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2008 (11) TMI 729 - SUPREME COURT
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... ... ..... 3. We, furthermore, fail to appreciate as to why the procedure of placing the records before so many officers for filing an application for grant of special leave cannot be minimized. 4. In this application we find that the High Court passed the impugned judgment on 13-2-2007 and an application for grant of certified copy has been filed on 23-11-2007, i.e., after a period of nine months. Similarly, although the certified copy was received on 29-11-2007, the date of proposal was received in DIT(L&R) on 22-2-2008, i.e., after a period of three months. Who is responsible for such delay and what action has been taken against the officers concerned has not been disclosed in the application for condonation. No sufficient cause for condonation of delay has been shown. 5. We, therefore, while dismissing the special leave petition, direct the Commissioner of Income-tax to consider the desirability of taking appropriate action(s) in the light of the observations made hereinbefore.
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2008 (11) TMI 728 - KERALA HIGH COURT
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... ... ..... Sri.Santhosh P.Abraham, learned counsel appearing for the assessee, would bring to our notice the decision of a Bench of this Court in the case of M/s.Metro Appliances Ltd. v. State of Kerala - S.T.Rev.No.134 of 2005, disposed of on 20th December, 2006. Having gone through the aforesaid order, on which reliance was placed by the learned counsel appearing for the petitioner, we are of the opinion, that, the facts and circumstances stated by the learned Judges in that decision are neither similar nor nearer to the facts in the case on hand. In that view of the matter, we are of the opinion, that, the decision, on which reliance was placed by the learned counsel appearing for the petitioner, has no bearing at all to the facts in the instant case. (17) In the above view of the matter, the revision petition requires to be rejected and it is rejected and the questions of law framed by the assessee are answered against the assessee and in favour of the Revenue. Ordered accordingly.
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2008 (11) TMI 727 - MADRAS HIGH COURT
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... ... ..... spares and not sample and tools nonetheless as per the extracted provisions, he is entitled to exemption; but unjustifiably they have issued show cause notice. 7. The learned Additional Solicitor General of India would submit that the show cause notice itself cannot be challenged before this Court as the petitioner is having adequate opportunity of airing his grievance before the authority concerned. 8. Hence, in these circumstances, the following direction is given The petitioner within ten days from the date of receipt of a copy of this order, shall submit his detailed explanation to the show cause notice citing the provisions, whereupon the adjudicating authority after giving due opportunity of being heard to the petitioner shall decide the matter and that too in view of paragraph No.10 of the counter affidavit filed in this writ petition. 9. With the above direction, this Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
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2008 (11) TMI 726 - DELHI HIGH COURT
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... ... ..... Court in the case of CIT vs Reebok India Company in ITA 1209/2006 decided on 31.7.2008. As in the Reebok case, in the present case also, the Tribunal has returned a clear finding that the transactions were in the nature of contracts for sale and not in the nature of works contracts. Consequently, in view of the decision in Reebok India Company (supra), we feel that no substantial question of law arises for our consideration. The appeal is dismissed.
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2008 (11) TMI 725 - SUPREME COURT
Powers Of High Court u/s 482 - cognizance of offences punishable under Sections 420, 468 and 471 of the Indian Penal Code, 1860 (`IPC') and issuance of summons - HELD THAT:- The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.
If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings.
Appeal is allowed.
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2008 (11) TMI 724 - MADRAS HIGH COURT
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... ... ..... are of the date of hearing fixed for 23.8.2005. The petitioners took no steps to ascertain the result of the proceedings held on 23.8.2005. On the other hand, they remained quiet only to receive the award and to file a Petition before this Court thereafter, on receipt of the award. The conduct of the petitioners herein, hence, does not justify the claim made before this Court that the award suffers a legal misconduct. It is relevant to note that even in the various grounds raised before this Court, no reason has been given by the petitioners for the default in appearance before the Arbitrator on 23.8.2005. 42. Being party to the agreement, the parties are bound by the terms. The claim herein is based on the execution of the agreement and when admittedly the execution had not been denied, the award passed cannot be set aside. Taking note of all these facts, I do not have any hesitation in rejecting the plea of the petitioners. Accordingly, this Original Petition is dismissed.
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2008 (11) TMI 723 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... apply reasonable rate of profit, which was assessed at the rate of 12 on contract receipts, excluding the material supplied by the department. The Tribunal also relied upon its judgment in the case of M/s Ess Ess Builders (P) Ltd. (in I.T.A. No.707/Chandi/1997 for the assessment year 93-94, order dated 16.09.2003). We have heard learned counsel for the parties and perused the record. The Tribunal has proceeded on the basis that there may be unverifiable wages which may call for addition to income, but not to the extent assessed by CIT (A). Applying net profit rate on the basis of best judgment, assessment in a given situation will be a question of fact unless, such an assessment is shown to be arbitrary or perverse. In the present case, it cannot be held that any substantial question of law arises. Assessment of 12 of net profit rate of contract receipt is not shown to be arbitrary or perverse. No substantial question of law arises for consideration. The appeal is dismissed.
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2008 (11) TMI 722 - GUJARAT HIGH COURT
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... ... ..... r wilful misstatement or suppression of fact or contravention of any of the provisions. In the present case, none of the contingencies can be said to exist. The contention that respondent-assessee became liable to pay service tax and file return by virtue of Amendment Act of 2003 loses sight of the fact that the transaction of providing services had taken place between 16-11-1997 and 1-6-1998. The assessee had already made payment for the services rendered to the Transport Operators and it was not possible to deduct tax from the payment already made and deposit the same with the Union of India. 7. In the aforesaid facts and circumstances of the case, the impugned order of Tribunal holding that the show cause notice was issued beyond the prescribed period of limitation does not suffer from any legal infirmity so as to warrant interference. Accordingly, in absence of any question of law, as proposed or otherwise, much less a substantial question of law,the appeal is dismissed.
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2008 (11) TMI 721 - BOMBAY HIGH COURT
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... ... ..... ecured Creditors either present in person or by proxy or through authorized representative. 12. That voting by proxy/authorized representative be permitted, provided that a proxy in the prescribed form/authorization duly signed by the person entitled to attend and vote at the meeting, is filed with the Applicant Company, at its aforesaid office not later than 48 hours before the meeting, as provided under Rule 70 of the Company Court Rules, 1959. 13. That the number and value of the shares held by each of the Equity Shareholders and the value of each class of creditors shall be in accordance with the books of the Company as on September 30, 2008 and where the entries in the books are disputed, the Chairman shall determine the value for the purpose of the meeting. 14. And it is further ordered that the Chairman do report to this Court, the result of the said meeting’s within 30 days of the conclusion of the meeting and the said report shall be verified by his Affidavit.
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2008 (11) TMI 720 - BOMBAY HIGH COURT
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... ... ..... quorum for the meeting of the Unsecured Creditors shall be 2 (Two) Unsecured Creditors either present in person or by proxy or through authorized representative. 11. That voting by proxy/authorized representative be permitted, provided that a proxy in the prescribed form/authorization duly signed by the person entitled to attend and vote at the meeting, is filed with the Applicant Company, at its aforesaid office not later than 48 hours before the meeting, as provided under Rule 70 of the Company Court Rules, 1959. 12. That the value of each class of creditors shall be in accordance with the books of the Company as on September 30, 2008 and where the entries in the books are disputed, the Chairman shall determine the value for the purpose of the meeting. 13. And it is further ordered that the Chairman do report to this Court, the result of the said meeting’s within 30 days of the conclusion of the meeting’s and the said report shall be verified by his Affidavit.
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2008 (11) TMI 719 - CALCUTTA HIGH COURT
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... ... ..... gement of the company at any point of time. For payments made credit has been given to the company. Therefore, the plea taken is unjustified. No contemporaneous document has been produced by the company disputing the said bills. It has not been disputed that the goods were not received or consumed by the company. The plea of change of management taken is intended to defer payments. The defence, therefore, of the company is not bona fide and no reason exists for recalling the order dated January 8, 2008 (Jagdev Prasad Bajaj v. Tirrihanah Co. Ltd. (No. 1) 2009 148 Comp Cas 166 (Cal)). The payments directed will now take effect from November 15, 2008 and the balance instalment be paid on the 15th day of each succeeding month. 6. In view of the aforesaid C. A. No. 215 of 2008 is dismissed. Later 7. Stay prayed for is considered and refused. 8. Xerox certified copy of this judgment be made available to the parties, if applied for, upon compliance of all the requisite formalities.
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2008 (11) TMI 718 - SUPREME COURT
Validity of selections made in respect of the 80 posts, namely, Medical Technologist (Laboratory) - all appointees not impleaded - empanelment was made ignoring the marks obtained at written examination and was prepared only on the basis of marks obtained by the candidates at oral interview - empanelment was arbitrary and unreasonable - allocation of more than 15% marks for oral interview - Waiver of fundamental rights - 66 candidates were selected and appointed in 1998-99 - candidates who were unable to get themselves selected who raised a grievance and made a complaint by impleadment applications -
HELD THAT:- In our opinion, the High Court in the second round, did not commit any error of law in directing the authorities to prepare merit list on the basis of marks obtained by the candidates in written examination as also in oral interview. It was not open to the State authorities to reiterate and re-agitate in the second round, the same ground, that written examination was in the nature of `elimination test' and it was limited to `short listing' of candidates and marks obtained by candidates at the written examination could not be considered for preparation of merit list. The said stage had already gone and the decision in the first round had attained finality so far as the nature of written examination was concerned.
The Tribunal and the High Court were, therefore, right in holding in the second round that the merit list was required to be prepared on the basis of composite marks obtained by candidates at the written examination and oral interview both and not only on the basis of marks at the oral interview.
Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the Employment Exchange, they were selected and appointed in 1998-99. The candidates who were unable to get themselves selected who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the Original Application, which was not done. In any case, some of them ought to have been arrayed as respondents in a `representative capacity'. That was also not done. We are of the considered view that it would be inequitable if we set aside appointments of candidates selected, appointed and are working since 1998-99. We, therefore, hold that the Tribunal and the High Court were right in not setting aside their appointments.
In Munindra Kumar and Ors. v. Rajiv Govil and Ors. [1991 (5) TMI 255 - SUPREME COURT], the selection comprised of written test, group discussion and oral interview. The relevant rule fixed 40 per cent of total marks for group discussion and oral interview (20 per cent each). Though this Court held fixation of marks as arbitrary being on higher side, it refused to set aside selection made on that basis since selection had already been made, persons were selected, appointed and were in service.
It is clear that written examination for the selection of Medical Technologists was taken as early as in August, 1995 and list of more than 1,000 candidates was published in June, 1996. By now more than a decade has passed. The applicants who had never challenged the selection before the Tribunal, before the High Court and before us and have applied for the first time in the present proceedings which were instituted in 2005 by filing impleadment applications have thus accepted the position as prevailed in 1996. Qua them, therefore, the matter can be said to have been `settled'. Initiation of proceedings at the instance of those candidates now will `unsettle the settled position'.
Those candidates who had not approached the Tribunal, High Court or this Court have now filed Interim Applications in this Court. The ld Counsel appearing for those applicants submitted that they may also be granted similar benefits. It was urged that equals must be treated equally which is the fundamental right enshrined in Articles 14 and 16 of the Constitution. It was vehemently argued that it is settled law that fundamental rights cannot be waived. Hence, even if the applicants had not approached this Court earlier, they can come to this Court claiming similar relief by invoking Part III of the Constitution
The ld Counsel for the State is right in contending that even if this Court holds that the appellants who have approached this Court are entitled to some relief, such relief could be granted to those candidates who had grievance against the selection and who had challenged the action of the respondent authorities but it could not be extended to the applicants who have approached this Court in the present proceedings.
In the result, the appeals are partly allowed. Service of 66 candidates who were selected and appointed in 1998-99, whose appointments were initially not challenged and thereafter who were protected by the Tribunal and by the High Court have not been disturbed. The appellants who are similarly situated to 66 respondents who are protected in the present proceedings will be treated at par with those respondents.
And if on the basis of merit list prepared as per the order of the High Court, they are found eligible and qualified, the State Government will consider their cases, i.e. the cases of the appellants and will appoint them in accordance with law. Age bar, if any, will not come in the way of those candidates. The said benefit, however, is limited to those candidates who have challenged the selection by approaching the Tribunal, the High Court and this Court. Our directions will not apply to those candidates who have approached this Court for the first time by filing Interim Applications. Their applications, therefore, stand dismissed.
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2008 (11) TMI 717 - SUPREME COURT
Application u/s 319 of the CrPC to include respondent Nos. 2 and 3 as accused and to summon them for trial - Unlawful Assembly - Commission of offences punishable u/s 307, 326, 336 and 427 r/w Sections 120B, 148 and 149 of the IPC as also for offences punishable u/s 25, 27, 54 and 59 of the Arms Act - Accused were arrested - Vijay Preet Singh (respondent No. 2) was one of them - respondent Nos. 2 and 3 i.e. Vijay Preet Singh and Jagtar Singh - Addl. Sessions Judge, rejected the application observing that he did not find sufficient grounds to proceed against Vijay Preet Singh and Jagtar Singh - High Court, however, dismissed the Revision and confirmed the order passed by the trial Court.
HELD THAT:- In the instant case, however, the Superintendent of Police not only refers to investigation made by him and the statements recorded in the course of investigation but records a `finding' that the statements were `correct'. Vijay Preet Singh was not present at the place of offence when the incident took place but reached after the occurrence was over. Thereafter police had arrested him. Likewise, Jagtar Singh was not present at the spot at the time of occurrence.
Likewise, in an appeal arising out of Special Leave Petition (Hardeep Singh v. State of Punjab & Ors.), Jagtar Singh was not charge-sheeted. Both the Courts considered the report of the IO and held that the action of non-issuing of process against Jagtar Singh could not be held illegal or unlawful. We are of the view that the order cannot be termed unlawful or unwarranted which requires interference.
As far as Vijay Preet Singh is concerned, the matter stands on a different footing. His name finds place in the FIR. Not only that he was present at the place of offence with a weapon (gandasi) but was also arrested by the police from the scene of offence. His name was, however, excluded and charge sheet was not submitted in pursuance of an application made by his father. It was the allegation of the complainant that the said action was taken with a view to oblige Sukhvinder Singh, father of Vijay Preet Singh who was Chairman of Panchayat Samiti.
Prima facie, in the light of factual scenario, the submission on behalf of the appellant is well-founded that name of Vijay Preet Singh ought to have been included in the charge sheet and the application u/s 319 of the Code deserves to be allowed. The ld counsel for the accused, however, referring to Mohd. Shafi, submitted that in the said decision, this Court held that the jurisdiction u/s 319 of the Code can be exercised by the Court only if the Court is satisfied that in all likelihood such person would be convicted.
Following the judgement in the case of Mohd. Shafi [2007 (4) TMI 735 - SUPREME COURT], We have reproduced Section 319 of the Code in the earlier part of the judgment. Bare reading of sub-section (1) leaves no room of doubt what it requires. It states that for addition of accused, it must appear to the Court from the evidence that any person not being the accused has committed any offence for which such person should be tried along with other accused.
The test formulated in Mohd. Shafi substantially curtails discretionary power of the Court conferred by the Code under sub- section (1) of Section 319. Even on this point, therefore, the matter requires fresh consideration.
We, therefore, refer the following two questions for the consideration of a Bench of three Hon'ble Judges;
(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application u/s 319 is not maintainable unless the cross-examination of the witness is complete?
(2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?
We direct the Registry to place the matter before the Hon'ble the Chief Justice of India for taking an appropriate action.
Ordered accordingly.
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2008 (11) TMI 716 - SC ORDER
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... ... ..... remitted the matter to it to be dealt with afresh. The decision in the said case shall apply to the facts of the present case. 2. The appeal will be heard afresh by the appropriate bench of CEGAT which is presently known as Customs, Excise & Service Tax Appellate Tribunal (in short the ‘CESTAT’). 3. Since the matter is pending for long, we request the CESTAT to dispose of the appeal as early as possible preferably by the end of February, 2009. 4. The appeal is allowed.
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2008 (11) TMI 715 - SUPREME COURT
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... ... ..... ty to amend the writ petition. He filed such an application only after 16 months. However, the writ petition itself was withdrawn and only in October 2006, the present writ application was filed. From the facts as noticed hereinbefore, there can, therefore, be no doubt that from May 2004 to October 2006, the respondent did not take any step to challenge insurance of the letter of intent granting dealership in favour of appellant. 18. Considering the fact that starting of a business in LPG dealership requires a huge investment and infrastructure therefor is required to be provided and a large number of employees are to be appointed therefor, we are of the opinion that the High Court committed a serious error in not taking these factors into consideration in proper perspective. The impugned judgment, therefore, cannot be sustained and is set aside accordingly. 19. The appeals are allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2008 (11) TMI 714 - SUPREME COURT
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... ... ..... tween the applicant-Company and the respondent would, therefore, be covered by Clause 12 of the Agreement which provides for arbitration. Hence, the contention of the learned counsel for the respondent that the respondent was merely an employee and there was no element of business, trade or commerce has no substance and must be rejected. 33. For the foregoing reasons, in my opinion, the application filed by the Company must be allowed by holding that the case is covered by clause (f) of sub-section (1) of Section 2 of the Act. It is a case of International Commercial Arbitration and is covered by Clause 12 of MoU. Since there is a dispute between the parties, it has to be decided by an arbitrator. The clause extracted hereinabove provides for an arbitrator i.e. sole arbitrator and hence only one arbitrator should be appointed. I, therefore, appoint Mr. Madhukar Fanse, retired Judge, City Civil Court, Ahmedabad as the sole arbitrator to decide the dispute between the parties.
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2008 (11) TMI 713 - BOMBAY HIGH COURT
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... ... ..... ) E.L.T. 246. The goods were removed for in-house testing and proper accounts were maintained and, therefore, the payment of duty was not necessary on the goods while they were removed for in-house testing. No question of law arises. The appeal is rejected.
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2008 (11) TMI 712 - DELHI HIGH COURT
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... ... ..... payment of decretal amount, the aforesaid transactions are entered into, which are allegedly sham), it is Mr.Aushim Khetrapal who suppressed the aforesaid facts and sold the property to Mr.Rahul Mullick, who in turn sold it to the respondent No.2. Therefore, the respondent No.2 or his predecessor-in-interest (Mr. Rahul Mullick) are duped by Mr.Aushim Khetrapal, which cannot affect the interest of the decree holder adversely. 14. We are, thus, of the view that for satisfaction of the decree in favour of the appellant, property in question can be put to auction. Accordingly, we allow this appeal, aside the order dated 12.3.2008 and dismiss the objections of the respondent No.2. 15. Since the earlier auction purchaser has already withdrawn the amount deposited by this Court, the trial court shall issue fresh proclamation of sale of the property in question and proceed further from that stage. Matter shall be listed before the learned Single Judge for this purpose on 8.12.2008.
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2008 (11) TMI 711 - DELHI HIGH COURT
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... ... ..... on of the dispute. And when the execution is filed for recovery on the basis of an Award passed, an objection is taken that the execution is not maintainable on account of ouster provision contained in the arbitration agreement. We consider that the said clause is irrational and is in violation of constitutional mandate. 30. In view of our above said discussion and the facts and circumstances of the present case, we hold that the finding of the learned single Judge that the execution proceedings are not maintainable as there is no adjudication which civil court can recognize in view of the ouster clause in the arbitration agreement between the parties are not correct. 31. For the reasons stated hereinabove, the appeal hereby succeeds. The impugned order passed by the learned Single Judge is set aside. The execution petition filed by the appellant is restored. Parties are directed to appear before the learned Trial Court on 16th January, 2009 for further directions. No costs.
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2008 (11) TMI 710 - CESTAT AHMEDABAD
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... ... ..... 1997-98 to 2002-2003. 2. Heard both sides. We find that we need not to go into the merits of the case in view of Larger Bench decision in the case of M/s. Hindustan Zinc Ltd. v. CCE, Jaipur reported in 2008-TIOL-1149-CESTAT-DEL-LB 2008 (11) S.T.R. 338 (Tribunal-LB), wherein it was held that prior to 1-5-2005, the respondent was not liable to pay the tax wherein services were provided by foreign service provider who did not have office in India. The demand relates to the period 1997-98 to 2002-2003. 3. Therefore, on the ground of limitation alone, the appeal is rejected. Cross objection also gets disposed of.
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