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Showing 21 to 40 of 685 Records
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2006 (2) TMI 707
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... ... ..... he appellants pertaining to their company based in USA and the show-cause notice issued after the amendment to the Rule 6(1) of the Service Tax Act is well taken ground. In terms of the amendment Rule 2(iv) introduced with effect from 16-8-2002, the recipient of the services in India is liable to pay service tax on the services provided by the non-resident company. Therefore, the show-cause notice dated 31-7-2002 issued through the Indian Embassy on 10-10-2002 without jurisdiction inasmuch as Rule 6(1) of the Service Tax Rules has been deleted from 16-8-2002. The show-cause notice having been served on 10-10-2002 hence the same is not sustainable. The CBEC in its circular No. 36/4/2001-CX, dated 8-10-2001 has also further reiterated that the services provided beyond the territorial waters of India are not liable to service tax. In the light of the above citations and the submissions made, the impugned order is not sustainable and the same is set aside by allowing the appeal.
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2006 (2) TMI 706
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... ... ..... mstances it is open to the plaintiff to examine the Power of Attorney Holder, produce the documents through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in the aforesaid judgment. In the instant case, the registered sale deed is produced and the same is proved by examining the executant of the said document, and it is on the basis of the said evidence the suit is decreed, which cannot be found fault with. 16. Under those circumstances, no substantial question of law do arise for consideration in this second appeal as all the questions raised are pure questions of fact and there is a concurrent finding recorded by the two Courts below based on evidence. Therefore, the appeal is rejected at the stage of admission itself.
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2006 (2) TMI 705
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... ... ..... experience in running the business in Ayurvedic medicine, has to be stated to be rejected. There is no law which provides for such a pre-condition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or pre-conditions without fulfilment whereof the landlord may not be able to start a business, but for running a wholesale business in Ayurvedic medicine, no qualification is prescribed. Experience in the business is not a pre-condition under any statute. Even no experience therefore may be necessary. If the respondent has proved his bona fide requirement to evict the appellant herein for his own purpose, this Court may not, unless an appropriate case is made out, disturb the finding of fact arrived at by the Appellate Authority and affirmed by the High Court. 9. For the foregoing reasons, there is no merit in this appeal. It is dismissed. In the facts and circumstances of this case, there shall be no order as to costs.
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2006 (2) TMI 704
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... ... ..... roceedings the High Court exercises a limited power. See Govt. of A.P. & Ors. V. Mohad. Nasrullah Khan JT 2006 (2) SC 82 , L. K. Verma V. H.M.T. Ltd. & Anr. JT 2006 (2) SC 99 , Karnataka Bank Ltd. V. A.L. Mohan Rao (2006) 1 SCC 63 and Hombe Gowda Educational Trust & Anr. V. Sate of Karnataka & Ors. (2006) 1 SCC 430 . The grounds for judicial review are limited. In Damoh Panna Sagar Rural Regional Bank & anr. V. Munna Lal Jain (2005) 10 SCC 84 this Court held that when the High Court intends to interfere with the quantum of punishment on the ground that the same is shockingly disproportionate, it must record reasons for coming to such a conclusion. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The Appeal is allowed. However, any amount paid to the 1st respondent pursuant to the order of this Court may not be recovered. In the facts and circumstances of the case, there shall be no order as to costs.
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2006 (2) TMI 703
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... ... ..... r that there is no scope of argument that a suit at the instance of a developer for specific performance is maintainable. Similarly the other point that in this case, by virtue of execution of the Power-of-Attorney, no interest in the land was created is also free from any doubt when even an agreement for sale does not create any interest in the land. 21. We, thus, find that the learned Trial Judge rightly refused to grant any ad interim order of injunction as even on the basis of averments made in the plaint, the plaintiffs failed to make out a prima facie case to go for trial. It is needless to mention that balance of convenience and inconvenience is also in favour of refusing injunction as plaintiffs have adequate remedy of damages and such claim has already been made in the suit. 22. The appeal is, thus, devoid of any substance and is dismissed accordingly. In the facts and circumstances, there will be, however no order as to costs. Pravendu Narayan Sinha, J. 23. I agree.
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2006 (2) TMI 702
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... ... ..... of ten times the amount of entry tax stipulated therein is only the maximum amount which could be levied and the assessing authority has the discretion to levy lesser amount, depending upon the facts and circumstances of each case. Construing Section 7(5) in this manner the decision of the High Court that Section 7(5) in ultra vires cannot be sustained. 2. Since the Apex Court has laid down the law that even than the mandatory penalty of 100% prescribed yet same need not be upheld and there should be a finding by the assessing officer as to why the penalty levels have been kept at the mandatory levels. No reasons appear in the order & whatever reasons are arrived are at conflict with the order. Therefore the exercise of discretion in this view of the matter by the Commissioner cannot be upheld. These appeals are allowed at this stage, after waiver of pre-deposit by upholding the order of the lower authority and setting aside the orders impugned. (Pronounced in Court)
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2006 (2) TMI 701
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... ... ..... w so lucidly expressed by the Full Bench of the Delhi High Court in Kelvinator of India Ltd.’s case (supra) and hence, we answer the question No. 1 against the appellant and in favour of assessee. In other words, since we concur with the view taken by the Tribunal which in our opinion, is in accord with the view taken by Delhi High Court in the case of Kelvinator of India Ltd.’s (supra) and hence, we answer question No. 1 in favour of assessee and against the revenue (appellant). 8. Accordingly and in view of foregoing discussion, we answer question No. 1 against the appellant and in favour of assessee. As a consequence, as observed supra, we do not consider it necessary to decide the second question on its merits which in our opinion becomes academic in nature. We, therefore, decline to examine and answer the second question on merits and leave it to answer in any other case as and when occasion arises. 9. As a result, the appeal fails and is dismissed. No costs.
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2006 (2) TMI 700
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... ... ..... nt had been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenue was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated December 13, 2005.
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2006 (2) TMI 699
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... ... ..... The grievance of the petitioner and his relatives is against different officers in different Police Stations at different points of time. More importantly, several of the allegations are proved to be exaggerated and false. We, therefore, do not consider this to be a fit case for award of compensation. All reliefs which should be granted in such a case, have already been granted by ordering an inquiry by the CBI and ensuring that the Police Officers named are prosecuted. The law will have to take own course. 26. This order will not come in the way of any civil court awarding compensation in an action in tort or the criminal court awarding compensation under Section 357 CPC in the pending prosecution against any of the officers, if the charges are established. With the said observations, we dispose of this petition, as no further relief/directions are called for. 27. We record our appreciation for the effort put in by Shri S. Muralidhar, Amicus Curiae, in presenting the matter.
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2006 (2) TMI 698
Preservation of and restoration of status quo ante of tanks called `Avilala Tank' and `Peruru Tank' - Systematic destruction of percolation, irrigation and drinking water tanks in Tirupathi Town - challenged the Government Orders, directed to hand over the tank bed areas of Avilala tank and Peruru tank to TTD and to A.P. Housing Board - Prayer made by the Indian Medical Association due to alarming increase of the toxic contents like Fluorides and other salts in the underground water due to steep fall in the underground water table level - Whether the Urban Development could be given primacy over and above the need to protect the environment and valuable fresh water resources? - HELD THAT:- The set of facts in the present case relates to the preservation of and restoration of status quo ante of two tanks, historical in nature being in existence since the time of Srikrishnadevaraya, The Great, 1500 A.D., where the cry of socially spirited citizens calling for judicial remedy was not considered in the right perspective by the Division bench of the High Court of Andhra Pradesh despite there being overwhelming evidence of the tanks being in existence and were being put to use not only for irrigation purpose but also as lakes which were furthering percolation to improve the ground water table, thus serving the needs of the people in and around these tanks. The Division Bench of the High Court, in the impugned order, has given precedence to the economic growth by completely ignoring the importance and primacy attached to the protection of environment and protection of valuable and most cherished fresh water resources. No doubt, the wishful thinking and the desire of the appellant- forum , that the Tanks should be there, and the old glory of the tanks should be continued, is laudable. But the ground realities are otherwise.
We have already noticed the ground realities as pointed out by the Government of Andhra Pradesh, TUDA and TTD in their reply to the Civil appeals by furnishing details, datas and particulars. Now a days because of the poverty and lack of employment avenues, migration of people from rural areas to urban areas is a common phenomenon. Because of the limited infrastructure of the towns, the towns are becoming slums. We, therefore, cannot countenance the submissions made by the appellant in regard to the complete restoration and revival of two tanks in the peculiar facts and circumstances of this case. We cannot, at the same time, prevent the Government from proceeding with the proper development of Tirupathi town.
The two Government Orders which are impugned have been issued long before and pursuant to the issuance of the Government Orders, several other developments have taken place. Constructions and improvements have been made in a vast measure. Because of spending crores and crores of rupees by various authorities, the only option now left to the appellant and the respondents is to see that the report submitted by the Expert Committee is implemented in its letter and spirit and all the respondents shall cooperate in giving effect to the Committee's report.
The Respondents have claimed that the valuable right to shelter will be violated if the impugned Government Orders are revoked. On the facts of the present case, it seems that the respondents intend to build residential blocks of flat for High and Middle income families, institutions as well as infrastructure for the TTDS. If the proposed constructions are not carried on, it seems unlikely that anyone will be left homeless or without their basic need for shelter. Therefore, one feels that the right to shelter does not seem to be so pressing under the present circumstances so as to outweigh all environmental considerations.
Another plea repeatedly taken by the respondents correspond to the money already spent on developing the land. However, the decision of this case cannot be based solely upon the investments committed by any party. Since, otherwise, it would seem that once any party makes certain investment in a project, it would be a fait accompli and this Court will not have any option but to deem it legal. Therefore, under the present circumstances, the Court should do the most it can to safeguard the two tanks in question. However, due to the persistent developmental activities over a long time, much of the natural resources of the lakes has been lost, and considered irreparable. This, though regrettable, is beyond the power of this court to rectify.
One particular feature of this case was the competing nature of claims by both the parties on the present state of the two tanks and the feasibility of their revival. We thought that it would be best, therefore, if we place reliance on the findings of the expert committee appointed by us which has considered the factual situation and the feasibility of revival of the two tanks. Thus in pursuance of a study of that committee, this Court passes the following orders.
The appeals are disposed of with the following directions: With regard to Peruru tank: - (i) No further constructions to be made.
(ii) The supply channel of Bodeddula Vanka needs to be cleared and revitalized. A small check dam at Malapali to be removed to ensure the free flow and supply to the tank.
(iii) Percolation tank to be constructed and artificial recharge to be done to ensure the revival of the tank, keeping in mind its advantage at being situated at the foot hills.
(iv) The area allotted by Mandal Revenue Office for construction of the tank to be increased to a minimum of 50 acres. Percolation tank with sufficient number of recharge shafts to be developed to recharge the unsaturated horizons up to 20 m. The design of the shafts etc. to be prepared in consultation with the CGWB. The proposed percolation tank to be suitably located along the bund keeping in view the inlets, irrigation sluices and surplus water.
(v) Feasibility and cost estimation for the revival of the old feeder channel for Swarnamukhi River should be carried and a report to be submitted to the Court.
(vi) Each house already constructed by the TTD must provide for roof top rain water harvesting. Abstraction from ground water to be completely banned. No borewell/ tubewell for any purpose to be allowed in the area.
(vii) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime.
With regard to Avilala tank: - (i) No further construction to be allowed in the area.
(ii) Each house already constructed by the APHB/ TUDA must provide structure for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water. Structures for such purposes to be designed in consultation with the CGWB.
(iii) No borewell/ tubewell for any purpose to be allowed in the area.
(iv) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rainwater harvesting.
(v) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime.
We place on record our deep appreciation for the valuable assistance rendered by all the counsel appearing in this case which made our job easier. The appeals are disposed of accordingly no costs.
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2006 (2) TMI 697
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... ... ..... dgment and decree of the trial court is modified to that extent. It may also be mentioned that the interest has been awarded in this appeal on the decretal amount of ₹ 38,13,480/- passed in Money Suit No. 97 of 1996. But the case of the appellants, in their written statement, is that they have preferred. First Appeal in High Court against the judgment and decree, passed in Money Suit No. 97 of 1996 which is still pending. D.W. 1 in his evidence has also stated that an appeal has been filed against the judgment and decree passed in Money Suit No. 97 of 1996. Therefore, the liability of payment of interest is, ultimately, dependent upon the decision of the First Appeal pending in the High Court. So, any amount realised in execution of the decree of this appeal, would be subject to the decision of the Fist Appeal arising out of Money Suit No. 97 of 1996. 42. In the result, with the above observation, the appeal is allowed in part, as indicated above, with appropriate cost.
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2006 (2) TMI 696
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... ... ..... lity of the complainant at this stage is not relevant. As stated above, in this case, what is alleged by the complaint, inter alia, is that he was a privy to the discussions and consultations and thinking which went into making of the mutual wills and the mutual trusts; that, he was a formal witness to some of these deeds and that he was aware that the couple had mutually agreed to the disposal of the property to charity after their demise. In the facts and circumstances of this case, at this stage, we are not inclined to accept the argument that the complaint should be dismissed at the initial stage on the ground of alleged malafides of the complainant. We reiterate that our observations in the judgment should not be read as our opinion on the merits of the matter. Similarly, the applicability of the relevant section to the facts of the present case does not arise at this stage. For the above reasons, we find no merit in these appeals and the same are accordingly dismissed.
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2006 (2) TMI 695
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... ... ..... e, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them." Based on the aforesaid principle, the Division Bench of the Calcutta High Court, in almost identical circumstances in Rameswar Sarkar's case, allowed the application for withdrawal of the suit in exercise of inherent powers under Section 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the Court would not be powerless to set aside the order permitting withdrawal of the suit. We are of the view that the law having been correctly stated in the aforesaid case, the learned Single Judge of the Calcutta High Court in making an order on the same lines did not commit any error of jurisdiction which calls for any interference in these appeals. The appeals are, therefore, dismissed, but without any order as to costs.
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2006 (2) TMI 694
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... ... ..... Act of 1996 is silent, shall be a guiding factor for exercise of power by the Court under Section 9(ii)(b) of the Act, to determine whether such order deserves to be passed for justice to the cause. We are in respectful agreement with the view taken by the Division bench of the Delhi High Court. 15. In the present case, under the Power Purchase Agreement the Garnishee is liable to pay to the appellant a sum of ₹ 80 lakhs per month for a period of 20 years. In our opinion, there is no good ground for issuing interim reliefs as prayed for by the first respondent in view of the continuous earning from the 2nd respondent at the rate of ₹ 80 lakhs per month. In the circumstances of the case, therefore, we are of the opinion that the order passed by the learned single Judge cannot be sustained. Accordingly, the appeal is allowed. The impugned judgment and order of the learned single Judge is set aside. No costs. Consequently, connected miscellaneous petition is closed.
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2006 (2) TMI 693
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... ... ..... mand and recover the dues of the firm from the petitioner. Thirdly, the said decree passed in Suit No. 2168 of 1988 may at best bind the parties to the suit as they have accepted the decree passed in the above suit. Accordingly, we hold that the decree passed in Suit No. 2168 of 1980 shall not affect the rights of the respondents to recover from the petitioner the dues confirmed against the firm for the period during which he was a partner of the firm. In view of our finding that there was no settlement, it is not necessary to deal with several decisions relied upon Mr. Joshi on the issue relating to promissory estoppel. 29. For all the aforesaid reasons, we hold that the petitioner has failed to establish that there was any settlement or that he had paid the amount towards the dues payable by the firm under the bonafide belief that on such payment he would be discharged of all the liabilities. 30. In the result, petition fails. Rules is discharged with no order as to costs.
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2006 (2) TMI 692
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... ... ..... if the complainant was not aware of the 15 days time given to the accused to amicably settle the matter. Thwarting the alleged attempt made by the police to grab the cheque in dispute, the complainant had to take recourse under the protective wings of the Court of the learned District Munsif-cum-Judicial Magistrate, Mettupalayam, even when the complaint was short of three days time to attain its maturity. In such circumstances, the complainant has no other go except seeking protection of his rights even before the maturity of the cause of action. At any rate, it is found that the criminal proceedings under Sections 138 and 142 of the Negotiable Instruments Act launched by the respondent/complainant cannot be quashed for the aforesaid grounds. 21. In the result, the criminal original petition fails and it stands dismissed. Consequently, connected criminal miscellaneous petitions also stand dismissed. The accused are at liberty to raise all these points before the trial Court.
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2006 (2) TMI 691
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... ... ..... stale cheques. Two of the four cheques were stale and were never presented. It is further to be noted that the other two cheques were materially altered and, Page 0670therefore, taking a prima facie view, a plausible and reasonable defense has definitely been raised as to what would be the effect of such alteration. It is a matter of trial which would ultimately decide as to whether such alteration would have the effect of rendering the two cheques to be void or not. Certainly, at this stage taking a prima facie view one is of the opinion that the defendant has been able to raise friable issues with regard to the validity of the cheques. The plaintiff may have an excellent case for recovery of money from the defendant but that has to be seen after a full blown trial and not by way of this summary suit. Accordingly, this application for leave to defend stands allowed. 15. All observations made in this order are only of a prima facie nature. The application stands disposed of.
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2006 (2) TMI 690
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... ... ..... sues that arises for consideration in this appeal stand answered by a Division Bench order of this Court dated 25th August 2005 passed in ITA No.354/2005 (198 CTR 375). In that view of the matter, therefore, and for the reasons stated in the order referred to above, this appeal fails and is hereby dismissed.
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2006 (2) TMI 689
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... ... ..... sued under this rule have not been complied with.” Thus, the aforesaid Rule 12, it is clear that if the Collector is satisfied that the duty paid goods have in fact been exported, then, he may for reasons to be recorded in writing, allow the whole or any part of the claim for such rebate even if all or any of the conditions laid down in any notification have not been complied with. 7. In this view of the matter, we set aside the order passed by the Joint Secretary, Government of India as well as the adjudication order and the order passed by the Collector of Customs (A) and direct the Commissioner of Customs or any other appropriate authority to pass a fresh order on the application seeking rebate after verifying from the records regarding the duty paid chassis manufactured by the petitioners exported as motor vehicles. 8. Petition accordingly succeeds. Rule is made absolute in terms of prayer clause (a) & (b). However, there will be no order as to costs.
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2006 (2) TMI 688
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... ... ..... rnment holding civil post within the meaning of Article 311 of the Constitution. The Kurk Amins had not been appointed on contract basis as is the case of respondent No. 1 whereunder his appointment came to an automatic end after expiry of the period of contract. Thus, there being a fundamental difference between the nature of employment of respondent No. 1, the principle laid down in the aforesaid authority cited by the learned Counsel can have no application here. 20. For the reasons discussed above, we are clearly of the opinion that respondent No. 1 cannot be said to be a Government servant as he was working on contract basis and, therefore, he was not eligible for any relaxation in upper age limit. The view taken by the High Court is clearly erroneous in law and is liable to be set aside. 21. The appeal is accordingly allowed and the judgment and order dated 13.12.2002 of the High Court is set aside and the writ petition filed by respondent No. 1 is dismissed. No costs.
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