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Showing 41 to 60 of 655 Records
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2005 (7) TMI 692
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... ... ..... pleadings in the petition. Besides, whether there is discrimination or not is not a pure question of law and once such a point is raised, the opposite party is entitled to meet the said case by filing the necessary reply to the same. Once such a ground is taken for the first time in the rejoinder, there is no opportunity to the respondents to meet such case of the petitioners. In any case, the petitioners are not entitled to enlarge the scope of the petition by adding certain grounds in the rejoinder. Therefore, we are not inclined to allow the petitioners to raise such a ground on the basis of the submissions made in the rejoinder. We make it clear that we have not expressed any opinion on the said issue as the petitioners have not been allowed to raise the said issue in the present petition. 12. For the reasons stated above, therefore, there is no case for interference in the impugned order. Hence the petition is dismissed. The rule is discharged with no order as to costs.
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2005 (7) TMI 691
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... ... ..... ved that the Appeal of the Appellant was time barred. 3. The learned counsel for the Petitioners brought to our notice the judgment of Supreme Court in the case of Ganesh Santa Ram Sirur v. State Bank of India & Anr. 2005 Volume 1 SCC Page 13 wherein the Supreme Court has clearly held that if the time barred Appeal is heard and decided on its merits, then the delay is presumed to have been condoned. 4. Under the aforesaid facts and circumstances, we find that the CESTAT ought not to have rejected the Appeal only on the ground that it is time barred. The CESTAT should have decided the matter on its own merits. Under the circumstances, we do hereby quash and set aside the order dated 7th October, 2003 of CESTAT and also the subsequent order and remand the matter back to CESTAT to hear the aforesaid Appeal No.E/263 of 2003 strictly on its own merits in accordance with law. The CESTAT should dispose of the same as expeditiously as possible. Rule is accordingly made absolute.
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2005 (7) TMI 690
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... ... ..... ply of alleged defective material can not be accepted. Even if interest 12 per annum is to be computed for last six years the total amount payable would come to more than ₹ 90 lacs. Prima facie, therefore, I am of the opinion that respondent is indebted to the petitioner and as the amount was not paid in spite of service of statutory notice it would be deemed that it is unable to pay the same. This petition is accordingly admitted. Citations be published in The Statesman' (English) and 'Jansatta' (Hindi), returnable on 30th September, 2005. OL is appointed as the Provisional Liquidator. However this order shall not be operated for a period of eight weeks to enable the respondent to deposit ₹ 90 lacs with the Registrar of this Court. In case, the amount is not deposited the petitioner shall be entitled to take out the citations and OL shall also be entitled to take charge of assets and records of the Company. 19. List on 30th September 2005 for report.
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2005 (7) TMI 689
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... ... ..... Kumar, JJ. ORDER Admit. No Say.
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2005 (7) TMI 688
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... ... ..... h are essentially of a civil nature invoking criminal jurisdiction by lodging the FIR has been deprecated by the Apex Court. Learned single Judge has referred for this purpose to the decisions of the Apex Court in Ajay Mitra v. State of MP and Ors ( JT 2003 (1) SC 418); Amresh Tiwari v. Lalta Prasad Dubey and Anr. ; Ramgopal Ganpatrai Ruia and Anr. v. State of Bombay and U. Dhar and Anr. v. The State of Jharkand and Anr. (JT 2003 (1) SC 173) 6. In view of all this, when the learned single Judge after considering the matter in detail has quashed the FIR, we are of the view that no interference is called for. 7. It is required to be noted that ordinarily when original jurisdiction of the High Court is invoked by filing a writ petition, a Letters Patent Appeal can be filed, but when proceedings are initiated and when a specific provision is provided in the CrPC, namely, Section 482, there is no question of entertaining a Letters Patent Appeal. 8. Hence, the appeal is dismissed.
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2005 (7) TMI 687
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... ... ..... utes has, in its meeting, held on 28th April, 2005 held that this is not a fit case for filing Appeals. In view of the decision taken by the Committee, we see no reason to interfere. The Civil Appeals are dismissed.
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2005 (7) TMI 686
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... ... ..... s already seized of the matter, there is no point in sustaining the present assessment which has been done by an Assessing Officer having no jurisdiction over the assessee. There is one more point in favour of the assessee. As per section 124(4) of the Act, if the present Assessing Officer was not satisfied with the correctness of the assessee’s claim, he should have referred the matter for determination under sub-section (2) of section 124 of the Act instead of proceeding to make the assessment. Thus, considering all these aspects of the matter, we cancel the present protective assessment. 6. Since we have cancelled the assessment on legal ground, the ground Nos. 6 and 7 which pertain to the merits of the addition, are not dealt with. Further, ground Nos. 3, 4 and 5 which challenge the validity of notice under section 148 were not pressed at the time of the hearing and hence the same are rejected as such. 7. In the result, the appeal of the assessee is partly allowed.
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2005 (7) TMI 685
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... ... ..... ee no reason to interfere. The Civil Appeal is dismissed.
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2005 (7) TMI 684
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... ... ..... t in various cases e.g. Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Anr., 2002 6 SCC 41, Rajendra Prasad Arya v. State of Bihar, 2000 9 SCC 514, Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh, 2005 3 SCC 232, Haryana State Cooperative Land Development Bank v. Neelam, 2005 5 SCC 91, Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors., 2005 5 SCC 100 and Allahabad Jal Sansthan v. Daya Shankar Rai and Anr., 2005 5 SCC 124, we do not find any scope for interference. The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the court has to weigh the pros and cons of each case and to take a pragmatic view. That being so, we do not think it appropriate to interfere with the quantum of 50 fixed by the High Court. The appeals are, accordingly, disposed of with no order as to costs.
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2005 (7) TMI 683
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... ... ..... given any instructions in the above matter. 2. The Petitioner has raised an issue that the Appeals are also pending with regard to the issue raised in the above Petition and is only seeking a limited relief that no coercive steps should be taken for recovery. There is no affidavit in reply filed on behalf of the Respondents, hence, Rule. There shall be an interim relief in terms of prayer clause (d). Hearing expedited.
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2005 (7) TMI 682
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... ... ..... her adjusted to include the amount of any tax, duty, cess or fee (by whatever name called) actually paid or incurred by the assessee to bring the goods to the place of its location and condition as on that date of valuation was clarified. Therefore, we do not find any infirmity in the contention of the ld. CIT(A) who on the basis of remand report deemed it fit to direct the Assessing Officer to apply the provisions of section145A in accordance with the intention of the legislation as has been directed by her. With respect to the second issue agitated by the revenue, here again on the basis of facts and circumstances aptly dealt with by the ld. CIT(A), we do not find any infirmity in deleting the addition of ₹ 55,414. 7. Therefore, on both the issues as agitated by the revenue, we find no merit in the arguments put forth by the Ld. Departmental Representative and have no hesitation in dismissing the appeal. 8. In the result, the appeal filed by the revenue is dismissed.
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2005 (7) TMI 681
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... ... ..... stion of law - 3.1 Whether the Hon’ble Tribunal erred on facts and in law in upholding the validity of the order passed under section 263 of the Act? The learned counsel for the Respondent waives service. To be heard alongwith Writ Petition No. 908 of 2005. Hearing expedited.
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2005 (7) TMI 680
Seeking for restoration of lands, transferred contrary to Section 4 of Act 2 of 1979 - original allottees who were either scheduled castes or scheduled tribes transferred the property to third parties without obtaining previous permission of the Government - Violations of conditions imposed by the Tahsildar in the 'Saguvali chit' restricting the alienation of such lands by the grantee - HELD THAT:- A careful scrutiny of the entire scheme of the rules relating to grant of lease to landless persons would show that the finding of the Full Bench on this issue is legally not sustainable. First of all, Rule 43-J is only a general rule which says that the lands which have been given on lease for agricultural purposes could be assigned to the lessees if they complied with the conditions of lease. The title to the land primarily vests with the Government. The Government while granting title to the lessees, can impose any conditions which are permissible under law. The land is being given to lessees either free of cost or at a price which is less than the full market price. It is not an outright sale made by the Government for full consideration.
In all these cases, lands were given almost free of cost. The upset price of the land was either fixed at ₹ 200-250 per acre and this ₹ 200 itself was waived and the grantee was to remit only ₹ 50 per acre. Grantee was to execute "Saguvali Chit" and it incorporated a condition prohibiting alienation for a period of 15 years. The history of the legislation also would show that the State of Karnataka has all along been giving lands to the landless persons belonging to Scheduled Castes and Scheduled Tribes subject to the restriction on alienation of such land.
It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, inspite of being aware of the condition.
The Full Bench seriously erred in holding that the land was granted under Rule 43-J and that the authorities were not empowered to impose any conditions regarding alienation without adverting to Section 4 of the Act 2 of 1979. These lands were given to landless persons almost free of cost and it was done as a social welfare measure to improve the conditions of poor landless persons. When these lands were purchased by third parties taking advantage of illiteracy and poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third party purchasers.
In any case, the High Court failed to take into account the clear language employed in Section 4, according to which any transfer of granted land made either before or after the commencement of this Act 'in contravention of the terms of the grant of such land' shall be null and void(emphasis supplied). The violation of the terms of grant itself gives rise to the action u/s 4 read with Section 5. So long as the terms of the grant prohibiting transfer are not opposed to any specific provision of law, they cannot be violated and the transferee gets no rights by virtue of such invalid transfer. That is the sum and substance of Section 4 which has not been duly considered by the High Court.
The conditions restricting alienation imposed by the authorities are legally valid and the finding of the Full Bench to the contrary is not correct and the impugned Judgment is thus not sustainable in law. The impugned Judgment is set aside, the order passed by the learned Single Judge is upheld and these appeals are allowed. The authorities shall take appropriate steps pursuant to the order passed by the authorities under the Act 2 of 1979 within a period of three months.
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2005 (7) TMI 679
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... ... ..... 19th March, 1993 have held that "Nirgam Mulya" paid by the respondent assessee was part of the bid money and therefore, was beyond the purview of section 44AC of the Act. We have heard Sri R. K. Upadhyaya, the learned standing counsel for the Revenue. Nobody has put in appearance on behalf of the respondent assessee. We find that in the Apex Court in the case of Union of India and another vs. A. Sanyasi Rao and others (J.T. 1996 (2) SC 425) has held that provisions of Section 44AC do not dispense with the regular assessment as provided in accordance with Sections 28 to 43C of the Act. It has been further held that Section 44AC of the Act is a valid piece of legislation and is an adjunct to the explanatory to Section 206 C of the Act. In view of the pronouncement of the Apex Court the question of excluding or including "Nirgam Mulya" beyond the purview of Section 44AC of the Act does not arise. The question is academic and is therefore returned unanswered.
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2005 (7) TMI 678
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... ... ..... t from revision of pay scale. “Increment” is an increase or addition on a fixed scale; it is a regular increase in salary on such a scale. As noted by this Court in State Bank of India v. The Presiding Officer, Central Government Labour Court, Dhanbad and Anr., 1972 3 SCC 595, under the Labour and Industrial Laws, an “increment” is in the same scale. A promotion involves going to a higher grade. The pay of an employee is generally fixed with reference to a pay scale. On the other hand, in the case of revision, the pay scale is revised which may incidentally result into increment. Rule 60(c) does not refer to pay revisions which is conceptually different from annual increments within the prescribed pay scale. Therefore, entitlement of the concerned teachers for the benefits of pay revision cannot be doubted. The view taken by the High Court does not suffer from any infirmity to warrant interference. The appeals are dismissed with no orders as to costs.
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2005 (7) TMI 677
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... ... ..... the Tribunal may be erroneous, a substantial question of law would arise for consideratin. The documents on record as well as the statement of Mr. A.S. Chowdhry which are adequately discussed by the Tribunal show that the view taken by it is possible and that the transaction for the purchas of 505 gas cylinders did take place. This is essentially a finding of fact which is based on the material on record and in our view this does not, by itself, raise a substantial question of law. 10. During the course of arguments, learned counsel for the Respondent placed before us a synopsis of his submissions in which it is stated that lease rentals declared and received by the Respondent in terms of an agreement with M/s. Hotz Industries (Pvt.) Ltd., have been accepted by the Assessing Officer for subsequent assessment years, that is, 1996-97, 1997-98 and 1998-99. This being so, we are of the view that the impugned order does not call for any interference. 11. The appeal is dismissed.
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2005 (7) TMI 676
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... ... ..... tion of law open, the special leave petitions are dismissed.
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2005 (7) TMI 675
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... ... ..... ppeal. As is clearly evident from the copy of the service book, more particularly the respondent-employee had on 27.4.1977, signed the service book which contained his date of birth as per Christian era. Additionally, the documents referred to above indicated the date of birth to be 1.9.1930. This was also not challenged at any time. Above being the position the High Court was clearly in error in holding that the date of birth of the respondent- employee was 1.9.1939, contrary to what has been recorded in the service book. We find that the respondent-employee had rendered service till the order dated 31.1.1991 was passed. It would not be equitable to direct refund of salary received by him upto 31.1.1991 beyond the actual date of superannuation i.e. 30.9.1990. However, the period beyond the actual date of superannuation i.e. from 30.9.1990 to 31.1.1991 shall not be reckoned towards his retiral benefits. The appeal is allowed to the aforesaid extent with no order as to costs.
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2005 (7) TMI 674
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... ... ..... tated that ambulance with unfolded stretchers can carry 13 persons excluding driver, hence, chassis for ambulance is classifiable under sub-heading 8706.29 of Central Excise Tariff Act, 1985.
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2005 (7) TMI 673
Suit for ejectment on the ground of expiry of the lease - Seeking renewal of the lease - lease agreement - Possession on lease of the suit premises for running a Petrol Pump - ’holding over’ as a lessee within the meaning of Section 116 - HELD THAT:- In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the circumstances, could not claim that he was ’holding over’ as a lessee within the meaning of Section 116 of the Transfer of Property Act.
So far as the cross suit for specific performance of agreement of renewal of lease filed by the lessee is concerned, there are concurrent findings of all the courts that the option for renewal was exercised after the expiry of the lease period. The option for renewal exercised was, therefore, contrary to terms of clause (9) of the lease agreement.
The clauses of renewal requiring fixation of terms and conditions for renewed period of lease mutually or in the alterntive through village Mukhia and Panchas are uncertain and incapable of specific performance. After legal notice of renewal, the lessor did not send any positive reply and instead filed a suit for ejectment, therefore, there was no mutual consent for renewal. The forum agreed to for deciding dispute was through local Mukhia and Panchas of the village. The renewal clauses of the agreement were vague and incapable of specific performance. The Mukhia and Panchas were not named in the agreement and the method of choosing either of the two forums was not specified.
The cross suit filed by the lessor for specific performance of the agreement of renewal was rightly dismissed throughout. The original period of lease expired on 19.7.1977 and the suit for ejectment on the ground of expiry of the lease was filed on 16.6.1978 which was well within the period of limitation and rightly decreed.
As the leased premises were in use for running a petrol pump, we grant the appellant a reasonable period of two months from the date of this order to deliver possession of the leased premises after removing her installations and other movables.
The above grace period to vacate is granted to the appellant only on her filing an undertaking on affidavit to this Court, within a period of two months that she would pay all arrears of rent and mesne profits at the originally agreed rate for the total period of occupation of the property. The lessee shall also undertake to deliver vacant possession of the property in the same condition in which it was initially taken.
Thus, we find no merits in these appeals preferred by the lessee, they are accordingly dismissed with costs.
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