Attack on the Akshardham temple in Gandhinagar - section 120 of Indian Penal Code - It is the case of the prosecution that the confessional statements of the accused persons were recorded by the Superintendent of Police, Sanjaykumar Gadhvi (PW-78), as provided Under Section 32 of the POTA by following the mandatory procedure - constitutional validity of Section 15 of the TADA Act - validity of confessions.
Held that: - adequate time had not been given to any of the accused as they had been in police custody for almost 45 days in each case. We also observe that there is no evidence on record to suggest that the special report envisaged Under Sub-rule (5) of Rule 15 had been submitted to the Magistrate. The confessions cannot, therefore, be taken into account for any purpose.
In the facts and circumstances of the present case the grant of half an hour to the accused to think over before recording their confessional statement cannot be held to be a reasonable period. We do not think that is safe to base conviction on such confessional statements. Further, on the facts of the present case, conviction cannot be maintained on the sole testimony of two police officials - enough time was not given to the accused persons to record their confessional statements, particularly in the present case since they were making confessions after 11 months of the incident.
Neither the police officer recording the confessional statements nor the CJM followed the statutory mandates laid down in POTA Under Sections 32 and 52 while recording the confessional statements of the accused persons, and we hold that the confessional statements made by A-2, A3, A-4 and A-6 Under Section 32 of POTA are not admissible in law in the present case.
Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.
Denial of natural justice - Whether the High Court is justified in issuing the directionse solely on the ground that non-supply of the advice obtained by the disciplinary authority from the UPSC and acting on the same amounts to violation of principles of natural justice? - Held that:- In view of the aforesaid, we respectfully agree with the decision rendered in S.K. Kapoor's case [2011 (3) TMI 1633 - SUPREME COURT] wherein held although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus resultantly decline to interfere with the judgment and order of the High Court. As a result, the appeal, being devoid of merit, is dismissed.
Grant of Additional License - renewal of its certificate of recognition as a trading house - delay in filing application - case of Revenue is that though it is true that the petitioner filed an application for grant of an additional licence on 28-5-1984 but as the application was not accompanied by a trading house certificate and no fresh application was filed after renewal of trading house certificate on 18-2-1992, the petitioner cannot be granted any relief on the basis of applications dated 26-5-1984 or 26-2-1992.
Held that: - The respondents have, in essence, taken a stand that application dated 18-2-1992, though filed within time cannot be entertained as it cannot be construed to be a fresh application filed after receipt of the renewed certificate but is for renewal of an application that was not maintainable.
After a delay of nearly nine long years, certificate of recognition as a trading house, valid from 1-4-1983 to 8-11-1983, was issued, in accordance with the 1983-84 policy, on 18-2-1992. The petitioner, in accordance with rights conferred by Para 203(1) of the 1983-84 policy, allowing the petitioner to apply for an additional licence within two months of renewal, addressed letter dated 26-2-1992, within eight days of issuance of the certificate, to the Joint Chief Controller of Imports and Exports, Ludhiana, informing him that as it has received a trading house certificate on 18-2-1992, and while referring to a letter dated 27-8-1991 and in continuation of earlier letters, prayed that an additional licence be issued at the earliest - A perusal of the letter reveals that though it states that it may be read in continuation of letter dated 27-8-1991, which in turn relates back to application dated 26-5-1984, which as referred to earlier was filed when the application for renewal of the certificate was still pending, clearly prays for grant of an additional licence.
The reasons assigned for rejecting the petitioner’s application are neither tenable nor germane to the controversy in hand but are based upon a perverse and arbitrary attempt to twist facts and misread application dated 26-2-1992 - The respondents have, in our considered opinion and for reasons we are unable to fathom, intentionally and by a technical play of words construed, this letter as a mere letter for revival of application dated 26-5-1984. The letter does not by any words whether specific or inferential pray for revival of application dated 26-5-1984 but instead specifically prays that an additional licence be issued. The use of the words “in continuation” etc. does not raise an inference, as held by the respondents that letter dated 26-2-1992 merely seeks revival of application dated 26-5-1984.
Petition allowed - decided in favor of petitioner.
Non-filing of annual return for the year 2013 and the balance sheet for 2012-13 by the transferor and transferee company - Held that:- The said objections stand satisfied in view of filing of annual returns for the year 2013 so also the balance sheet for the financial year 2012-13 by the transferor and transferee company on 7th May, 2014. As regards the second objection the transferee company is ready and willing to increase its authorised share capital and file necessary forms as may be required. Therefore the second objection raised by the Central Government also stands satisfied.
In view of the aforesaid there will be orders in terms of prayers (a) to (j) of the petition.
In the event the petitioners supply a legible computerized print out of the scheme and the schedule of assets in acceptable form to the department, the department will append such computerized print out, upon verification, to the certified copy of the order without insisting on a handwritten copy thereof.
Seizure of goods - challenge to the order is founded on the premises that the seizure was made on mere suspicion without any material basis - Held that: - Sub-Section (4) of Section 60 of the Act authorizes the competent authority to seize any goods covered under the Act if it is being transported in contravention of the provisions of Sub-Section (2) of Section 60 of the Act - the Act does authorize the competent authority to seize the goods along with the vehicle for due verification, but the seizure cannot be depend on the ipse dixit of the officer and, in order to make his act of seizure valid, existence of reasonable ground of suspicion is a condition precedent. This apart, no penalty can be raised or assessed on mere suspicion without any material basis.
The certificate, granted by the Forest Officer, shows that the rates, mentioned in the Bill and Form-DIX, were correct. We further find that respondent Commercial Tax Officer, on self assessment, based on surmises, came to the conclusion that the rate quoted was low and, thus, fixed the value of logs at 1000/-per cubit feet in place of ₹ 700/-and ₹ 764/-, which were mentioned in the Bill, without assigning any cogent reason therefore. We too notice that there was no material or basis for coming to the conclusion that the rate, mentioned in the bill, was deliberately kept under valued and was so done to avoid liability of due Sale Tax.
Demanding residue of the unpaid taxes from the petitioners under the Gujarat Tax on Luxuries (Hotels and Lodging Houses) Act, 1977 - Held that:- Since the communication issued by the Collector is only in the form of a show cause notice, we are not inclined to interfere at this stage, leaving it open for the petitioners to approach the Collector. If no reply is filed so far, it would be open for the petitioners to do so latest by 20.5.2014. Collector shall proceed in accordance with law after considering the reply, if any, so filed. If no assessment is made on the returns filed by the petitioners, the same may also be done in accordance with law.
Application for modification of the earlier order and permitting the sale of certain assets of the respondent No.1-Company - Held that:- Under Section 10(F) of the Companies Act, appeal has been provided against the order of the Company Law Board to this Court on any question of law arising out of such order. The arguments which have been advanced by the counsel for the appellants reveals that these are the issues relating to fact and not to the pure question of law, therefore, no ground is made out at this stage to entertain the present miscellaneous company appeal.
Considering the nature of grievance which the appellants has raised before this Court and also considering the stand of the respondents before this Court, it is of the opinion that interest of justice would be served in permitting the appellants to file an appropriate application before the Company Law Board raising the grievance which they have raised before this Court, and also permitting the appellants to make a request to the learned Judge appointed by the Company Law Board as Observer- Cum-Facilitator to not to proceed with the sale of the assets of the respondent No.1-Company till the application, if any, in pursuance to the liberty granted by this Court is decided by the Company Law Board.
Offence under PMLA Act - eligibility of initiation of the proceedings against the petitioners - eligibility of benefits of all the procedures applicable to the woman - Held that:- Inquiry, investigation, etc., are permissible under Cr.P.C. by the authorities or officers exercising the jurisdiction under P.M.L. Act. It therefore goes without saying that on noticing an offence under P.M.L. Act against the offenders, the case can be tried as provided in Chapter VII of P.M.L.A. Act. Thus, a separate machinery for trial of the offences under P.M.L. Act is provided under Chapter VII as distinguished from adjudication under Section 8 of the Act. To enable such trial, the investigation and inquiry with the assistance of the provisions of Cr.P.C. is permissible.
Looking to the fact that the petitioners are not arrayed as accused, it appears that they are sought to be interrogated to ascertain their complicity in the offence if any. Such action cannot be thwarted at a preliminary stage where only summons have been issued after freezing the accounts of the petitioners. Even if the argument of the petitioners that freezing of the accounts was not permissible that Sections 5 and 17 of P.M.L.A. Act were applicable at this stage is accepted, as noticed in a greater detail, acts under Sections 5 and 17 are only provisional and subject to confirmation by the Adjudicating Authority. Before such adjudication, a notice to the interested person is contemplated under Section 8 of P.M.L. Act and therefore, by convincing the Adjudicating Authority that no offence under Section 3 is committed by the petitioners, the orders defreezing their accounts can be obtained from the such authority. In the facts and circumstances discussed hereinabove, it is difficult to accept the contention that initiation of the proceedings against the petitioners are illegal.
True it is that the vexatious search would expose the authority or officer concerned to prosecution but that in fact is a safeguard provided to the suspects so as to prevent them against unnecessary harassment or inconvenience. In view of such safeguard, at this stage, this Court would not doubt the credentials of the respondents when they are inquiring into or investigating what may turn out to be a serious offence. Further Sections 22 and 23 raise various presumptions against the suspects and Section 24 casts a burden of proof under various situations on the person charged with the offence. Thus, the offence under Section 3 is treated as serious offence and interference by this Court at the preliminary stage may frustrate the purpose and object of the Act.
Further, a bare perusal of sub-section (2) of Section 50 shows that power to summon any person whose attendance is considered necessary as provided in sub-section (2) is vested with various authorities including Assistant Director and therefore, it is misconceived to say that the officer issuing summons being the Assistant Director is not so empowered.
In view of the above discussion, the arguments that without compliance with Sections 5 and 17, Section 16 was the only provision applicable to the respondents, after noticing the material in search under FEMA, also cannot be accepted.
So far as petitioner-Foziya Samir Godil is concerned, being a woman, it is rightly contended by the learned counsel for the petitioners that she is entitled to benefits of all the procedures applicable to the woman under the relevant law and to that extent, the respondents at the threshold shall have to comply with the provisions of law.
The contention that exclusive procedure for summoning a person under Section 50 not providing the safeguards to a woman as under various provisions of Cr.P.C. and therefore, no benefit as is available to the woman under Cr.P.C. can be conferred upon her, is devoid of merits and suffers from misconception of law inasmuch as concededly by virtue of Section 65 of P.M.L. Act, provisions of Cr.P.C. as are not inconsistent with the provisions of P.M.L. Act are applicable to the proceedings under P.M.L. Act and it cannot be said that the provisions providing safeguard to a woman under Cr.P.C. cannot stand with the provisions of P.M.L. Act and therefore, such provisions cannot be said to be inconsistent with P.M.L. Act.
Subject to the aforementioned observations, no substance is found in the petitions
Scheme of Amalgamation - Held that:- In view of the approval accorded by the Shareholders and Creditors of the petitioner Company, representations/ reports filed by the Regional Director, Northern Region and the official liquidator, attached with this court to the proposed scheme of Amalgamation, there appears to be no impediment to the grant of sanction to the Scheme of Amalgamation. Consequently sanction is hereby granted to the Scheme of Arrangement under Section 391 and 394 of the Companies Act, 1956.
The petitioner companies shall comply with the statutory requirements in accordance with law. Certified copy of the order be filed with the Registrar of Companies within 30 days from receipt of the same.
Re-trial of the case on account of absence of the essential prosecution papers - conviction under Section 148, 302/149 and 307/149 I.P.C - Held that:- We find ourselves unable to decide this appeal on merits. It is pertinent to mention that learned counsel for the appellants insisted time and again when the appeal was taken up for hearing that in absence of the prosecution papers, he will not be able to make any submission on merits of the case for which availability of the prosecution papers are essential.
As discussed above, re-trial of the case is not possible on account of absence of the essential prosecution papers i.e. first information report, Chik FIR, site plan, inquest report, post mortem examination report, charge sheet, case diary, injury reports etc. Even affidavit filed by Sri N. Kolanchi, Superintendent of Police, Pilibhit dated 13.02.2014 unambiguously discloses information regarding the period for preservation of the prosecution papers and consequent thereto weeding out of the same after lapse of the stipulated period. In para 9 of the affidavit, it has been disclosed that the relevant prosecution papers have been weeded out due to which the deponent is handicapped to reconstruct the documents pertaining to the present case. In view of the above particular circumstances, the order of re-trial will not serve any purpose after gap of around 35 years when the incident took place on 12.05.1978.
As per the settled principles of criminal jurisprudence, every accused carries with him presumption of innocence even at appellate stage. Therefore, as per guidelines laid down in the case of Abhai Raj (2004 (3) TMI 774 - SUPREME COURT ), we conclude that the lower court judgment of conviction and sentence dated 29.01.1980 is liable to be set aside.
Accordingly, the appeal is allowed. The impugned judgment and order dated 29.01.1980 is hereby set aside and the present surviving appellants namely Lalman, Ram Swaroop and Chhotey Giri are acquitted of offences with which they have been charged. Their bail bonds are cancelled and sureties are discharged.
Unexplained loans and cash credits - absence of any evidence or material from the side of the assessee - Held that:- The books of accounts were neither produced before the assessing officer nor before CIT(Appeals). The Tribunal also noted that no steps were taken in bringing evidence on record, even before the Tribunal and for the purpose of additional evidence, there was absence of any application. Such non-cooperative attitude of the appellant led the Tribunal not to accede to the request of the appellant. Considering these glaring facts coupled with the fact that these findings are completely based on the factual matrix and no perversity could be noticed in such findings which would have given rise to substantial question of law. - Decided against assessee
Addition towards Transportation Charges - unserved notices as parties were not available on the addresses given by the assessee - genuine expenditure - Held that:- It is not disputed that the assessee had furnished proof of actual performance of transportation work, lifting of waste, payments of TDS, full addresses of the parties, confirmation of account with PAN and mode of payment. By giving such details, in our opinion, assessee had discharged its initial burden of proof. If AO had doubt about the genuineness of transaction or payment, he should have made further inquiries and should have confronted the assessee with the result of such inquiries. Assessee was awarded contract by MCGM for lifting solid waste and was paid for it by the corporation. It had hired sub-contractors to carry out job assigned by the Municipal Corporation. As per the terms of contract assessee had to get the vehicles used for lifting wastage with RTO. Inquiry with RTO/ MCGM would have brought truth in light. It is true that letter issued by the AO remained unserved, but that factor alone should not result in addition of Rupees more than two crores. Non service of notices issued by the AO was the starting point to investigate the matter further. But, the AO chose to stop there and ignored the documentary evidences produced by the assessee. In these circumstan -ces, we are of the opinion that the order of the FAA does not suffer from any legal infirmity - Decided in favour of assessee
Addition u/s. 68 - unexplained unsecured loans - establish the capacity, genuineness and proper identity of creditors - Held that:- Two of the creditors not only had appeared before the AO, but had also admitted of giving loan to the assessee. AO has not pointed out any abnormality in their statements. In these circumstances, there was no reason to make addition for the sums appearing in their names. From the order of the FAA it is clear that Shantiben Shah and Charmi A Mehta had capacity of advancing loans to the assessee and they were regular tax payees. Thus, FAA has conclusively proved that identity of the creditors, genuineness of the transaction and capacity to advancing loan cannot be doubted. - Decided in favour of assessee
Proper party to the suit - deleting the defendant / respondent no.2 from the array of defendants in the suit, holding the defendant / respondent no.2 to be neither a necessary nor a proper party to the suit - termination of the appellant / plaintiff’s service with the defendant no.1 by the defendant no.2 - whether because 100% of the shares of the defendant no.1 Company are held by the defendant no.2, the defendant no.2 is a necessary party?
Held that:- First of the aforesaid argument is against the very grain of Company Law. A Company is a distinct legal entity from its shareholder, even if all the shares are held by one person only. Thus, merely because the defendant no.2 holds 100% of the shareholding of the defendant no.1 Company, would not make the defendant no.2 liable for the dues and acts of the defendant no.1. Admittedly both defendant no.1 and defendant no.2 are separate legal entities. No case for piercing of the corporate veil is made out. The Supreme Court in Vodafone International Holding B.V. Vs. Union of India (2012 (1) TMI 52 - SUPREME COURT OF INDIA ) has held that a Company is a separate legal persona and the fact that all its shares are owned by one person or by the parent Company has nothing to do with its separate legal existence.
Whether the termination of the services of the appellant / plaintiff could have been done by the defendant no.1 Company only and not by the defendant no.2.? - Held that:- The second argument is equally ambiguous. Even if it is to be presumed that it is the defendant no.2 which has terminated the services of the plaintiff and which the defendant no.2 could not have done, being not the employer of the appellant / plaintiff, that would only make the termination to be illegal but would not make the defendant no.2 Company with whom the appellant / plaintiff had no privity, liable. The claim if any of the appellant / plaintiff for such illegal termination would remain against the defendant no.1 Company only and not against the defendant no.2.
Plaintiff during the hearing has also argued that the appellant / plaintiff was reporting to the defendant no.2. Even if that be so, merely because an employee, in the course of employment, is required to report to another instead of to the employer, would not make such another liable for any claims arising from such employment. No cause of action against the defendant no.2 is disclosed. Appeal dismissed.
The Appellate Tribunal CESTAT NEW DELHI dismissed the appeal due to non-compliance with the order to pre-deposit the proportionate interest on the service tax already deposited by the assessee.
Re-trial of the petitioner permissible as already been acquitted - Section 300 Cr.P.C - NDPS Act - Person once convicted or acquitted not to be tried for same offence - learned counsel appearing for the petitioner was strenuously arguing that because, the present petitioner has been acquitted, he could not be re-tried - Held that:- I may point out that the above contention does not appear holding good. As soon as the very trial has been found not as per the provisions of the law and, as such, outside the jurisdiction of the competent court, the order of acquittal could be of no effect. Merely, because a Sessions Judge was a Special Judge was not creating competence in him to try the offence. It has always to be considered in light of the fact that no other trial procedure could be followed except the set of provisions contained in Chapter-XVIII in the light of Section 36C of the NDPS Act while trying an accused or an offence. As soon as the learned Special Judge-cum-Sessions Judge, Muzaffarpur was found having not followed the provision of Chapter-XVIII Cr.P.C., the trial was very much in inherent lack of jurisdiction and, as such, the acquittal could not be supported and it could not accrue any benefit of such acquittal to any accused like the present petitioner. Present petition lacks merit and the same is dismissed.
CENVAT credit - duty paying invoices - debit notes issued by the service provider - Held that: - Examination of record reveals that the decision taken by the adjudicating authority does not show the consideration of documents on record and decision arrived by him was not proper and legal - matter remanded to the adjudicating authority to consider their documents on record - appeal allowed by way of remand.
Addition made u/s 94(7) - profit earned by the assessee from the sale of shares held for a period of less than six months - short term capital gain or business income - treated by the AO as the business income - Held that:- It is observed that the profit earned by the assessee from the sale of shares held for a period of less than six months has been treated by the ld. CIT(A) as short term capital gain in the hands of the assessee and as submitted by the ld. counsel for the assessee, the department has not filed an appeal before the Tribunal against the order of ld. CIT(A) on this issue. It therefore, follows that the entire profit/loss arising to the assessee on sale of shares has been finally taxed in the hands of the assessee under the head “ capital gains” and consequently in addition/disallowance u/s 94(7) of the Act is liable to be made under the head “capital gains” as rightly claimed by the assessee and not under the head “profit and gains of the business or profession” as held by the AO and ld. CIT(A).
We, therefore, set aside the impugned of the ld. CIT(A) and direct the AO to make addition/disallowance u/s 94(7) of the Act under the head “capital gains”. - Decided in favour of assessee.
CENVAT credit - consultancy and professional fees paid by the appellant to Chartered Accountants - Held that: - It is also a settled law that the services rendered by the service provider can be classified in the hands of the jurisdictional authorities who are supposed to classify and reclassify the services rendered, the authorities at the recipient’s end in this case reclassified the services rendered and denied the Cenvat credit - appeal allowed - decided in favor of appellant.
Gujarat Town Planning and Urban Development Act, 1976 -Whether Section 40(3)(jj)(a) of the Gujarat Town Planning and Urban Development Act, 1976 would be operative for the land other than the land covered by Section 20(2) of the Act 1976, though upheld the validity of Section 40(3)(jj) of the Act 1976? - whether after the lapse of the period for reservation as per Section 20(2) of the Act 1976, can the said land be again acquired by resorting to the provisions of Section 40 of the Act 1976?
Section 40 of the Act 1976 contains the words “regard being had” and thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.
It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.
In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law.
Reference to the DVO u/s. 55A - valuation of the registered valuer of the assessee should be accepted and not the valuation given by the DVO - Held that:- Assessing Officer has no power to make the reference to the DVO for the A.Y. 2008-09 by invoking u/s. 55A of the Income-tax Act for determining fair market value as on 01-04-1981. Moreover, the issue has been decided in favour of the assessee by the jurisdictional High Court in the case of CIT Vs. Puja Prints [2014 (1) TMI 764 - BOMBAY HIGH COURT]. We, therefore, find no reason to interfere with the order of the Ld. CIT(A). Accordingly, the same is confirm and grounds taken by the Revenue are dismissed.
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