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2009 (11) TMI 991
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... ... ..... in S.B.P. and Co. v. Patel Engineering (2005) 8 SCC 618 (para 47), are fully satisfied in the instant case. Under the circumstances this Court is of the opinion that the application will have to be allowed. 10. For the foregoing reasons, the application succeeds. Mr. Justice D.R. Dhanuka (a retired Judge of Bombay High Court) is appointed as Sole Arbitrator to adjudicate the disputes between the parties that have arisen under the SHA dated December 1, 2005. The learned Arbitrator is requested to enter upon the reference as early as possible and do the needful in accordance with law. The learned Arbitrator would be entitled to determine his own fees receivable from the parties. It is made clear that no part of the dispute is decided by this Court on merits and all the questions including arbitrability of the dispute are left open to be decided by the learned Arbitrator. Subject to above mentioned clarifications, the application is allowed. There shall be no order as to costs.
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2009 (11) TMI 990
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... ... ..... that similar issue for the assessment year 2003- 04 in ground no.6 has come up before us. Therein we have directed the AO to disallow only 1/10 of the expenses. Following the same stand, here also we direct the AO to disallow 1/10 of these expenses. Accordingly, ground no.2 of assessee's appeal is partly allowed. 65. In sum and substance appeals bearing no.1409/Ahd/2007 of the assessee and 2182/Ahd/2007 of the assessee are partly allowed, 1749/Ahd/2007 and 2204/Ahd/2007 of the revenue are allowed for statistical purposes and 1145/A/2008 and 1828/Ahd/2009 of the assessee are partly allowed. Order pronounced in the open court on 4.11.2009 Sd sd (D.T.G AR ASI A) (P.K.BANS AL) Judicial Member Accountant Member Baroda, On this 4 t h day of Nov 2009 SRL5119 Copy of the order is forwarded to - 1. Appellant 2 .Respondent 3. CIT(A)-concerned 4. Commissioner of Income Tax Concern 5. The DR, Varodara Bench, Vadodara 5. Guard File By Order True copy Deputy Registrar, ITAT, Ahmedabad
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2009 (11) TMI 989
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... ... ..... nd for the same rate . It is obvious that the object of the appellant and its clients was to defeat/manipulate the price and order matching mechanism of the Stock Exchange. The trades are obviously manipulative. The appellant in this case has also been guilty of violating the code of conduct prescribed by the broker regulations and we have no reason to disagree with the findings recorded by the adjudicating officer. When the buyers and the sellers came to the appellant, it was its duty to ensure that the trades were not manipulative. The kind of trading system that we have, the buyers should not bother as to who the seller is and the seller need not know who the buyer is. The trade usually becomes manipulative when a particular buyer wants to buy from a particular seller and vice versa. This is done only by manipulating the system mechanism and this is what the appellant appears to have done. In the result, the appeals fail and they stand dismissed with no order as to costs.
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2009 (11) TMI 988
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... ... ..... liable to be referred to arbitrator. 99. I am of also of the view that since the named arbitrator Sri Hari has declined to act as an arbitrator, the applicant rightly sought recourse to the remedy available to him under Section 11(6) of the Act before this Court. As the section expressly contemplates that where a named arbitrator fails or refuses to act, it is open to a party to approach the court to avail remedy provided under Section 11(6) of the Act, 1996. 100. I accordingly appoint a retired Judge of this Court namely Mr. Justice M.C. Agarwal (subject to his consent) who will act as an arbitrator in the matter. I fix his remuneration of ₹ 20,000/-per sitting along with 15 clerk age to be paid to him in advance before each sitting. The remuneration of the arbitrator shall be borne 1/2 share by both the parties. 101. Thus the application is allowed as above. Registrar - General of this Court is directed to communicate this order to Mr. Justice M.C. Agarwal forthwith.
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2009 (11) TMI 987
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... ... ..... see during the current assessment year, as per the provisions of the Income Tax Act? 3. At the outset, questions of law framed in this appeal are to be answered in favour of the revenue provided the assessee had knowledge about M/s Blue Mountain Food Products in its books of accounts written off the amount payable by the assessee. In such circumstances, Assessing officer would have been justified in treating the said amount as an income in the hands of the assessee for the relevant assessment year. When the assessee was not aware of M/s Blue Mountain Food Products Ltd. treating the transaction as written off behind its back, no court can find fault with the return filed by the assessee. Therefore, whether the amount received as advance for supply of liquor to M/s Blue Mountain Food Products was written off or not is a question of fact. Accordingly, we dismiss this appeal confirming the judgment of the order of the tribunal as well as the Commissioner of Income-Tax (Appeals).
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2009 (11) TMI 986
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... ... ..... by setting aside the order dated 13th August, 2006 passed by the Commissioner of disabled person in case No. 253 of 2007. Learned advocate for the appellant has submitted that because of disability, the appellant did not remain present in duty and thereafter the order of dismissal was passed. We do not find any substance in the submissions advanced by learned advocate for the appellant. Learned advocate for the appellant candidly admits before the Court that there is lapses on the part of the appellant in conducting the case and certain documents, which were necessary, were not produced. Even those documents, worth the same, were not shown to us. In view of the aforesaid facts and circumstances of the matter, no interference is required in the matter. Therefore, appeal is rejected. ORDER IN CIVIL APPLICATION NO. 10949 OF 2009 - - In view of the dismissal of Letters Patent Appeal No. 1988 of 2009, the present Civil Application does not survive and is accordingly disposed of.
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2009 (11) TMI 985
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... ... ..... ect of the project itself. There is no specific interim reliefs as prayed was granted in favour of the plaintiff till this date. Defendant No. 2, as averred and as recorded, made the payment/charges to Urban Development Department and has obtained all the approvals for construction of the proposed hospital. The personal allegation even if any made that itself cannot be the reason, unless proved, to overlook the other material on record which are against the plaintiff and other contesting defendants including the company. 61. In view of the above, I am not inclined to grant any relief. The Notice of Motion is accordingly dismissed. No costs. 62. The learned Counsel appearing for the plaintiff seeks stay of this judgment to prefer an Appeal. The learned senior Counsel appearing for the defendants Mr. F.E. Devitre, has opposed the same. Considering the controversy, I am inclined to observe that this Judgment will take effect after two weeks from today. Certified copy expedited.
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2009 (11) TMI 984
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... ... ..... ment of the Arbitrator and had therefore submitted to the jurisdiction of the said Arbitrator and thereafter participated in the proceedings before the said Arbitrator. It would also be pertinent to note that the decree substantially has been satisfied as the petitioner was allowed to withdraw the amount of ₹ 13,80,038/-, which was deposited by the respondent in the Executing Court. The Execution proceedings have been filed only to recover the balance amount of ₹ 1,97,879/-. In my view, the said aforesaid facts also cannot be lost sight of by this Court. However, in the light of the judgment of the Apex Court, in Milkfood Ltd. (supra), in my view, the issue as regards the date when the proceedings for arbitration are deemed to have been commenced is concluded. The impugned order dated 20.09.2001 is therefore quashed and set aside. The petition is accordingly allowed by making the Rule absolute in terms of prayer Clause (a). Parties to bear their respective costs.
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2009 (11) TMI 983
Jurisdiction of a forum court in suits involving internet related disputes - Infringement of patent of the appellant/plaintiff - jurisdiction of a court to entertain complaint filed - word mark and the device adopted by the Defendants in relation to their retreat is deceptively similar to that of the plaintiff - The plaintiff claims that it is part of a group of companies involved in the hospitality business. Since 1994 it adopted and used the word mark "Banyan Tree and also the banyan tree device. It is claimed that on the account of the extensive and continuous use by the plaintiff of the said mark and device in relation to its business, they have acquired secondary meaning, have become highly distinctive and have come to be associated with the plaintiff and its sister concerns. The plaintiff maintains the websites www.banyantree.com and www.banayantreespa.com since 1996. The said websites are accessible in India.
HELD THAT:- This Court is not able to accept the submission of the learned Counsel for the plaintiff that the test of "purposeful availment" must be replaced by the test of "purposeful avoidance". While the Defendant may in his defence show how he avoided the forum state, the initial burden is on the plaintiff to show that the Defendant "purposefully availed" itself of the jurisdiction of the forum court. The issue of incorporating filters to block access to the website by viewers located outside the forum state will have to be considered while deciding if the Defendant had "purposefully avoided" the forum state. However, that question will arise only if the plaintiff has been able to show that the website of the Defendant is interactive and permits commercial transactions to be concluded by the Defendant with a user of the website.
This Court holds that jurisdiction of the forum court does not get attracted merely on the basis of interactivity of the website which is accessible in the forum state. The degree of the interactivity apart, the nature of the activity permissible and whether it results in a commercial transaction has to be examined.
For the "effects" test to apply, the plaintiff must necessarily plead and show prima facie that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the plaintiff within the forum state.
For the purposes of a passing off or an infringement action (where the plaintiff is not located within the jurisdiction of the court), the injurious effect on the plaintiffs business, goodwill or reputation within the forum state as a result of the Defendants website being accessed in the forum state would have to be shown.
Naturally therefore, this would require the presence of the plaintiff in the forum state and not merely the possibility of such presence in the future. Secondly, to show that an injurious effect has been felt by the plaintiff it would have to be shown that viewers in the forum state were specifically targeted. Therefore the "effects" test would have to be applied in conjunction with the "sliding scale" test to determine if the forum court has jurisdiction to try a suit concerning internet based disputes. The question No. (i) is accordingly answered.
Extent of burden of proof on the plaintiff to prima facie show that the Defendant has purposefully availed of the jurisdiction of this Court - This Court holds that in order to prima facie establish that the Defendant purposefully availed of the jurisdiction of this Court, the plaintiff would have to show that the Defendant engaged in some commercial activity in the forum State by targeting its website specifically at customers within that State.
A mere hosting of a website which can be accessible from anyone from within the jurisdiction of the court is not sufficient for this purpose. Also a mere posting of an advertisement by the Defendant depicting its mark on a passive website which does not enable the Defendant to enter into any commercial transaction with the viewer in the forum state cannot satisfy the requirement of giving rise to a cause of action in the forum state. Even an interactive website, which is not shown to be specifically targeted at viewers in the forum state for commercial transactions, will not result in the court of the forum state having jurisdiction.
In sum, for the purposes of Section 20(c) CPC, in order to show that some part of the cause of action has arisen in the forum state by the use of the internet by the Defendant, the plaintiff will have to show prima facie that the said website, whether euphemistically termed as "passive plus" or "interactive", was specifically targeted at viewers in the forum state for commercial transactions. The plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by the Defendant with a user of its website within the forum state and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the plaintiff within the forum state. Question No. (ii) is answered accordingly.
Permissibility for the plaintiff to establish such prima facie case through "trap orders" or "trap transactions" - A lone trap transaction will not be sufficient evidence of infringement or passing off. For the purposes of establishing that a part of the cause of action arose within the jurisdiction of the court, the plaintiff would have to show that the Defendant has purposefully availed of the jurisdiction of the forum court by entering into a commercial transaction with an internet user located within the jurisdiction of the forum court. This cannot possibly be a solitary trap transaction since that would not be an instance of "purposeful" availment by the Defendant. It would have to be a real commercial transaction that the Defendant has with someone not set up by the plaintiff itself. If the only evidence is in the form of a series of trap transactions, they have to be shown to be obtained using fair means. The plaintiff seeking to establish jurisdiction on the basis of such trap transactions would have to aver unambiguously in the plaint, and also place along with it supporting material, to prima facie show that the trap transactions relied upon satisfy the above test. Question (iii) is answered accordingly.
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2009 (11) TMI 981
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... ... ..... have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. " The power of the Court to suo moto pass orders in terms of Section 9 of the Act is therefore, preserved. Section 94 read with Section 151 C. P. C also invests the Court with inherent power to pass interlocutory orders as may appear to the Court to be just and convenient to prevent the ends of justice from being defeated. (See Vareed jacob v. Sosamma Geevarghese and Others, AIR 2004 SC 3992.) In the interest of justice, and to bring the parties to an even keel, as we were seized of the appeal. We had the jurisdiction to pass the order dated 12. 01. 2009 as jurisdiction to pass the order dated 12. 01. 2009 as corrected on 6. 2. 2009. We, therefore, reject this submission as well. ( 30. ) For the aforesaid reasons, we dismiss this application with costs quantified at ₹ 50,000/- to be paid by the respondents/applicants to the appellant within two weeks.
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2009 (11) TMI 980
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... ... ..... entral Excise, Ahmedabad vs Lucy Plast Ltd 2007 (220) ELT 320 (Tri-Del), (b) Commissioner of Central Excise, Ahmedabad vs Pole Star Industries Ltd 2007 (216) ELT 257 (Tri-Ahmedabad), (c) Cosmic Dye Chemicals vs Commissioner of Central Excise 1995 (75) RLT 721 (SC) and (d) Reina Dying & Printing Works vs Commissioner of Central Excise, Surat I 2007 (209) ELT 190 (Tri-Mumbai). 5. In the aforesaid circumstances, I am inclined to allow this appeal by way of remand. Accordingly, after setting aside the orders of the lower authorities, I direct the original authority to pass fresh order of adjudicating in accordance with law and the principles of natural justice. It is particularly directed that the appellant be allowed to cross examine Shri Umesh Modi as also to obtain certified extracts from the original records recovered from him. It goes without saying that the appellant should be given a reasonable opportunity of being heard. 6. The appeal stands allowed by way of remand.
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2009 (11) TMI 979
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... ... ..... cluded that the sale of the shares took place in March, 2001. We have already dealt with this aspect of the matter earlier in our order and we cannot agree with the findings recorded in this regard. As already observed, the trades may have been contrary to the Bye-laws of the Exchange but it cannot be said that the contract was not completed in September, 2000. If the sale did not take place in September, 2000 then what was the Broker reporting to the stock exchange as per its letter dated September 16, 2000. We have already noticed that the Bombay Stock Exchange had acknowledged the receipt of this letter from the Broker in its letter of November 26, 2002. In this view of the matter, the charge must fail. Accordingly, we answer the question posed in the opening part of our order in the negative and hold that the appellants are not guilty of insider trading. In the result, the appeals are allowed and the impugned orders set aside, leaving the parties to bear their own costs.
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2009 (11) TMI 978
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... ... ..... e the Commissioner of Customs, Trichy vide his order dated 28.3.2001 has imposed redemption fine of ₹ 2.50 lakhs and imposed a penalty of ₹ 50,000/- under Section 112A of the Customs Act in a case involving duty amount of ₹ 36,38,536/-. The learned counsel fairly states that the appellants, to the best of his knowledge, have not appealed against the said order passed by the Commissioner of Customs, Trichy dated 28.3.2001. We are of the view that in the light of the uncontested order passed by the Commissioner of Customs, Trichy, the redemption fine of ₹ 3 lakhs imposed in this case requires to be confirmed. We order accordingly. However, as regards the penalty, we set aside the penalty imposed under Section 114A of the Customs Act, 1962 and direct that a penalty of ₹ 1,00,000/- (Rupees one lakh only) be imposed on the appellants under Section 112A of the Customs Act, 1962. The appeal is otherwise rejected. (Dictated and pronounced in open court)
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2009 (11) TMI 977
Interest payable by the Employer on Earnest Money, Security Deposit or on any money due to the Contractor by the Employer - Application of ejusdem generis rule - Whether Interest can be awarded from the date of the award or before the date of award? - HELD THAT:- When the Legislature before enumerating specific examples uses the words 'without prejudice to the generality of the foregoing provision' the preceding general provision cannot be restricted by applying the rule of ejusdem generis.
A word of caution is here necessary. The fact that the ejusdem generis rule is not applicable does not necessarily mean that the prima facie wide meaning of the word 'other' or similar general words cannot be restricted if the language or the context and the policy of the Act demand a restricted construction.
In the expression 'defect of jurisdiction or other cause of a like nature' as they occur in Section 14(1) of the Limitation Act the generality of the words 'other cause' is cut down expressly by the words 'of a like nature', though the rule of ejusdem generis is strictly not applicable as mention of a single species 'defect of jurisdiction' does not constitute a genus.
The words 'other person' in this section cannot be construed by the rule of ejusdem generis for mention of single species namely 'police officer' does not constitute a genus but having regard to the importance of the power to detain and seize vehicles it is proper to infer that the words 'other person' were restricted to the category of Government Officers.
In the same category falls the case interpreting the words 'before filing a written statement or taking any other steps in the proceedings' as they occur in Section 34 of the Arbitration Act, 1940. In the context in which the expression 'any other steps' finds place it has been rightly construed to mean a step clearly and unambiguously manifesting an intention to waive the benefit of arbitration agreement, although the rule of ejusdem generis has no application for mention of a single species viz. written statement does not constitute a genus"
In the present case we noticed that the clause barring interest is very widely worded. It uses the words 'any amount due to the contractor by the employer'. In our opinion, these words cannot be read as ejusdem generis alongwith the earlier words "earnest money" or "security deposit".
We agree with the submission of Mr. Gaurab Banerji that interest is only payable from the date of the award. However, we do not agree with him that the interest should be reduced because of Section 31(7)(b) of the Arbitration & Conciliation Act, 1996 which clearly states that rate of interest will be 18% per annum.
Shri Gaurab Banerji submitted that in some decisions, a lesser interest has been awarded. We cannot see how a lesser interest can be awarded when the statute specifically provides that the rate of interest will be 18% per annum and the arbitrator has accepted and awarded this rate of interest. Judges cannot legislate or amend the law by judicial decisions. They have to maintain judicial discipline and give their decisions in accordance with law.
Hence the lesser rate of interest cannot be awarded because that would be amending the law which is not within the powers of the judiciary.
We modify the impugned judgment in the light of the observations made above.
Mr. Gaurab Banerji submitted that the appellant had deposited the entire amount in the High Court under the order of this Court. The respondent can withdraw the amount at the rate of 18% per annum for the period after the date of award. The remaining amount will be returned to the appellant.
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2009 (11) TMI 976
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... ... ..... ivity. Therefore, in view of these facts and circumstances, we hold that the profit arising out of sale consideration on account of sale of plot is liable for capital gain and not under the business head. Accordingly, the ground of the assessee is allowed. 8.3 In respect to the remaining grounds, and the additional grounds filed by the assessee, the matter is liable to be set aside to the file of the AO because of the reason that the AO has not granted exemption u/s 54EC for the reason that the sale consideration was treated under the head ‘business income’. Since we have allowed the issue that the sale consideration is liable for capital gain; therefore, allowability of exemption is to be examined as per law. Accordingly, we restore this issue to the file of the AO to pass a fresh order after allowing reasonability opportunity of being heard to the assessee. 9 In the result, the appeal of the assessee is allowed partly as above. Order pronounced on 26th Nov 2009
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2009 (11) TMI 975
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... ... ..... too while recording reasons for reopening. 3. He has further drawn our attention to the factual matrix in para 10.3 of the order wherein reliance is placed upon the judgment of the Tribunal in the case of Surat City Gymkhana V/s. ACIT 76 ITD 327 (Ahd) which has been affirmed by the Supreme Court in the case of Assistant Commissioner of Income Tax V/s. Surat City Gymkhana reported in 2008 300 ITR 214 (S.C.). Thus, the view taken is in consonance with he apex court judgment. 4. So far as the reopening is concerned, the findings of fact is recorded based on the appreciation of evidence with which no fault can be found. 5. In the above view of the matter, the learned counsel for the revenue found it difficult to find fault with the order of the Tribunal. The view taken by the Tribunal is thus reasonable and possible view. In this view of the matter, no substantial question of law arise in the above appeals. All the appeals are thus dismissed in limini with no order as to costs.
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2009 (11) TMI 974
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... ... ..... r Mr. Mohan Parasaran, ASG., Mr. Gaurav Dhingra, Adv., Mr. Naresh Kaushik, Adv., Mr. B.V. Balaram Das,Adv. O R D E R Delay condoned. Dismissed.
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2009 (11) TMI 973
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... ... ..... uthority than the Joint Commissioner of Income Tax. However, in view of the provisions of Section 151 of the Income Tax Act, it was necessary to obtain the approval of the designated authority as statutorily provided namely the Joint Commissioner of Income Tax and even the approval of the higher authority would not serve the purpose. This issue is covered by the judgment of the Supreme Court in Commissioner of Income Tax, Bihar and Orrisa vs. Maharaja Pratapsingh Bahadur of Gidhaur - 41 ITR 421. In view of the aforesaid no question of law arises for consideration. These appeals are accordingly dismissed.
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2009 (11) TMI 972
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... ... ..... eat detail and has rightly reached to the conclusion that the amount deposited in the name of minor sons of the two partners is fictitious. The alleged gifts in favour of the minors has not been established, on evidence, which is a question of fact. It is dismissed summarily.
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2009 (11) TMI 971
Addition u/s 69 - assessee had taken loan from two parties - heavy cash having been deposited in the account of lending Company before issuance of cheques to the assessee - tailor made entires in the books as well as bank accounts - Failure of the assessee to produce the Director of the lending Company for examination - HELD THAT:- Addition was made only for the ground that the Director of lender company was not produced before the revenue. But facts remains that so far as the identity of the lender is concerned, it cannot be questioned because it is a public limited Company and is regularly assessed to income tax having PAN. Therefore, in our considered view, onus is discharged by the assessee by producing necessary evidence. The source of source cannot be examined in view of law laid down in the case of Commissioner of Income Tax (Central), Calcutta Vs. Daulat Ram Rawatmull,[1972 (9) TMI 9 - SUPREME COURT]. No merit in the grounds raised by the revenue in regard to addition.
Unsecured loan from Ms. Pallavi Agarwal during the financial year - Matter was remanded to the Additional Commissioner of Income Tax with a copy to the AO. In her bank account, all credit and debit entries were explained with supporting evidence. Confirmation from her, her account details, return of income details, details of loan returned were also furnished. When it is so, then no interference is required in the impugned order of the Tribunal.
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