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Case Laws
Showing 21 to 40 of 822 Records
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2009 (1) TMI 926
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... ... ..... urt - "Whether the Appellate Autherities were correct in holding that the provision of ₹ 57,56,142/- made by the assessee toword provision for warranty based on estimate was allowable deduction as it had accrued on the date of sale despite the same being a contingent liability? 5. However, it has not been disputed before us that the similar question had come up for consideration before a Division Beanch of this court in ITA No. 438-444/02 decided on 21/09/2007. We have critically gone through the said judgment and find that it applied in all forms to the facts of the case. 6. The Division Bench after considering the matter form all angles decded the question in fovour of the assessee and against the revenue. In view of this we also follow the said judgment and hold that the aforesaid question of law as projected in this appeal has to be answerred in favour of the assessee and against the revenue, We accordingly do so. 7. Thus this appeal stands finally disposed of.
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2009 (1) TMI 925
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... ... ..... by the publication in the newspaper 'The Statesman' Delhi edition but no one appeared on behalf of the Defendant No.1 before the Joint Registrar on the said date and even before the Court on 09.01.2009 when the two applications under Order 6 Rule 17 CPC filed by the plaintiff were considered. The Defendant No.1 is accordingly proceeded ex parte. 17. The matter be listed before Joint Registrar on 24th February, 2009 for completion of the pleadings and pending application. I.A. No.10454 /2007 (U/o X Rule 1 CPC r/w 151 CPC (By Defendant No.2 for deletion of name) 18. In view the order passed in the application filed by the plaintiff under Order 6 Rule 17 r/w 151 of CPC, the present application for deletion of the name of Defendant No.2 from the plaint is dismissed as infructuous. 19. It is needless to mention that the observations made herein will not effect the merits of the controversy, and the merits of the statements are to be examined during the course of the trial.
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2009 (1) TMI 924
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... ... ..... said judge. It would be useful to refer to the observations of Justice P.N. Bhagwati in Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 "One of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. The question is not whether the judge is actually biased or has in fact decided partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. If there is a reasonable likelihood of bias it is in accordance with natural justice and common sense that the judge likely to be so biased should be incapacitated from sitting'. The basic principle underlying this rule is that justice must not only be done but must also appear to be done." Accordingly, we accept this appeal, set aside the impugned order of the High Court of Gujarat at Ahmedabad and remit the case to the High Court to decide it afresh in accordance with law.
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2009 (1) TMI 923
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... ... ..... inee Directors appointed by financial institutions are not in the control of books of accounts or registers of the company, they cannot be held guilty for failure to hand over these registers to the Official Liquidator. The appellants are not charged with any overt act amounting to an offence under any provisions of the Companies Act. On the other hand, allegation is only on their failure or omission to do certain things, which as members of the Board of Directors, the appellants were not bound to do. As already found, the omissions alleged were not acts required to be done by the appellants as nominee Directors of financial institutions and so much so, the offences alleged are not maintainable against them. We, therefore, hold that the conviction and sentence of the appellants for offences punishable under Sections 454(5), 538(1)(c) and 541(1) of the Companies Act are unauthorised and we, therefore, allow the appeals by setting aside the impugned orders of the Company Court.
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2009 (1) TMI 922
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... ... ..... time that the deposits were expressly provided for by the circular of 31.07.1995. He also pointed out that paragraph 2 of the circular dated 31.07.1995 itself draws a distinction between credits and other operations on these accounts by resident power of attorney holders. This is apparent from the expressions used in paragraph 2 of the said circular itself. He further submitted that the instructions with regard to permitting credits were stipulated for the first time in the circular dated 31.07.1995. 5. I agree with the submissions made by Mr Haksar and am of the view that the instructions given to the learned counsel at the time when the order dated 19.04.2007 was passed were correct and were in accord with what the circular dated 31.07.1995 as well as the paragraphs of the Exchange Control Manual, 1987 and the Exchange Control Manual, 1993 provided. In view of this, there is no basis whatsoever for seeking recall of the order dated 19.04.2007. The application is dismissed.
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2009 (1) TMI 921
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... ... ..... n 1000 sq. mts. of survey No. 803 (new No. 246/2) and, thereafter report the matter to the Development Authority which shall, in turn, submit a report to that effect to Goa Bench of the Bombay High Court. (ii) If the appellants fail to demolish the building and report the matter to the Development Authority within the time specified in direction No. (i) above, the concerned authority shall take action in accordance with paragraphs (a) and (b) of the operative part of the High Court's order. (iii) The access shown in plan Exhibit-A attached to Writ Petition No. 141/1992 shall be kept open without any obstruction of any kind from point A' to B' in order to come from Machado's Cove and then go to the beach beyond point B'. If during pendency of the litigation, appellant No. 1 has put up any obstruction or made construction to block or hinder access to the beach through survey No. 803 (new No. 246/2), then the same shall be removed within one month from today.
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2009 (1) TMI 920
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... ... ..... n were pitted against each other, the cause of substantial justice deserved to be preferred. 11. It also needs to be mentioned here that in the case of Meghraj Baid v. ITO (2008) 114 TTJ (Jd) 841 (2008) 4 DTR (Jd)(Trib) 509 the Tribunal held that the word 'may' used in Sub-section (2) of Section 50C signified that in case the AO was not satisfied with the explanation of the assessee, he 'should' refer the matter to the DVO. In other words, the Tribunal was of the view that 'may' be read as 'should'. 12. In view of above discussion, we are of the considered opinion that the matter needs to be remitted back to the file of the AO in both the cases. He should re-examine the issue in the light of the directions given in the above paras, and as per law, and should pass fresh orders after giving adequate opportunity of being heard to the assessees. 13. In the result, both the appeals filed by these two assessees, are allowed for statistical purposes.
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2009 (1) TMI 919
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... ... ..... t to deposit the rent before the Rent Controller, is not maintainable and hence the learned Rent Controller rightly dismissed R.C.O.P.No.14 of 1996. The reversal of the said order by the Rent Control Appellate Authority in R.C.A.No.5 of 1997 is not sustainable and the same is liable to be set aside and accordingly set aside. o p /o p 22. In the result, C.R.P.(NPD)No.475 of 2004 is allowed and the order passed in R.C.A.No.6 of 1997 dated 21.8.2003 is set aside and the matter is remitted back to the Rent Control Appellate Authority viz., Subordinate Court, Virudhunagar, for fresh consideration and to pass fresh orders in accordance with law. o p /o p C.R.P.(NPD)No.476 of 2004 is allowed. The order dated 21.8.2003 in R.C.A.No.5 of 1997 passed by the Rent Control Appellate Authority (Subordinate Court), Virudhunagar, is set aside and that of the Rent Control Authority (District Munsif Court), Virudhunagar, in R.C.O.P.No.14 of 1996 dated 19.2.1997 is confirmed. No costs. o p /o p
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2009 (1) TMI 918
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... ... ..... onary power with the court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the court in such matters should be to advance the cause of justice and not the cause of technicalities. A case as far as possible should be decided on merits and the party should not be deprived to get the case examined on the merits. 11) In view of above, in our opinion, we cannot sustain the impugned orders passed by the High Court, and therefore, the same requires to be set aside and the writ petition requires to be restored. 12) Accordingly, we set aside the impugned orders. We restore the writ petition on the file of the High Court. We request the High Court to consider the writ petition on merits as expeditiously as possible at any rate within an outer limit of six months from the date of receipt of copy of this order, after issuing notice to all the parties concerned. 13) The appeals are disposed of accordingly. No order as to costs.
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2009 (1) TMI 917
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... ... ..... ount to abandonment or waiver of the right to invoke arbitration. 24. Accordingly, the present application under Section 45 of the Act is allowed and the parties are referred to arbitration. 25. This Court by Order dated 18th February, 2008 has granted interim injunction. The said interim injunction order still continues. The Order will continue further for a period of 60 days to enable the plaintiff to take appropriate steps by either initiating legal proceedings under Section 9 of the Act or before the arbitrators. Similarly, defendant Nos. 1 and 2 will be entitled to contest those proceedings on merits. It is clarified that this Court while adjudicating the present application has not gone into the merits and demerits of the interim order and also merits of the case inter se the parties. Any observation in this regard will not be binding on subsequent legal proceedings between the parties. 26. Accordingly, the application and the suit is disposed of. No order as to costs.
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2009 (1) TMI 916
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... ... ..... party is not permitted to resile from the same. It attains finality to the dispute between the parties finally and binds all. Therefore, the order in this regard need no interference. 17. Once the parties entered into compromise before the Lok Adalat, & at that time no question of any pecuniary jurisdiction raised and or required to be considered by the Lok Adalat. Therefore, once the award is passed, it is executable under C.P.C. There is no dispute as recorded that as per the Bombay Civil Courts Act, 1869 (Amended Act- 1998) the peculiar jurisdiction of Court of Civil Judge, Junior Division is restricted to one lack rupees. In the facts and circumstances of the case, I am not inclined to dismiss the execution application on that count. It will frustrate the whole object of settlement and the award under the Act. The Petitioners got the benefit of settlement and yet not paid the amount till this date. 18. Resultantly, the Petition is dismissed with no order as to costs.
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2009 (1) TMI 915
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... ... ..... he provisions of the Hindu Adoption and Maintenance Act, for which he has replied that no such powers have been conferred on the Family Court, Coimbatore, to try such matters. When there is no specific powers conferred on the Family Court, Coimbatore to try the matters relating to adoption, it has no jurisdiction to entertain any claim in this regard and the order passed by the said Court without jurisdiction is non-est in the eye of law. 14. In these circumstances, this Court is of the considered view that the powers exercised by the Family Court, Coimbatore in the matter of adoption is not in accordance with law and this Court has to set aside the orders passed by it and the order impugned is set aside. The petition deserves to be allowed. 15. In fine, the Civil Revision Petition is allowed, setting aside the order passed by the learned Judge, Family Court, Coimbatore in HAMOP.No.443/2005 dated 26.09.2005. Consequently, connected Miscellaneous Petition is closed. No costs.
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2009 (1) TMI 914
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... ... ..... e other offence, it is not necessary to follow in all cases the conditions incorporated in Sec. 42. 12 However, it may also be noted that by way of abundant precaution, the PSI Mr. Pandya though he was investigating the offence registered with CR No. 135 of 1995 under the NDPS Act, upon receipt of an intimation or information about the present offence, also noted down such an information taken down in writing, which is produced at Exh. 30, and such information was transmitted through a messenger immediately to the higher officers. Not only that this part of the procedure, by way of abundant precaution, exercised and followed by the PSI, is also manifestly recorded in the complaint at Exh.32. 13 Additionally, the question as to whether the officer who conducted the proceedings was empowered officer or not was not raised before the trial court and the High Court and, therefore, that plea cannot be entertained. 14 The appeal is without merit, deserves dismissal which we direct.
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2009 (1) TMI 913
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... ... ..... nsciously and deliberately invoked jurisdiction of this Court, in view of the litigation and issues pending before the Bombay High Court. 37. It is appropriate to repeat that principle of 'forum non-convenience' can be applied rarely when there are overwhelming facts and interest of justice requires that a Court that has jurisdiction should not adjudicate the suit/legal proceedings. The said principle is not to be applied liberally but with great caution and care and only when failure to do so, shall result in abuse of process of Court and cause grave injustice. 38. The plaints are accordingly directed to be returned and rejected. The plaintiffs, if advised, are at liberty to file a fresh suit(s) before the Bombay High Court. There is no order as to Costs. It is clarified that any opinion expressed on merits is only for the purpose of deciding and passing the present order and are not binding and will not influence any other or future litigations between the parties.
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2009 (1) TMI 912
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... ... ..... e Depositories are also very important and responsible market intermediaries and they are not expected to work at cross purposes with the Board. In the case of IPO scam too, the immediate remedy and the further follow up action ought to be decided by the Board and the two Depositories together rather than through the Board’s punitive action against the former. Most of the data on the basis of which the Board has conducted investigations into the IPO scam and fixed responsibilities on the key operators and the financiers has emanated from the data bases of the two Depositories. Having relied upon and utilised such data gleaned from the two Depositories without having any doubts about its integrity, we do not think it is open for the Board to allege lack of data integrity in respect of NSDL. For the reasons recorded above, the charges against both the appellants fail and their appeals succeed. The impugned orders are set aside leaving the parties to bear their own costs.
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2009 (1) TMI 911
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... ... ..... rejudicial to their interest nor to public interest. The Court therefore grants its sanction to the Scheme and prayers made in Para 34 of the petition are hereby granted. 18. It is worthwhile to mention here that as per the statement made by Mr. Soparkar, the transferor company no.2 has filed a Company Petition for the purpose of obtaining sanction to the scheme of amalgamation with the transferee company, before the High Court of Tamilnadu and the scheme has been sanctioned by the Court vide its order dated 18.12.2008. This is one more reason for the Court to grant its sanction to the Scheme. 19. The fees for the Central Government Counsel are quantified at ₹ 3,500/ (Rupees Three Thousand Five Hundred Only) and the same shall be paid by the petitioner to Mr. Harin P. Raval, the learned Asst. Solicitor General of India directly by way of A/c. Payee Cheque in his favour. 20. Subject to the aforesaid directions and observations, this petition is accordingly disposed off.
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2009 (1) TMI 910
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... ... ..... with option to redeem on payment of a fine of ₹ 12 lakhs and a penalty of ₹ 2 lakhs has been imposed upon the appellants. Although ld. counsel for the appellants only pleads for reduction in the quantum of fine and penalty, while not contesting liability of the goods to confiscation, we find that in the absence of determination of margin of profit, we are unable to take a decision on what should be the amount of fine and penalty to be paid by the appellants. We, therefore, see any option but to set aside the impugned order and remit the case to the Commissioner for fresh decision first on the margin of profit in respect of goods in question and then arrive at the amount of fine leviable and penalty imposable. Fresh orders are to be passed within 3 months from the date of receipt of this order after extending a reasonable opportunity to the appellants of being heard in defence. 3. The appeal is thus allowed by way of remand. (Dictated and pronounced in open court)
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2009 (1) TMI 909
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... ... ..... could not be straightaway substituted for the actual cost that was recorded in the assessee's books. The Tribunal had not found that the books maintained by the assessee were not credible. In those circumstances of the case, the Division Bench found fault with the order of the Tribunal in accepting the valuation of the house properties. The facts are identical in this case. As stated earlier, the books of accounts have not been rejected by the AO as not credible. In those circumstances of the case, the Tribunal has taken a correct view that the valuation reflected in the books of accounts has to be taken, rather than the one furnished by the Valuation Officer. Hence, we do not find any merit in this appeal. In the facts and circumstances of the case and in the light of the decision of the Division Bench referred to supra, the question of law framed has to be answered in the affirmative against the Revenue and in favour of the assessee. The appeal is dismissed. No costs.
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2009 (1) TMI 908
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... ... ..... on bail. 50. Hence, bail application is allowed, petitioner is ordered to be released on bail on his furnishing personal bond in the sum of ₹ 1,00,000/- (Rupees one lac only) with two sureties in the like amount each having immovable properties in Delhi to the satisfaction of the trial court subject to the condition that he shall not leave the NCT of Delhi without the leave of the court and in case he is permitted to leave NCT of Delhi, he shall keep the intelligence officer fully informed about his whereabouts and his latest address. His passport shall not be returned back to him under any circumstance till the trial of the case is over. He shall report to the Intelligence Officer on First and Third Monday of every month at 10.00 A.M. and shall cooperate in the investigation of the case and shall not in any manner try to influence or temper with the investigation. Attested copy of the order be sent to the trial court as well as to the State through special messenger.
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2009 (1) TMI 907
Appointment for the post of Lower Primary/Upper Primary School Assistants - Kerala Public Service Commission ("the Commission") prepared a rank list - Appellants name figured therein - appellant contended that as their names appeared in the `rank list' and they being seniors to some of the original writ petitioners they should also be directed to be appointed.
The legality and/or the validity of Government Order dated 15.1.2002, as noticed hereinbefore, was questioned, inter alia, on the premise that the actual vacancy position had been suppressed by the State.
HELD THAT:- The matter might have been different, had the learned single judge as also the Division Bench come to a conclusion that in fact there existed 125 vacancies wherefor requisition was sent to the Commissioner. The existence of actual number of vacancies being in dispute, it is difficult for us to opine as has been contended by the ld counsel that all such vacancies existed. Before the Division Bench of the High Court, the State conceded that 18 original writ petitioners may be appointed stating that they were the actual beneficiaries of the judgment. Such a stand on the part of the State was accepted. The Division Bench of the High Court did not go into the other contentions raised by the parties thereto. No factual foundation, therefore, has been laid before us for arriving at the conclusion that all the 125 vacancies existed.
There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list.
In Shankarsan Dash vs. Union of India [1991 (4) TMI 444 - SUPREME COURT], a Constitution Bench of this Court held that the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.
Furthermore, the rank list was valid for a period of three years. Its validity expired on 5.6.2000. Another Select List was published for the period from 16.9.2002 to 15.9.2005. Vacancies in terms of the said Select List have also been filled up.
It is also well settled principle of law that "delay defeats equity". Government Order was issued on 15.1.2002. Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an appeal thereagainst, they impleaded themselves as party respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage.
Therefore, we see no merit in this appeal. It is dismissed accordingly.
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