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2008 (9) TMI 969
The Supreme Court of India allowed the Special Leave Petition to be withdrawn, giving the petitioner two weeks to move the High Court under Article 226 of the Constitution. The Income Tax Department was instructed not to commence assessment proceedings during this period.
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2008 (9) TMI 968
The Bombay High Court dismissed the appeal by the revenue as all questions raised were either covered by previous judgments or not deserving consideration. The decision of the Tribunal in a specific case was relied upon, and the appeal was rejected.
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2008 (9) TMI 967
Suit for declaration, possession and injunction - High Court converted a suit for title into a suit for enforcement of an Easementary right - Principles relating to the object and necessity of pleadings - Violation of fundamental rules of civil procedure by High Court - whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted.
HELD THAT:- When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice
Even though right of easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao [1962 (4) TMI 97 - SUPREME COURT].
As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise.
The principles laid down in Bhagwati Prasad [1965 (10) TMI 67 - SUPREME COURT] and Ram Sarup Gupta [1987 (4) TMI 476 - SUPREME COURT] and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto.
A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. The plaintiffs had not pleaded, even as an alternative case, that they were entitled to an easementary right of passage over the schedule property. The facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary right.
It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot grant a decree for Rs. Ten lakhs.
In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right. In the absence of pleadings and an opportunity to the first defendant to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary right. The first appellate court had recorded a finding of fact that plaintiffs had not made out title. The High Court in second appeal did not disturb the said finding. As no question of law arose for consideration, the High Court ought to have dismissed the second appeal. Even if the High Court felt that a case for easement was made out, at best liberty could have been reserved to the plaintiffs to file a separate suit for easement. But the High court could not, in a second appeal, while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage.
We accordingly allow these appeals and set aside the judgment and order of the High Court and restore the judgment of the first appellate court. Parties to bear respective costs.
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2008 (9) TMI 966
The Supreme Court dismissed the Special Leave Petition as nobody appeared for the petitioner in the second round. (Citation: 2008 (9) TMI 966 - SC)
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2008 (9) TMI 965
Issues involved: Challenge to penalty imposed by Settlement Commission u/s Chapter V of Central Excise Act, 1944 without assigning reasons.
Summary:
The group of petitions challenged the penalty imposed by the Settlement Commission Additional Bench, Customs & Central Excise, Mumbai without providing reasons for the decision. The petitioners contended that the orders lacked justification as required by law. The Settlement Commission imposed penalties on the applicants without specifying reasons, leading to the challenge in the High Court.
In Special Civil Application No.28680 of 2007, the Senior Counsel highlighted observations made by the Settlement Commission regarding fulfillment of conditions for admission and imposition of penalties on the applicant and co-applicants without detailed reasoning. The penalty was imposed on the firm and a partner without clear justification.
In Special Civil Application No.4896 to 4900 of 2008, the Senior Counsel adopted arguments from a previous case and pointed out that the Settlement Commission granted immunity from penalty and prosecution without providing detailed reasons. The Commission also levied interest on delayed duty payment but granted immunity from interest in excess of 10% per annum.
In Special Civil Application No. 6127 of 2008, the Senior Counsel argued that penalties and fines were imposed without adequate reasoning, despite the applicant's cooperation and disclosure of duty liability. The Commission imposed a redemption fine and penalty without clear justification, leading to the challenge in the High Court.
The petitioners emphasized the need for reasons in decisions, citing legal precedents that support the requirement for clear justifications in administrative orders. The High Court agreed with the petitioners and set aside the orders of the Settlement Commission, remitting the matters back for reconsideration with a directive to provide detailed, reasoned justifications for the penalties and fines imposed.
In conclusion, the High Court allowed the petitions, setting aside the orders of the Settlement Commission and remanding the matters for fresh consideration with a requirement for specific, reasoned justifications in accordance with the law.
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2008 (9) TMI 964
Issues Involved:
1. Whether the respondent's prayer for discharge of bond executed to serve the nation for a period of five years on the ground of medical disability has been rightly accepted by the High Court.
2. Interpretation and applicability of Clauses 4, 5, and 6 of the bond agreement.
3. The role and function of a proviso in statutory interpretation.
Issue-wise Summary:
1. Discharge of Bond on Medical Disability:
The core question was whether the respondent's prayer for discharge of the bond executed to serve the nation for five years on medical disability grounds was rightly accepted by the High Court. The High Court held that the respondents were required to deposit rupees one lakh, and upon such deposit, there was no further liability.
2. Interpretation and Applicability of Clauses 4, 5, and 6:
The factual position was undisputed. The respondents had taken admission to the MBBS Degree Course at Armed Forces Medical College, Pune, and their guardians executed bonds requiring them to serve in the Armed Forces post-completion of the course. Clause 4 of the agreement dealt with situations where a cadet would be declared Non Service Liability (NSL), and Clauses 5 and 6 outlined the financial liabilities in such cases. The High Court observed that the candidates were removed from service liability due to medical ailments, and the appellants tried to enforce the bonds for failure to serve the nation. The High Court noted that in earlier cases, orders were passed that on payment of rupees one lakh, there would be total liquidation of liability on the bond.
3. Role and Function of a Proviso in Statutory Interpretation:
The appellants argued that the bond amount covered the cost of free education and other facilities, and guidelines were issued for waiver of bond money for medical cadets declared NSL. The respondents contended that the appellants overlooked the proviso of Clause 4(a) while raising the demand. The Court analyzed the function of a proviso, stating it is to except or qualify something in the enactment. The proviso to Clause 4(a) indicated that Clause 4(a) and Clause 6 operate on different footings. The Court emphasized that a proviso carves out an exception to the main provision and does not travel beyond it. The Court reiterated principles of statutory interpretation, emphasizing that courts cannot read into a statutory provision which is plain and unambiguous and must ascertain the legislative intent from the language used.
Conclusion:
The Supreme Court concluded that Clause 4(a) is subject to Clause 6, and the proviso appended to Clause 4 is an exception. The High Court's view was rational based on the facts of each case, and no interference was warranted. The appeals were dismissed without any order as to costs.
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2008 (9) TMI 963
Issues involved: Condonation of delay under Section 119(2)(b) of the Income Tax Act, 1961 for filing the return for the assessment year 1988-89.
Summary:
The writ petition challenged the decision of the Central Board of Direct Taxes rejecting the petitioner's application seeking condonation of delay under Section 119(2)(b) of the Income Tax Act, 1961 for filing the return for the assessment year 1988-89. The rejection was communicated through a letter from the Chief Commissioner of Income Tax dated 27.08.1992. The petitioner had claimed a refund of excess TDS deducted and paid as an agent of a non-resident company.
The High Court noted that the rejection of the application was done summarily without any reasons being recorded, and the communication lacked a speaking order. As a result, the Court set aside the rejection order and directed that the petitioner's application under Section 119(2)(b) of the said Act be revived before the Central Board of Direct Taxes. The Board was instructed to decide the application afresh after providing an opportunity of hearing to the petitioner. It was emphasized that the application should be disposed of by a speaking order.
Given the age of the matter, the Court urged the Board to expedite the disposal of the application, preferably within 8 weeks. Ultimately, the writ petition was allowed with no order as to costs, and a copy of the order was to be communicated to the Central Board of Direct Taxes for further action.
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2008 (9) TMI 962
Issues: Discrepancy in the direction to deposit duty amount, reconsideration of tribunal's order, compliance with tribunal's directive.
Discrepancy in the direction to deposit duty amount:
The petitioner highlighted a discrepancy in the tribunal's orders regarding the pre-deposit amount of duty. While in a previous application, the tribunal directed a pre-deposit of 1/4th of the duty amount, in the present case, the tribunal ordered the complete duty amount to be deposited. The petitioner argued that the law and facts in both cases were identical. The court acknowledged this discrepancy and aimed to address it to meet the ends of justice.
Reconsideration of tribunal's order:
The court proposed a solution to address the discrepancy by directing the petitioner to deposit an additional amount with a specific timeline for making an application to the tribunal for reconsideration of the impugned order. The court instructed the tribunal to consider this application promptly and make a decision within six weeks from the date of application. This approach aimed to ensure a fair review of the order in light of the similar case precedent.
Compliance with tribunal's directive:
The court issued a directive to the tribunal not to dismiss the petitioner's appeal for non-compliance with the previous order until a decision was made on the application for reconsideration. By making the rule absolute without any costs, the court provided clarity on the steps to be taken by the petitioner and the tribunal to address the discrepancy and ensure a just outcome in the matter.
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2008 (9) TMI 961
Issues involved: The appeal filed against the order of the CIT under s. 263 for the assessment year 2003-04.
Facts of the case: The assessee claimed exemption under s. 10B of the IT Act, 1961, based on approval granted by the Development Commr. SEEPZ Special Economic Zone. The CIT set aside the assessment order, stating that the approval for 100% export oriented undertaking was not granted by the prescribed authority under the IT Act. The CIT relied on a tribunal decision and initiated proceedings under s. 263.
Assessee's contentions: The assessee argued that the Development Commr. had the authority to grant approval, and the approval under the automatic route was ratified by the Board. The assessee claimed that the AO's decision was legally plausible and there was no error in allowing the claim. The assessee requested the notice under s. 263 to be dropped or an adjournment of 15 days to be granted.
CIT's decision: The CIT found the contentions raised by the assessee to be incorrect and set aside the order for the assessment year 2003-04. The CIT directed the AO to examine the issue afresh and give the assessee an opportunity to prove the approval by the Board of Approval. The CIT held that if no further material is brought on record, exemption under s. 10B would not be available to the assessee.
Tribunal's decision: The Tribunal heard arguments from both parties and reviewed the records. The Tribunal analyzed the provisions of s. 263 and emphasized that the power of revision can only be exercised if the order is erroneous and prejudicial to the interests of the Revenue. The Tribunal concluded that the AO's order was not erroneous as he had followed the prescribed procedure and arrived at a legally plausible decision. The Tribunal quashed the CIT's order and restored the AO's order.
Conclusion: The Tribunal allowed the appeal of the assessee, stating that the CIT's action under s. 263 was not in accordance with the law, and therefore, the AO's order was restored.
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2008 (9) TMI 960
Issues involved: Whether the appellants are entitled to credit of duty paid on cement and Tor Rods used in the installation of production machineries as "inputs" or "capital goods".
The appellant contended that the impugned goods, cement and Tor Rods, were used for laying the foundation for the production of machineries for smooth operations, citing various case laws in support of their claim. They argued that they are entitled to credit of duty paid on these items either as "inputs" or as "capital goods". The respondent, on the other hand, argued that neither the cement nor the iron and steel items used in the initial construction of the plant can be considered as "inputs" in the finished goods or as "capital goods" for grant of Cenvat Credit.
After hearing both sides and considering the case records and cited case laws, the Tribunal noted the conflicting decisions on the issue. They referred to a decision of the Bombay Bench of the Tribunal and a subsequent decision of the Principal Bench to refer a similar matter to a Larger Bench. In light of this, the Tribunal decided to refer the present case to the Hon'ble President for reference to the same Larger Bench that had considered a related case. The Tribunal ordered accordingly, emphasizing the need for a consistent approach in such matters.
The judgment was pronounced in the open Court on 25.09.2008.
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2008 (9) TMI 959
The Bombay High Court dismissed the appeal as there was no question of law involved. The appellant's argument regarding the genuineness of the gift transaction and donor's capacity was not considered.
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2008 (9) TMI 958
The High Court of Bombay dismissed the appeal as the Tribunal ordered a remand for the Assessing Officer to verify the figures given by the assessee regarding the calculation of percentage of mobilisation of revenue attributable work done in India for the purpose of Section 44BB.
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2008 (9) TMI 957
Issues Involved:
1. Bona fide requirement of the landlords for eviction.
2. Comparative hardship between the landlords and the tenant.
3. Jurisdiction and interference by the High Court under Articles 226 and 227 of the Constitution.
4. Consideration of subsequent events in deciding the requirement of the landlords.
Issue-wise Detailed Analysis:
1. Bona Fide Requirement of the Landlords for Eviction:
The landlords sought eviction under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, claiming the shop was needed for Matloob Ahmad, who was retiring and intended to start a business in readymade garments. The Prescribed Authority dismissed the application, doubting the bona fides due to the landlords' high status and lack of experience in the garment business. However, the appellate authority reversed this, noting that Matloob Ahmad had retired and the requirement was bona fide. The Supreme Court upheld the appellate authority's view, stating that the Prescribed Authority's reasons were irrelevant and extraneous.
2. Comparative Hardship:
The Prescribed Authority found that the tenant, who had been running a grocery shop for forty years, would suffer greater hardship if evicted. The appellate authority disagreed, noting the tenant made no effort to find alternative accommodation. The Supreme Court supported the appellate authority's finding, emphasizing that the tenant's failure to seek alternative accommodation negated claims of greater hardship.
3. Jurisdiction and Interference by the High Court:
The High Court, exercising jurisdiction under Articles 226 and 227, set aside the appellate authority's decision. The Supreme Court criticized this interference, citing precedents that the High Court should not act as an appellate court to re-evaluate evidence or correct errors of fact. The Supreme Court reiterated that the High Court's supervisory powers must be exercised sparingly, only to ensure subordinate courts remain within legal bounds.
4. Consideration of Subsequent Events:
The tenant argued that subsequent events, such as Kum. Faraha Matloob's appointment as a judge, negated the claimed need for the shop. The Supreme Court chose not to delve into whether subsequent events should be considered, noting the appeal could be resolved without addressing this issue. The Court emphasized that the crucial date for determining the landlord's requirement is the date of the application, not subsequent developments.
Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order and restoring the appellate authority's eviction order. The Court granted the tenant time until March 31, 2009, to vacate the premises, provided an undertaking was filed within four weeks. The judgment underscored the importance of adhering to statutory remedies and the limited scope of High Court interference under Articles 226 and 227.
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2008 (9) TMI 956
Issues Involved:
1. Legality of the forfeiture of properties under the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Validity of the show cause notice issued under Section 68-H of the NDPS Act.
3. Burden of proof regarding the legality of the properties.
4. Impact of the acquittal of the petitioner's husband on the forfeiture proceedings.
5. Procedural lapses in serving the freezing order and show cause notice.
Detailed Analysis:
1. Legality of the Forfeiture of Properties:
The petitioner challenged the forfeiture of her properties under Section 68-I of the NDPS Act, 1985. The properties in question were three residential flats and two shops. The respondents claimed that these properties were acquired from the illegal income of the petitioner's husband, who was allegedly involved in narcotic trafficking with Iqbal Mirchi. The Competent Authority and the Appellate Tribunal for Forfeited Properties confirmed the forfeiture, leading to the present petition.
2. Validity of the Show Cause Notice:
The show cause notice under Section 68-H of the NDPS Act was issued based on three grounds: relevant information available to the Competent Authority, the statement of the petitioner's husband admitting his association with Iqbal Mirchi, and the petitioner's alleged statement admitting that the properties were acquired from illegal income. However, the court found that:
- No relevant information was available to the Competent Authority at the time of issuing the show cause notice.
- The statement of the petitioner's husband was not produced, and even if it existed, it did not mention the acquisition of the properties.
- The petitioner's alleged statement was not produced, and its admissibility was questionable.
The court held that the Competent Authority issued the show cause notice without any "reason to believe" as required under Sections 68-B(g) and 68-C of the NDPS Act.
3. Burden of Proof:
The Competent Authority and the Tribunal placed the burden of proving the legality of the properties on the petitioner, based on Section 68-J of the NDPS Act. However, the court clarified that this burden arises only if the show cause notice is validly issued with recorded reasons to believe that the properties are illegally acquired. Since the notice was issued without such reasons, the burden could not be cast on the petitioner.
4. Impact of the Acquittal of the Petitioner's Husband:
The petitioner's husband was acquitted of all charges related to narcotic trafficking. The court noted that the entire basis for the forfeiture proceedings was the alleged illegal activities of the petitioner's husband. With his acquittal, the foundation for linking the properties to illegal activities collapsed, rendering the forfeiture action unsustainable.
5. Procedural Lapses:
The freezing order and subsequent communications were not served on the petitioner or her husband, violating principles of natural justice. The court emphasized that the petitioner was not given an opportunity to be heard, and the orders were issued without proper service, further invalidating the forfeiture proceedings.
Conclusion:
The court concluded that the forfeiture of the properties was unsustainable due to the lack of valid reasons for issuing the show cause notice, the improper casting of the burden of proof on the petitioner, and the procedural lapses in serving the orders. Consequently, the court directed the respondents to restore the actual physical possession of the properties to the respective persons from whom possession was obtained. The petition was allowed, and the rule was made absolute with no order as to costs.
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2008 (9) TMI 955
Issues involved: Appeal u/s 260A of the Income-tax Act, 1961 against the order of the Income-tax Appellate Tribunal for the assessment year 1990-91 regarding trade credit claimed by the assessee.
Summary:
The High Court dismissed the appeal filed by the assessee against the order of the Income-tax Appellate Tribunal. The Tribunal had reversed the finding of the CIT(A) regarding the genuineness of the trade credit claimed by the assessee. The Tribunal emphasized the need for the assessee to prove the identity and genuineness of the trade creditors. The assessee failed to provide complete addresses of the trade creditors and consignors, making verification by the Assessing Officer impracticable. The Tribunal held that the genuineness of the transaction could not be established solely based on the large number of unidentified trade creditors. The Tribunal concluded that the assessee was not entitled to deduction on that account.
The assessee argued that the entry in the account books as trade liability should not be treated as income without a valid basis. However, the Tribunal did not find merit in this argument and maintained that the assessee could not claim deduction for the trade credit. The High Court noted that the issue raised by the assessee pertained to the appreciation of evidence and did not find any substantial question of law arising from the appeal. Therefore, the High Court dismissed the appeal.
This judgment highlights the importance of establishing the genuineness of transactions and the necessity for providing complete information to support claims, especially in cases involving trade credits and liabilities.
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2008 (9) TMI 954
Issues involved: Appeal against the order refusing to modify the registration date u/s. 12A of the Income-tax Act.
Summary:
Issue 1: Registration date under section 12A
The appeal was filed against the order refusing to modify the registration date granted to the assessee u/s. 12A of the Income-tax Act. The assessee, a university established under the National Law School of India Act, sought registration from 1.4.1999 due to changes in tax laws. The Director of Income-tax (Exemptions) initially granted registration from 1.4.2005, citing lack of application for condonation of delay. The assessee appealed for registration from 1.4.1999 based on the provisions of section 10(23C)(iiiab) of the Act.
Issue 2: Sufficient reasons for delay
The Tribunal considered whether there were sufficient reasons for the delay in filing the registration application. The assessee believed its income was exempt under section 10(23C)(iiiab) but applied for registration u/s. 12A as a precaution. The Tribunal found the reasons given by the assessee for the delay to be valid, as it acted in good faith to ensure tax exemption under sections 11 and 12 of the Income-tax Act. The Tribunal acknowledged the university's status as a public charitable institution and its compliance with educational purposes.
Decision
The Tribunal allowed the appeal, directing the grant of registration u/s. 12A from 1.4.1999, considering the bona fide belief of the assessee and the meticulous maintenance of accounts. The delay in filing the application was condoned, emphasizing the university's commitment to legal education and excellence.
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2008 (9) TMI 953
Attempt to Commit Murder - Order of acquittal passed u/s 307 IPC - High Court rejected the application observing that the judgment of the trial Court could not be said to be `perverse' and no interference was called for - Powers of revisional Court - whether High Court has committed an error of law in not granting leave to the State to file an appeal against the order of acquittal recorded by the Sessions Court?
HELD THAT:- So far as the preliminary objection raised by the learned counsel for the accused is concerned, we find no substance therein. The case in hand was instituted on the basis of FIR. It was thus a Police case. De facto complainant, therefore, has no right to file an appeal. He, therefore, preferred a revision. Now it is well settled that revisional jurisdiction can be exercised sparingly and only in exceptional cases. A revisional Court cannot convert itself into a regular Court of Appeal.
Powers of revisional Court are thus limited. Rejection of a revision application, therefore, cannot affect the power of the State in invoking statutory remedy available u/s 378 of the Code. The preliminary objection has, therefore, no force and is hereby rejected.
So far as an application for leave to appeal by the State is concerned, the High Court rejected it without considering the evidence of the prosecution. In the impugned order, the High Court noted that it had heard the learned Assistant Public Prosecutor. It went on to state that none of the injuries sustained by the victim was `fatal'. According to the High Court, the cause behind the assault was that the complainant-advocate was teasing the wife of the accused, who was also working in the Court.
In Sita Ram & Ors. v. State of Uttar Pradesh [1979 (1) TMI 236 - SUPREME COURT], this Court held that a single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the concept that men are fallible, judges are men and making assurance doubly sure, before irrevocable deprivation of life or liberty comes to pass, a full-scale re- examination of the facts and the law is made an integral part of fundamental fairness or procedure.
We have gone through the judgment and order of acquittal recorded by the trial Court. It records that 15 witnesses were examined by the prosecution including injured victim PW1-Rajan and PW2-Charushila, real sister of the victim. The trial Court observed that the testimony of PW1-Rajan revealed that the incident occurred on June 7, 2003 at about 6.15 p.m. The injuries sustained by PW1 Rajan were proved from the evidence of Dr. D'Souza, PW12. The Court also noted that the circumstantial evidence supported the contention of the complainant that he sustained bleeding injuries. Bloodstains were found on the shirt and pant of accused which was of Group `A' i.e. blood group of the complainant.
The accused in his statement u/s 313 of the Code admitted that he was present at Vangoan Railway Station on June 07, 2003; that he complained to PW9 Naresh Kumar that one person was flirting with his wife; that he was arrested by PW 13 Dattatraya and was sent for medical examination, that PW11 Dr. Padmaja examined him and issued Medical Certificate (Ex. 32). He stated that his wife and passengers at the Railway Station had severely beaten the complainant. It has also come on record that complaints were made to the Dahanu Bar Association. Certain documents were also produced relating to objectionable behaviour by the complainant, lodging of complaints by the accused and resolution passed by the Dahanu Bar Association.
The trial Court came to the conclusion that from the testimony of PW10- Dr. Padmaja who examined the accused on June 8, 2003, found three injuries on the person of the accused as mentioned in Ext.32. They were on the left shoulder and the right upper limp of the accused. According to the Court, injuries on the person of the accused supported his defence that he was beaten by the complainant and prosecution failed to explain the injuries on the person of the accused.
In view of the all these facts, circumstances and findings, in our opinion, the High Court should not have rejected the application for grant of leave by passing a `brief' order. Moreover, the High Court observed in the impugned order that the judgment of the trial Court cannot be said to be `perverse'.
The High Court, in our judgment, was not right in rejecting the application for leave on the ground that the judgment of the trial Court could not be termed as `perverse'. They do not curtail the authority of the appellate Court in interfering with an order of acquittal recorded by the trial Court. The order of the High Court, therefore, cannot stand and must be set aside.
Therefore, the appeal deserves to be allowed and is allowed accordingly by remitting the matter to the High Court for fresh disposal in accordance with law.
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2008 (9) TMI 952
Issues Involved:
1. Legality of land acquisition proceedings under the Land Acquisition Act, 1894.
2. Allegations of mala fide intention and colourable exercise of power.
3. Compliance with statutory procedures under the Land Acquisition Act, 1894.
4. Determination of 'public purpose' in land acquisition.
5. Judicial scrutiny of the government's satisfaction regarding 'public purpose'.
6. Applicability of Part II vs. Part VII of the Land Acquisition Act, 1894.
Detailed Analysis:
1. Legality of Land Acquisition Proceedings:
The appellants challenged the legality of the land acquisition proceedings initiated by the State of Andhra Pradesh for the development of a Financial District and Allied Projects. They contended that the acquisition was illegal, unlawful, and in violation of the Land Acquisition Act, 1894, as well as other statutes in force in the State of Andhra Pradesh.
2. Allegations of Mala Fide Intention and Colourable Exercise of Power:
The appellants alleged that the acquisition was done with mala fide intention and oblique motive to transfer valuable land of small farmers to a foreign company and a few selected persons with vested interests. They argued that the action was taken in colourable exercise of power by the authorities.
3. Compliance with Statutory Procedures:
The High Court had earlier directed that the 'urgency clause' invoked by the Government under Section 17 of the Act was illegal and unwarranted, and set it aside. The authorities were directed to hear objections of the owners/interested persons by following the procedure under Section 5A of the Act. The appellants contended that the acquisition should have followed the procedure for acquisition of land by a private company under Part VII of the Act, rather than Part II.
4. Determination of 'Public Purpose':
The respondents argued that the acquisition was for 'public purpose' as defined in the Act, and the land was needed for the development of an Information Technology Park under the Information Technology and Hardware Industrial Policy 2005-10. The High Court had earlier held that the acquisition was for public purpose and not for a private party, as the beneficiary was Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC), an instrumentality of the State.
5. Judicial Scrutiny of Government's Satisfaction:
The Court reiterated that the government is the best judge of whether a particular purpose for which land is needed is a public purpose. The Court stated that judicial scrutiny is limited to cases where there is a colourable exercise of power, fraud on statute, or where the purported action is irrational or unreasonable.
6. Applicability of Part II vs. Part VII:
The appellants argued that the acquisition was for a private company and hence should have followed the procedure under Part VII of the Act. The respondents contended that the acquisition was by the State for its instrumentality (APIIC), and hence, the procedure under Part II was applicable. The Court held that the entire amount of compensation was to be paid by APIIC, and the acquisition was for public purpose, thus justifying the application of Part II.
Conclusion:
The Court concluded that the acquisition proceedings initiated by the State were legal, lawful, and not mala fide. The project aimed at developing infrastructure and socio-economic progress, which constituted a legitimate public purpose. The High Court's dismissal of the writ petitions and writ appeals was upheld, and the appeals were dismissed.
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2008 (9) TMI 951
Computation of Export turnover - deduction u/s 10A - business of export of software - incurred expenses in foreign exchange and claimed the same to be included in the total turnover - falls within the definition of computer software u/s 10A or not.
HELD THAT:- Ld counsel for the assessee pointed out that this issue is also squarely covered by the decision of this Tribunal in the case of the assessee for AY's 2001-02 and 2002-03 wherein held that; ''expenses in foreign currency were not to be reduced for ascertaining the export turnover. This Bench in the case of M/s. Relq Software Pvt Ltd [2008 (5) TMI 372 - ITAT BANGALORE-A] also held that the on-site expenses for development of computer software is not in the nature of technical services.''
Applying the same, we confirm the order of the ld CIT (A) granting relief to the assessee treating expenses incurred in foreign currency to be taken along with total turnover of the assessee. It is ordered accordingly.
In the result, the appeal filed by the revenue is dismissed.
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2008 (9) TMI 950
Addition on unaccounted investment - rejection of Books of Account - Whether the Appellate Tribunal rightly deleted the addition, confirmed by the CIT(A)?- HELD THAT:- Admittedly, there was no evidence to disbelieve or disprove the fact that sufficient cash was available in the cash book on the two dates for making the deposits and there was no reason found by the Tribunal for disbelieving the Books of Account maintained by the Assessee. These are pure findings of fact recorded after appreciation of evidence and do not give rise to any question of law, much less a substantial question of law.
Addition on withdrawal in cash - No dispute that the amount having been withdrawn in cash from the Bank Account of the Assessee by Shri Manubhai Bhavsar who has stated that the same was deposited with M/s. J.B. Upadhyay. In this factual scenario the Tribunal was justified in coming to the conclusion that there was no question of treating the deposit in question as unexplained and no addition was warranted.
In the result, in absence of any legal infirmity in the impugned order of Tribunal the Appeal is dismissed as none of the questions, as proposed or otherwise, can be termed to be questions of law, much less substantial questions of law.
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9911796707
