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Showing 41 to 60 of 532 Records
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2006 (5) TMI 525
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... ... ..... hallenge. Conclusion 19. In view of the above, we find that the revised seniority lists dated 13.11.1990 and 22.9.1997 under which seniority of transferred LDCs. (inter-district transferees) is counted only from the date of their joining the new district, excluding the previous service, are proper and do not call for interference. 20. These appeals are accordingly allowed. The judgment of the Division Bench of the High Court, to the extent it directs that G.O. dated 2.1.1961 and proviso to Rule 27(a) of the Rules will apply prospectively, and that the promotions made with reference to the seniority list dated 7.11.1984 should not be disturbed, is set aside. The writ petitions filed by the transferred LDCs. are dismissed. As a result of giving effect to the seniority list dated 13.11.1990 and 22.9.1997, if the positions of the transferred LDCs. are altered to their disadvantage, we direct that no consequential recovery shall be made from them, on the ground of excess payment.
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2006 (5) TMI 524
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... ... ..... r Ltd. v. CC, Chennai - 2000 (117) E.L.T. 700 (Tribunal). By applying the ratio of this judgment, we hold that the rejection of transaction value by the authorities is not correct and not in terms of the ratio of the Apex Court judgment and the Tribunal rulings noted supra. In the absence of any evidence of contemporaneous import as noted in the Apex Court judgment, the impugned order is not correct, legal and proper and hence the same is set aside by allowing the appeal with consequential relief, if any.” 4. The ratio of the judgment would clearly apply to the facts of the case. Similar view has been expressed in the case of Iquira Ink v. CC, Chennai 2004 (170) E.L.T. 583 (Tri.-Bang.) and in the Apex Court judgment rendered in the case of Eicher Tractors Ltd. v. CC, Mumbai 2000 (122) E.L.T. 321 (S.C.) . In view of these judgments, we fmd that the impugned order is not legal and proper. The same is set aside by allowing the appeal with consequential relief if any.
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2006 (5) TMI 523
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... ... ..... and the short payment occurred only due to a different interpretation of the legal provisions. 5. The learned JDR reiterated the findings of the lower authorities. 6. We have gone through the records of the case carefully. Since the appellants conceded the liability to pay the short payment during the relevant period, we do want to dispute this point. It is seen that they have already paid a sum of ₹ 85,000/- and the balance amount is also to be paid by them along with interest. As regards the equal penalty under Section 78 of the Finance Act is concerned, we find that there is no mala fide intention and the short payment was on account of mis-interpretation of the legal provisions. Hence, ws are inclined to set aside the penalty levied under Section 78 of the Finance Act. As regards penalty levied under Section 76, we find that the same is reasonable. The stay application and appeal are disposed of in the above manner. (Pronounced and dictated in open Court)
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2006 (5) TMI 522
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... ... ..... tioner would, for the present, withdraw this writ petition reserving liberty for the petitioner to raise all relevant questions before the Tribunal and seek redress after the Tribunal decides the case. Dismissed as withdrawn with the liberty prayed for.
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2006 (5) TMI 521
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... ... ..... om the students in the ratio of 50 50. In a circumstance like this, the appellant’s services are known in the nature of imparting training and sharing the fruits of the fees received by the appellants and the ER & DCI for the purpose of bringing the services within the net of “Consulting Engineer”. The service provider should render only services which are in the advisory capacity as an expert. The activity carried on by the appellant cannot be considered to fall within the category of Consulting Engineer, as the appellants are providing training and coaching services and sharing the fees. They are not working in the advisory capacity or as a service provider. Therefore, the confirmation of service tax on the appellant is not justified in the facts and circumstances of the case. There is no merit in the impugned order and the same is set aside by allowing the appeal. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2006 (5) TMI 520
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... ... ..... its that the issue raised in this appeal has been covered against the Revenue. The Civil Appeal is dismissed.
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2006 (5) TMI 519
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... ... ..... tention of the appellant and we do hold that since the excise duty is not leviable, then automatically the countervailing duty also cannot be attracted and we have to hold that such action on the part of the respondent authorities on the basis of which demand and/or claim of countervailing duty imposed by the authorities, is not tenable under the provision of law in the light of the decision of the Hon'ble Supreme Court in Hyderabad Industries Ltd. and Anr. v. Union of India and Ors. (supra) and hence we set aside the order passed by the Hon'ble First Court and allow the writ petition filed by the petitioner by directing the authorities to consider the case of the writ petitioner in the light of this decision and to pass a reasoned order in the matter after giving a chance of being heard to the petitioner and without insisting the payment or the additional duty at the moment from the appellant and to take necessary steps accordingly. Tapan Kumar Dutt, J. 30. I agree.
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2006 (5) TMI 518
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... ... ..... ssued in regard to the sellers. Adjudication proceedings have been ordered against them for their non-compliance of the directions issued by the ex-parte order dated August 19, 2005. Since we have held that order to be beyond the powers of the Board and the same is illegal, we do not think that adjudication proceedings should commence against the sellers for the non-compliance of that order. That would result in grave injustice to them. 18. In the result, the appeals are allowed, the impugned order in so far as it relates to the appellants is set aside and interim directions as referred to herein above shall issue pending investigations. We have no doubt that the Board shall at the conclusion of the investigations evaluate independently all the material that it collects and pass an appropriate order based on that material in accordance with law. The Board is directed to conclude the investigations expeditiously but not later than July 31, 2006. There is no order as to costs.
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2006 (5) TMI 517
Suit for declaration and partition of the land - claiming to be a co-sharer with the defendant - Whether the provision of Article 59 of the Limitation Act would be attracted in a suit filed for setting aside a Deed of Sale, is in question in this appeal which arises out of a judgment and order passed by the High Court? - HELD THAT:- If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.
Respondent No.1 has not alleged that fraudulent misrepresentation was made to him as regards the character of the document. According to him, there had been a fraudulent misrepresentation as regards its contents.
There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption.
If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.
Since the lower Appellate Court and the High Court were not right in law in holding that the suit was not barred by limitation, the judgments and decrees of the lower Appellate Court and that of the High Court are liable to be set aside and dismissal of the suit by the trial court on the ground that it is barred by limitation is liable to be restored. Hence, we allow this appeal, setting aside the judgments and decrees of the High Court and that of the lower Appellate Court and restore the judgment and decree of the trial court. The parties are directed to bear their respective costs in all the courts.
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2006 (5) TMI 516
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... ... ..... of aforesaid findings it is to be held that the Commissioner (Appeals) erred in disallowing Modvat Credits on the said materials which were admittedly used for installation/erection of Effluent Treatment Plant and which plant was set up, installed and erected as per the directions of the Hon'ble Supreme Court as a condition precedent for operating the Appellant's factory and in absence of the same manufacturer of the final end-product Yeast was not permissible. 8. It is further submitted that the said Modvat Credit was availed by the Appellant after filing Modvat Declarations and after complying with all required procedural formalities and openly. Simply because the Department intends to take a different view as regards allowability of the said Modvat Credit, no penalty whatsoever could be levied upon the Appellant. The instant appeal to be allowed with consequential reliefs after setting aside the impugned order. 9. Ordered accordingly. Pronounced in the open Court.
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2006 (5) TMI 515
Suit for declaration - sale deed was a forged, fabricated and void document - distinction exists between a burden of proof and onus of proof - HELD THAT:- The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.
A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
Thus, The order reframing the issue is set aside thus reviving the issue originally framed. The Trial Court will be free to frame any additional issue if it is felt necessary.
The appeal is allowed as above.
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2006 (5) TMI 514
Pension Scheme - retirement benefits - Challenged the Notifications issued on 22.7.2000 and 8.8.2000 - discrimination between the teachers working in the Government Colleges and the teachers working in the Non- Government Colleges - whether at the given time, such vested or accrued rights can be divested with retrospective effect by the Rule making authority? - HELD THAT:- It is now well settled that a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the concerned employees despite their reaching the age of superannuation in between the said dates and/or the date of issuance of the notification would be deemed to be getting the said scales of pay as on 1.1.1996. By reason of such notification as the appellants had been derived of a vested right, they could not have been deprived therefrom and that too by reason of executive instructions.
The contention of the State that the matter relating to the grant of pensionary benefits vis-a-vis the revision in the scales of pay stands on different footing, thus, must be rejected.
Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is co-related and has a nexus with the salary payable to the employees as on the date of retirement.
The impugned orders furthermore is opposed to the basic principles of law inasmuch as by reason of executive instructions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50% of the emoluments, computed in terms of the rules, w.e.f. 1.1.1996, vested to the appellants in terms of Government notification read with Rule 296 of the Rules.
As the amount calculated on the basis of the revised scales of pay on and from 1.1.1996 to 31.3.1998 have not been paid to the appellants by the State of Karnataka as ex gratia, and in fact was paid by way of emoluments to which the appellants became entitled to in terms of their conditions of service, which in turn are governed by the statutory rules, they acquired a vested right therein. If the appellants became entitled to the benefits of the revised scales of pay, and consequently to the pension calculated on the said basis in terms of the impugned rules, there would be reduction of pension with retrospective effect which would be violative of Articles 14 and 16 of the Constitution of India.
The appellants had retired from service. The State therefore could not have amended the statutory rules adversely affecting their pension with retrospective effect.
Thus, the impugned judgment cannot be sustained and is accordingly set aside.
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2006 (5) TMI 513
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... ... ..... cost of the grey fabrics. It was further observed that there was legal requirement for the processors to verify the correctness of the declaration made by the suppliers of the grey fabrics. Similar views were held in the case of Lajya Dyeing and Bleaching Works vs. Commissioner of Central Excise, Mumbai-V 2002 (51) RLT 106 (CEGAT-Mum) and in the case of G.T.C. industries Ltd. and Ors. vs. CCE, Hyderabad and Ors. 2001 (44) RLT 346 (CEGAT-Del) . 9. As we have already held that there is no evidence on record to show any knowledge on the part of the appellants about the incorrect value adopted by merchant manufacturer, we are of the view that extended period of limitation cannot be invoked against the appellants and the proviso is not applicable in the absence of the appellant being guilty of any fraud, collusion of willful misstatement of suppression of facts. Accordingly we hold the demand as barred by limitation and allow both the appeals by setting aside the impugned order.
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2006 (5) TMI 512
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... ... ..... on terms. 5. On a careful consideration, we notice that so far as the first issue is concerned, prima facie the issue is fully covered by the ruling rendered by this Bench in the case of Adlabs (supra). Insofar as the second issue is concerned, we are not convinced with the arguments raised by the learned Counsel. There is no evidence produced on behalf of the principal studio about the service tax discharged on the activity carried out by the appellant and returned to the principal studios. Prima facie, the appellant should pre-deposit a sum of ₹ 5,00,000 (Rupees Five Lakhs Only) as against demand of ₹ 31,04,826 within a period of two months. On such pre-deposit, the balance of service tax and penalties stands waived and recovery stayed. To report compliance on 20th July, 2006. The matter will be taken up for final hearing on 9th August, 2006, as the tax and penalty exceeds more than ₹ 1.4 crores. There shall be no recovery till the pendency of the appeal.
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2006 (5) TMI 511
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... ... ..... o the service conditions of the employees of the petitioners and that of nationalised banks being alike in all respects. Nor is there any dispute of the petitioners being governed by the provisions of the Banking Regulations Act, 1949 and their business, management and administration being controlled by the Reserve Bank of India under the provisions of the Banking Regulations Act, and the Reserve Bank of India Act, 1934. 14. There are no material and characteristic difference between the petitioners and nationalised banks for purposes of implementation of the Provident Fund and Pension Schemes under the Provident Fund Act and Schemes. There is therefore, no basis for exclusion of the nationalised banks under the impugned notifications. 15. It is besides the point that the petitioners are in a position to have recourse to Section 17 of the Act. 16. Accordingly the writ petition is allowed and the impugned notifications at Annexures "A" and "B" are quashed.
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2006 (5) TMI 510
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... ... ..... dgement of the Tribunal in the case of Finolex Industries Ltd. vs.CCE, Pune-II andndash; 2003(156)ELT 96(Tri.-Mumbai) wherein the benefit of modvat credit has been extended to ship unloader which has been installed in the wharf area. 3. The learned SDR reiterates the departmental view. 4. On a careful consideration, we notice from the ruling of the Finolex Industries that the benefit of modvat credit has been extended to ship unloader installed in the wharf area. Through ship unloaders, goods are transported from the pipeline to the factory. The ratio of the Apex Court judgement in the case of Vikram Cement and of other citations referred supra would also apply to the facts of the case. Without the Capital Goods, inputs could have come to the appellant's factory. Therefore, the assessee is eligible for the benefit of modvat credit. The impugned order is set aside and the appeals are allowed with consequential relief, if any. Penalty is set aside in appeal No. E/409/2005.
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2006 (5) TMI 509
Letters Patent Appeal - Public servant Removal from Services - erroneous - movable and immovable property - illegally accumulated excess income by way of gratification - failed to prove the charges - departmental proceedings and the criminal case - HELD THAT:- It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant.. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of P.C. Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case [1999 (3) TMI 625 - SUPREME COURT] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8.2.1979 and got subsistence allowance of ₹ 700/- p.m. i.e. 50% of the salary. On 15.10.1982 dismissal order was passed. The appellant has put in 26 years of service with the respondent i.e. from 1953-1979. The appellant would now superannuate in February, 1986. On the basis of the same charges and the evidence, the Department passed an order of dismissal on 21.10.1982 whereas the Criminal Court acquitted him on 30.1.2002. However, as the Criminal Court acquitted the appellant on 30.1.2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily can be only w.e.f. 30.1.2002. But by then, the appellant had retired, therefore, we deem it proper to set aside the order of dismissal without back wages. The appellant would be entitled to pension.
Thus, we set aside the judgment and order passed by the learned single Judge in Special Civil appln. as affirmed by the Division Bench and allow this appeal.
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2006 (5) TMI 508
Disallowance of a provision for leave encashment - HELD THAT:- In the light of the observations made by Hon'ble Supreme Court in Bharat Earthmovers v. CIT[2000 (8) TMI 4 - SUPREME COURT]; the assessee was entitled for deduction in respect of the provision made for the liability and the liability was held to be not contingent in nature, if a provision is made by the assessee for meeting the liability incurred by it under the leave encashment scheme. Therefore, following the decision of the apex court we delete the disallowance made by the revenue authorities.
Repairs to furniture and fixtures - Tribunal in the assessee's own case for AYs 1994-95, 1995-96 and 1996-97, wherein an identical issue came up for consideration and the Tribunal relying upon the decision of the Supreme Court in the case of Madras Auto services (P) Ltd,[1998 (8) TMI 1 - SUPREME COURT] and the decision of the Bombay High Court in CIT(A) v. Hede Consultancy P. Ltd [2002 (6) TMI 19 - BOMBAY HIGH COURT] has allowed these expenses as revenue in nature.
Thus, we accept the claim of the assessee. The assessee is not the owner of any of these assets and the expenses are only to give a better working atmosphere to its employees and also to give an aesthetic look to its customers. Therefore, the expenditure in question is purely revenue in nature and is directed to be allowed. The depreciation granted by the Assessing Officer on these assets in the year under consideration as also in the subsequent years is directed to be withdrawn.
Disallowance of aircraft redelivery charges, heavy maintenance expenses and major engine repairs - change in the method of accounting - In the light of facts it cannot be said that the claims of the assessee are only contingent in nature and are not the accrued liabilities. In fact, in the nature of the assessee's business the assessee has to incur these expenses. The only uncertainly is the actual time of the expenditure But the expenditure itself has to be incurred because of the flying hours completed. Even the quantum of the expenditure provided for in the accounts are based on the opinion of the technical people.
The independence of such authorities is not in serious dispute by the revenue authorities. We, therefore, do not agree with the Assessing Officer that the expenditure to the extent claimed is contingent in nature having regard to the facts of the case and the method of accounting that are required to be followed by the assessee in the line of business in which it is operating. The learned CIT(A) has discussed all the case laws on which reliance was placed by the assessee and we have only avoided repetition by not mentioning of the same. We approve the impugned order not only on the basis of the discussion of the case also but also on the factual aspect of the matter. In other words, the case laws discussed by the CIT(A) justifies the claim of the assessee for acceptance as accrued liability. His order on all the three disallowances is therefore confirmed.
Disallowance of depreciation - We agree with the view of the CIT(A) that the conditions laid down in the said clause 30 are nothing but more than the routine formalities that are to be performed by the hirer. Such terms and conditions are usually part and parcel of every hire purchase agreement. To avoid these controversies the Board has issued circulars from time to time enabling the hirer to claim depreciation on assets acquired under what is known as hire purchase agreements.
The Madras High Court in the case of Tamil Nadu Dairy Development Corporation Ltd.[1998 (3) TMI 61 - MADRAS HIGH COURT] has also considered similar agreement and upheld the claim of depreciation on the assets acquired under similar hire purchase agreement. Therefore, the CIT(A) was right in law, in directing the allowance of depreciation on the two aircrafts acquired by the assessee and we decline to interfere.
Addition for frequent flyer expenses - It is not the case of the revenue that the liability provided by the assessee is not in accordance with the scheme operated by the assessee The liability provided is in respect of variable cost of flying the aircraft. That is also based on the minimum cost. In our view, these provisions are based on the experience of the airline and the actual miles accumulated by the passengers. If one were to go through the entire scheme it cannot be said that provision made by the assessee is in respect of a contingent liability. The principle laid down by the Hon'ble Supreme Court in the case of Bharat Earth Movers [2000 (8) TMI 4 - SUPREME COURT], equally applies to the scheme in question and the claim of the assessee has been properly appreciated by the CIT(A) and his order is confirmed. Accordingly, this ground of the revenue is rejected for all the years.
In the result, the departmental appeals are dismissed; the assessee's appeal for A.Ys. 1998-99 and 2001-02 are partly allowed and those for A.Ys. 1997-98, 1999-2000 and 2000-01 are allowed.
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2006 (5) TMI 507
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... ... ..... ment is fraudulent and the burden of proof being on the plaintiffs, it was the plaintiffs duty to prove the same but the defendant has established that there is no service of notice of demand or the assessment order and, therefore, the question of establishing that the assignment is fraudulent cannot and does not arise. In my opinion, the plaintiffs have failed to discharge the burden of proving the said fact which was on them to establish that the assignment of the policies under Section 6 of the Married Women's Property Act III of 1874 is fraudulent and with the intention to defeat the rights of the creditors. In that light of the matter, the suit must fail. Accordingly I dismiss the suit. However, there shall be no order as to costs. The learned Counsel appearing for the plaintiff seeks a stay of the order and the stay on the withdrawal of the amount of insurance policies which is already deposited in this Court. Stay is granted for a period of eight weeks from today.
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2006 (5) TMI 506
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... ... ..... Assessing Officer in the present assessment order which the subject-matter of this appeal. No ground has been raised by the assessee on this issue before the learned CIT(A) and there is no discussion in the order of the learned CIT(A) on this issue. An intimation under section 143(1) is independently appealable under section 246A of the Income-tax Act. Considering the facts and the provisions of law, we are of the view that this issue does not arise from the present proceedings and therefore, this ground of appeal stands rejected. 50. The last ground of appeal pertains to charging of interest under section 220(2) of the Income-tax Act. Charging of interest is only consequential as per the first proviso to section 220(2) and therefore, the Assessing Officer is directed to recalculate such interest. 51. In the result, the Departmental appeals in ITA Nos. 1517 & 1518/M/02 are dismissed and the assessee’s appeals in ITA Nos. 4398 & 4399/Mum./97 are partly allowed.
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