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Showing 21 to 40 of 582 Records
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2006 (9) TMI 604
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... ... ..... also re-examine the issue for the asst. yr. 1991-92 with reference to the ratio available in the judgment of the Hon'ble Supreme Court in Sahney Steel & Press Works Ltd.'s case (supra), documents available on record and in accordance with the provisions of law (Emphasis, italicised in print, supplied). We make it clear that the direction for re-examination contained therein cannot be construed to be a direction for reassessment by the AO against, or contrary to, the provisions of law. 11. The result of the foregoing discussion is that the three appeals be and are hereby allowed. The common question of law so formulated in the beginning is answered in the affirmative and against the Revenue. Consequently, the impugned orders of the Tribunal are quashed. Inevitably, the assessment orders dt. 21st Nov., 2000 passed by the Addl. CIT, Special Range, Shillong, cannot also survive and are, accordingly, set aside. However, the parties are directed to bear their own costs.
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2006 (9) TMI 603
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... ... ..... held that the petitioner's rights if any, under Article 14 are violated. The learned Attorney-General contended that arbitrariness would be actionable under Article 32, only if it causes injury to the fundamental rights of the petitioner, and that the petitioners in the instant case have no fundamental right in the exercise of which they can challenge the sale. We consider it unnecessary to examine this contention because the sale is not vitiated by any unfairness or arbitrariness. If and when a sale of public property is found to be vitiated by arbitrariness or mala fides, it would be necessary to consider the larger question as to who has the right to complain of it. 44. We, therefore, are of the opinion that it is not a case where the Court would exercise its extra-ordinary jurisdiction under Article 32 of the Constitution of India. For the reasons aforementioned, the writ petition filed by MPSEB is dismissed and the transfer cases filed by CSEB are allowed. No costs.
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2006 (9) TMI 602
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... ... ..... nd to reason. The argument that the depositories and their participants render service and should be allowed to levy the charge cannot be accepted because the investor is unhappy. We have seen what competition has done in the field of telecom industry. The prices have come down and this is what benefits the consumer. Similarly, competition between the depositories and amongst the hundreds of their participants will mean improved service to the investors. We have, therefore, no hesitation in holding that the impugned circular is for the benefit of the investors and in their interest. No fault can, thus, be found with the decision of the Board directing the depositories and their participants not to levy the transaction charges when the securities are transferred from one participant to another participant or even to another depository. In view of our findings recorded on the merits of the impugned circular, the appeal fails and the same is dismissed with no order as to costs.
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2006 (9) TMI 601
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... ... ..... that the complaint be returned for presentation to the Court of competent jurisdiction, if necessary, by explaining to the Court the delay that may have occasioned in preferring complaint in view of this intervening litigation. Since the Court of Judicial Magistrate First Class, Digras has no jurisdiction to entertain the complaint, the Judicial Magistrate First Class, Digras shall not take up further proceedings in the matter. Shri. Muley, learned counsel for the applicant states that if the complainant applied to the Court of Magistrate should decide the application after hearing the accused. This would be unnecessary. It is clarified that there is no question that the Magistrate granting permission to the complaint before a particular Court. The Magistrate may only permit return of the complaint, for being filed in appropriate Court. Obviously the accused would have liberty to challenge the jurisdiction of such Court should he have any valid objection. Order accordingly.
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2006 (9) TMI 600
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... ... ..... tention order has expressly mentioned that the petitioner would be imprisoned for 90 days, the remaining portion of detention being executed in each and every subsequent session of the House, it was very much clear that the ground of challenging the legality of deferred sentence was very much available during the earlier petition also. Hence the argument that the cause of action arose only on 3rd July, 2006 cannot be countenanced at all. 31. We uphold the preliminary objection, that the present second Petition is not maintainable. Hence Rule stands discharged. 32. The learned Counsel for both the parties had also argued with regard to legality or otherwise of the deferred detention, even after prorogation of the House. We are not going into the same, as we are clearly of the view no second Writ Petition would lie. Before we part, we must record our deep appreciation for the able assistance rendered by Mr. R. A. Dada, as an amicus curiae. Issuance of certified copy expedited.
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2006 (9) TMI 599
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... ... ..... d any PAN. If they were income-tax assessee whether this fact was in the knowledge of the department. No effort or no prayer was made by the assessee to initiate action under section 131 of the Act and therefore it cannot be said that the assessee discharged primary onus upon him. 23. For the reasons said above, the findings recorded on the deletion of ₹ 3,43,000 by the Commissioner of Income-tax (Appeal) and confirmed by ITAT are not sustainable in law as the absence of the finding on the aforesaid issue of creditworthiness, vitiates the order passed by the Tribunal. We set aside the aforesaid finding and remand the matter to the Commissioner of Income-tax (Appeals) for deciding afresh in accordance with law after affording opportunity to the parties including that of adducing evidence if asked for, by them. The rests of the udgment under appeal is upheld. 24. This appeal is thus partly allowed. The matter is remanded to the CIT(A) and it may be decided expeditiously.
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2006 (9) TMI 598
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... ... ..... ccount parties will be at liberty to approach Company Law- Board for suitable direction and for appointment of an independent chairman; ii) The appellant will send name of two persons for the appointment as president of the respondent No. 1 to the respondent No. 2, who will then within two weeks give concurrence in respect of one name and the said person will be appointed as CEO/president of the respondent No. 1. In case respondent No. 2 does not give its concurrence, the appellant will be at liberty to appoint any one as CEO/president of the respondent no. 1. iii) Company Law Board will appoint an independent chairperson for the next Annual General Meeting. 32. The appeal is accordingly disposed of. The appellant will be entitled to costs which are assessed at ₹ 10,000/-. It is, however, clarified that the observations made in this order will not be treated as binding on the Company Law Board when it decides the petition under Section 397 and 398 of the Act on merits.
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2006 (9) TMI 597
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... ... ..... t of this Court to hold that there is no ambiguity or confusion as regards the use of words 'availed of by which Petitioners can take advantage of utilization of CENVAT Credit for payment of any duty of excise on any final product. 56. Accordingly, the considered view of this Court is that the excess refund availed by the Petitioners needs to be recovered and this Court is in full agreement with the findings arrived at by the revenue authorities in passing the impugned orders. 57. In view of the above views and findings, this Court is not willing to burden this judgment by further elaborate analysis of those judicial decisions relied upon by the counsel for the revenue on the point of purposive interpretation. Conclusion 58. For the foregoing reasons, observations and discussions, this Court does find that this host of writ petitions is bereft of any merit. 59. In the result, all these writ petitions fail and stand dismissed. However, there shall be no order as to costs.
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2006 (9) TMI 596
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... ... ..... will be governed by the Amended provision. The above demand is therefore illegal, bad and without jurisdiction. The respondents at the highest can consider and/or impose penalty in respect of changes which took place after 1-1-1985. 16. The petitioners have also sought relief by way of prayer Clause (c). The petitioners subject to their explanation, if any, need to be heard in the matter before passing any order on the basis of non-intimation of change as contemplated under Section 62 of the Maharashtra State Amendment insofar as any alteration or amendment after 1-1-1985. 17. Taking all these into account the impugned orders dated 12th October, 2004 and 25th April, 2005 passed by the respondent No. 2 are quashed and set aside. The petition is allowed in terms of prayer Clause (a). Insofar as prayer (c) is concerned it will be open to the respondents to reconsider the issue and after hearing the petitioners to pass an appropriate order according to law. No order as to costs.
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2006 (9) TMI 595
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... ... ..... e order of the Tribunal dated 18th June, 2004 passed in the rectification application in Appeal Nos. E/2335/1998-D and E/2337/1998-D. The points involved in these appeals are (i) whether the furniture manufactured by the appellant is a handicraft? (ii) whether the appellant is the manufacture? and (iii) limitation The findings recorded by the Tribunal on these three points are on facts which do not call for any interference. The Appeals are dismissed. No costs.
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2006 (9) TMI 594
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... ... ..... ircumstances of this case, we are of the opinion that with a view to do complete justice between the parties, the following directions shall be issued (i) The Civil Court would dispose of Suit No.154 of 1993 as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order, without being in any way influenced by the observations made by the High Court; (ii) The Civil Court shall not grant any adjournment to the parties, save and except for sufficient and cogent reasons; (iii) The appropriate authority shall consider the application filed by the Respondents herein after the decision of the said suit in accordance with law. (iv) In the said proceedings, the Appellant may also be heard. (v) It would be open to the parties to raise all contentions before the said authority. The appeal is allowed to the extent mentioned hereinabove. The parties, in the facts and circumstances of the case, shall pay and bear their own costs.
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2006 (9) TMI 593
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... ... ..... s clear from the foregoing that the agreement in question is in the nature of Licence Production Agreement. Further, after going through the said condition no. 2 of the definition of franchise services and its alleged correlations with clause 3 (c) & clauses 5(a) to 5(f) of the agreement, I am of the opinion that the said conditions 2 of the definition i.e. ‘the franchisor provides concepts of business operation to franchisee, including know how, method of operation, managerial expertise, marketing techniques or training and standards of quality control except passing on the ownership of all know how to franchisee’ is not fulfilled and therefore the said agreement cannot be treated to be a franchise agreement, and as such, no liability to pay service tax can be fastened on the appellants in respect of the receipts from M/s Ashok Pan Products Pvt. Ltd., Kanpur. 18. Accordingly, I set aside the impugned order and allow the appeal with consequential relief.
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2006 (9) TMI 592
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... ... ..... penalty imposed under Sec. 78. The advocate for the Respondents urges that during the relevant time of the visit of Central Excise authorities nothing was concealed or suppressed and the department ought to nave taken this into account. Before imposition of penalty under Sec. 78 the concurrence of the Commissioner was mandatory and as there is no indication either in the show cause notice or in the order-in-original that such concurrence has been obtained. 4. Learned SDR felt that law provides for separate penalties both under Sec. 76 and Sec. 78 and hence order of the Commissioner Appeals in setting aside the penalty under Sec. 78 was not warranted. 5. I have carefully gone through the records and the submissions. I hold that in the given facts and circumstances of the case, imposition of penalty under Sec. 78 appears harsh and may not be justified. Order of the Commissioner (Appeals) is reasonable. 6. Accordingly, the appeal is dismissed. (Dictated in Court)
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2006 (9) TMI 590
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... ... ..... 2,000/- (Rs.2,22,000/- due on the cheque and ₹ 60,000/- towards loss of interest) would meet the ends of justice. The following order is therefore passed; The appeal is allowed. The order passed by the learned Judicial Magistrate First Class, Court No. 2, Nagpur, acquitting respondent No. 1 Manohar K. Deshmukh of the offence punishable under Section 138 of the Negotiable Instrument Act, is set aside. Instead, respondent No. 1 Manohar K. Deshmukh is convicted of the offence punishable under Section 138 of the Negotiable Instrument Act and is sentenced to pay a fine of ₹ 10,000/ - (Rupees ten thousand), or in default, to undergo simple imprisonment for three months. In addition, respondent no 1 shall also pay to the complainant a sum of ₹ 2,82,000/- (Rs. Two lacs eighty two thousand) towards compensation. If respondent No. 1 Manohar K. Deshmukh does not comply with the sentence now imposed, the learned Magistrate shall take steps to have the sentence executed
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2006 (9) TMI 589
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... ... ..... High Court, cannot be sustained. In the Notification dated 9.9.98 the applications were invited from the intending candidates belonging to ST community for the posts. It was also stipulated in the advertisement that if a minimum of three eligible candidates belonging to the ST community do not offer their candidature, the vacancy in question will be treated as unreserved and offered to the candidates belonging to the other reserved communities in order of deficiency in representation OBC Community and SC community. The appellant belongs to OBC. Admittedly, the 4th respondent belongs to general category. Even otherwise, he could not have been selected, notwithstanding the availability of candidates from other reserved category like OBC and SC community. For the aforestated reasons, the impugned order of the High Court dated 13.02.2003 passed in OJC No.6122 of 2000 is hereby set aside. The appeal is allowed. Writ Petition filed by the 4th respondent stands dismissed. No costs.
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2006 (9) TMI 588
Application seeking clarification - Rules for preparation of eligibility list of officers for promotion to the Engineering Service Class II by Notification - Promotion from the post of erstwhile Engineering Supervisor Telecom (re-designated as Junior Engineer) to the post of Assistant Engineer - Principle of seniority-cum-fitness - HELD THAT:- We direct that such of the applicants whose seniority had been determined by the competent authority, and who had been given benefit of seniority and promotion pursuant to the orders passed by Courts or Tribunals following the principles laid down by the Allahabad High Court in Parmanand Lal's case and approved by this Court, which orders have since attained finality, cannot be reverted with retrospective effect. The determination of their seniority and the consequent promotion having attained finality, the principles laid down in later judgments will not adversely affect their cases.
This Court has clearly clarified the position in its aforesaid judgment. The observations made by this Court while disposing of the appeal of Parmanand Lal are also pertinent. This Court clearly laid down the principle that the seniority fixed on the basis of the directions of this Court which had attained finality is not liable to be altered by virtue of a different interpretation being given for fixation of seniority by different benches of Tribunal. Consequently, the promotions already effected on the basis of seniority determined in accordance with the principles laid down in the judgment of the Allahabad High Court cannot be altered.
Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Court's judgment in Parmanand Lal's case have been upheld or recognized by Court or Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment. Since the rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a Court or Tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. We order accordingly.
Before parting with this judgment we may observe that we have not laid down any principle or law having universal application. We have only clarified and given effect to an earlier judgment of this Court rendered in an extraordinary situation.
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2006 (9) TMI 587
Section 18 of the Industrial Disputes Act - deposit collectors working for 20 to 25 years - binding effect of the Award - writ petitioners being not parties to the said award - demand of the Commission Agents or as the case may be Deposit Collectors employed in the Banks listed in Annexure that they are entitled to the Pay scale and other service conditions admissible to regular clerical employees of these banks is justified - Violation of Principles of Natural Justice - HELD THAT:- From a perusal of Clause (d) of Sub-section (3) of Section 18 of the Industrial Disputes Act, it is, thus, evident that all workmen who are employed in the establishment or who subsequently become employed in that establishment would also be bound by an award made by an industrial tribunal. The management as also the workmen were parties to the said award. Hence, Respondents cannot be heard to say that the award was not binding on them only because they were not parties.
In an industrial dispute referred to by the Central Government which has an all-India implication, individual workman cannot be made parties to a reference. All of them are not expected to be heard. The Unions representing them were impleaded as parties. They were heard. Not only the said Unions were heard before the High Court, as noticed hereinbefore from a part of the judgment of the High Court, they had preferred appeals before this Court. Their contentions had been noticed by this Court. As the award was made in presence of the Unions, in our opinion, the contention of Respondents that the award was not binding on them cannot be accepted. The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance of the principles of natural justice in view of the binding nature of the award. Its application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice.
Appellant Bank had no other option but to implement the award. If it did not, its action could be held to be penal. Reliance placed by Respondents on the letter of the Syndicate Bank dated 26.5.2001 is also misplaced. The said circular letter does not state that the principles of natural justice were required to be complied with. As on the date of issuance of the circular letter they had not received the necessary guidelines, a temporary measure was proposed to be taken therefore.
Thus, the impugned judgment cannot be sustained which is set aside accordingly. We direct that the recoveries may not be made from Respondents so as to avoid undue hardship to them.
The appeal is allowed.
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2006 (9) TMI 586
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... ... ..... as offered by the Appellants themselves, they shall deposit 50 of the amount after deducting expenditure therefrom and the requisite amount of tax in a fixed deposit in a nationalized bank as may be directed by the learned Trial Judge. (ii) Even for the said purpose, a receiver may be appointed by the learned Trial Judge. III. It would be open to the learned Trial Judge to pass any other or further order if and when any occasion arises therefor. IV. We are informed that the plaintiffs have filed affidavits of their witnesses. The learned Trial Judge may complete the hearing of the suit as expeditiously as possible. Save and except for cogent reasons, the hearing of the suit may not be adjourned. We would request the learned Trial Judge to dispose of the suit expeditiously and preferably within six months from the date of receipt of a copy of this order. The appeals are allowed to the extent mentioned hereinabove. Costs of these appeals shall abide by the result of the suit.
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2006 (9) TMI 585
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... ... ..... come-tax where its real business is carried on. The real business is carried on where the central management and control actually resides." 7. From above, we are absolutely clear that remittance of foreign exchange if taken by a subsidiary company, then subsidiary company alone has to answer the question and not the holding company. The appellant before us is the holding company who enjoys separate legal personality than the subsidiary company. The appellant though holding majority shares cannot be held liable for whatever is done by its subsidiary. The present is a case of wrong identification by adjudicating authority of the person on whom legal obligations are imposed by section 8(3) read with section 8(4) of the FER Act, 1973. Therefore, the adjudication order is not correct and is required to be quashed and set aside. This appeal contains merit. 8. For the reasons stated hereinabove, the adjudication order is quashed and set aside. This appeal is allowed on merits.
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2006 (9) TMI 584
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... ... ..... ual delay is to the extent of more than 870 days. There is no satisfactory explanation given in the application which merit condonation of such delay. As such we are unable to condone the delay and the appeal is not admitted.
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