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Case Laws
Showing 1 to 20 of 655 Records
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2007 (9) TMI 723
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... ... ..... to move by rectification application. Civil appeal is allowed to be withdrawn. It is accordingly dismissed as withdrawn. However, we make it clear that the appellant would be entitled to move by rectification application in accordance with law.
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2007 (9) TMI 722
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... ... ..... Conditions of the Contract which reads as under - 16 (3) No interest will be payable upon the Earnest Money and Security Deposit or amounts payable to the Contractor under the Contract, but clause (1) of this clause will be payable with interest accrued thereon. A plain reading of the said clause indicates that no interest is payable on, inter alia, the amounts payable to the contractor under the contract. Therefore, this claim is also beyond the scope of arbitration. Insofar as claims (D), (E) and (F) are concerned, they all flow from claims (A), (B) and (C). As regards claim (A), that has already gone through arbitration and an award in favour of the petitioner has been made. As indicated above, Claims (B) and (C) are not arbitrable. Therefore, the question of referring the disputes pertaining to claims (D), (E) and (F) to arbitration does not arise. Consequently, no occasion arises for the appointment of an arbitrator. 7. In these circumstances, this petition is dismissed.
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2007 (9) TMI 721
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... ... ..... uzha District. Equally reprehensible is the action of the then City Police Commissioner, Thiruvananthapuram in forwarding the complaint to the Circle Inspector of Police, Museum Police Station, Thiruvananthapuram with direction to register a crime for the specified offences under the Indian Penal Code and to investigate the same. If he had applied his mind and had taken pains to carefully go through the averments in the complaint he would not have directed the Museum Police to register the crime. Such abdication of their powers by the respective functionaries shows the nonchalant, mechanical and if not irresponsible way in which a complaint from a sitting M.L.A. was dealt with. Such administrative deficiencies and failures are bound to recur if those in power fail to harness the experience, wisdom and intellect of trained personal conversant with governance. The pernicious trend seems to be to antagonise and alienate the intelligentsia. A reproduction from ILR (Kerala Series)
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2007 (9) TMI 720
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... ... ..... 1) Shim.L.C. 365 the period of limitation for taking cognizance of the offence under Sections 417, 465 I.P.C. had expired on the date learned Sessions Judge took cognizance of the major offences for which there was no period of limitation. The learned Sessions Judge convicted the two accused for lesser offences punishable under Sections 417, 465 I.P.C. without recourse to Section 473 Cr.P.C. In these circumstances, this Court held that conviction of two accused in that case under Sections 417, 465 I.P.C. could not have been ordered since the charge-sheet for such offence had become barred by time. 8. In the present case also, the trial of accused under Sections 41, 42 of the Indian Forest Act had become barred by time on the date trial Court took cognizance. No case has been made out for interference, consequently, all appeals being Criminal Appeals No. 296 of 2000, 367 of 2000, 368 of 2000 and 369 of 2000 are dismissed. Bail bonds furnished by the respondents are discharged.
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2007 (9) TMI 719
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... ... ..... lied upon by the petitioners that petitions were maintainable on the date of the filing of the petitions, but the maintainability was questioned on the basis of subsequent events. But, in the present case before me, the maintainability of the petition is to be seen even after the filing of the petition as after the withdrawal of the consent by the petitioner Nos. 7 to 11, the petitioner Nos. 1 to 6 being not members there remains no member to maintain a petition under Section 397 and 398 of the Act. The requisite eligibility under Section 399 Sub-section (1) is also to be seen thereafter. Even that requisite condition is not fulfilled. 21. In view of the foregoing, I do not find any reason to hold the petition maintainable. All other above arguments of the petitioners on merits can be considered only if the petition is maintainable. The petition is not maintainable. 22. In view of the foregoing, the petition is hereby dismissed being not maintainable. 23. No order as to cost.
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2007 (9) TMI 718
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... ... ..... uld not take cognizance thereof. I also note that in the summoning order, the learned Magistrate has not condoned the delay. 15. Before concluding, a submission made when judgment was being dictated may be noted. The submission was by learned counsel for the respondent. It was urged that limitation would commence with effect from the date Regional Director accorded permission for filing of the complaint. 16. I am afraid, the submission is based on a complete ignorance of law. Limitation has to commence when actionable knowledge is gained by the competent authority. In the instant case, it may be noted that the inspections were completed and reports were available with the Regional Director, Northern Region, Kanpur by the end of December 2000. 17. The complaints in question were filed on 16.5.2002. 18. The petitions stand disposed of quashing the complaint as also the summoning order dated 16.5.2002 in both the complaints, summoning the petitioners to face trial. 19. No costs.
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2007 (9) TMI 717
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... ... ..... rently, the complaint is founded on the basis that because certain persons are the directors of a company therefore they are jointly and severally liable for the acts of the company. 23. On this short ground alone, the petitions filed by accused No.2 to 7 have to succeed. 24. As regards accused No.1, learned counsel for the petitioners sought to urge that the complainant was not even incorporated when the transaction between the accused No.1 and the complainant was transacted. 25. This issue would require evidence to be led. One fact is not in dispute. The same is that accused No.1 had issued a cheque in the name of the complainant company. Prima facie, complainant existed when the transaction was transacted between the 2 companies. 26. The petitions accordingly stand disposed of by quashing the complaint and the summoning order dated 18.9.2004 against accused No.2 to 7. 27. The complaint and the summoning order dated 18.9.2004 are upheld vis-a-vis accused No.1. 28. No costs.
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2007 (9) TMI 716
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... ... ..... . The removal of other appellants is improper and unsustainable. The findings of the First Appellate Court in this context are without material. Therefore, part of the impugned judgment deserves to be set aside. Second Appeal No. 44 of 2004 will have to be dismissed as the concurrent findings of both the Courts need not be disturbed in respect of the absolvement of respondent Nos. 3 to 9 from allegations of misfeasance or misappropriation. 42. For the reasons aforestated Second Appeal No. 44 of 2004 is dismissed whereas Second Appeal No. 45 of 2004 is partly allowed. The impugned judgment is confirmed only to the extent of removal of appellant No. 1 Mallikarjunappa Bidve and appellant No. 4 Nagnathappa Revadkar and is set aside as regards findings against other appellants. Those other appellants are exonerated from the charge of malfeasance and would be entitled to continue as trustees of the trust. The parties to bear their own costs. The appeals are accordingly disposed of.
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2007 (9) TMI 715
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... ... ..... sion on account of the enormity of the labour and time involved in the process. The Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It would be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities end grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to pragmatic one were to be propounded. In the above premises, it is to be considered how far the Board has assured a zero defect system of evaluation, or a system which is almost fool-proof". 11. The appeal is allowed. There will be no order as to costs.
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2007 (9) TMI 714
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... ... ..... on or omission, (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. It is not a case where the appellants can be said to have induced the respondent to enter into a transaction so as to deceive them with a view to cause unlawful losses to them and to make unlawful gain for themselves. 12. For the reasons aforementioned, in our opinion, the High Court has committed an error in not interfering with the order of the learned Magistrate taking cognizance of the offence. The impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2007 (9) TMI 713
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... ... ..... lly disposed of. Ordinarily, an I.A. is maintainable only in a pending case. Once a case is finally disposed of the Court becomes functus officio, and thereafter an I.A. lies ordinarily only for correcting clerical or accidental mistakes. The same are accordingly, dismissed. 3. Put up the Contempt Petitions (C) No. 151-152 of 2007 in Civil Appeal No. 2181-2182 of 2001 after six months.
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2007 (9) TMI 712
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... ... ..... For the purpose of finding out the commission of a cognizable offence, the High Court was only required to look into the allegations made in the complaint or the FIR and to conclude whether a prima facie offence had been made out by the complainant in the FIR or the complaint or not. 10. Before parting with this judgment, we may also remind ourselves that the power under Section 482 of the Code has to be exercised sparingly and in the rarest of rare cases. In our view, the present case did not warrant such exercise by the High Court. For the reasons aforesaid, we are unable to sustain the order of the High Court and the impugned order is accordingly set aside. The appeal is allowed to the extent indicated above. The learned Magistrate is directed to proceed with the case in accordance with law. It is expected that the Magistrate shall dispose of the criminal proceedings as expeditiously as possible preferably within six months from the date of communication of this judgment.
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2007 (9) TMI 711
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... ... ..... It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.... 17. In the light of the above discussion, we find that the Tribunal's order suffers with substantial error of law. We therefore hold that the Tribunal was not justified in confirming the order of the first appellate authority refusing to entertain the application for additional ground relating to the addition of ₹ 76,300. 18. The appeal is allowed. The orders of the first appellate authority as well as of the Tribunal are hereby set aside. The matter is remanded to the first appellate authority to hear and decide the matter on merits after taking into consideration the additional ground sought to be raised by the appellant. No costs.
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2007 (9) TMI 710
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... ... ..... ed Counsel and quash the Section 263 order passed by the learned Commissioner in respect of both the assessees here in. Accordingly assessees appeals in ITA Nos. 859 and 860/Mds/2007 are allowed. 13. Coming to the assessees appeals against Section 143(3) read with Section 263 in ITA Nos. 917 and 918/Mds/2006 for the assessment year 1997-98, we are of the view that these appeals are to be dismissed as infructuous. We have quashed the Section 263 orders and hence the order giving effect to the Section 263 order has no legs to stand. These orders remain in vacuum. Therefore, these two appeals by the assessees against the orders giving effect to Section 263 order become infructuous and are liable to be dismissed as such. For the foregoing reasons we dismiss both the appeals of the assessee in respect of orders giving effect to Section 263 orders. 14. In the result, ITA Nos. 859 and 860/Mds/2007 are allowed and appeals in ITA Nos. 917 and 918/Mds/2006 are dismissed as infructuous.
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2007 (9) TMI 709
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... ... ..... ng Director and another director of REPL have been referred to in the order of the Assessing Officer, they were not tendered for cross-examination by the Assessee representative before the Assessing Officer. For the above reasons it cannot contend that prejudice was caused for it for the reason that the burden of proof to prove the fact that it has acquired ownership of the plant and machinery used in business by leasing the same in favour of REPL was upon it, that burden of proof is not discharged by it by producing cogent evidence as required in law. Therefore, the remand order pas sed by the first Appellate Authority to the Assessing Officer is wholly unnecessary. 17. For the reasons recorded above, the substantial questions of law referred to supra having been answered in favour of the revenue, these appeals are allowed and the orders of the Tribunal and Commissioner of Income Tax are set aside and the Block Assessment order of Assessing officer is restored, but no costs.
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2007 (9) TMI 708
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... ... ..... . Consequently, both these circulars are found to be ultra vires and are hereby quashed. 12. In view of aforesaid, since there was no basis for the learned Commissioner to stipulate the time frame of 10 days or 30 days and thereafter, to require the assessing authority to invoke the concept of constructive delivery so as to deny the exemption of CST on subsequent sales made by transfer of documents of title to the goods made under Section 6(2) of Act, though requisite conditions of Section 6(2) of the Act are fulfilled by the dealer and such circulars have already been held to be ultra vires and have been quashed and in absence of any other material justifying the denial of exemption under Section 6(2) of the Act to the assessee, the impugned order of the Tax Board allowing such exemption to the assessee is not required to be interfered with in the present revision petitions filed by the Revenue. Consequently, these revision petitions are dismissed with no order as to costs.
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2007 (9) TMI 706
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... ... ..... against the assessee. 3. As held in the case of Jamshri Ranjitsinghji Spg. & Wvg. Mills Col Ltd. (supra) in the present case also yarn was cleared during the relevant period for captive consumption by executing B-13 Bond and endorsements were made on the RT-12 returns that the assessments are provisional. Therefore, the demands raised against the appellant on finalisation of the provisional assessment cannot be faulted. 4. Accordingly, for the reasons stated in the case of Jamshri Ranjit Singhji Spg. & Wvg. Mills Co. Ltd. (supra), the present appeal is dismissed with no order as to costs.
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2007 (9) TMI 705
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... ... ..... ay hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected. 33. For the foregoing reasons, we see no ground to interfere with the order passed by the Division Bench of the High Court. The appeal deserves to be dismissed and is accordingly dismissed with costs which is quantified as ₹ 10,000/-. The appellant-Board shall comply with the directions within twelve weeks from today.
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2007 (9) TMI 704
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... ... ..... s. There is no doubt that the Custom authorities are duly authorized to conduct such inquiries. No illegality can therefore be attributed to the course adopted by the State Police and the Customs Department. This ground therefore does not carry the defence case any further. 43. In view of the foregoing discussion, we are unable to find any fault with the conclusion arrived at by the learned Special Judge that the evidence on record establishes that the accused Yasihey Yobin and Lisihey Ngwarah were found in possession of 380 grams of heroin and the other accused namely Arun Kanungo and Raju Premji associated themselves in finding prospective customers for disposing of the contraband whereby they abetted commission of the crime within the meaning of Section 29 of the NDPS Act. In the result, we find no ground to interfere with the impugned judgment of conviction and sentence. Accordingly, the impugned judgment and order is hereby affirmed and all three appeals stand dismissed.
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2007 (9) TMI 703
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... ... ..... on 18.5.2007 waiving requirement of pre-deposit and taking up final hearing of the appeal. It appears that the order dated 18.5.2007 itself had attained finality by way it has been referred to above. It appears that in view of non-deposit of the amount required to be deposited, the application for modification has been rejected by the Commissioner (Appeals). We, therefore, do not find any inadequacy in the impugned order passed by the Commissioner (Appeals). We, therefore, direct the applicant to deposit ₹ 6,00,000/- (Rs. Six lacs) towards service tax and ₹ 3,00,000/- (Rs. Three lacs) towards penalty within 8 weeks from today for the purpose of hearing this appeal failing which the appeal shall stand dismissed. On depositing the aforesaid amount, the remaining amount of duty and penalty imposed under the impugned order shall stand waived. Matter is adjourned to 26.11.2007. 7. The application stands disposed of accordingly. (Dictated and pronounced in open court).
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