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Case Laws
Showing 21 to 40 of 402 Records
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1997 (4) TMI 525
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... ... ..... ch under Section 111(4) of the Act could be exercised for resolving the complicated and disputed questions of fact raised by the parties. The proceedings under Section 111, as has been held by the various courts and by ourselves in many cases, is summary in nature. In spite of this nature of the proceedings, we had, in some cases, proceeded with the matters where we felt that with the available affidavits we could adjudicate the matters. But, unfortunately, in the present case, we find that we would not be in a position to do so on the basis of the affidavits filed with us. The matter definitely requires to be tried on evidence. Even though under Section 10E(4C)(d) of the Act we could summon witnesses, etc., yet since ours is a discretionary jurisdiction and proceedings under Section 111 are summary in nature, we do not propose to do so. Accordingly, we dismiss this petition and the parties may agitate this matter in a civil suit if they are so advised. No order as to costs.
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1997 (4) TMI 524
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... ... ..... the lower court the learned Public Prosecutor specified that the alleged payment of ₹ 35 lac was accepted by Shri Advani during the month of November 1989. Mr 71/91 covers the period of November 1989. Curiously enough the name of Shri L.K.Advani does not appear anywhere in the said month. Thus the contention of the learned senior counsel that the payment was made during the said month falls to the ground and does not show prima facie that the payment had been made during the said month. 103. I thus conclude that there is no evidence against the petitioners which can be converted into legal evidence. 104. In the circumstances stated above the petitioners are entitled to succeed. The petitions are allowed. The order dated September 6,1996 in C.C. No. 17/96, and orders dated May 8,1996, May 24,1996 and August 19,1996 in C.C. No. l5/96 are hereby set aside and the proceedings pending decision before the learned Special Judge in the above said petitions are hereby quashed.
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1997 (4) TMI 523
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... ... ..... e case at hand, the cheque was accepted as a payment by the plaintiff. He had no reason to believe or apprehend that the cheque will be dishonoured when presented for payment. The payment by cheque having been accepted and the plaintiff having earned the advantage of extension in period of limitation, that advantage cannot be wiped out or undone by the tortuous act of the defendant withholding the payment of the cheque. ( 15. ) The suit filed by the plaintiff cannot be said to be barred by limitation. ( 16. ) The revision is allowed. The impugned order is set aside. The case is sent back to the trial court for hearing and decision afresh in accordance with law. No order as to the costs. ( 17. ) The plaintiff/petitioner is directed through her counsel to appear before the trial court on 12.5.97. The defendant respondent has not made appearance before the court through served. The trial court would do well to notice the defendant for appearance on a date to be appointed by it.
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1997 (4) TMI 522
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... ... ..... '. The Indian Supreme Court, however, made positive departure from the aforesaid principle which will reveal from the views expressed by the Supreme Court in McDowell and Co. Ltd. v. Commercial Tax Officer, reported in (1985) 3 SCC 230. The Court observed, inter alia,--(ECC page 277) "Tax planning may be legitimate provided (if) it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of (sic) by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. In the facts situation and for the foregoing reasons we are, therefore, of the view that the learned Single Judge fell into error in quashing the impugned notices as being without jurisdiction and accordingly the appeals are allowed. The writ petitions accordingly stand dismissed. There shall, however, be no order as to costs.
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1997 (4) TMI 521
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... ... ..... hority as also by the learned JDR, in our view, are not sufficient to make Asclepius a dummy of A.C. Pharmaceuticals. To characterise a unit as dummy of another, the latter unit must control its production as well as its finances. We observe that the machinery of the two units are different, employees of the two units are different, their balance sheets are drawn separately. In effect, we cannot say that Asclepius Pharmaceutical is a dummy of A.C. Pharmaceuticals. Consequently, we set aside the finding of the adjudicating authority and hence the demand of duty for ₹ 8,490.05 is set aside. We also set aside the finding of the adjudicating authority that Asclepius should be denied the benefit of SSI Exemption Notification from 1986-87 onwards. We also set aside the penalties of ₹ 10,000/- and ₹ 5,000/- imposed on A.C. Pharmaceuticals and Shri Amal Chakraborty. In short, all the appeals of the appellants are allowed with consequential reliefs to the appellants
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1997 (4) TMI 520
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... ... ..... notice of the Deputy Commissioner and once there was no earlier occasion or possibility for the Deputy Commissioner to exercise powers under Section 21(5) of the Act or 27(1) of the Regulation, such power could be exercised later on under those circumstances. We leave that question also open as it is not necessary for us to pronounce upon the same in view of the decision rendered by us on the merits of the impugned two transactions as seen earlier. In the result the appeal is allowed. The judgment and order of the High Court are quashed and set aside. Similarly the decision rendered by the Additional Deputy Commissioner, Dumka dated 30th September 1975 as well as the decision rendered by the Commissioner dated 02nd June 1976 are also quashed and set aside and the application moved by respondent nos.4 to 15 under Section 20 sub-section (5) read with Section 42 of the Act is ordered to be dismissed. In the facts and circumstances of the case there will be no order as to costs.
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1997 (4) TMI 519
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... ... ..... etween the amount awarded and the default and unjustifiable delay and harassment found to have been caused. 5. It is, therefore, appropriate that the matters be remanded to the National Forum so that the aspect of compensation can be considered de novo and, whatever the compensation be that is awarded, the order awarding it should set out the reasons for the same. 6. It shall be open to the Forum to consider, in the process, any offer that the appellant Board may make in regard to allowable accommodation. 7. We make it clear that we are not making any observation either in regard to the quantum of compensation or alternative accommodation. 8. The appeals are allowed to the extent that the compensation amount of ₹ 7 lakhs awarded to the respondent is set aside. The aspect of compensation is remanded to the Forum to be considered afresh and decided upon in the light of the observations hereinabove. The matters shall be expedited before the Forum. 9. No order as to costs.
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1997 (4) TMI 518
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... ... ..... this Act, Necessarily, reference under section 10 of the Societies Act stands excluded. The judgment of this Court arising under Andhra Pradesh Act has no application to the facts for the reason that under that Act the dispute did not cover the dismissal of the servants of the society which the Act therein was amended. Admittedly, there is a finding recorded by the Dy. Registrar upholding the misconduct of the petitioner. That constitutes res judicata. No doubt, section 11 CPC does not in terms apply because it is not a Court, but a Tribunal, constituted under the Societies Act is given special jurisdiction. So, the principle laid down thereunder mutatis mutandis squarely applies to the procedure provided under the Act. It operates as res judicate. thus, we find that the High Court is well justified in holding that the Labour Court has no jurisdiction to decide the dispute once over and the reference itself is bad in law. The special leave petition is accordingly dismissed.
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1997 (4) TMI 517
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... ... ..... sufficient in view of the provision of Section 60 of the Evidence Act is concerned, we may indicate that such submission is misconceived and should not be accepted. In this case, the witnesses have deposed that in their presence, the parties had negotiated about the oral agreement for re-conveyance and such agreement was made. In our view, in such circumstance, it will be too hyper technical to contend that the witness should not only state that in their presence negotiation for oral agreement was held but they had heard the talks between the parties. The deposition that on verbal discussions in the presence of the witness, the parties had come to an agreement for re-conveyance necessarily implies that the witness had heard such discussion and has come to know about such oral agreement. In the aforesaid circumstance, we do not find any reason to interfere with the impugned judgment and the appeals are dismissed but in the facts of the case there will be no order as to costs.
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1997 (4) TMI 516
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... ... ..... ition is dismissed on the ground of delay as well as on merits.
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1997 (4) TMI 515
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... ... ..... ication the District Magistrate on 6th May, 1995 took a decision whereby he decided to grant the lease in favour of the appellant. This could not be done. From the aforesaid discussion it will follow that it is not the notice dated 31st March, 1995 which suffered from any legal infirmity but it is the acceptance of the application before 9th May, 1995 which was bad in law. The said order dated 6th May, 1995 being contrary to Rule 72(ii) was rightly not acted upon and, therefore, the only course which was open to the respondents was to issue a fresh notice, which it did on 30th May, 1995. The conclusion of the High Court that the writ petitions filed by the appellant could not be allowed was correct, though for a different reason. For the aforesaid reasons these appeals are dismissed. The respondents will be at liberty to issue a fresh notice for the grant of lease in accordance with law and keeping in view the observations contained herein. There will be no order as to costs
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1997 (4) TMI 514
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... ... ..... (3) is enacted to serve twin purposes firstly that any amount wrongly realised by a dealer should be refunded to the person who is entitled to that, otherwise the department will unwillingly get embroiled in the avoidable litigation ; and secondly, that no one should be permited to take, benefit of undue enrichment, in the case at hand by making refund to the petitioner, the doctrine of undue enriehment will not apply. Since the refund would be mads to the petitioner on behalf of or as an agent of respondent No. 3 and that would mean as if the payment is made to respondent No. 3 itself. 12. For the above reasons, the petition succeeds and is allowed. The assessing officer (respondent No. 1) is directed to refund the amount of tax to the petitioner which was wrongly realised by the petitioner from respondent No. 3 and deposited with the department, within a period of two months from the date a certified copy of this order is produced before respondent No. 1 by the petitioner.
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1997 (4) TMI 513
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... ... ..... the ground that the utilisation of the loan was in India. 12. Section 195, even otherwise, we find, is not applicable as the payment is made outside India. The assessee transferred the funds to his account in the State Bank of India and from that account the payment is made outside India. Therefore, if the payment is not made in India and the same is made out of India, provisions of section 195 cannot be applied to such a payment and consequently there would be no liability to deduct tax by a non-resident out of the payment made to a non-resident outside India. On all these counts, in our opinion, the assessee was not liable to deduct tax under section 195 and consequently the payment made to the non-resident cannot be disallowed under section 58(1)(a)(ii) of the Act. We accordingly hold that the order of the CIT under section 263 is not in accordance with law. We accordingly vacate the same and restore that of the Assessing Officer. 13. In the result, the appeal is allowed.
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1997 (4) TMI 512
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... ... ..... ance of s. 194C is being made by the petitioner. The Expln. (iii) added by the Finance Act of 1995 is merely clarificatory in nature. Even otherwise, without this Expln. (iii) the carrying of business of transportation of cement from the factory of the petitioner to various destinations, also, comes within the expression “carrying of any works” and the provisions of s. 194C were, also, applicable. Expln. (iii) has been inserted merely in order to remove the doubt and clarifying the position that the provisions of s. 194C are applicable in this transaction, also. 25. The CBDT was, therefore, right in reconsidering and reviewing its earlier circular in view of the judgment of the Hon’ble Supreme Court. We see no infirmity in the Circular No. 681 issued by the CBDT. It was issued under the authority of law and within the jurisdiction and competence of the Board. 26. In the result, we do not find any merit in this writ petition and the same is hereby dismissed.
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1997 (4) TMI 511
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... ... ..... th the claimants and without making any enquiry he made the reference. Subsequently, some persons were impleaded to the reference. That itself indicates that all was not going well. It is now settled position in law that the claimants who receive the compensation under protest and who make application under Section 18(1), alone are entitled to seek a reference third parties, who have been impleaded, have no right to claim higher compensation by circumventing the process of reference under Section 18. Under these circumstances, the reference itself is without any Jurisdiction and barred by limitation. Thereby, the award of the reference court is clearly illegal. On appeal, the High Court has not considered all these perspectives and found it convenient to rely on another judgment to uphold the award of the civil court. o p /o p The appeal is accordingly allowed. The Judgment and award of the reference court as well as that of the High Court stand set aside. No costs. o p /o p
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1997 (4) TMI 510
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... ... ..... under any circumstances even though ex facie it appears that there is no liability of confiscation under the relevant prohibition of the Act and consequently there cannot be reasonable belief in respect thereof. 56. In the result the writ application succeeds. The impugned order of seizure is hereby quashed. Let a writ in the nature of certiorari be issued accordingly. 57. The respondents are directed to release the seized goods to the petitioner forthwith. Let a writ in the nature of mandamus be issued accordingly. 58. There will be no order as to costs. 59. Ld. Advocate for the respondents prays for stay of the operation of the order. After considering the submissions, I do not find any reason to stay the operation of this order as it has been found by this Court that the order of seizure was wholly arbitrary and against the provisions of the Act. 60. Certified copy/xerox certified copy of this order and judgment, if applied for being granted as expeditiously as possible.
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1997 (4) TMI 509
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... ... ..... ondoned. The special leave petitions are dismissed.
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1997 (4) TMI 508
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... ... ..... plication Q. 1. Whether income of the applicant from activities carried on in India is taxable as per the provisions of section 44BBA of the Act. No Q. 2. In the event the provisions of section 44BBA and section 44BB are held to be equally applicable, would the assessee be entitled to be taxed under the section favourable to it, i.e., section 44BBA. This question does not arise as it is only section 44BB that is applicable to the present case. Q. 3. Whether remuneration paid to employ ees residents of Australia of the applicant satisfies sub-clause (c) of clause 2 of arti cle 15 of the Agreement for Avoidance of Double Taxation (DTAA) concluded bet ween India and Australia, as not being an expense deductible in determining the taxable profits of the permanent establishment of the applicant in India. No This question is notwithstanding the income of the applicant being chargeable to tax either under section 44BB or 44BBA of the Act. The application is disposed of accordingly.
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1997 (4) TMI 507
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... ... ..... mprovements the tenant made on the land etc. It is equally settled law that if the Government is the owner of the land, before initiating the acquisition, it is entitled to terminate the lease and take possession of the lands b terms of the lease. Necessarily, in the above case tenant cannot have any right to compensation as he is bound by the terms of the lease. In a case where the Government in spite of the covenant contained in the sale deed, chooses to acquire the land, necessarily the tenancy right of a tenant is required to be assessed and the compensation has to be awarded suitably. In view of the fact that the lease is for 99 years and the part of the lease has been enjoyed for a period of 18 years, we think that the apportionment of the compensation in the ratio of 60 to the tenant and 40 to the landlord would be reasonable ratio and payment should accordingly be made. The appeals are accordingly allowed to the above extent, but, in the circumstances, without costs.
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1997 (4) TMI 506
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... ... ..... se of P. Vittal Pai v. Agrl. ITO 1976 104 ITR 794. 9. In view of the above discussion we have no hesitation in holding that not only the notice under section 143(2) issued and served upon the assessee after the expiry of the period prescribed under the proviso (supra) shall be bad in law, but even, the directions issued by CIT (Appeals) before or after the expiry of such period shall also be bad in law. In the result we hold that the CIT (Appeals) had no jurisdiction or power (1) to direct the Assessing Officer to issue notice under section 143(2) for making assessment under section 143(3), (2) to go beyond the subject matter of the proceedings in appeal before him and (3) to enlarge the limitation period for issuing and serving the notice under section 143(2). Consequently, the directions given by the CIT (Appeals) in para No. 7 of his order are declared bad in law and ab initio void and the same are deleted and expunged. 10. In the result, assessee's appeal is allowed.
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