financial corporations. The Union of India argued that its tax dues should have priority over the debts owed to financial corporations. However, the court examined various precedents and legal principles to determine the applicability of this doctrine.
2. Maintainability of Writ Petitions by Union of India for Recovery of Excise Duty:
The Punjab Financial Corporation (PFC) raised a preliminary objection regarding the maintainability of the writ petitions, arguing that there was no cause for the Union of India to file these petitions as there was no violation of any legal or fundamental right. The court considered whether the recovery of excise duty could be pursued through writ petitions, especially in the absence of any violation of legal or fundamental rights.
3. Applicability of the Doctrine of Priority of Crown Debt in the Context of Secured Creditors:
The court analyzed whether the doctrine of priority of crown debt applies to secured creditors. The Union of India relied on several judgments to support its claim that tax dues should have priority over the claims of secured creditors. However, the court noted that this doctrine primarily applies to unsecured creditors and not to secured creditors like financial corporations.
4. Legal Provisions and Precedents Supporting or Contesting the Priority of Crown Debt:
The court reviewed various judgments and legal provisions to assess the validity of the Union of India's claim. The case of Dena Bank v. Bhikhabhai Prabhudas Parekh and Co. was extensively analyzed, where it was held that the priority of crown debt does not extend to secured creditors. The court also referred to the Constitution Bench decision in Superintendent and Remembrance of Legal Affairs, West Bengal v. Corporation of Calcutta, which held that the common law doctrine of crown debt priority is not a substantive law but a rule of construction.
5. Specific Statutory Provisions Giving Priority to Government Dues Over Secured Creditors:
The court examined whether any statutory provisions explicitly provided priority to government dues over secured creditors. It was noted that provisions like Section 11 of the Central Excise Act and Rule 230(2) of the Central Excise Rules, which allow recovery of dues as arrears of land revenue, do not inherently provide priority over secured debts. The court emphasized that specific statutory recognition is required to grant such priority.
6. Impact of Previous Judgments on the Current Case:
The court considered the impact of previous judgments on the current case. It was highlighted that the doctrine of crown debt priority has limited applicability and is primarily confined to unsecured creditors. The court also noted that the doctrine was not uniformly recognized across all parts of India and its applicability depended on historical and factual contexts.
Conclusion:
The court concluded that the doctrine of priority of crown debt does not apply to secured creditors like financial corporations. The writ petitions filed by the Union of India for recovery of excise dues were dismissed, and the writ petitions filed by financial corporations challenging the attachment orders were allowed. The court emphasized that specific statutory provisions are required to grant priority to government dues over secured debts, and such provisions were not present in the current case.
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2006 (12) TMI 500
Issues Involved:
1. Harmfulness of newspaper content for minors.
2. Independent rights of minors under Article 32 of the Constitution.
3. Maintainability of the petition.
Detailed Analysis:
1. Harmfulness of Newspaper Content for Minors:
The petitioner argued that certain materials in newspapers, though not legally obscene, could corrupt the minds of minors due to their physical and mental immaturity. The petitioner cited examples of double-meaning jokes and explicit content that could negatively impact minors. The petitioner emphasized that the discretion to expose minors to such content should rest with parents, guardians, or experts in sex education. The petitioner clarified that the objective was not to impose censorship but to regulate the exposure of minors to such content.
2. Independent Rights of Minors Under Article 32 of the Constitution:
The petitioner contended that minors have enforceable rights under Article 19(1)(a), Article 21, and Article 39(f) of the Constitution, as well as under the United Nations Convention on the Rights of the Child. The petitioner cited previous judgments to support the claim that the welfare of children is of paramount importance in a civilized society. The petitioner argued that the state has failed in its duty to protect minors from inappropriate content and that the Press Council of India lacks the necessary powers to enforce standards effectively.
3. Maintainability of the Petition:
The Court examined whether the writ petition was maintainable. It was argued that existing laws, such as the Indian Penal Code and the Indecent Representation of Women (Prohibition) Act, already provide sufficient safeguards against obscene content. The Court also noted that the Press Council of India has limited authority and lacks punitive powers. The Court concluded that the petition was not maintainable as sufficient legal frameworks already exist to address the issue.
Conclusion:
The Court dismissed the writ petition, stating that the petitioner failed to establish a need to curtail the freedom of speech and expression. The Court emphasized that any steps to ban certain content would fetter the independence of the free press. The Court also observed that a culture of "responsible reading" should be inculcated among readers and that news items should not be viewed in isolation. The Court recommended that the Government of India consider amending the Press Council Act to empower the Press Council with punitive powers.
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2006 (12) TMI 499
Allowed/disallowed of Interest on interest-free loans - Interest on interest-free loans advanced by the assessee-company to its subsidiary and associate companies in which the directors were interested? - interest on investment in shares by the assessee company in its subsidiary and associate companies - HELD THAT:- Tribunal has followed its own decision in the case of the assessee for the earlier assessment years, which view has also been upheld by this Court vide CIT v. Industrial Cables (India) Ltd. on the ground that the Tribunal had only followed its view in the case of the assessee, which had become final.
We may notice that although the principle of consistency is applicable and the decision on the issue having been taken in favour of the assessee for the previous year, the same has to be followed, but each assessment year being an independent one, in view of conscious judgment of this Court on the issue after referring to other judgments and in absence of any direct judgment of the Hon’ble Supreme Court in New Jehangir Vakil Mills Co. Ltd. v. CIT [1963 (4) TMI 60 - SUPREME COURT], we are of the view that the earlier order of this Court dismissing appeal of the revenue in limine cannot be taken to be conclusive.
Thus, we partly allow this appeal in relation to question No. 1 and set aside the finding of the Tribunal and uphold the order of the Assessing Officer. As far as other issues are concerned, the appeal is dismissed.
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2006 (12) TMI 498
Issues involved:
The issues involved in this case are the quashing of a warrant of authorization issued u/s 132(1) of the Income-tax Act, legality of proceedings initiated by the respondents, and the disclosure of cash amount by the petitioner.
Summary:
Quashing of Warrant of Authorization:
The petitioner, a doctor and partner in a nursing home, challenged the warrant of authorization issued u/s 132(1) of the Income-tax Act. The petitioner alleged that carrying Rs. 10 lakh in cash, disclosed at the security check, led to the seizure of the cash by Income-tax Department officers. The petitioner contended that the initiation of proceedings was arbitrary and illegal.
Legal Proceedings:
The petitioner argued that there was no legal basis for the proceedings initiated by the respondents under section 132(1) of the Income-tax Act. The petitioner's counsel highlighted the petitioner's annual income, the disclosure of cash to Customs authorities, and lack of material evidence for initiating the proceedings. Legal precedents were cited to support the petitioner's case.
Respondent's Defense:
The Senior Standing Counsel for the respondents defended the proceedings, stating that there was sufficient material for the warrant of authorization. The suspicion arose when the petitioner attempted to cancel his flight ticket, and the undisclosed cash was not reflected in any account books. A decision of the Gujarat High Court was referenced to support the respondent's position.
Court's Analysis:
The Court examined the facts and legal arguments presented by both parties. It was noted that the initiation of proceedings was solely based on the communication from the Customs Officer regarding the cash declaration by the petitioner. The Court referenced legal precedents to emphasize the requirement of specific information before issuing a warrant of authorization u/s 132(1) of the Income-tax Act.
Judgment:
The Court found that the warrant of authorization was issued without jurisdiction as the information provided by the Customs Officer was insufficient to establish undisclosed income. The Court emphasized that search and seizure actions must be based on concrete reasons to believe that income was not disclosed. As there was no substantial material beyond the Customs Officer's communication, the Court quashed the proceedings and directed the respondents to refund the seized amount to the petitioner.
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2006 (12) TMI 497
Issues involved: Failure to issue a show cause notice u/s 142(2A) of the Income Tax Act, 1961.
The High Court, in the case at hand, addressed the issue of failure to issue a show cause notice u/s 142(2A) of the Income Tax Act, 1961. The learned Standing Counsel for the Revenue referred to the decision in Rajesh Kumar v. Deputy Commissioner and acknowledged that the matter had been referred to a larger Bench of the Supreme Court. Despite this, he conceded that based on the ratio laid down in Rajesh Kumar, the impugned order could be set aside due to the absence of a show cause notice prior to deciding on a special audit. The Court, without expressing any opinion on the merits of the case, set aside the impugned order and granted the Revenue one week to issue a show cause notice to the assessee as required by Rajesh Kumar. The assessee was directed to respond within two weeks of receiving the notice and cooperate fully with the Revenue. The Department was to make a final decision on whether to order a special audit within a fortnight of receiving the assessee's reply. It was clarified that the statutory time limits would apply if a special audit was indeed ordered, and the time spent on the petition would not be counted towards the assessment timeline. The writ petition was disposed of with these directions, and orders were to be provided to both parties promptly.
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2006 (12) TMI 496
Issues involved: Application for anticipatory bail based on the classification of alleged offences as bailable or non-bailable, and the lower court's failure to follow binding precedent.
Summary:
The High Court of Bombay heard an application for anticipatory bail where the applicant sought protection from arrest in connection with an investigation by the Commissioner of Customs. The applicant argued that the alleged offences were bailable and that custodial interrogation was unnecessary. The Additional Sessions Judge, however, did not follow the binding precedent set by the High Court and the Supreme Court, leading to a grave error. The High Court emphasized that a judgement stayed by a higher court remains binding until quashed or set aside. Both parties agreed to restore the anticipatory bail application to the Sessions Court for a fresh decision based on merits and the law. The Sessions Judge was directed to expedite the process within four weeks, with the interim protection for the applicant to continue until the application's disposal, while also requiring the applicant to cooperate with the Investigating Officer when summoned.
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2006 (12) TMI 494
The Supreme Court dismissed the Special Leave Petition. The petitioner can move a reference application with an application for condonation of delay, which will be considered by the concerned Court.
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2006 (12) TMI 493
Issues involved: Appeal against penalty equal to duty demand set aside by Commissioner (Appeals).
Issue 1 - Valuation of goods under Central Excise Tariff Act, 1985:
The respondent company, having two units, manufactured HDPE bags under Chapter 39 of Central Excise Tariff Act, 1985. They transferred products from one unit to another, paying duty on intermediate products. Post a change in Central Excise Valuation Rule from 1.7.2000, duty was required on value with 15% notional profit. The company continued paying duty based on the old valuation. Upon detection, duty under new rules was paid in 2001. A show cause notice in 2004 sought to confirm duty for 01.07.2000 to 31.10.2001 with penalty. The Commissioner (Appeals) set aside the penalty, noting no intention to evade duty as goods were cleared with duty paid, albeit at an incorrect value.
Issue 2 - Allegations of short levy and intention to evade payment:
The Department argued short levy, intention to evade duty, and suppression of facts. However, the Tribunal found it to be a bona fide dispute due to ignorance of the law change from 1.7.2000. It was noted that duty paid by the first unit for inter-unit transfers was available as Cenvat credit for the recipient unit. Consequently, the Tribunal held that there was no intention to evade duty, as the discrepancy arose from a lack of awareness rather than deliberate evasion.
In conclusion, the Tribunal rejected the Department's appeal, emphasizing that the case did not involve clandestine removal but rather a genuine misunderstanding of the changed valuation rules, leading to the duty discrepancy.
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2006 (12) TMI 492
Addition made as Cash credits u/s 68 - Partner introduced a sum of ₹ 40,000 in her capital account, which is unexplained - Addition can be made in the income of the firm? - Deposited a sum of ₹ 30,000 in her account, received by way of gifts and shaguns at the time of her marriage - HELD THAT:- It is well-settled that whether explanation of the assessee about nature and source of the amounts credited in the books of account was satisfactory is a question of fact. In our recent order Shiv Rice & General Mills v. CIT[2006 (10) TMI 97 - PUNJAB AND HARYANA HIGH COURT], we observed:- " held that findings recorded on cash credits are findings of facts giving rise to no question of law, much less a substantial question of law being the requirement u/s 260A of the Act, for entertainment of the appeal."
We are also in agreement with the view taken by the Tribunal that no case was made out for addition to the income of the firm even if deposits made with the firm by the partners were unexplained income of the partners. This view has been taken by us in our recent order passed in CIT v. Metal & Metals of India [2006 (11) TMI 630 - HIGH COURT OF PUNJAB & HARYANA].
Thus, the question referred is answered against the revenue and in favour of the assessee.
The reference is disposed of.
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2006 (12) TMI 491
Issues Involved:
1. Whether the property in suit could be put on auction sale without initiating a formal final decree proceeding.
2. Whether the preliminary decree can be executed without a final decree.
3. Jurisdictional authority of the court to put the property on auction sale.
4. Appropriate remedy and terms for the appellant.
Issue-wise Detailed Analysis:
1. Auction Sale Without Final Decree Proceeding:
The primary issue was whether the property in suit could be put on auction sale without initiating a formal final decree proceeding. The court emphasized that a preliminary decree declares the rights and liabilities of the parties but does not dispose of the suit entirely. A final decree is necessary to execute the partition and make the property saleable. The court stated, "Without drawing a final decree proceeding, the court could not have put the property on auction sale."
2. Execution of Preliminary Decree:
The court clarified that only a final decree could be executed, not a preliminary decree. It referenced Order XXI of the Code of Civil Procedure, which stipulates that property can be sold only in execution of a decree. The court noted, "A final decree proceeding may be initiated at any point of time. No limitation is provided therefor. However, what can be executed is a final decree, and not a preliminary decree, unless and until final decree is a part of the preliminary decree."
3. Jurisdictional Authority:
The appellant raised a jurisdictional question, arguing that the court lacked the inherent jurisdiction to order an auction sale without a final decree. The court agreed, stating, "The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so." The court further explained that any order passed by a court without jurisdiction is coram non judice and a nullity. This principle was supported by references to previous judgments, including Chief Justice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Others and MD Army Welfare Housing Organisation v. Sumangal Services (P) Ltd.
4. Remedy and Terms for the Appellant:
Considering the appellant's conduct and the need to do complete justice, the court directed the appellant to deposit a sum of Rs. 18 lakhs within four weeks before the learned Trial Judge. This amount would be distributed equally between Respondent Nos. 1 and 2. Additionally, the appellant was required to compensate the auction purchaser with interest at 9% per annum from the date of deposit until actual payment. The court stated, "The appellant furthermore shall deposit such amount in the court within the aforementioned period towards payment of interest by way of compensation @ 9% p.a. from the date of deposit till the actual payment is made, which would be payable to the auction purchaser, which in our opinion is just and reasonable."
The court exercised its jurisdiction under Article 142 of the Constitution of India to provide a just remedy. It referenced Kishori Lal v. Sales Officer, District Land Development Bank and Ors., where a similar direction was issued to ensure complete justice between the parties.
Conclusion:
The appeal was allowed, and the auction was set aside on the condition that the appellant complied with the court's directions. The decree for partition would stand satisfied upon compliance. The court concluded, "The appeal is allowed subject to the aforementioned observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs."
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2006 (12) TMI 490
Issues Involved:
1. Maintainability of the appeal under Section 130 of the Customs Act against an order under Section 129E.
2. Interpretation of Sections 129A, 129B, 129E, and 130 of the Customs Act.
3. Relevance and applicability of previous judicial decisions cited by the customs authority.
Issue-wise Detailed Analysis:
1. Maintainability of the Appeal under Section 130 of the Customs Act:
The primary issue was whether an order directing the appellant to deposit a sum under Section 129E of the Customs Act could be challenged by an appeal under Section 130 of the same Act. The customs authority argued that only final orders under Section 129B(1) could be appealed under Section 130, citing various judicial decisions. However, the appellant contended that all orders passed by the Tribunal under Section 129A are appealable under Section 130 if they involve a substantial question of law. The court concluded that orders under Section 129E are indeed appealable under Section 130, provided they involve a substantial question of law.
2. Interpretation of Sections 129A, 129B, 129E, and 130 of the Customs Act:
The court examined the relevant sections in detail. Section 129A allows appeals to the Appellate Tribunal from specific orders. Section 129B outlines the powers of the Appellate Tribunal. Section 129E mandates the deposit of duty, interest, or penalty as a condition for appeal, with provisions for exemption in cases of undue hardship. Section 130 provides for appeals to the High Court from Tribunal orders if they involve substantial questions of law. The court interpreted that the language of Section 130 does not restrict appeals to only final orders and includes orders under Section 129E.
3. Relevance and Applicability of Previous Judicial Decisions:
The customs authority cited several decisions to support their preliminary objection:
- Punjab Paint, Colour and Varnish Works and Anr. v. Customs, Excise and Gold (Control) Appellate Tribunal and Anr.: The court found this decision irrelevant as it dealt with a writ application, not an appeal under the new Section 130.
- Indotex Machinery Works v. Assistant Collector of Central Excise and Anr.: This case discussed res judicata and second applications, which were not pertinent to the current issue.
- Maruti Udyog Ltd. v. Union of India: This case involved a writ application under Article 226, not an appeal under Section 130.
- Commissioner of Income-tax and Anr. v. Income-tax Appellate Tribunal and Anr.: This case concerned the scope of reference under the Income-tax Act, which was not analogous to the Customs Act provisions.
- Munna Lal and Sons v. Commissioner of Income-tax, U.P.: This case interpreted Section 66(1) of the Income-tax Act, not relevant to Section 130 of the Customs Act.
- Shaw Wallace and Co. Ltd. v. Income-tax Appellate Tribunal and Ors.: This case involved a writ application and did not consider the scope of Section 130.
- Tata Cummins Limited v. Commissioner of Customs: This case dealt with condonation of delay and was not directly applicable to the issue at hand.
The court concluded that none of the cited decisions precluded the maintainability of an appeal under Section 130 against an order under Section 129E. The preliminary objection was overruled, and the matter was directed to be placed before the appropriate bench for a hearing on merits.
Conclusion:
The court held that an appeal under Section 130 of the Customs Act is maintainable against an order under Section 129E if it involves a substantial question of law. The preliminary objection raised by the customs authority was dismissed, and the matter was set for a hearing on its merits.
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2006 (12) TMI 489
... ...
... ... ..... condoned. Heard. The Civil Appeal is dismissed.
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2006 (12) TMI 488
Issues Involved:
1. Reliability of Panch Witnesses
2. Handling of Seal Post-Use
3. Accounting for Remnant Samples
4. Filling of Test Form at the Spot
5. Production of Malkhana Register
6. Contradictions in Witness Statements
7. Non-Notification of Appellant's Relatives Post-Arrest
8. Recording of Appellant's Statement Without Counsel
9. Retraction of Confessional Statement
10. Breach of Guidelines by Narcotic Control Bureau
11. Non-Compliance with Sections 52A and 57 of the NDPS Act
Issue-wise Detailed Analysis:
1. Reliability of Panch Witnesses:
The appellant argued that the panch witnesses were unreliable, with one not examined and the other not supporting the prosecution. However, the court found that the taxi driver, who was a panch witness, supported the prosecution's case materially. He testified about the presence of NCB officials, the recovery of heroin, and identified the appellant and case property. The court concluded that minor discrepancies do not render a witness unreliable, and the independent witness stood up well to cross-examination.
2. Handling of Seal Post-Use:
The appellant contended that the seal used during the investigation remained with Mr. D.C. Mishra, raising the possibility of misuse. The court noted that there is no statutory requirement under the NDPS Act for handing over the seal to an independent witness. The court found that the seals were intact when the samples were received by the CRCL and that the samples were sent the very next day, ruling out tampering.
3. Accounting for Remnant Samples:
The appellant argued that the remnants of the samples were not accounted for. The court found this claim to be false, as the remnants were found intact with the CRCL seal when produced in court. The court dismissed this argument, noting that the samples were properly accounted for.
4. Filling of Test Form at the Spot:
The appellant argued that the test form was not filled at the spot, which was mandatory. The court found that while the test memo was prepared on 25.3.1998, it was not necessary for it to be filled at the spot. The court emphasized that there is no statutory requirement for the test memo to be prepared at the recovery spot, and the guidelines issued by the department are advisory and not legally binding.
5. Production of Malkhana Register:
The appellant argued that the non-production of the Malkhana register was fatal to the prosecution's case. The court found that the oral testimony of the officials who deposited the case property in the Malkhana was sufficient. The court noted that the appellant resisted the production of the Malkhana register, and thus could not draw any mileage from its non-production.
6. Contradictions in Witness Statements:
The appellant pointed out contradictions in witness statements. The court found that minor discrepancies are natural and do not render the testimonies doubtful. The court emphasized that the overall testimony of the witnesses was truthful and consistent on material aspects.
7. Non-Notification of Appellant's Relatives Post-Arrest:
The appellant argued that her relatives were not informed about her arrest. The court did not find this argument substantial enough to impact the case's outcome.
8. Recording of Appellant's Statement Without Counsel:
The appellant contended that her statement under Section 67 of the NDPS Act was recorded without giving her time to think and without counsel. The court found that the conviction was not based solely on the confessional statement, but on the recovery of heroin and other evidence. The court noted that the appellant did not retract her statement at the first opportunity and did not complain of torture when produced before the magistrate.
9. Retraction of Confessional Statement:
The appellant retracted her confessional statement, claiming it was obtained under torture. The court found that the recovery of heroin was proved independently of the confessional statement. The court also noted that the appellant did not retract her statement immediately and did not complain of torture when given the opportunity.
10. Breach of Guidelines by Narcotic Control Bureau:
The appellant argued that the prosecution breached guidelines issued by the Narcotic Control Bureau. The court found that these guidelines are advisory and not legally binding. The court emphasized that statutory provisions and rules under the NDPS Act were complied with.
11. Non-Compliance with Sections 52A and 57 of the NDPS Act:
The appellant argued non-compliance with Sections 52A and 57 of the NDPS Act. The court found substantial compliance with Section 57, as the original information was taken to the superior officer, who made an endorsement. The court dismissed the argument that only sending a copy would suffice.
Conclusion:
The court dismissed the appeal, finding no force in the appellant's arguments. The conviction and sentence were upheld based on the recovery of heroin and the corroborative evidence provided by the prosecution witnesses.
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2006 (12) TMI 487
Whether the claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives?
Whether the wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member?
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