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2013 (7) TMI 1169
Issues involved: Appeal against conviction under Section 302 of the Indian Penal Code based on dying declaration.
Details of the judgment:
1. Facts and Circumstances: The case involved the death of Guddi due to burn injuries, with a dying declaration accusing the mother-in-law of setting her on fire. The prosecution presented witnesses and evidence to support the case.
2. Reliability of Dying Declaration: The courts relied on the dying declaration of Guddi, recorded by Dr. Nirmal Kumar Gupta and witnessed by staff nurse Merry Kutti Michael. The defense challenged the admissibility of the dying declaration due to the unavailability of the original document.
3. Secondary Evidence: The original dying declaration was not traceable, so the prosecution was allowed to present secondary evidence. The Trial Court granted permission for this based on the provisions of Sections 63 and 65 of the Indian Evidence Act 1872.
4. Legal Precedents: The Supreme Court referred to previous cases to establish the admissibility and reliability of dying declarations, emphasizing the importance of the mental state of the deceased at the time of recording the statement.
5. Judicial Analysis: The courts below found the Appellant guilty based on the evidence presented, including the dying declaration and medical testimony. The defense's explanation was deemed insufficient, leading to the dismissal of the appeal.
Conclusion: The appeal lacked merit, and the conviction under Section 302 of the Indian Penal Code was upheld, resulting in the dismissal of the appeal.
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2013 (7) TMI 1168
Issues involved: Suit for recovery of possession and mesne profits, defense of being a tenant, jurisdiction under Section 50 of the DRC Act, entitlement to possession, damages/mesne profits, injunction, relief.
Issue 1: Trespass or tenant status
The respondent filed a suit against the appellant for recovery of possession of a flat, alleging trespass. The appellant claimed to be a tenant under the respondent at a specific rent. The issues framed included whether the defendants were trespassers and whether the defendant was a tenant under the plaintiff.
Issue 2: Jurisdiction under Section 50 of the DRC Act
One of the issues raised was whether the jurisdiction of the Court was barred by Section 50 of the DRC Act, indicating a legal question regarding the applicability of this specific provision.
Issue 3: Entitlement to possession and mesne profits
The suit also involved determining whether the plaintiff was entitled to possession of the premises and to damages/mesne profits, specifying the rate and period of such entitlement.
Judgment Summary:
The appellant had previously filed a suit for injunction claiming tenant status, which was initially decreed in his favor but later overturned on appeal, establishing him as a trespasser. Subsequently, in the suit for possession, the respondent sought relief under Order 12 Rule 6 of the CPC based on the appellant's trespasser status. The appellant claimed to have filed a second appeal against the trespasser status judgment but failed to provide details. The court held that the finality of the trespasser finding precluded the need for a trial, citing legal precedents. As no other arguments were presented, the appeal was dismissed without costs.
This judgment underscores the importance of legal procedures and the finality of court decisions, emphasizing that framing issues does not mandate a trial if unnecessary. The decision highlights the significance of complying with legal requirements and the consequences of failing to pursue appropriate legal remedies.
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2013 (7) TMI 1167
Issues Involved:1. Deletion of penalty u/s 271(1)(c) of the Act for assessment years 1991-92, 1992-93, and 1993-94. Summary:Issue 1: Deletion of Penalty u/s 271(1)(c)The sole issue in these appeals is whether the ld. CIT(A) erred in deleting the penalties of Rs. 8,25,32,755/-, Rs. 1,40,55,563/-, and Rs. 17,68,928/- for assessment years 1991-92, 1992-93, and 1993-94, respectively, levied u/s 271(1)(c) of the Act. The penalties were initially levied by the Assessing Officer (AO) due to disallowances of payments to Public Sector Undertakings (PSUs) which were added to the assessee's income during scrutiny assessments. The assessee, a Proprietor of M/s Chandrakala & Co., had filed returns admitting incomes which were significantly increased by the AO due to these disallowances. The ld. CIT(A) initially allowed the disallowances, but the Tribunal later confirmed the AO's additions. Consequently, the AO issued notices and levied penalties for furnishing inaccurate particulars of income. The assessee appealed against the penalties, arguing that the amounts were not includible in their income due to diversion by overriding title, as they were obligated to pass these amounts to PSUs as per Indian Bank's instructions. The ld. CIT(A) deleted the penalties, citing the Hon'ble Madras High Court's decision which had deleted the additions made by the AO, thus nullifying the basis for the penalties. The Revenue argued that the penalties should remain as they had filed an SLP against the High Court's decision. However, no material was presented to show that the SLP was accepted or that the High Court's order was stayed by the Supreme Court. The Tribunal, referencing the Hon'ble P&H High Court's decision in CIT vs Prakash Industries Ltd., upheld the ld. CIT(A)'s order, stating that without any contrary evidence or stay on the High Court's order, the penalties could not be sustained. Thus, the appeals of the Revenue were dismissed. Order pronounced in the open court at the time of hearing on Monday, the 01st of July, 2013, at Chennai.
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2013 (7) TMI 1166
Issues Involved:
1. Quashing of the letter dated 09.07.2010.
2. Refund of Rs. 18 Crores paid as one-time license fee along with interest.
3. Production of documents and records related to the issuance and surrender of the license.
Summary:
Issue 1: Quashing of the letter dated 09.07.2010
The petitioner sought to quash the letter dated 09.07.2010, which rejected their request for a refund of the Rs. 18 Crores license fee. The court noted that there was no clause in the advertisement or tender conditions empowering the respondents to retain or forfeit the license fee. The petitioner argued that the respondents had discriminated against them by allowing another similarly situated applicant, DRL, to withdraw and refunding their license fee. The court found that the respondents' decision to reject the petitioner's request was arbitrary and discriminatory, as both EBPL and DRL were allowed to exit the process without penalty. The court quashed the impugned letter, stating that the respondents did not demonstrate any harm or injury caused by the petitioner's withdrawal.
Issue 2: Refund of Rs. 18 Crores paid as one-time license fee along with interest
The petitioner sought a refund of Rs. 18 Crores paid as a one-time license fee. The court held that in the absence of a forfeiture clause and given that the license fee was not in the nature of earnest money or security deposit, the respondents could not retain the amount. The court referred to various judgments, including De-Smet (India) Pvt. Ltd. vs. B.P. Industrial Corporation (P.) Ltd., which established that advance payments made as part of the purchase price must be refunded if the transaction falls through, even if the purchaser is responsible for the breach. The court directed the respondents to refund the Rs. 18 Crores to the petitioner within two weeks but did not grant the request for interest, as it required examination of the breach of contract charge against the petitioner.
Issue 3: Production of documents and records related to the issuance and surrender of the license
The petitioner also sought the production of documents and records related to the issuance and subsequent surrender of the license. The court did not explicitly address this ancillary prayer in detail, focusing instead on the primary issues of quashing the impugned letter and refunding the license fee.
Conclusion:
The court allowed the writ petition, quashed the impugned letter dated 09.07.2010, and directed the respondents to refund the Rs. 18 Crores license fee to the petitioner within two weeks. The court clarified that the respondents could institute an action for damages against the petitioner if they were so advised. Each party was directed to bear its own costs.
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2013 (7) TMI 1165
Issues Involved:
1. Maintainability of the petition under the Hindu Marriage Act.
2. Domicile of the parties and its impact on the jurisdiction of the Family Court.
3. Applicability of the Hindu Marriage Act to Hindus domiciled outside India.
Summary:
1. Maintainability of the Petition:
The husband challenged the maintainability of the wife's petition for judicial separation and custody of children u/s 10 of the Hindu Marriage Act, arguing that they were Swedish citizens domiciled in Australia, thus the Act did not apply to them. The Family Court upheld this view, but the High Court reversed it, holding that the husband failed to establish abandonment of Indian domicile.
2. Domicile of the Parties:
The husband claimed they had acquired Swedish domicile and later Australian domicile, abandoning their Indian domicile. The wife contended that their Indian domicile was never abandoned or was revived upon moving to Australia. The Supreme Court examined the evidence, including residential agreements and the husband's visa status, and concluded that the husband did not prove an intention to permanently reside in Australia. Thus, the parties retained their Indian domicile.
3. Applicability of the Hindu Marriage Act:
The Supreme Court analyzed Section 1(2) of the Act, which extends to Hindus domiciled in India even if residing outside India. The Court emphasized that the Act's extra-territorial operation is valid only if there is a nexus with India, which is ensured by the domicile requirement. The Court rejected the broader interpretations of the Act's applicability by various High Courts, affirming that it applies to Hindus domiciled in India.
Conclusion:
The Supreme Court dismissed the appeal, affirming that both parties were domiciled in India and thus governed by the Hindu Marriage Act. Consequently, the wife's petition was maintainable. The related civil appeal was allowed, rendering the husband's writ petition infructuous.
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2013 (7) TMI 1164
Issues involved: Interpretation of advertisement conditions for recruitment process, communication gap leading to denial of opportunity for Computer Proficiency Test, fairness of email communication for rural candidates.
Interpretation of advertisement conditions for recruitment process: The Central Recruitment Agency of Punjab & Haryana High Court issued a notice inviting applications for Clerk positions, outlining the selection process involving shortlisting, a written test, and a Computer Proficiency Test. Applicants were required to have a valid personal active Email ID for receiving information. The petitioner, having qualified the written test, claimed to have missed communication regarding the Computer Proficiency Test. The court noted that the advertisement clearly stated the reliance on Email for communication, and the petitioner was expected to monitor their Email account, including the Spam Folder, for updates. The court dismissed the grievance, emphasizing the importance of adhering to the specified process.
Communication gap leading to denial of opportunity for Computer Proficiency Test: The petitioner alleged a communication gap resulting in missing the notification for the Computer Proficiency Test, seeking a special chance to participate. The court found that the petitioner's Email received the communication, albeit in the Spam Folder, and highlighted the petitioner's responsibility to monitor all communication channels as per the advertisement conditions. Rejecting the plea for a special chance, the court emphasized the need to adhere to the selection process timeline to maintain fairness and avoid arbitrariness.
Fairness of email communication for rural candidates: The petitioner challenged the requirement of having an Email account for communication, arguing it disadvantaged rural candidates. The court disagreed, noting that numerous candidates successfully participated in the Computer Proficiency Test through Email communication. The court viewed Email communication as a progressive and fair method, aligned with technological advancements. Additionally, candidates were advised to check the recruitment website for updates, ensuring equal access to information. Ultimately, the court dismissed the petition, underscoring the importance of following the specified selection process timeline to uphold fairness and avoid disruptions.
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2013 (7) TMI 1163
Preponderance of Probabilities - Presumption in favour of Holder u/s 139 of NI Act - Appellant claimed that respondent took loan from him and repaid part of it through cheque, rest of the cheques were dishonoured. Respondent claimed that the cheques were obtained by appellant by force. Respondent was not having balance in account so cheques were dishonoured. Appellant's claims and justifications raised a doubt on the claims of the respondent. - HELD THAT:- Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Initial presumption favours the complainant. Absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. If the respondent is able to raise a probable defence that creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. But in this case, the respondent couldnot prove his defence thus held liable.
Decision in the case of - SANJAY MISHRA VERSUS KANISHKA KAPOOR AND ORS. [2009 (2) TMI 901 - BOMBAY HIGH COURT] was humbly dissented.
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2013 (7) TMI 1162
Issues Involved:
1. Quashing of FIR u/s 482 CrPC.
2. Delay in Investigation.
3. Exoneration in Departmental Inquiry.
Summary:
Issue 1: Quashing of FIR u/s 482 CrPC
The Appellant challenged the Rajasthan High Court's refusal to quash FIR No. 10/2000 lodged against him u/s 409 IPC at Police Station, Dausa. The Supreme Court noted that the High Court had disposed of the petition u/s 482 CrPC without interfering with the FIR, leaving the matter to the authorities.
Issue 2: Delay in Investigation
The Appellant had been under investigation for over 13 years due to non-availability of documents. Despite repeated requests, the original records were not produced, leading the police to file a final report in 2000 citing insufficient evidence. The CJM, Dausa, directed re-investigation u/s 156(3) CrPC, but no progress was made for nine years. The Supreme Court emphasized the need for speedy investigation and trial as mandated by Article 21 of the Constitution.
Issue 3: Exoneration in Departmental Inquiry
A departmental inquiry for the same charges resulted in the Appellant's exoneration in 2008. The Inquiry Officer's report indicated that no evidence was found against the Appellant. The Supreme Court referenced the case of P.S. Rajya v. State of Bihar, noting that if charges could not be established in departmental proceedings, it is unlikely they could be proved in a criminal trial where the standard of proof is higher.
Conclusion:
The Supreme Court held that the High Court should have exercised its power u/s 482 CrPC to quash the FIR. The prolonged delay in investigation, lack of evidence, and the Appellant's exoneration in the departmental inquiry warranted quashing the FIR. The appeal was allowed, and FIR No. 10/2000 was quashed.
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2013 (7) TMI 1161
Issues Involved:
1. Disallowance of Social Forestry Expenses.
2. Disallowance of Prior Period Expenditure.
3. Addition u/s 145A of IT Act.
4. Disallowance of PF Contribution u/s 36(1)(va).
5. Addition due to lower yield and G.P. ratio.
6. Setoff of unabsorbed depreciation.
7. Unexplained creditors.
Summary:
1. Disallowance of Social Forestry Expenses:
The assessee's appeal against the disallowance of Rs. 4,09,000/- incurred on Social Forestry was dismissed. The AO disallowed the expenditure, and the CIT(A) followed the Tribunal's past decision, which the ITAT affirmed. The ITAT held that this issue stood covered by several decisions of the Tribunal, and thus, there was no fallacy in the judgment of the CIT(A).
2. Disallowance of Prior Period Expenditure:
The AO disallowed Rs. 4,15,728/- as prior period expenditure, which was affirmed by the CIT(A). The ITAT upheld this decision, stating that since the assessee followed the mercantile system of accounting, prior period expenses should not be claimed during the current year.
3. Addition u/s 145A of IT Act:
The AO added Rs. 14,76,199/- due to the non-reflection of Excise Duty and unutilized MODVAT/CANVAT in the closing stock. The CIT(A) and the ITAT upheld this addition, following past Tribunal orders. The ITAT clarified that the valuation of closing stock should be consistent with the opening stock of the subsequent year.
4. Disallowance of PF Contribution u/s 36(1)(va):
The AO disallowed Rs. 14,707/- due to late payment of PF contributions. The CIT(A) upheld the disallowance, and the ITAT restored the matter to the AO to ascertain the due and actual payment dates to apply the law laid down by the Supreme Court.
5. Addition due to lower yield and G.P. ratio:
The AO added Rs. 4,24,00,000/- due to a lower yield and G.P. ratio in the CPM unit. The CIT(A) affirmed this addition, but the ITAT deleted it, following the Tribunal's decision for A.Y. 2008-09. The ITAT held that the addition could not be justified merely on the basis of a fall in yield and that the method adopted by the Revenue was incorrect.
6. Setoff of unabsorbed depreciation:
The ITAT directed the AO to allow the setoff of unabsorbed depreciation up to A.Y. 2000-01 based on the records available with the assessee, as it is a matter of record of the Revenue Department.
7. Unexplained creditors:
The AO added Rs. 5,14,850/- as unexplained creditors, which the CIT(A) deleted. The ITAT upheld the CIT(A)'s decision, following the Tribunal's past orders for A.Y. 2006-07 and 2007-08, stating that the provisions of Section 41(1) could not be invoked as the liability was not written back in the books.
Conclusion:
Both the appeals filed by the Revenue and the assessee were partly allowed.
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2013 (7) TMI 1160
Issues involved:
The issue in this case revolves around whether communication expenses in the nature of bandwidth charges should be excluded from the total turnover while computing the deduction claimed by the assessee under Section 10A of the Income-tax Act, 1961.
Summary:
1. The Revenue filed appeals challenging the direction of the CIT(Appeals) to exclude bandwidth expenses from total turnover for computing the deduction under Section 10A of the Act, citing the decision of the Special Bench in the case of ITO v. Sak Soft Ltd. The Revenue contended that the Special Bench decision had not become final as an appeal was pending before the jurisdictional High Court.
2. The Assessing Officer curtailed the assessee's claim for deduction under Section 10A by excluding communication expenses, specifically bandwidth charges, from the export turnover but did not deduct this amount from the total turnover.
3. The CIT(Appeals) upheld the exclusion of communication expenses from the export turnover but held that it should also be excluded from the total turnover based on the decision of the Special Bench in the case of Sak Soft Ltd.
4. The Revenue strongly opposed the CIT(Appeals) order, arguing that communication expenses, even if excluded from export turnover, should still be included in the total turnover.
5. The Appellate Tribunal noted that the Special Bench decision in the case of Sak Soft Ltd. was supported by the judgments of the Hon'ble Karnataka High Court in cases involving Samsung Electronics Co. Ltd. and Tata Elxsi Ltd., as well as the Hon'ble Delhi High Court in the case of Genpact India. The Tribunal found no reason to deviate from the Special Bench's interpretation and upheld the CIT(Appeals) decision.
6. Consequently, all appeals filed by the Revenue were dismissed, affirming the exclusion of bandwidth expenses from the total turnover for computing the deduction under Section 10A of the Income-tax Act, 1961.
(Order pronounced on Thursday, the 25th of July, 2013, at Chennai.)
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2013 (7) TMI 1159
The Supreme Court of India granted the Commissioner of Income Tax (Central) two weeks' further time to file spare copies of the petition of appeal, as the appellant is in default since 2011. Failure to comply will result in the matter being listed before the bench for appropriate orders.
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2013 (7) TMI 1158
Issues involved: Debt recovery, sale of property in lots, previous writ petitions regarding loan transaction, representation before first respondent, coercive proceedings.
Debt Recovery: The petitioners argue that only the property necessary to satisfy the debt to the first respondent should be sold. They request to sell the property in lots, following a specific order as suggested by them. The first respondent agrees to consider selling the property lot-wise, with a condition that the entire property is put up for sale on the same date and venue. The first respondent proposes a plan for selling lots sequentially if the proceeds from earlier lots are insufficient, similar to a previous case.
Previous Writ Petitions: The first respondent highlights that several writ petitions were previously filed concerning the same loan transaction. Reference is made to judgments in these cases, indicating that the petitioners may not be entitled to further indulgence due to not utilizing extended time granted earlier.
Representation and Auction Sale: The court permits the petitioners to submit a representation to the first respondent within two weeks, which will be considered within a month. All loanees and guarantors will be notified and heard before any orders are finalized. The first respondent is given the authority to determine the method for conducting the sale legally and collecting the amount, including selecting a common venue for the auction sale.
Coercive Proceedings: Coercive proceedings against the fourth petitioner are to be halted until the first respondent makes a decision based on the representation submitted. The writ petition is disposed of, providing a framework for further actions regarding the debt recovery process.
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2013 (7) TMI 1157
Issues involved:
The issues involved in the judgment are the claim of perpetual injunction by the respondent against the petitioners regarding 21 items of suit schedule property, the ownership rights over the property, and the validity of the pattadar passbooks and title deeds presented as evidence.
Claim of Perpetual Injunction:
The respondent filed a suit for perpetual injunction against the petitioners regarding 21 items of suit schedule property, claiming exclusive rights over the land after the death of his father. The petitioners, on the other hand, contended that the property is held by the joint family and the respondent has wrongfully claimed absolute rights. The trial Court and the lower Appellate Court considered the evidence presented, including pattadar passbooks, title deeds, and adangals. The Courts found in favor of the respondent, stating that the petitioners failed to establish their possession over the property.
Ownership Rights and Validity of Documents:
The petitioners argued that the suit schedule properties are held by the joint family, and the respondent obtained title deeds improperly. They claimed that the pattadar passbooks and title deeds are crucial in determining ownership and possession. However, the respondent asserted that the property exclusively belongs to him, supported by documents such as Exs. P-1 and P-2, the pattadar pass books and title deeds. The trial Court emphasized the significance of documentary evidence, especially pattadar passbooks and title deeds, in determining ownership. The Court highlighted that the entries in the 1-B register are essential for issuing a pattadar pass book, and the presumption provided under the Act must be considered.
Judgment:
The High Court dismissed the revision petition, upholding the decisions of the trial Court and the lower Appellate Court. The Court stated that unless the findings are perverse or unsupported by evidence, interference in revision is not warranted. However, the Court allowed the petitioners to appeal under the Act to challenge the validity of Exs. P-1 and P-2. If successful, the petitioners can seek modification of the order. The Court directed that the petitioners can file an application under relevant rules before the trial Court if the documents are set aside by an Appellate Authority. The judgment concluded with no order as to costs.
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2013 (7) TMI 1156
Issues involved: Appeal against decision quashing notice for re-assessment due to time limit under Rule 6(7) of Central Sales Tax (Kerala) Rules, 1957.
Judgment Summary:
The High Court of Kerala dismissed the appeal against the decision of the learned single Judge who quashed a notice proposing re-assessment for the year 2003-2004 due to exceeding the time limit prescribed under Rule 6(7) of the Central Sales Tax (Kerala) Rules, 1957. The notice was issued on 31/8/2010, which was beyond the four-year limit that expired on 31/3/2008.
The statutory authorities did not dispute the factual position that the notice was issued beyond the prescribed time limit. The Special Government Pleader argued that Rule 6(7) of the Rules was not applicable after the introduction of sub-section 3 of Section 6A of the Central Sales Tax Act, 1956. However, it was acknowledged that the assessment of escaped turnover could only be done under Section 9 of the Act and not under the provisions of the Act or Rules referred to.
Sub-section 2 of Section 9 empowers statutory officers to act under the Act subject to its provisions and rules made thereunder. The introduction of sub-section 3 of Section 6A was to allow re-assessment by the assessing authority on the discovery of new facts, while insulating other proceedings from the provisions of sub-sections 1 and 2 of Section 6A. The notice in question was related to determining escaped assessment, and the learned single Judge correctly applied Rule 6(7) of the Rules to find the notice beyond the prescribed time limit.
The High Court found no jurisdictional error or legal infirmity in the decision of the learned single Judge and dismissed the writ appeal.
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2013 (7) TMI 1155
Issues Involved:
1. Conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Lack of independent witnesses.
3. Conscious possession of contraband material.
4. Compliance with Section 313 of the Code of Criminal Procedure, 1973.
5. Reliance on police witnesses.
Summary:
1. Conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The appellants were convicted u/s 15 of the Act by the trial court and sentenced to 10 years of rigorous imprisonment and a fine of 1 lakh rupees each. The High Court affirmed this judgment.
2. Lack of Independent Witnesses:
The appellants argued that no independent witness was examined despite the presence of villagers at the scene. The prosecution contended that no one was willing to become a witness, and the law does not mandate independent witnesses in every case. The court held that the absence of independent witnesses does not invalidate the prosecution's case if the police witnesses' testimonies are credible.
3. Conscious Possession of Contraband Material:
The appellants claimed they were not in conscious possession of the contraband. The court noted that the appellants' attempt to flee and their failure to explain the presence of the contraband in the jeep indicated conscious possession. The statutory presumption u/s 54 and 35 of the Act was applied, shifting the burden to the appellants to prove otherwise, which they failed to do.
4. Compliance with Section 313 of the Code of Criminal Procedure, 1973:
The appellants argued that the incriminating circumstance of conscious possession was not put to them u/s 313 Cr.P.C. The court found that the issue was not raised before the High Court and no prejudice was shown to have been caused to the appellants. The court emphasized that non-compliance with Section 313 Cr.P.C. does not vitiate the trial unless material prejudice is demonstrated.
5. Reliance on Police Witnesses:
The court held that the evidence of police officials cannot be discarded merely because they belong to the police force. Their testimonies must be scrutinized strictly, but they are not inherently unreliable. The court found the police witnesses' testimonies credible and corroborated by other evidence.
Conclusion:
The appeal was dismissed as the court found no merit in the appellants' arguments. The conviction and sentence were upheld.
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2013 (7) TMI 1154
Issues involved: Petition for winding up of a limited company u/s Companies Act, 1956 due to dishonored cheques and non-payment of loan amount.
Details of the judgment:
1. The petitioner advanced consideration of Rs. 10 lakhs to the respondent company by a cheque dated 11 June 2012. The respondent issued an On Demand Bill of Exchange which was accepted but later dishonored. Subsequent attempts to present the bill were also unsuccessful. The respondent issued two cheques totaling Rs. 10 lakhs which were returned due to insufficient funds. A statutory notice was sent on 9 March 2013, but no response or payment was received.
2. The petition was accepted on 11 June 2013, and an affidavit of service confirmed that the respondents were duly served. The respondent did not appear. The court noted that the loan amount was acknowledged by the respondent, but payment was not made without any justifiable reason. The cheques issued were dishonored due to insufficient funds, and no reply was given to the statutory notice. The court found the averments in the petition uncontroverted and made a case for admission.
3. The Company Petition was admitted and set to be returnable on 13 September 2013. The advocate for the petitioner undertook to publish the next hearing date in two newspapers and the Maharashtra Government Gazette. The petitioner was directed to deposit Rs. 10,000 for publication charges within two weeks, failing which the petition would stand dismissed. The office was directed to issue notice to the Company u/r 28 of the Companies (Court) Rules, 1959.
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2013 (7) TMI 1153
The Supreme Court of India dismissed the petitioner's challenge to a show cause notice. The High Court's observations will not affect the authority's decision. Special leave petition is disposed of.
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2013 (7) TMI 1152
Suit for Declaration of Ownership of shares and Permanent Injunction restraining the defendant from dealing with the said shares transfer of shares under trust or against consideration - Benami Transaction or not - Period of limitation for initiating suit - HELD THAT:- The plaintiff has approached the Court with himself being the beneficial owner of the shares, with the shares in the name of Omkam and BGR being transferred in the name of the defendant for consideration paid by the plaintiff and on which plea it should be the plaintiff who should have been entitled to the dividend with respect to the said shares, but the plea of the plaintiff in the plaint is of the defendant having agreed to deposit the said dividend with VIL and in pursuance to the said agreement having deposited ₹ 5,50,000/- out of the dividend received of ₹ 23,97,863/- with VIL. Even if the plaintiff were to be a majority shareholder of VIL, VIL remains a distinct legal entity from its shareholders and the question of the monies owed to the shareholders being paid to the company without any satisfactory explanation therefor, and which has not been given, does not arise. Similar is the plea of the plaintiff of the loan admittedly repayable by VIL to the defendant being squared off against the balance dividend which as per the case built by the plaintiff should have been repayable by the defendant to the plaintiff. The squaring off is sought to be done with VIL paying ₹ 16,50,000/- to the defendant as against ₹ 16,02,137/- which was due. The same is also contrary to all canons of accounting practices particularly corporate accounting which is subject matter of internal and external audits. What follows from such inconsistencies is that the present suit is an abuse of the process of the Court to ward off the claim of the defendant for recovery of the balance loan amount admittedly advanced by the defendant to VIL.
The present suit dismissed as not disclosing a cause of action and / or being thoroughly vexatious and frivolous and in abuse of the process of this Court. Costs of ₹ 20,000/- are also imposed on the plaintiff payable to the defendant.
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2013 (7) TMI 1151
Issues Involved:
1. Disallowance of interest expenditure.
2. Addition towards deemed dividend u/s 2(22)(e) of the Income Tax Act, 1961.
Summary:
Disallowance of Interest Expenditure:
Brief Facts: A search and seizure operation u/s 132 was conducted on the assessee on 7.11.2006. The Assessing Officer (AO) disallowed interest expenditure of Rs. 13,93,080/- claimed by the assessee, stating it was not fully utilized for business purposes.
Addition Towards Deemed Dividend u/s 2(22)(e):
Assessing Officer's Stand: The AO added Rs. 36,14,010/- towards deemed dividend u/s 2(22)(e), arguing that advances taken from the company by the Directors were loans for repayment purposes.
Assessee's Argument: The assessee contended that the advances were for business purposes, specifically for acquiring land on behalf of the company due to restrictions under the A.P. Agriculture Land Ceiling Act. The advances were not loans as they lacked a repayment schedule and did not carry interest.
CIT(A) Decision: The CIT(A) sided with the assessee, referencing the Delhi High Court's rulings in CIT vs. Rajkumar and CIT vs. Creative Dyeing and Printing Pvt. Ltd., which held that trade advances do not fall within the ambit of section 2(22)(e). The CIT(A) concluded that the advances were in the ordinary course of business and not loans, thus not deemed dividends.
Revenue's Appeal: The Revenue appealed to the Tribunal, but the Tribunal upheld the CIT(A)'s decision. The Tribunal noted that the advances were for business purposes, facilitating land procurement at lower costs for the company, and thus could not be categorized as loans.
Share Premium and Accumulated Profits: The Tribunal also considered the share premium account and accumulated profits, concluding that share premium cannot be considered for deemed dividend u/s 2(22)(e). The Tribunal cited various precedents, including the Delhi Tribunal's decision in ACIT Vs. Clough Engineers Ltd., and the Supreme Court's rulings in CIT vs. Urmila Ramesh and P.K. Badiani vs. CIT.
Final Decision: The Tribunal dismissed the Revenue's appeals, affirming that the advances were not loans and did not fall under the purview of section 2(22)(e). Consequently, the Cross Objections (C.Os) filed by the assessee were deemed infructuous and dismissed.
Related Case: In the case of G. Sailaja, the issues were materially identical to those of G. Saibabu. Following the same rationale, the Tribunal dismissed the Revenue's appeals and the C.Os filed by the assessee.
Conclusion: Appeals filed by the Revenue in the cases of G. Saibabu and G. Sailaja were dismissed, and the C.Os filed by the assessees were also dismissed.
Order Pronouncement: The order was pronounced in the open Court on 31st July, 2013.
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2013 (7) TMI 1150
Issues involved: Appeal against deletion of penalty u/s 271(1)(c) of the Income Tax Act, 1961 for assessment year 2005-06.
Summary:
The department appealed against the deletion of penalty u/s 271(1)(c) by the ld. CIT(A) for the assessment year 2005-06. The assessee, an Investment Bank and tax resident of Singapore, had taken forward contracts in foreign exchange to hedge against currency fluctuations. Upon the sale of debentures, the foreign cover was terminated, resulting in a profit claimed as capital gains under Article 13(6) of the Indo-Singapore Treaty. The AO disagreed, treating the profit as "income from other sources" and initiated penalty proceedings u/s 271(1)(c). The penalty imposed was Rs. 92,71,410, equivalent to 100% of the tax sought to be evaded. The CIT(A) canceled the penalty, citing a difference of opinion on the characterization of the gains. The Tribunal upheld the CIT(A)'s decision based on a previous Tribunal order and case law supporting the deletion of the addition that led to the penalty. The appeal by the department was dismissed, emphasizing that when the addition leading to the penalty has been deleted, the penalty cannot be sustained.
In conclusion, the Tribunal upheld the CIT(A)'s decision to delete the penalty u/s 271(1)(c) for the assessment year 2005-06, as the addition that triggered the penalty had been previously deleted in the quantum appeal. The department's appeal was dismissed, and the order was pronounced on 18th July 2013 after hearing the representatives of the parties in open court.
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