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Showing 61 to 80 of 452 Records
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2002 (3) TMI 897
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... ... ..... urt on May 8, 2000. Therefore, the payment of interest at 12 per cent will be made from that date of the order till the date of actual refund but at a simple rate. However, considering the balancing factor I do not want to go to such controversial chapter for the purpose of imposition of any cost. Therefore, no payment of cost is allowed under the order of the court either for making this writ petition before this Court or for any claim of refund to be made by the authority concerned. 6.. Thus the writ petition stands disposed of. 7.. Let xeroxed certified copy of this judgment be supplied to the parties by the department within seven days from the date of putting in requisition for drawing up and completion of the order as well as the certified copy thereof. 8.. All parties are to act on a xeroxed signed copy minutes of the operative part of this judgment upon usual undertaking and as per the satisfaction of the officer of this Court in respect as above. Ordered accordingly.
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2002 (3) TMI 896
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... ... ..... y and thereafter, by a reasoned order dated July 30, 2001, the recognition certificate was cancelled. Since in that case final order was passed, therefore, this Court directed to exhaust the statutory remedy of appeal, whereas in the case in hand, there is no allegation of violation of any terms and conditions of the recognition certificate or of the provisions contained in section 4-B of the Act nor there is any allegation of misuse of recognition certificate or of form 3-B and the petitioner approached this Court immediately after issuance of notice instead of submitting to the jurisdiction of the assessing authority. Therefore, the case of the present petitioner cannot be equated with that of Writ Petition No. 970 of 2001. 17.. In view of the discussions made above, the writ petition succeeds and is allowed. The impugned notice dated May 9, 2001 and the proceeding initiated pursuant thereto, are quashed. There shall, however, be no order as to costs. Writ petition allowed.
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2002 (3) TMI 895
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... ... ..... cation and it is liable to be dismissed. 21.. The application is disposed of accordingly without costs. 22.. The judgment is ready and delivered in open Court and kept in separate sheets along with the record of this case. The application is disposed of without costs and interim relief is vacated. 23. The learned lawyer for the petitioner prays for stay of the operation of this order since he wants to prefer revision against the aforesaid order passed by this Tribunal. The State Representative seriously opposes this prayer. 24.. Considered the submissions of both the sides. We are of opinion that the petitioner since wants to move before the High Court if stay of this order is not allowed, the whole purpose of his achievement to move the higher forum will be infructuous. For the ends of justice, we allow only three week s time to bring stay of order from the honourable High Court. Interim relief is, therefore, stayed for three weeks only from this day. Application dismissed.
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2002 (3) TMI 894
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... ... ..... ter giving the applicant an opportunity of being heard. We make it clear that in case the applicant fails to comply as above, the assessing authority shall draw adverse inference against the petitioner under section 114(g) of the Indian Evidence Act presuming in that case that the document in the possession of the petitioner, if produced would be unfavourable to the petitioner and for that the same has been withheld and dispose of the matter accordingly. An order dated May 2, 2001 of this Tribunal is already there permitting release of the goods on furnishing security. We are told that the petitioner has not yet furnished security. Be that as it may, the respondent No. 1 is directed to take an early hearing if such an application by the petitioner for reconsidering the penalty matter afresh is filed within the time already specified. The application is thus disposed of. There will be no order as to costs. D. BHATTACHARYYA (Technical Member).-I agree. Application disposed of.
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2002 (3) TMI 893
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... ... ..... rm XIV if so produced before the appellate authority. The appellate authority shall also consider the issue if at all the petitioner had suffered double taxation by making payment of tax under the Bihar Sales Tax Act. Other findings made by the learned members of the Board are not interfered with and shall remain undisturbed. With this modification we dispose of the instant application. The learned Assistant Commissioner, thus, rehear the case in terms of the direction made by the revisional authority as well as decide the issue relating to declaration form XIV and the issue as directed by this Tribunal. With this modification of the order of the revisional authority we dispose of the instant application. The application is, thus, disposed of without costs. The order is ready and delivered in open court with certain modifications of the revisional order passed by the member of the Board. The application has been disposed of without costs. Application disposed of accordingly.
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2002 (3) TMI 892
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... ... ..... s today. We had pronounced the orders and dismissed the petitions. We have now recorded the reasons for our order. It is held that (i) The provisions of the amending Act as contained in sections 2 and 4 are not unconstitutional. (ii) The communications at annexures P7 and P8 are not notices for payment of surcharge. By these letters, the industry has been made aware of its liability to pay the surcharge and it has been advised to collect the tax. The authority has not acted illegally in doing so. (iii) The petitioners are not entitled to exemption from payment of surcharge on the ground that they had been granted exemption from the payment of sales tax. Equally, the claim that the amount due from the petitioners has to form a part of the total amount for which exemption has been granted, is untenable. In terms of the provision, the petitioners have to pay . Otherwise, the purpose shall be defeated. 36.. Resultantly, the petitions are dismissed in limine. Petitions dismissed.
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2002 (3) TMI 891
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... ... ..... f the attendant circumstances like the total and complete payment of the deferred taxes by the petitioner company as also the identity of the Directors in the transferor company as well as the transferee company. We would, therefore, direct the territorial Assistant Commissioner to reconsider the representation dated 10-1-1997 sent to it by the petitioner company. The parties agree on the same and they have no difficulty in appearing before the Assistant Commissioner for the consideration of the said representation. 10. The writ petition in so far as it pertains to O.P. No. 561 of 1 997 being W.P. No.20099 of 1999 is dismissed while the W.P.No.20100 of 1999, which pertains to O.P. No.249 of 1999, is disposed of in the light of the above directions of ours. The consideration process of the representation shall be finished as far as possible within three months from today. With these directions, we dispose of both the writ petitions. No costs. W.M.P. No.29510 of 1999 is closed.
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2002 (3) TMI 890
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... ... ..... iting. The loose paper in itself has got no intrinsic value. It does not represent a negotiable instrument which can be exchanged for a sum of Rs. 60 lakhs. Therefore, the above decision does not have direct applicablity to the facts of the present case. When it is a mere entry on a loose sheet of paper and if the assessee claims that it was only a planning, not supported by actual cash, then there has to be circumstantial evidences to support that this entry really represent cash of Rs. 60 lakhs. There is no such evidence found by the Revenue in the form of extra cash, jewellery or investment outside the books. In such a case, the explanation offered by the assessee cannot be rejected. In that view of the matter, I concur with the view taken by the learned Accountant Member. In view of the above findings, I do not consider it necessary to go into the various decisions cited before me. The matter will now go before the regular Bench for decision according to majority opinion.
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2002 (3) TMI 889
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... ... ..... have our approval and hereby overruled. In D and C Builders Ltd. v. Kees, reported in 1965 (3) All England Report 837, the contractor had even given a receipt after receiving less payment than due that he had received the same in full and final settlement. Yet, it was held that he could prove that such a writing was given by the supplier under some compulsion and coercion or on the threat of receiving no amount at all. In other words, the waiver or satisfaction of the bill was allowed to be disproved by the supplier. 25. In view of the above discussions, our answer to this question is that it will depend on facts and circumstances of each case whether a pirticular right of recovery has been waived or not. The waiver will have to be proved as a fact as any other fact is proved under the Evidence Act by documentary, oral or circumstantial evidence. Having answered, the questions as aforesaid, let the case be placed before the Division Bench for decision in accordance with law.
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2002 (3) TMI 888
Adjudication order - Validity thereof - Confiscation and penalty ... ... ... ... ..... e the claim for clearance of the goods under Transfer of Residence Rules. We are also not very clear from this order how the provisions of Section 111(d) could be invoked in the facts of this case. There is no finding that any goods are imported which are otherwise not freely importable under EXIM policy. The Commissioner should consider each item and determine in the order, as to how that the item is considered to be liable for confiscation under Sections 111(d) and 111(o). Since the matter is remanded and all issues are kept open and the cases concern old imports of Baggage, we would direct the Commissioner, to decide the matter within a period of 4 weeks from the date of receipt of this order. 6. emsp With these observations, we set aside the order and allow the appeals by way of remand to the adjudication authority. Ld. Adjudicator should give an opportunity to hear the appellants during the de novo proceedings. Ordered accordingly. (Pronounced and dictated in open Court
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2002 (3) TMI 887
SSI Exemption - Brand name ... ... ... ... ..... nship between the brand name of the goods in the course of trade. Therefore such goods would not attract the provisions of the paragraph. The Larger Bench disapproved the decision in CCE v. Wood rsquo s Glamour - 1991 (54) E.L.T. 153 holding that condition 7 would be attracted in a case where person manufactured T.V. cabinets and affixed on them ldquo Konark rdquo and supplied the cabinet to its buyer who utilised in the manufacture of T.V. sets bearing the brand name ldquo Konark rdquo . From this it would follow that even if the respondent is found to have affixed the brand name on the control panel (on which we venture no opinion), such affixation would not attract the condition contained in Paragraph 7 of the notification. On this being put to the departmental representative, he reiterates that it was in the course of trade. We are however of the view that the decision of the Larger Bench is clearly in favour of the respondent. 6. emsp The appeal is accordingly dismissed.
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2002 (3) TMI 886
Recovery of amounts due to Financial Corporation as arrears of land revenue ... ... ... ... ..... uant to a settlement between the corporation and the borrower industrial concern amounted to abandonment of its claim against the surety. His view that the corporation was executing the order of the Additional District Judge dated 16-2-1983, against the respondent objector is also erroneous. The application filed by the corporation before the State Government/specified authority was independent of any proceedings which were initiated for recovery of the amount under any other provision of the statute including section 31. The order of the leanred Additional District Judge impugned in the petition, therefore, is not sustainable in law. It is appropriate for this court to exercise its supervisory jurisdiction under article 227 of the Constitution of India in this case and set aside the order. 19. As a result of the above discussion the appeal is allowed and the order of the learned Additional District Judge dated 12-2-1996, is set aside but parties are left to bear their costs.
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2002 (3) TMI 885
Appointment of Arbitrators ... ... ... ... ..... have waived the same. We may notice that in relation to composition of the arbitral Tribunal if not challenged the same has been held to have been waived by the Apex Court recently in Narayan Prasad Lohia v. Nikunj Kumar Lohia 2002 (2) SCALE 232, wherein it was held mdash 20. Respondents 1 and 2 not having raised any objection to the composition of the arbitral Tribunal, as provided in section 16, they must be deemed to have waived their right to object. 25. The decision of the Apex Court in Jupiter Chit Fund rsquo s case (supra), was rendered in a case where the Court was concerned with the provisions of section 37 of Arbitration Act, 1940. The said decision has no application in the facts and circumstances of this case. 26. For the reasons aforementioned, we are of the opinion that no case has been made out for interference with the impugned order. This appeal is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2002 (3) TMI 884
Appointment of Arbitrators ... ... ... ... ..... reement only in a case where the Court holds that there does not exist any arbitration agreement and thus refused to appoint an arbitrator, a writ petition may be maintainable as has been held in Union of India v. Vengamamaba Engg. Co. 2001 (4) ALT 45. 37. The Act has brought a sea-change in the matter of reference of disputes and differences to arbitration by reason of the provisions of the Act. Such objections, which are capable of being taken before the learned arbitrator, cannot be allowed to be taken before this Court by way of a writ petition under Article 226 of the Constitution. 38. In any event, keeping in view the Constitution Bench decision of the Apex Court in Konkan Railway Corpn. Ltd. rsquo s case (supra), that a writ petition will be maintainable only when an arbitrator is not appointed, we are of the considered view that this writ petition is not maintainable. 39. This writ petition is accordingly dismissed with costs. Advocates fee is quantified at Rs. 5,000.
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2002 (3) TMI 883
Arbitral award ... ... ... ... ..... e same, in my opinion, is that an adjudication of dispute without giving any reason upon which it is based is not an award at all. Hence, no question of setting aside the same arises under section 34. 10. In the view which I have taken of the matter, it is not necessary for me to deal with the second ground, viz., that the award is in conflict with the public policy of India. 11. Since the alleged award is not liable to be set aside under section 34, there can be no question of granting any relief in terms of prayer (a). However, as I have held that the alleged award Exh. I is not an arbitral award, a declaration to that effect deserves to be granted in view of prayer (d) which is lsquo for such and further reliefs as the nature and circumstances of the case may require rsquo . It is, therefore, declared that the alleged award Exh. I dated 30-3-2000 is not an arbitral award for the purpose of section 34. 12. The petition is, accordingly, disposed of with no order as to costs.
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2002 (3) TMI 882
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... n the meaning of section 18 of the Limitation Act, 1963, or not again is a disputed question which is required to be decided on the basis of evidence. 11. Similarly, the third question as to whether there is any privity of contract between the parties or not, in view of the order placed vide annexure P-2 to the petition, which is a confirmed order placed by the respondent-company with Messrs Ratna Vanijya, and the demands being made by the said Ratna Vanijya to the respondent-company for payment of the amount in respect of the supplies of kraft paper made, is a disputed question which can be decided only on the basis of evidence in a duly constituted suit. 12. The defences raised by the respondent-company on the face of it, appear to be bona fide and such defences, prima facie, are likely to succeed. Therefore, it is not a fit case for the exercise of powers of winding up under section 433 of the Act. 13. Resultantly, the present petition fails and is, accordingly, dismissed.
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2002 (3) TMI 881
Notice of admission of company petition ... ... ... ... ..... 31, 1995, and the order of restoration i.e., the date of this order (3)The applicant shall draw the attention of the company judge, if ultimately winding up petition is to be allowed by the company judge at the end of the proceedings on merits about the above condition No. 2, so that final order, if any, passed, can take care of the situation (4)The applicant shall pay costs of Rs. 5,000 for the present proceedings to the respondent-company and the same shall be deposited with the Registry of this court within 30 days from today (5)Both the above undertakings as per condition Nos. 1 and 2 shall have to be filed within 30 days from today. 20. It is clarified that in the event of failure in compliance with the above conditions by the applicant, the order of restoration of Company Petition No. 51 of 1990 shall have no effect and it would be construed that the same has been dismissed on the relevant date i.e., January 31, 1995. 21. This company application is allowed accordingly.
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2002 (3) TMI 880
Penalty - Offences by companies ... ... ... ... ..... e for the day-to-day affairs of the company, I find no grounds to quash the complaint at this stage. As stated earlier, it is open to the petitioner to establish that in view of the proviso to sub-section (1) of section 141 of the Act, he cannot be said to have committed the offence alleged. Since the petitioner is alleging that he is not in charge of the affairs of the company in spite of his being a director of the company the burden of proof is on him to establish the same. Therefore, in view of the ratio in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P.) Ltd. 2002 108 Comp. Cas. 48 (SC) merely on the basis of the averments, which have to be established by the petitioner during the course of trial against his complaint, cannot be quashed. 7. Therefore, the petition is dismissed. The learned Magistrate is directed to dispose of C.C. No. 360 of 2001 as expeditiously as possible, at any rate before the end of August 2002, uninfluenced by the observations made in this order.
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2002 (3) TMI 879
Incorporation of company ... ... ... ... ..... the company wants to have an office and since the respondent landlord is a director of the company it cannot be stated that it is his need or requirement of own occupation. In the eviction petition, the need of the company in which the landlord is the director is projected as his own need. We are unable to agree with the above. Unlike a partnership firm, a company is a different entity and need of the company in which landlord is a director cannot be said to be the need of the landlord for his own occupation and therefore, the landlord cannot file a petition under section 11(3) for the occupation of the building owned personally by him for the functioning of the company merely because he is a director of the company. 11. In the above circumstances, the application is not maintainable and we agree with the Rent Control Court and affirm the decision of the Rent Control Court and set aside the appellate authority rsquo s decision. All the C.R.Ps. are allowed to the above extent.
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2002 (3) TMI 878
Winding up – Suits stayed on winding-up order ... ... ... ... ..... of liability of a guarantor is incidental to the proceedings of winding up. Whether the guarantor is liable to indemnify the creditor and the extent of such liability towards PICUP, is not a matter which can be said to be arising out of winding up proceedings, or is necessary to be decided by a company court for effective winding up of a company in liquidation. In the facts and circumstances and without expressing any observation on the merits of the submissions made on behalf of the applicant-guarantor with regard to liability of the applicant as guarantor to PICUP, this application is dismissed on the ground that the relief claimed does not amount to proceedings relating to or arising in the course of winding up of the company (in liquidation). The court also refuses to exercise its discretion to adjudicate the matter which does not concern with the winding up of the company. The application under section 446 of the Act is, accordingly, dismissed with no order as to costs.
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