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1996 (2) TMI 560
... ... ... ... ..... rking of the applicant and its subsidiary and other terms of the DTA and the Income-tax Act, 1961. For the reasons stated above, the Authority pronounces the following ruling on the questions raised by the applicant RULING Question A In view of the continuous process in respect of the series of purchase and sale transactions undertaken by the applicant and its subsidiary in India there exists an intimate and continuous relationship which constitutes a business connection for the purpose of section 9(1)(i) of the Income-tax Act, 1961. In addition the subsidiary amounts to a permanent establishment in view of article 5.2(l) read with articles 5.5 and 5.6 of the DTA considered along with the four proposed agreements between the applicant and the subsidiary referred to above. Question B The extent of the income deemed to accrue or arise in India will depend on the actual working of the applicant and the subsidiary. Thus, this question cannot be answered in a hypothetical manner.
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1996 (2) TMI 559
... ... ... ... ..... a calculation is made on that basis, the total number of days of the presence of the applicant in India would work out to more than 182 days. Moreover, it will be seen that if the applicant’s reasoning is carried further, it should apply with equal force to the dates of entry in, as well as exit from, India and it could perhaps be argued with equal legitimacy that as the applicant was both in and out of India on both these sets of dates, they should all be kept out of reckoning. But this plea is clearly untenable and it is not even the case of the applicant. For the reasons mentioned above, the Authority is of the opinion that the applicant is not a non-resident assessee entitled to maintain an application under section 245Q(1). The application is, therefore, rejected as not maintainable and in view of this conclusion, the Authority is not called upon to give any ruling on the questions posed by the assessee. The application is, therefore, rejected as not maintainable.
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1996 (2) TMI 558
... ... ... ... ..... rnan, JJ. ORDER Appeal dismissed.
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1996 (2) TMI 557
... ... ... ... ..... s warranted under law. It is not in dispute that the appellant was not a party to the impugned order dated June 15, 1993 made in O.A. No.2199/92 by the Tamil Nadu Administrative Tribunal at Madras. Without being impleaded as a party, appointment of Thomas was annulled by the impugned order. The Tribunal, therefore, has committed grave error of law in upsetting his appointment when he was not made a party. The impugned order is set aside as regards the appellant. The appeal is accordingly allowed. No costs.
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1996 (2) TMI 556
... ... ... ... ..... icipal Magistrate, since no such Municipal Magistrate had been appointed. The legal maxim ’Tex non cojit ad impossibility’ which means "the law does not compel a man to do that which he cannot possibly do" is squarely attracted to the fact situation in this case. This appeal, therefore, must fail and is hereby dismissed. The trial court is directed to expeditiously conduct the trial of the criminal complaint No.533 of 1989 for the offence under Sections 332/461 of the Delhi Municipal Corporation Act, 1957. We need not emphasis that if in the meanwhile a court of Municipal Magistrate has been established under Section 469 of the Act, the trial of the complaint shall be conducted by that Court and the complaint shall be deemed to have been transferred to that court for its trial in accordance with law from the court of the Metropolitan Magistrate. Nothing said hereinabove shall, however, be construed as any expression of opinion on the merits of the cases
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1996 (2) TMI 555
... ... ... ... ..... dit. We fail to understand the theory of peak credit being used in this set of affairs when it is more than apparent that why the assessee-firm deposited sum of ₹ 10,000 on 20th Jan., 1977, and withdrawn it on 21st Jan., 1977, deposited sum of ₹ 11,000 on 21st Jan., 1977, and withdrawn on 27th Jan., 1977; deposited sum of ₹ 20,000 on 11th March, 1977, and withdrawn on 16th March, 1977; deposited sum of ₹ 5,000 on 3rd May, 1977, and withdrawn it on 4th May, 1977; and, deposited a sum of ₹ 3,000 on 9th Nov., 1977, and withdrawn the same on 2nd Nov., 1977. This statement of crediting and debiting itself shows that there is no question of peak credit involved in the matter. It is only a matter of jugglery devised by the assessee to somehow evade the income-tax. Therefore, the authorities below have rightly approached the matter and we do not find any ground to interfere. Hence, the reference is answered against the assessee and in favour of Revenue.
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1996 (2) TMI 554
... ... ... ... ..... s of the aforesaid analysis and reasoning the question posed at the outset and the three questions summarized in the written submission, namely (i) whether the Amendment Act of 1973 (Rajasthan Act XV to 1973) in pith and substance imposes a tax which is relatable to Entry 86 of List I or Entry 49 of List II?; (ii) If the Amendment Act of 1973 in pith and substance imposes a tax under Entry 86 of List I and not under Entry 49 of List II, whether the second proviso to Section 3 is severable from the rest of the Act?; and (iii) Whether the Ordinance VI of 1973 introducing Sub-Section 1(A) to Section 3 would have the effect of retrospectively curing the defect of the Amendment Act of 1973 and thus revives it?, would stand appropriately answered, without further elaboration, in favour of the State of Rajasthan and against the appellants. No other question was raised besides those aforereferred to. As a result, these appeals fail and are hereby dismissed with no order as to costs.
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1996 (2) TMI 553
... ... ... ... ..... filed by the Municipal Committee to the Commissioner was dismissed as incompetent. A writ petition filed by the Municipal Committee was also dismissed in limine by the High court. It is obvious that the respondent has been convicted of a serious crime and it is a clear case attracting under proviso (a) to Article 311 (2) of the Constitution. In a case of such nature - indeed, in cases involving corruption there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for the opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriate that is relevant. The Director had interfered with the punishment under s total mis-apprehension of the relevant factors to be borne in mind in such a case. Accordingly, this appeal is allowed. Judgments of the High Court, Commissioner and the Director are set aside and the order of the Municipal Committee dismissing the respondent is restored. No costs.
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1996 (2) TMI 552
... ... ... ... ..... d to be considered before the expiry of the period of four years and whether satisfaction so recorded after the lapse of four years is insufficient because we have come to the conclusion that Section 245(3) Cr.P.C. is not attracted to the present case. Even then it may be stated that the case reported in 1994 Calcutta Cri LR (SC) 7 (sic) is an answer to the said position where satisfaction recorded by the Ld. Magistrate long after the expiry of the statutory period was upheld by the Hon'ble Supreme Court. , 11. In the result we do not find any merit in the revisional application which accordingly stands dismissed. The Ld. J.M. trying the case is however directed to dispose of the same as expeditiously as possible and in any case within the period of six (6) months from the date of communication of the order. We direct that adjournments should not be granted on flimsy grounds and the trial shall be held on day-to-day basis after charge, if any, is framed according to law.
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1996 (2) TMI 551
... ... ... ... ..... ng down the correct law. We may mention, before parting with the case, that a writ petition under Article 32 was filed in this Court in a representative capacity by some of the students belonging to Lohar community seeking admission into Medical Colleges to direct the District authorities to give them social status certificate as Scheduled Tribes. This Court dismissed the writ petition holding that no direction could be issued to authorities to act contrary to the Constitution and the laws and that the writ petition was, therefore, held not maintainable. This would give an insight into the consistent attempt by Lohar community to wear the mask of Scheduled Tribe status and to masquerade as such for getting the constitutional benefits meant for the poor tribes, which the President in consultation with the Governor or the Parliament had not granted to them and such status as Scheduled Tribe cannot be granted to O.B.Cs. The appeal, therefore, is dismissed with costs throughout.
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1996 (2) TMI 550
... ... ... ... ..... rules. There is no question of review in the facts and the circumstances of this case. The Chandigarh Administration did not cancel the allotment. It only corrected a patent mistake which could not be permitted to subsist. There is nothing on the record to show that the Estate Officer or any other authority applied its mind and passed a conscious order fixing the annual rent at a rate lower than the one provided under Rule 13 of the rules. We have not been shown any power under the Act or the rules permitting relaxation of the mandatory provisions of the rules. A contract in violation of the mandatory provisions of law can only be read and enforced in terms of the law and in no other way. The question of equitable estopple does not arise in this case because there can be no estopple against statute. We, therefore, allow the appeal, set aside the impugned judgment of the High Court. The writ petition filed by the Society before the High Court shall stand dismissed. No costs.
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1996 (2) TMI 549
... ... ... ... ..... er. It first passed an order that it would be heard as a preliminary issue, but subsequently, by change of mind, and we think rightly, it decided to hear the issue along with other issues on merits at a later stage to the proceedings. It was at this stage that the High Court was approached by the appellant with the grievance that the Industrial Tribunal, having once decided to hear the matter as a preliminary issue, could not change its mind and decide to hear that issue along with other issues on merits. The High Court rightly refused to intervene in the proceedings pending before the Industrial Tribunal at an interlocutory stage and dismissed the petition filed under Article 226 of the Constitution. The decision of the High Court is fully in consonance with the law laid down by this Court in its various decisions referred to above and we do not see any occasion to interfere with the order passed by the High Court. The appeal is dismissed, but without any order as to costs.
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1996 (2) TMI 548
... ... ... ... ..... perception. It has rightly been urged that while implementing the Telecom Policy the security aspect cannot be overlooked. The existence of a Telecom Regulatory Authority with the appropriate powers is essential for introduction of plurality in the Telecom Sector. The National Telecom Policy is a historic departure from the practice followed during the past century. Since the private sector will have to contribute more to the development of the telecom network than DOT/MTNL in the next few years, the role of an independent Telecom Regulatory Authority with appropriate powers need not be impressed, which can harness the individual appetite for private gains, for social ends. The Central Government and the Telecom Regulatory Authority have not to behave like sleeping trustees, but have to function as active trustees for the public good. Subject to the directions given above, the writ and Transferred Cases petitions are dismissed. However, there shall be no orders as to costs.
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1996 (2) TMI 547
... ... ... ... ..... t them in list 'C'. Thereafter, consider the officers within the zone of consideration of all the officers in List A and B together, who are eligible to be considered for promotion subject to other ralevant criteria. Those found fit be promoted be put in List 'A' and 'B' respectively and take action thereon. The appeals are accordingly allowed and the orders of the High Court are set aside. The appellant should consider the case of all the officers in accordance with law now laid down. Prepare A and B lists promote all the officers in List A, Officers in List B, be posted in line assignment and also rural/semi-urban service. On completion of the required service be given promotion to MMGS-III. They would be placed in seniority below their respective immediate senior in MMGS-II. The appellant is directed to complete the exercise within a period of nine months from the date of the receipt of this order. No costs. Application for intervention is allowed.
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1996 (2) TMI 546
... ... ... ... ..... ion cannot claim any exemption. The exemption applies to sales of specified goods effected by the certified institutions and persons. The Commission is not a certified person or institution. We are therefore of the opinion that the said notifications do not avail the Commission. 3. We do not express any opinion whether there is any other notification or any other provision of law under which the Commission can claim exemption in respect of the said sales. This observation we are making because in GOPs No. 272 dated 11-2-1967, there is a reference to GO No. 3131 Revenue dated 25-10-1963 which appears to exempt the sales effected by the Khadi & Village Industries Board. The record before us however, does not show whether the GO was in force during the relevant time concerned herein. Our decision is confined to the interpretation and effect of the statutory notifications contained in GOPs No. 272 aforesaid. 4. The appeal is allowed to the extent indicated above. 5. No costs
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1996 (2) TMI 545
... ... ... ... ..... fuse to execute the decree upholding that the decree has became inexecutable on account of the change in law and its effect. What has been stated by this Court in relation to the provision of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1950 would have full application to the provisions of the Orissa Estate Abolitions Act with which we are concerned in the present case. In this view of the matter the proprietary rights of the plaintiff Intermediary became vested in the State of Orissa. The plaintiff could not execute the decree for recovery of possession. In our considered opinion the Executing Court rightly refused to execute the decree and the High Court was in error in setting aside the said order of the Executing Court. In the aforesaid premises the order of the High Court passed in Civil Revision No. 403 of 1987 is set aside. This appeal is allowed. The execution proceeding stands annulled. There will be no order as to costs.
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1996 (2) TMI 544
... ... ... ... ..... , JJ. ORDER Appeal dismissed.
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1996 (2) TMI 543
... ... ... ... ..... otherwise incorrect cannot be entertained. I wish to make it clear that the dismissal of this writ petition will not prejudice the right of the petitioner, to approach the Court with an appropriate review petition or to file any other application which he may be entitled in law to file". Following the above ratio, in Khoday Distilleries Limited & Anr. v. The Registrar General, Supreme Court of India W.P (C) No.803 of 1995 decided on December 5, 1995, a three-Judge Bench to which one of us, K. Ramaswamy, J. was a member has held that after the decision of this Court in M/s. Khoday Distilleries Ltd. & Anr. v. State of Karnataka & Ors. (1995) 1 SCC 574 writ petition under Article 32 of the Constitution canvassing the correctness of the decision of this Court, is not maintainable. Thus the judgment and order of this Court passed under Article 136 is not amenable to judicial review under Article 32 of the Constitution. The writ petition is accordingly dismissed.
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1996 (2) TMI 542
... ... ... ... ..... pur (AIR 1967 SC 344). In all these decisions the view taken is that unless the New Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystalize in the appellant on the institution of the application in the Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the new Act. In other words, the appellant would be entitled to file the appeal without being required to make the deposit under the proviso to Section 173 of the New Act. The law, therefore, seems to be fairly well settled by the said three decisions of this Court. In the result, the appeal succeeds. The impugned judgment of the High Court dismissing the appellant's appeal against the award made by the Tribunal is set aside. The matter will go back to the High Court for disposal of the appeal in accordance with law without insisting on deposit of the amount. There will, however, be no order as to costs.
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1996 (2) TMI 541
... ... ... ... ..... ltural and the income derived from it was held to be not exempt from tax as capital gains. The case of the Supreme Court in Sarifabibi Mohamed Ibrahim's case (supra) , therefore, in a way goes contrary to the contention advanced on behalf of the Department. 12. Respectfully, therefore, agreeing with the views expressed by Madras, Assam and Bombay High Courts in Jolly Bros. (P.) Ltd. ( supra), we are of the view that merely because the agricultural lands received by the assessee as his share in a past family partition were sold by him in small parcels to a large number of persons through the brokers in order to obtain best available market price the transactions cannot be held to be any adventure in trade so as to treat the income derived as taxable under any other head than 'Capital gains'. 13. For the reasons aforesaid, we uphold the view taken by the Tribunal and answer the reference in affirmative in favour of the assessee. There shall be no order as to costs.
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