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2003 (2) TMI 541
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... ... ..... could not hold good for the quarter ending March, 1995. 2. I have considered this submission and perused the impugned order. The assessee/respondent has not shown reasonable cause for failure to comply with the requirements of filing return even after they have become aware of the requirements under the provisions of the service tax enactment. Therefore, I hold that lower appellate authority was not justified in condoning the delay for the second quarter viz., quarter ending March, 1995 and hold that penalty was justified for delay in this quarter. Accordingly, I set aside the impugned order and allow the appeal of the Revenue.
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2003 (2) TMI 540
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... ... ..... ome infructuous and stand disposed of accordingly. Cont. Pet. C No. 298/97 40. This petition was filed for enforcement of the order made by this Court on 7.2.1986. The stand of the petitioners is that there is non-compliance of the direction given by this Court in the manner provided therein. Various contentions are put forth before us to interpret the said order and to contend that the manner of compliance by respondents is not sufficient by a process of circuitous reasoning. It is clear that unless there is a wilful disobedience, which can be spelt out from the conduct of the respondents, no action can be taken in contempt. Hence the notice issued shall stand discharged and the proceedings shall stand dropped. SLP C No. 7887/94 41. The facts that have arisen and the issues involved in this appeal by special leave are different from those that have arisen in the aforesaid writ petitions and the transfer cases. Hence, this petition be delinked from the present batch of cases.
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2003 (2) TMI 539
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... ... ..... fit under Section 14 of the Limitation Act is to be given cannot be a binding precedent. In view of the foregoing discussions, it is held that the plaintiff is not entitled to the benefit of exclusion of time during which the winding up petitions relating to each of the five suits were pending for the purposes of computing the limitation for the suits instituted by the plaintiffs. The essential conditions of Section 14 of the Limitation Act are not fulfilled, as discussed earlier. The winding up petitions having been dismissed on merits and not on account of any defect of jurisdiction or a defect of a like nature. Section 14 cannot be pressed into service. Besides, the nature of the relief in a winding up petition is entirely different and distinct from that in a suit for recovery. I.A. Nos. 12141/2002, 14142/2002, 32/2003, 35/2003 and 97/2003 are, accordingly, dismissed. The suits are held to be barred by limitation and are, accordingly, dismissed, with no order as to costs.
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2003 (2) TMI 538
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... ... ..... the services rendered by them. As is clear from the directions of the learned Single Judge, sympathizing with the appellants, their services were also protected till regular appointments were made. Under these circumstances, we do not find any good or valid ground to interfere with the impugned order. This Court had passed interim orders in these matters directing the Zilla Parishads to pay the basic pay of ₹ 1520/- per month to the appellants from November, 1995 upto-date and continue to pay till the disposal of these appeals. The learned counsel for the respondents submitted that the payment made pursuant to the interim orders passed by this Court to the appellants shall not be recovered. In this view, we make it clear that the respondents shall not make any recovery of amount from the appellants paid to them by way of salary pursuant to the interim orders passed by this Court. Thus finding no merit, the appeals are dismissed subject to what is stated above. No costs.
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2003 (2) TMI 537
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... ... ..... views have been expressed by the Tribunal in the case of Uniworth Textile wherein it was held that "entitlement of duty free import of fuel for power plant would lie with the owner of the captive power plant and not consumers of electricity from that power plant.....Notification cannot be interpreted so as to provide for import of unlimited quantity of Furnace Oil or Fuel by any E.O.U. for supply to power plant of other manufacturers." The Appellants have also not brought on record any material in support of their contention that the Department was aware of the fact that the Appellants did not have the captive power plant. In view of this the demand cannot be held to be hit by time limit. The amount of penalty imposed is only ₹ 50,000 in a matter which involves duty amount of ₹ 24.55 lakhs and as such penalty imposed on the Appellants is not excessive at all. Accordingly we find no reason to interfere with the impugned Order and the appeal is rejected.
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2003 (2) TMI 536
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... ... ..... ermission is liable to be cancelled. It is for the assessing authority to choose the mode, that is, either to cancel the permission or not. Relying on clause 2 of Ext. P1 petitioner cannot compel the assessing authority to cancel the permission. As the petitioner has agreed to the course of option and as the assessing authority wants only to enforce the same the former cannot dodge payment of tax on the aforesaid plea". 5. In view of the above decision of the Division Bench there is no merit in the contention taken by the counsel for the respondent. In the light of the above Division Bench decision we are of the view that the decision of the Tribunal is liable to be interfered with. We accordingly set aside the order of the Tribunal and restore the order of the assessing authority. Here, we note that the assessing authority had passed an order as contemplated under Section 7(14) by determining the liability of the assessee taking proportionate amount of the Kist amount.
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2003 (2) TMI 535
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... ... ..... d by a direction under Section 78-A of the Electricity (Supply) Act, 1948. It does not require any specific mention or a specific direction to the instrumentalities of the State to follow its policy. In ordinary course the instrumentalities of the State are expected to follow the policy of the State framed from time to time." 17. In the present case also, it is the policy decision of the Government to modify the earlier G.Os. by issuing another G.O., and impose maximum ceiling limit with regard to grant of 25 rebate in power tariff for a period of three years from the date of production. Such decision will come into force from the date of issuance of the G.O. and hence the contention that it will come into force only from the date of its adaptation by the Board, cannot be countenanced in view of the foregoing discussion and the judgments of this Court. 18. In view of the above, I do not find any merit in the Writ Petition and the same is accordingly dismissed. No costs.
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2003 (2) TMI 534
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... ... ..... 32 of the Regulations, the Debts Recovery Tribunal may entertain the same if the circumstances so warrant. (e) The orders impugned in this batch of writ petitions are not so which call for interference in exercise of extra ordinary or discretionary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. (f) It would be open to the petitioners in each case to prefer an appeal before the Appellate Tribunal within a period of 6 weeks and on such filing of appeal, the Tribunal shall not dismiss the appeal on the ground of limitation. (g) It would be open to the petitioners to put forth their contentions before the Tribunal that the order impugned has substantially affected their rights or liabilities. (h) Any decision, rendered by this Court that runs counter to the view expressed hereinabove would be deemed to have incorrectly laid down the law and thereby stands overruled. The writ petitions are accordingly disposed of without any order as to costs.
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2003 (2) TMI 533
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... ... ..... n view of the remedy of appeal available under Section 20 of the Act, such a petition under Articles 226/227 should not be entertained, and when there is an alternative remedy available, judicial prudence demands that the Courts refrain from exercising its jurisdiction under the constitutional provisions. In our opinion, the case on hand is directly covered by the said decision of the Hon'ble Apex Court, and, we are of the opinion that the learned single Judge should not have entertained the petition under Articles 226/227 of the Constitution of India and should have directed the respondent to take recourse to the appeal mechanism provided by the Act. 10. Consequently, the impugned order, of the learned single Judge, is quashed and set aside. The Appeal is allowed with costs. Obviously, in view of our aforesaid observations and discussions, it will be open for the respondents to pursue appropriate available alternative appellate remedy for the redressal of the grievance.
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2003 (2) TMI 532
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... ... ..... ween employees who were similarly placed. 10. Learned counsel for the petitioner has relied upon the judgment of the Bombay High Court reported as Nandini Nitin Patil Versus State of Maharashtra and others 2000 (6) SLR to contend that an employee whose offer had already been accepted could not be deprived of the benefits of the scheme. There cannot be a dispute about the proposition that once the offer of voluntary retirement had been accepted by the management the terms thereof cannot be altered to the disadvantage of the employee who had opted for voluntary retirement. In the present case, however, the offer of the petitioners had been accepted only after the introduction of the amended scheme and not before the amendment was made. This judgment is, Therefore, clearly not applicable to the facts of the present case. 11. For all the foregoing reasons, I do not find any merits in the petition and the same is, accordingly dismissed leaving the parties to bear their own costs.
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2003 (2) TMI 531
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... ... ..... e income-tax authorities. It has already come in evidence that even B-3 came into existence since the government wanted to inspect the account books. Therefore, once the settlement before the suit for paritition was filed is not accepted by means of a finding of fact recorded by the High Court, the case of the defendant falls through. As indicated earlier, the matter stands settled and disposed of by compromise among the parties except Respondent no.7 whose legal heirs have not turned up to put in appearance. We do not find any good reason to interfere with the judgment of the High Court except to the extent as may stand modified in view of the order passed by this Court on 2nd September, 1994 to the following effect "Appeal is disposed of on the basis of a compromise except against respondent no.7. Appeal shall continue in respect of respondent no.7 and will be disposed of according to law." There is no merit in the appeal, it is accordingly dismissed. Costs easy.
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2003 (2) TMI 530
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... ... ..... and it's defect can not be cured in a subsequent proceedings and if the notice is invalid, the entire proceedings stand invalid and liable to be quashed. In the present case, notice was issued under U. P. Trade Tax Act while the assessment was made under the Central Sales Tax Act, therefore, the assessment order passed under Section 21 under the Central Sales Tax Act was in pursuance of without any notice under Section 21 under the Central Sales Tax Act and therefore, the order was illegal and without jurisdiction. The Appellate Authority and the Tribunal ought to have quashed the order passed under Section 21 read with Section 9(2) under the Central Sales Tax Act instead of remanding back the case to the Assessing Authority. 14. In the circumstances, I set aside the order of Tribunal dated 10-7-1991 and the order of Assistant Commissioner (J), Sales Tax dated 5-1-1985 and the order of Sales Tax Officer dated 28-9-1983 is quashed. In the result, the revision is allowed.
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2003 (2) TMI 529
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... ... ..... e submissions. Accordingly the Appeals are allowed with costs. In view of what has happened in the past it needs to be clarified that Respondent No. 3 has ceased to be in Government service with effect from May 1993 in the rank/position that he then held. There is now no necessity of issuing an order terminating his service. All that is required is correction of official record if they purport to show that Respondent No. 3 has continued in service. So far as Respondent No. 3 is concerned, this Judgment and Order of Central Administrative Tribunal are notice to him that his request for voluntary retirement dated 5th May, 1993 has taken effect from May, 1993. It goes without saying that with effect from May 1993 Respondent No. 3 would not be entitled to any pay or any other consequential benefits. It is expected that if any pay and/or benefits have been given to him the same would be returned/reimbursed by him so that the concerned Government is not forced to recover the same.
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2003 (2) TMI 528
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... ... ..... f interest on delayed payment of gratuity only on the ground that the discretion exercised by the learned Single Judge could not be said to be arbitrary. In the first place in the light of what is stated above, the learned Single Judge could not refuse the grant of interest exercising discretion as against the mandatory provisions contained in Section 7 of the Act. The Division Bench, in our opinion, committed an error in assuming that the learned Single Judge could exercise the discretion in the matter of awarding interest and that such a discretion exercised was not arbitrary. In the light of the facts stated and for the reasons aforementioned, the impugned order cannot be sustained. Consequently, it is set aside. The respondent is directed to pay interest 10 on the amount of gratuity to which the appellant is entitled from the date it became payable till the date of payment of the gratuity amount. The appeal is allowed accordingly with cost quantified at ₹ 10,000/-.
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2003 (2) TMI 527
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... ... ..... up for consideration of the Supreme Court in CIT v. Poddar Cements (P.) Ltd. 1997 226 ITR 625. Their Lordships of the Supreme Court were pleased to hold that though under the common law "owner" means a person who has got valid title legally conveyed to him after complying with the requirements of law, such as the Transfer of Property Act, the Registration Act etc., in the context of section 22 of the Act, having regard to the ground realities and further having regard to the object of the Act, namely, to tax the income, "owner" is a person who is entitled to receive income from property in his own right. It has been held that the requirement of registration of the sale deed in the context of section 22 of the Act is not warranted. 5. In view of the said authoritative pronouncement, both the questions referred are answered in the negative i.e. in favour of the assessee and against the revenue. 6. The reference stands disposed of with no order as to costs.
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2003 (2) TMI 526
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... ... ..... umar v. Shanti Prasad, AIR 1980 SC 892 in refusing to convert a petition under section 115, CPC to be one under Article 227 of the Constitution may have been justified on the facts of that case, but the same cannot be treated as a precedent to oust jurisdiction of the High Court vested in it under the law. The High Court certainly is entitled to convert any proceeding instituted before it in one manner to be that of another provided a proper cause has been made out and in he interest of justice." ( 35. ) I , therefore, accept the prayer made by Mr. Dasgupta and permit his client to convert the present revisional application under section 115 of the Code of Civil Procedure into an application under Article 227 of the Constitution of India within a week from date. The petitioner is, further directed to put in additional Court fees, if any, within the aforesaid period. Put up the matter under the heading 'listed motion' on February 14, 2002. Petition disposed of of
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2003 (2) TMI 525
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... ... ..... preference of the domestic company over the foreign company, took a decision to grant tender to respondent No. 5. In these circumstances, the petitioner cannot claim violation of Art. 14 independently but the same is to be read with Art. 19(1)(g) of the Constitution, which is confined to the citizens of the country alone. Article 14 of the Constitution cannot be pleaded independently and in seclusion to other fundamental rights. The equitable protection of laws as envisaged in Art. 14 necessarily has to take into consideration that law in respect of which equitable protection is being claimed in the matter of award of tender. ( 17. ) In view of the above, we are of the considered opinion that the writ petition for the enforcement of protection available under Art. 19(1)(g) in the garb of Art. 14 is not maintainable. ( 18. ) Accordingly , this writ petition is dismissed. It is made clear that we have not delved into the merits of case. ( 19. ) Costs easy. Petition dismissed.
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2003 (2) TMI 524
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... ... ..... house, did not contravene the terms of the lease merely because he let out the building for non-residential purpose. It was then urged on behalf of the appellant that since under Clause 1 (ii) of lease deed an obligation was placed on lessee to comply with the municipal rules, regulations and bye-laws and since the use of building for non-residential purpose is contrary to Master Plan, Zonal Plan or other plans prepared under the Delhi Development Act, the right and title of respondent no. 1 in respect of the land stood extinguished. We are not deposed to go into this submission as the impugned action has been taken against respondent no. 1 under the lease deed, the terms of which are said to be violated by respondent no. 1. However, it would be open to the appellant to take such action as may be permissible under the other provisions of law against respondent no. 1. For the aforesaid reasons, the instant appeal is accordingly dismissed. There shall be no order as to costs.
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2003 (2) TMI 523
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... ... ..... to strictly follow the directions of the Tribunal in terms of para-6 of the Tribunal’s Order dated 31.08.1999, and pass appropriate Order afresh in accordance with law, in the light of the material available on record and in terms of the provisions of the Customs Act. 10. While reconsidering the matter, the Commissioner is directed not to be influenced in any way by any of the observations made in the earlier orders, and he has to pass a detailed Order in terms of this Order and in terms of the directions given in the earlier order on the tribunal dated 31-8-1999. No opinion is expressed on the merits of the matter. All contentions are left open. Parties are directed to appear before the Commissioner, without awaiting for any notice, on 24.3.2003. The learned counsel are required to inform their clients with regard to the posting of the case on 24.03.2003. The Commissioner is directed to the complete the proceedings on or before 30.06.2003. Ordered accordingly no Cost.
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2003 (2) TMI 522
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... ... ..... lag that has elapsed, as also his statement that he has never published any such writing after the publication of the said book, in our opinion, interest of justice will be met if the respondent is removed forthwith from the membership of the institute for a period of five years. We, accordingly, while upholding the finding of the counsel holding the respondent guilty of misconduct, direct that the respondent be removed forthwith from the membership of the institute for a period of five years. The Reference stands disposed of accordingly, with no order as to costs. 24. At this stage, the learned counsel for the respondent submits that the operation of this order may be stayed to enable the respondent to approach the higher forum. In our opinion, in the facts and circumstances of the case, it will be improper for us to stay the operation of this order when the removal of the respondent was due long back, having regard to the serious nature of the misconduct committed by him.
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