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Showing 61 to 80 of 659 Records
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2006 (11) TMI 661 - SUPREME COURT
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... ... ..... cision squarely applies to this case. 22. In this case we find that the first representation dated 16.1.2006 was disposed of by the Advisory Board, Detaining Authority and Central Government on 27.1.2006, 10.2.2006 and 13.2.2006. The second representation dated 7.2.2006 given to the Central Government is nothing but a reiteration of the representation that was given to the Advisory Board on 16.1.2006 copies of which were given to detaining authority and Central Government. The representation dated 16.1.2006 had already been considered and rejected by the Central Government by order dated 13.2.2006. Therefore applying the principle in Abdul Razak Dawood Dhanani (supra), any delay in disposing of the subsequent representation dated 7.2.2006 or any delay in communicating the decision on such representation will not vitiate the order of detention. The third contention is also therefore rejected. 23. As a result, we dismiss the appeal as also the writ petition as having no merit.
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2006 (11) TMI 660 - SUPREME COURT
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... ... ..... ding that there was nothing unusual in the husband being found with the wife in his house. The High Court failed to appreciate the other co-related circumstances namely - his disappearance thereafter locking of the house, and his failure to offer a satisfactory explanation in defence. Thus, the High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore, interference with the judgment of the High Court is warranted. In the result, we allow this appeal and set aside the impugned judgment and order of the High Court. On the question of sentence, having regard to the fact that the offence took place in February 1998 and the respondent was acquitted by the High Court, we sentence him to imprisonment for life. The respondent may have been released pursuant to order of this Court dated 1.9.2000 issuing bailable warrant of arrest. His bail bonds are cancelled and he is directed to be taken into custody forthwith to serve out his sentence.
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2006 (11) TMI 659 - DELHI HIGH COURT
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... ... ..... n Suraj Woolen Mills vs. Collector of Customs, Bombay, 2000 (123) E.L.T. 471 (Del.) and Bombay Snuff Pvt. Ltd. vs. Union of India, 2006 (194) E.L.T. 264 (Del.). In these circumstances, the Writ Petition is dismissed. However,this shall be without prejudice to the Petitioner's right to approach the appropriate Court for seeking relief. CM also stands disposed of, accordingly.
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2006 (11) TMI 658 - SUPREME COURT
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... ... ..... e his stand. We need not go into these allegations. But as has been fairly accepted by the learned counsel for the respondent, there is no official communication from IIT Madras to support the respondent’s stand that he was asked by the authorities of the said institute not to attend the programme. There should have been some material to support the stand. Unfortunately, for the respondent there is none. On the other hand admittedly after April, 2005 the respondent had abandoned the programme. It is also on record that the appellant notwithstanding these facts had asked the respondent to report back to IIT, Madras to continue studies in terms of High Court’s direction. But that does not seem to have been done by the respondent. The inevitable result is that the orders of the learned Single Judge and the Division Bench of the High Court cannot be maintained and are accordingly set aside. The appeal is allowed but in the circumstances without any order as to costs.
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2006 (11) TMI 657 - DELHI HIGH COURT
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... ... ..... ctor of C.E. v. Duncan Agro Industries Ltd. AIR 2000 SC 2001; K.I. Pavunny v. Asstt. Collector ; F. Mario Pires v. Directorate of Enforcement, New Delhi 1982 Cr. L.J. 461 Goa; Namdi Francis Nwazor v. NCB 1994 (1) Crimes 579 (DHC) and Triveni Prasad v. State of Maharashtra . 29. In his statement recorded under Section 313 Cr. P.C., for the first time the accused contended that he was beaten and the statement was got recorded against his wishes. Learned Counsel for the appellant failed to point out that any complaint was made against the Custom Officers by the accused. This statement was made for the first time on 31.11.2000. S.K. Handa, PW1, was not cross-examined on this point. 30. The confessional statement read in confunction with recovery of contraband forms the most telling and unflappable evidence against the accused. All the doubts have been proved to be purile and baseless. The evidence on record manifests the guilt of the accused. The appeal is, therefore, dismissed.
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2006 (11) TMI 656 - SUPREME COURT
kidnapping and murdering two children - commission of an offence under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code - sentenced to death - High Court while upholding the judgment and conviction opined that the case cannot be said to be a rarest of rare one meriting award of death penalty - HELD THAT:- A letter was received by PW-3, Kamal Kishore, on 09.06.2000 wherein a sum of ₹ 10 lakhs was demanded by way of ransom. It also bore a postal stamp. PW-3 was asked to tie a cloth of red colour on the roof of his house, which would be an indication to show that he was ready to pay the amount. The said letter was marked as Ex.PT. Thereafter specimen signature of the handwriting of both the accused were obtained under the order of Shri H.S. Grewal, Judicial Magistrate, First Class, who examined himself as PW-12; and the same was sent to an handwriting expert Shri Balwinder Singh Bhandal, who examined himself as PW-21. He submitted a report which was marked as Ex. PJJ, stating that the said letter was in the handwriting of Appellant No.2.
The learned Trial Judge as also the High Court was the recovery of a camera from the bed-box of Appellant No. 1 as also remaining part of the dirty white cloth with which the arms of both the children were tied had been kept concealed therein. He furthermore disclosed that the deck with two speakers were also kept concealed in the same room on the Angeethi and the said house was locked by him and he had kept concealed the keys of the said house near the outer gate underneath the same bricks. His disclosure statement was recorded and thereafter recoveries were made, which was proved by the investigating officer, Inspector Nirmal Singh, PW-20. His statement were corroborated by ASI Mohinder Singh. A cello tape was also recovered which was used by the accused for pasting on the mouth and nose of both the victims and for tying the plastic envelopes which were put on the faces of both the children.
Recoveries of the said articles were made pursuant to the information given by Appellant No. 1. The information given by Appellant No.1 led to discovery of some facts. Discovery of some facts on the information furnished by Appellant No.1 is a relevant fact within the meaning of Section 27 of the Indian Penal Code. It is, therefore, admissible in evidence and the same could have been taken into consideration as a corroborative piece of evidence to establish general trend of corroboration to the extra-judicial confession made by the appellants.
It was urged that the investigation was tainted. We do not find any reason to hold so. Section 302 of the Indian Penal Code might have been mentioned in some of the documents by the investigating officer, although no case thereunder was made out till the recovery of the dead bodies. But we do not find that the same was made designedly.
Keeping in view the circumstantial evidences, which have been brought on records, we are satisfied that all links in the chain are complete and the evidences led by the prosecution point out only to one conclusion, that is, the guilt of the appellants herein. They have rightly been convicted of the offences charged against them by the learned Trial Judge.
An appeal had also been preferred by the complainant for enhancing the sentence.
Mr. D.K. Garg, the learned counsel appearing on behalf of the complainant, would appeal to us for enhancement of the sentence. We, do not think that the High Court has committed any error in opining that the case is not one of the rarest of rare cases.
It is also not a case where we should exercise our extra-ordinary jurisdiction in converting the penalty of rigorous imprisonment for life to one of imposition of death sentence. We decline to do so.
Thus, both the appeals are dismissed.
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2006 (11) TMI 655 - SUPREME COURT
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... ... ..... Ashwani Kumar, 1996(1) J.T. 214 this Court held that where a project has to be closed down for non-availability of funds a direction to regularize the displaced employees of the project could not be given because such direction would amount to creating posts and continuing them in spite of non-availability of work. The same view was taken in State of U.P. vs. U.P. Madhyamik Shiksha Parished Shramik Sangh AIR 1996 SC 708. It follows from these decisions that there is no legal right in temporary employees (whether called casual, ad hoc, or daily rated workers) to get absorption, or to be continued in service or get regular pay. In the present case, the appellant is a sick company which has been running on huge losses for many years, and is practically closed down. There are no vacancies on which the respondents could have been appointed. While we may have sympathy with them, we cannot ignore the hard economic realities, nor the settled legal principles. The appeal is allowed.
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2006 (11) TMI 654 - SUPREME COURT
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... ... ..... indu Succession Act by virtue of Section 14 (1), the limited right got by Uttamdassi under the will got enlarged to an absolute right in the suit property. Thus, she became absolute owner of the property hence, any declaratory right obtained earlier by the reversioner as contemplated in the will cannot be the basis on which the suit for Possession could be maintained unless, of course, the claimants in the suit for possession established a better title independent of the declaratory decree obtained by them." As Koleshra Devi, in terms of the provisions of section 14 (1) of the Hindu Succession Act, 1950 became absolute owner of the property and thus she was competent to execute the deed of sale in the year 1960. In view of the authoritative pronouncements of this Court, we are of the opinion that the High Court committed manifest error in reversing the well considered judgment of the First Appellate Court and it is set aside accordingly. The appeal is allowed. No costs.
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2006 (11) TMI 653 - ITAT AHMEDABAD
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... ... ..... and direct the cancellation thereof. 20. We have heard the parties. 21. After careful consideration of the rival submissions and the facts and circumstances of the case, we are of the opinion that after the amendment brought in the provisions of section 148 of the Act with effect from 1-10-1991 by the Finance Act, 2006 whereby the service of notice under section 143(2) of the Act, in the cases where return has been furnished in response to notice under section 148 of the Act during the period commencing on 1-10-1991 and commencing on 30-12-2005, after the expiry of 12 months specified in proviso to section 143(2) of the Act, but before the expiry of the time limit for making the assessment, re-assessment or re-computation as specified in sub-section (2) of section 153 has been made to be a service of valid notice, the assessee’s objection does not survive. Consequently, we do not see any force in the Cross Objection raised by the assessee, which is dismissed, as such.
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2006 (11) TMI 652 - SUPREME COURT
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... ... ..... ecide the correctness of the order of stay of conviction dated 26th March, 2004. All that requires to be noticed is that on the dates of nomination and election, in view of the said order staying conviction, the appellant was not disqualified. The question whether subsequently the conviction was set aside in appeal or whether the matter is in further challenge before this Court is of no relevance for deciding the point in issue. o p /o p (14) In view of the above, the decision of the High Court that the appellant was disqualified as on the date of nomination and that his nomination was improperly accepted cannot be sustained. Resultantly, we allow the civil appeal and set aside the impugned judgment of the High Court and dismiss the Election Petition. Since the election petitioner-respondent No.1 has not appeared in this appeal and we were assisted by learned counsel appearing for another contestant in the same election, we leave the parties to bear their own costs. o p /o p
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2006 (11) TMI 651 - ITAT MUMBAI
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... ... ..... expenditure as it is a license and not a new software. Further reliance was placed on the decision in Jt. CIT vs. Citicrop Overseas Softwares Ltd. 2004 85 TTJ (Mumbai) 87. 6. After considering the submissions and perusing the relevant material on record we find that the CIT(A) was justified in treating the expenses as revenue expenditure. The expenses incurred by the assessee were incurred on computer software and not for purchase of new software. Even in case of Maruti Udyog (supra), the Delhi Bench has held that on account of expenditure on computer software they have to be treated as revenue in nature. Various Benches of the Tribunal are taking consistent view that where software are in the nature of license and not in the nature of new softwares, then those expenses have to be treated as revenue in nature. In view of these facts and the circumstances, we confirm the order of the CIT(A) on this issue also. 7. In the result, the appeal filed by the Department is dismissed.
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2006 (11) TMI 650 - ALLAHABAD HIGH COURT
Validity Of Assessment framed in the status of AOP - Undisclosed sources Of Income - bogus purchase - income earned by preparing fake purchase vouchers and rental bills - Whether, in determining the taxable ‘income’ of the assessee, the Tribunal should not have given due regard to the legitimate outgoings in the form of entire purchases of gas cylinders but for which the returned income could not have been earned? - HELD THAT:- We find that the applicant is a partnership firm duly constituted under the provisions of the Indian Partnership Act, 1932. The registration, under the Act, has been refused by the Assessing Authority on the ground that the income which has been earned by preparing fake purchase vouchers and rental bills and also other incorrect means, have not been distributed by the applicant. The existence of the firm has neither been doubted nor disputed by the authorities. Only the registration has been refused. Thus, for the purposes of assessment the provisions of section 183 of the Act would be applicable. Even in the assessment order we find that the Assessing Authority had loosely described the applicant to be an AOP only on the ground that the registration has been refused.
The Income-tax Officer while making the assessment had proceeded to compute the income of the applicant treating it to be a firm. However, the status of AOP has been mentioned only because the registration of the firm has been refused. In fact, the assessment has been made in accordance with section 183 of the Act. The CIT(A) has rightly corrected the status from that of AOP to URF as it was only an error. It is to be remembered that u/s 251 of the Act the appellate authority has been conferred a very wide power while deciding the appeal. It includes power to correct all the errors which may have crept in the order under appeal.
In the present case we are of the considered opinion that the Income-tax Officer had only committed an error in mentioning the wrong status of AOP instead of URF in the assessment order which error has rightly been corrected by the CIT(A).
Whether the Tribunal should have given due regard to the legitimate outgoings in the form of the entire purchases of gas cylinders or not - In the present case we find that the CIT(A) as also the Tribunal has recorded a categorical, finding of fact that the applicant did not make purchases to the extent he has shown. The purchases in question have conclusively been provided to be bogus. If the purchases of the gas cylinders have not been made and on the other hand have been found to be bogus by all the authorities including the Tribunal, the question of legitimate outgoings in the form of purchases of the gas cylinders would not arise. Therefore, the Tribunal was justified in not giving benefit of the alleged amount spent towards the purchases of gas cylinders.
Thus, we answer all the questions except the first two questions referred to us in Income-tax Reference, referred to us, in both the Income-tax References, in favour of the revenue and against the assessee. In view of our aforesaid opinion, the remaining questions have become academic and are returned unanswered. However, on the facts and in the circumstances of the case, the parties are left to bear their own costs.
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2006 (11) TMI 649 - ITAT AHMEDABAD
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... ... ..... at the AO was not justified in considering motor car and telephone expenses also included in the household expenses. In his observations, the AO has referred to the large number of vehicles i.e. one car, one Maruti, two Maruti vans and three scooters maintained by the appellant and has also referred to the expenditure of telephone expenses incurred by the appellant as stated by the appellant at the time of survey to give an idea of standard of living of the appellant. Therefore, considering totality of facts, appellants contention is not found satisfactory and the AO's decision is upheld." 23. We have heard both the parties and their contentions have carefully been considered. Keeping in view the standard of living of assessee as seen from the number of servants, we find that AO has taken a reasonable view for making addition of ₹ 40,000 only and addition has rightly been sustained by CIT(A). We decline to interfere. 24. In the result, the appeal is dismissed.
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2006 (11) TMI 648 - MADRAS HIGH COURT
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... ... ..... years from the end of the relevant assessment year, in the absence of failure on the part of the assessee to disclose truly and fully all material facts necessary for the assessment. 6. In PRECOT MILLS LTD. v. COMMISSIONER OF INCOME-TAX (2005) 273 I.T.R. 347 , the books of account produced were to be examined by the authority and in that context, a learned single Judge of this Court accepted the case of Revenue to reopen the assessment, even after the lapse of four years. But, in the instant case, the assessing officer reopened the assessment merely on the basis of change of opinion that the deductions under sections 80HH and 80I granted already during the original assessment were in excess and therefore, the case on hand is squarely covered by the decision of this Court in the case of Annamalai Finance Ltd., 275 I.T.R. 451, cited supra. 7. In this view of the matter, finding no substantial question of law arises for consideration, the above Tax Case Appeal stands dismissed.
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2006 (11) TMI 647 - SUPREME COURT
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... ... ..... ject-matter of judicial review. (See E. v. Secy. of State for the Home Deptt). Reference in this connection may also be made to an interesting article by Paul P. Craig, Q.C. titled "Judicial Review, Appeal and Factual Error" published in 2004 Public Law, p. 788.'" (See also Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh, SCC paras 23 & 24.) 36. The order passed by the statutory authority, it is trite, must be judged on the basis of the contents thereof and not as explained in affidavit. (See Bangalore Development Authority v. R. Hanumaiah)." The said dicta shall apply to the facts of the present appeal also. The impugned judgment, therefore, cannot be sustained. The appeal is, thus, allowed. However, the matter is remitted to the disciplinary authority. It may pass an appropriate order upon application of his mind afresh in the light of the observations made hereinabove. Appellant is entitled to costs. Counsel's fee assessed at ₹ 15,000/-.
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2006 (11) TMI 646 - SUPREME COURT
Validity of the notification issued, directing that the provisions thereof would not apply to the buildings; monthly rent - extending the exemption provision u/s 3 of the Act to the Administrator - whether exemption could be granted by an executive order issued u/s 3 or only by way of an amendment - Power conferred u/s 87 issued a notification - fixing the quantum of rent - HELD THAT:- The Administrator in issuing the notification has missed the relevance of the distinction between the National Housing Policy and the legislative policy. The power of exemption could be exercised having regard to the legislative intent and policy whereas the National Housing Policy could be given effect to by the legislature in modifying, varying or altogether doing away with the existing legislative policy and laying down a new policy therefor. Change of legislative policy with the aid of the National Housing Policy was not within the domain of the Administrator. It was the sole prerogative of the legislature.
A statute can be amended, partially repealed or wholly repealed by the legislature only. The philosophy underlying a statute or the legislative policy, with the passage of time, may be altered but therefor only the legislature has the requisite power and not the executive. The delegated legislation must be exercised, it is trite, within the parameters of essential legislative policy. The question must be considered from another angle. Delegation of essential legislative function is impermissible. It is essential for the legislature to declare its legislative policy which can be gathered from the express words used in the statute or by necessary implication, having regard to the attending circumstances. It is impermissible for the legislature to abdicate its essential legislative functions. The legislature cannot delegate its power to repeal the law or modify its essential features.
Section 3 of the Act, indisputably, is constitutionally valid. It, however, provides for an enabling provision. The Central Government, by reason of the said provision, has been empowered to direct that all or any of the said provisions would not apply to any of the building or rented buildings or any class of buildings or any rented lands.
We, however, cannot accept the submission that as Appellants themselves in the writ petition contended that as in the year 1978 a building standing on a land of 1500 square yards with 3 to 4 bed rooms, one drawing and dining room, garage and servant quarter, was available on a monthly rent of ₹ 1000/-and, thus, on that premise a presumption can be raised that such tenanted premises used to be occupied by the affluent families, those who are paying less than ₹ 1500/- continued to be protected and, thus, the same would come within the purview of the legislative policy and the object and purport of the Act.
The criterion which was required to be considered was not as to what rent a building could have fetched in 1978 but what would have been a fair criterion as regard the quantum of rent when the notification was issued. For that purpose, no data has been collected nor has any study been made. As to how the said criterion had been fixed is not known. Except stating that the rent of ₹ 1500/- to ₹ 3500/- was made the criterion in terms of the National Housing Policy, the Administrator did not assign any other reason.
The Administrator while issuing the impugned notification misdirected himself in law insofar as he failed to take into consideration that he could not have exercised any jurisdiction in terms thereof as the National Housing Policy, inter alia, contains the guidelines for the State legislatures for enactment of law and the same was not meant to be taken recourse to by the Executive Government of the State. While exercising his jurisdiction u/s 3 of the Act, the Administrator was required to apply his own mind to the relevant facts.
Application of mind on the part of the Administrator was also necessary having regard to the rate of inflation and other factors including the prevalent rental in the neighbouring areas of the States of Punjab and Haryana. He further failed to take into consideration that in terms of National Housing Policy, that quantum of rent was made flexible. Only a broad guideline had been provided therefor. What was necessary to be applied was the principle and not the minimum rent specified therein.
Thus, it was necessary to collect relevant data. Rental of ₹ 1500/- could not have been applied mechanically. The High Court has followed D.C. Bhatia [1994 (10) TMI 301 - SUPREME COURT] but it has failed to notice that in D.C. Bhatia (supra) itself whereas the proposal in the bill was to fix ₹ 1500/- as the outer limit, the members of the legislature upon deliberation in the matter, had fixed the quantum of rent at ₹ 3500/-. Furthermore, for the aforementioned purpose, the lowest ceiling of ₹ 1500/- might have been treated to be fair in the year 1992 but the same would have lost much significance and relevance in the year 2002 in view of the passage of time.
The rate of inflation and other relevant factors as well as the fact that the per capita income in UT of Chandigarh is considered to be the highest in the country, were necessary to be taken into consideration. This Court, in Prabhakaran Nair & Ors. vs. State of Tamil Nadu & Ors.[1987 (9) TMI 421 - SUPREME COURT], opined that a National Housing Policy should be formulated and the observations made therein had been given effect to. But, this Court never intended that a National Housing Policy would be applied in a manner not contemplated under our constitutional scheme.
We, therefore, in this case, have sufficient materials on record to hold that ₹ 1500/- could not have been fixed as the quantum of rent for the purpose of extending the exemption provision u/s 3 of the Act to the Administrator.
The legislative objective and policy indisputably must be considered having regard to the preamble and other core provisions of the Act. Section 3 although is a part of the Act, but the same cannot be said to contain an in-built policy so as to empower the Administrator to do all such things which can be done by the legislature itself.
Moreover, the notification has not been issued for a limited period. It will have, therefore, a permanent effect. Submission of Mr. Nariman that having regard to the provisions of the General Clauses Act, the same can be modified, amended at any time and withdrawn, cannot be accepted for more than one reason. Firstly, Respondent proceeded on the basis that the said notification has been issued with a view to give effect to the National policy, i.e., amendments must be carried out until a new Rent Act is enacted. Whether the Act would be enacted or not is a matter of surmises and conjectures. It would be again a matter of legislative policy which was not within the domain of the Administrator.
Secondly, the Administrator in following the National policy proceeded on the basis that the provisions of the Act must ultimately be repealed. When steps are taken to repeal the Act either wholly or in part, the intention becomes clear i.e. the same is not meant to be given a temporary effect. When the repealed provisions are sought to be brought back to the statute-book, it has to be done by way of fresh legislation. In any event, the General Clauses Act shall not apply to an executive action. Executive actions can be taken by a person who is statutorily authorized therefor. He is required to apply his own mind. What can be done in future by another authority cannot be a ground for upholding an executive act.
Hence, the impugned judgments cannot be sustained which are set aside accordingly. The appeals are allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2006 (11) TMI 645 - BOMBAY HIGH COURT
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... ... ..... or by the Assessee. Giving of reasons has got to be considered as implicit in Section 11 of the Expenditure Tax Act, 1987. It is now well settled that giving reasons in support of an order is part of complying with the principles of natural justice. In the light of that, no fault could be found with the order of the learned ITAT and as such no substantial question of law arises as well. Appeal dismissed.
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2006 (11) TMI 644 - SUPREME COURT
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... ... ..... ree passed by a learned Single Judge, who seems to have retired in the meantime. It is not against the basic judgment. Order 47 Rule 7 of CPC bars an appeal against the order of the court rejecting the review. On this basis, we reject the appeal. No cost. I.A. No.1/93 (Application for substitution). No orders are necessary in view of the rejection of the appeal." The position has been re-iterated in Suseel Finance & Leasing Co. v. M. Lata and Ors. (2004) 13 SCC 675 and M.N. Haider and Ors. v. Kendriya Vidyalaya Sangathan and Ors. (2004) 13 SCC 677 . It is stated by learned counsel for the appellant that the basic order dated 20.8.2004 passed by the High Court has been challenged by filing a special leave petition on 9.10.2006. However, dismissal of this present appeal shall not stand on the way of consideration of the Special Leave Petition stated to have been filed on 9.10.2006. The same shall be dealt with in accordance with law. The appeal is dismissed. No costs.
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2006 (11) TMI 643 - KARNATAKA HIGH COURT
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... ... ..... 342 ia available to the assessee. 10.In the circumstances, we pass the following - ORDER The reference is accepted. The order of the assessing officer orders are set aside.The matter is remitted to the Assessing Officer for re-decision. Both parties are to appear before the Assessing Officer, without waiting for any notice before the Assessing Officer, without waiting for any notice on 27.12.2006. Liberty is reserved to both parties to place entire material in terms of this order. The Assessing Officer is to accept the additional material plus the material already available on record and in the light of the Judgement reported in 242 ITR 342, if available and thereafter proceed to pass a reasoned order on merits, without in any way being influenced by his earlier order or this order. The assessing Officer is to complete the proceedings within six months thereafter. In the light of the remand order, we are not inclined to answer questions of law. Ordered accordingly. No costs.
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2006 (11) TMI 642 - SUPREME COURT
Whether order of detention dated 21-7-2005 passed against the detenu under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("the COFEPOSA Act")cannot be sustained?
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