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2009 (4) TMI 984 - SUPREME COURT
Suit for specific performance - Application for interim injunction to restrain the appellant from entering into the land and disturbing the possession of the Respondent No.1 and to further restrain the appellant from alienating the land to any third party - filing a suit after 19 years - 280 transferees to whom plots have been conveyed by the owners - leave to construct on the vacant land - suit seeking enforcement of an agreement alleged to have been entered into between the parties on 19th May, 1980, when exemption u/s 20 of the said Act was no longer required - Whether High Court followed the basic principles for granting injunction, when the orders of injunction were passed - HELD THAT:- It is well established, that while passing an interim order of injunction under Order XXXIX Rules 1 and 2 CPC, the Court is required to consider three basic principles, namely, (i) prima facie case; (ii) balance of convenience and inconvenience; and (iii) irreparable loss and injury.
None of the said principles have been considered by the High Court while passing the second and third interim orders dated 22nd April, 2008 and 7th May, 2008, nor has the High Court taken into account the long silence on the part of the Respondent No.1 Corporation in filing a suit after 19 years.
In our view, while passing the interim order dated 7th May, 2008, the High Court ought to have considered the effect which its order would have on the 280 transferees to whom some portions of the land had already been sold and who had commenced construction thereupon, particularly when they were not even parties in the appeal, nor were they heard before they were injuncted from continuing with the construction work. Such an order affecting third party rights in their absence, as they were not parties to the proceedings, cannot be sustained having further regard to the manner in which the said order was passed. An application for an order which would have far and wide reaching consequences was sought to be disposed of by the Division Bench on the very next day without giving an opportunity of controverting the allegations made therein even to those who were parties in the suit, though it had been brought to the notice of the Court that conveyances had been executed in favour of 280 purchasers.
This is not a case where the appellant and the other co-owners had violated any restraint order passed by the Court in transferring the plots in question to the said 280 transferees. The said transfers were effected at a point of time when there was no injunction or restraint order against the appellant and the other owners of the property and as far as the said transfers are concerned, the only order that could have been passed on the said application is the order which was passed at the first instance on 29th January, 2008, based on the principles of Section 52 of the Transfer of Property Act, 1882. The restraint order on the transferees must, therefore, be held to be bad and liable to be set aside.
As far as the lands which the appellant and the other joint owners have been restrained from alienating by the second order dated 22nd April, 2008, are concerned, we are of the view that in the event the order of 22nd April, 2008, is set aside, the Respondent No.1 can be compensated in terms of money and no irreparable loss and injury will be caused to it on account thereof.
On the other hand, if the owners of the property remain restrained from developing the same, it is they, who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against grant of such injunction. The success of the suit for specific performance filed by the Respondent No.1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years, despite the finding of the Trial Court that the suit was not barred by limitation.
We, accordingly, set aside the orders dated 22nd April, 2008 and 7th May, 2008, passed by the Division Bench of the Gujarat High Court and maintain the initial order dated 29th February, 2008. The appeals and the connected Interlocutory Applications are, accordingly, disposed of.
The High Court is requested to dispose of the appeals pending before it at an early date without being influenced by any observations made in this judgment.
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2009 (4) TMI 983 - ITAT DELHI
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... ... ..... 80IA of the Act, it is noticed that the term manufacture or production as used are similar and the intention is similar to the provisions of section 10B. further, it is noticed that various governmental authorities and agencies under different laws have been treating the assessee as a manufacturing unit. Considering all these aspects, it would have to be held that the assessee is doing the business of manufacturing and the assessee is entitled to the deduction claimed under section 10B of the act. This being so, and in the absence of any evidence, documentary or otherwise, to show that the finding as arrived at by the ld. CIT(A) is perverse or on the basis of wrong facts the finding of the ld. CIT(A) would have to be upheld and we do so.” 5. In the light of the above order of the ITAT, the appeal filed by the revenue has not force and the same is liable to be dismissed. 6. In the result, revenue’s appeal is dismissed. Order pronounced in open court on 09-04-2009.
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2009 (4) TMI 982 - ITAT BANGALORE
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... ... ..... o p /o p 12.3. With regard to the applicability of S.292B, the ITAT, Kolkata Bench in its decision in the case of ITO v. Tollygunge Club Ltd. reported in 52 ITD 166 has held that an order passed under section 154 without a valid notice suffered from lack of jurisdiction which could not be cured by taking recourse to section 292B. 12.4. In over all consideration of the facts and circumstances of the issue as discussed supra and respectfully following the decisions referred supra, we are of the considered view that the assessment order passed by the AO was null and void and without jurisdiction and, therefore, cancelled. 13. Since we have cancelled the assessment order as null and void, we are not inclined to adjudicate the other grounds raised either by the assessee or by the Revenue as they have become infructuous. 14. In the result, the assessee's appeal is allowed and the Revenue's appeal is dismissed as infructuous. Order pronounced in the open court on 17.4.2009.
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2009 (4) TMI 981 - SUPREME COURT
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... ... ..... ng investigation which for the first time he was speaking in Court. Similar is the position with PW7 the brother of the deceased. He also accepted on being confronted with the statement made during investigation that he had not stated particularly certain relevant aspects. Similar is the position with the evidence of mother of deceased (PW6). 42. As was rightly noted by the trial court there was no evidence towards the claim regarding any demand of dowry. That being so the High Court ought not to have interfered with the well reasoned judgment of the trial court directing acquittal. The reasoning of the High Court that something must have happened and otherwise deceased would not have committed suicide is clearly indefensible. That certainly could not have been a reason to set aside the trial Court’s judgment of acquittal. 43. The appeal is allowed. The bail bonds executed with effect to the order of bail dated 18th May, 2002 and subsequent date shall stand discharged.
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2009 (4) TMI 980 - BOMBAY HIGH COURT
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... ... ..... ry that the assessee is obliged to discharge the same ? d) Whether on the facts and circumstances of the case and in law, the ITAT was justified in upholding the order of CIT(A) in allowing foreign exchange fluctuation loss ignoring the fact that the loss was notional as a result of restatement of liabilities and not actual loss qualifying for deduction as expenditure ? 2. All the issues raised in this appeal relates to the question of foreign exchange loss suffered by the assessee on revenue account of fluctuation in foreign exchange on the last date of the accounting year ending 31st March, 2001. The issues raised herein is squarely covered by the Apex Court judgment in the case of Commissioner of Income Tax, Delhi V/s. M/s.Woodward Governor India P.Ltd. in Civil Appeal No.2206 of 2009 along with other matters decided on 8th April, 2009. In this view of the matter, no substantial question of law arise in this appeal. Appeal is dismissed in limini with no order as to costs.
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2009 (4) TMI 979 - SC ORDER
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... ... ..... Petitioner Mr. V. Shekhar, Sr. Adv., Mr. Kul Bharat, Adv., Mr. B.V. Balaram Das, Adv. ORDER Delay condoned. Dismissed.
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2009 (4) TMI 978 - DELHI HIGH COURT
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... ... ..... tive expenses and as such the finding of the Assessing officer that the business has been closed is self contradictory. Further, even warranty obligation in respect of execution of earlier orders was also operative during the year. In order to supplement in the existing business, the appellant along with the turbo charger business also initiated the business activities for manufacturing of coins and coins blanks as a 100 EOU and all the requisite approvals were obtained and the products were being tested. In fact, the business of coins blanks is also integrated and complimentary to the business of the turbo charges as the exciting plant and machinery continued to be used. There is interlacing of funds, management and infrastructure. It is quite clear that none of the facts found by the CIT(A) could be traversed by the Revenue before the Tribunal. In view of the above, no substantial question of law arises for consideration of this Court. Accordingly, the appeal is dismissed.
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2009 (4) TMI 977 - SUPREME COURT
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... ... ..... interested statement which is proved to be false, there is no evidence to show that he was in possession for a period of 12 years prior to the suit of plaintiffs. 25. When defendant claimed title and that was proved to be false or fabricated, then the burden is heavy upon him to prove actual, exclusive, open, uninterrupted possession for 12 years. In this case we have already held that he did not make out such possession for 12 years prior to the suit. While the plaintiffs have made out a clear and absolute title of the property, the defendant has not been able to make out title or adverse possession for more than 12 years. The High Court did not examine any of these aspects and by a cursory judgment, reversed the well considered judgment of the trial court. Therefore the decision of High Court cannot be sustained. 26. We therefore allow this appeal with costs, set aside the judgment and decree of the High Court and restore the judgment and decree passed by the trial court.
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2009 (4) TMI 976 - SUPREME COURT
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... ... ..... the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. Above being the position in law the observations and directions given by the High Cort qua the present appellant cannot be maintained and stand quashed. The appeal is allowed.
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2009 (4) TMI 975 - ITAT MUMBAI
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... ... ..... shall decide the same afresh and according to law including the decision relied on by the ld. Counsel for the assessee in Kotak Securities (supra), after providing reasonable opportunity of being heard to the assessee and accordingly the ground taken by the assessee is allowed for statistical purposes. 21. Ground No. 4 is against levy of interest u/s. 234B. 22. At the time of hearing the ld. Counsel for the assessee submits that a consequential relief be allowed in this regard which was not objected by the ld. DR. 23. After hearing the rival parties and perusing the material available on record we are of the view that the assessee is entitled to consequential relief in respect of levy of interest u/s. 234B of the Act and accordingly, the Assessing Officer is directed to allow the same. The ground taken by the assessee is therefore allowed. 24. In the result, assessee's appeal stands partly allowed for statistical purposes. Order pronounced in the open court on 29.4.2009.
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2009 (4) TMI 974 - BOMBAY HIGH COURT
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... ... ..... d there is no element of profit embedded in the reimbursement of cost incurred by other party ? c) Whether on the facts and in law and in the circumstances of the case, the ITAT has erred in holding that no TDS was to be deducted under section 195 in respect of the payment made to the parent company for supply of printing material ? 2. Learned counsel for the appellant fairly states that so far as question (a) is concerned, the same is covered by the Division Bench judgment of this Court in Income Tax Appeal No.114 of 2009 decided on 9/2/2009 in the case of Director of Income Tax (International Taxation) V/s. M/s.Oman International Bank SAOG (unreported). 3. So far as question (b) & (c) are concerned, the same revolve around appreciation as evidence as evident from the order of the Tribunal more particularly paragraph No.9. In this view of the matter, no substantial question of law arise in this appeal. Appeal is, therefore, dismissed in limini with no order as to costs.
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2009 (4) TMI 973 - ITAT BANGALORE
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... ... ..... a loan because it is not repayable at the instance of the lender. As per the lease agreement, the refundable advance is payable when the premises is vacated. Hence, in our view, the amount given as refundable advance is not covered u/s 13(2)(a). Moreover, there is adequate consideration for such advance. The refundable advance has been utilized for the construction of the additional floor space and that additional floor space has been utilised by the society without paying any rent. Hence, there has been no benefit to Smt. Mumtaz Begum. Exemption u/s 11 is to be given if there is benefit to the person specified in section 13(3) of the I T Act. In the instant case, there is no benefit to such person. Hence, the learned DIT(Exemptions) was not justified in not renewing the approval u/s 80G(5). The learned DIT(Exemptions) is directed to renew approval u/s 80G(5) of the I.T Act. 16. In the result, the appeal of the assessee is allowed. Pronounced in the open court on 03.04.2009
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2009 (4) TMI 972 - ITAT BANGALORE
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... ... ..... Income Tax Act, 1961. The claim of depreciation on gas cylinders 100 could not be reduced to 25 which the learned CIT(A) allowed was the core consideration by the Assessing Officer therefore allowed the assessee's contention that there was no basis for him to assume jurisdiction under section 147/148. From the foregoing, we are inclined to hold that there was no material to object to the issue as brought on record by the Assessing Officer. It was another attempt by the learned CIT(A) to bring the issue to be dealt under section 43(1) in stead of the case of the assessee falling under section 43(6) was to only confine to the facts as brought on record and not to insist of his own opinion without bringing out other correlating evidences on record to uphold the same. The appeal filed by the assessee is bound to succeed on the material facts brought on record and as enumerated above. In the result the appeal of assessee is allowed. Pronounced in the open court on 08.04.2009.
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2009 (4) TMI 971 - BOMBAY HIGH COURT
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... ... ..... behalf of the respondents learned counsel submits that if the appeal is filed within two weeks from today, respondents will not raise any objection to limitation and the appeal will be heard on merits. The Appellate Authority, thereafter, if the appeal is filed within two weeks to proceed to dispose off the appeal on merits. 4. In the meantime, to enable the petitioner to take appropriate steps for interim reliefs before the Appellate Authority, interim relief granted by this Court to continue for a period of four weeks from today. 5. Writ Petition stands disposed off.
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2009 (4) TMI 970 - KARNATAKA HIGH COURT
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... ... ..... 30th May 2009 at 10.30 p.m. respectively at No.17 D (B-1), I Main, II Phase, Peenya Industrial Area, Bangalore-560058; the quorum for each of the meetings shall be five; (ii)the voting at the meetings shall be taking poll and proxies shall be permitted to attend and vote at the meetings; the proxy forms duly signed shall be filed 48 hours before the meetins; (iii) The Chairman of the meetings shall be Mr. Nitin mandhana, Vice Chaireman and Managing Director of the Applicant-Company; (iv) The chairman shall issue individual notices of the meeting to the Equity Shareholders, Secured Creditors and unsecured Creditors; the applicant shall also take out a common advertisement relating to all the meetings in the English daily - The Hindu” and in the Kannada daily- “Kannada Prabha”, Bangalore Edition on or before 5th May 2009; (v) the Chairman shall file the report on the meetings within 14 days from the date of the meetings. C. A. 169/2009 is allowed accordingly,
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2009 (4) TMI 969 - ITAT MUMBAI
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... ... ..... the present case also, as stated above, explanation offered by the assessee has not been found false or incorrect, therefore, the assessee is not trapped within the parameters of provisions of sec. 271(1)(c), accordingly, we find that the penalty is not leviable. 6. We have also seen various other decisions i.e. Minosa Investment Co. Pvt. Ltd. in 28 SOT 470, Enercon India Ltd. in ITA No. 183/Mum/07 vide order dated 5.3.200; in the case of N.Y. Dox Services Ltd. in 153 Taxman 67 (Del.) in the case of Valmikbhai H. Patel in 280 ITR 487 (Guj.), in the case of Budge Budge Co. Ltd. in 100 ITD 337 (Kol.) and find that above decisions are in favour of the assessee. Therefore, in view of these facts and circumstances of the case and in view of various decisions considered above, we hold that levy of penalty on the facts of the present case is not justified, accordingly, the same is cancelled. In the result, the appeal filed by the assessee is allowed. Order pronounced on 27.04.2009.
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2009 (4) TMI 968 - DELHI HIGH COURT
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... ... ..... is made on the manufacture of articles which go into the construction of a dam would be admissible or not. Obviously, it was left open. 34. Be that as it may, the issue in question has not been examined by the Tribunal from this angle at all. Simply relying upon its order in respect of the asst. yr. 1983-84 which was based on the High Court judgment in N.C. Budhiraja (supra) and overruled by the Supreme Court , the Tribunal allowed the appeal of the assessee herein. We are of the opinion that the matter needs to be re-examined by the Tribunal keeping in view the aforesaid parameters laid down by the Supreme Court in N.C. Budharaja (supra). For want of adequate material before us, it is not possible to give the answer by ourselves. In that view of the matter, question No. 1 requires no answer. 35. Accordingly, impugned orders of the Tribunal are set aside and matters remitted for fresh consideration. These appeals are allowed and disposed of in the aforesaid terms. No costs.
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2009 (4) TMI 967 - MADRAS HIGH COURT
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... ... ..... has been held that there is presumption favour of official acts that they are regularly perform and the onus to prove the contrary is on the person who alleges otherwise. It is also seen from the records that a show cause notice was issued on 22.5.1986 and the final order was passed on 30.12.1986. The appeal filed before the first respondent was disposed of on 22.9.1998. Thereafter, the writ petition was filed on 22.3.1999 and the same was taken up for final hearing after a period of ten years. Therefore, even if we take into consideration of the time factor we are not able to concede to the request of the petitioner for an order of remand, in any case, as we held already the overwhelming material available on record would clearly prove that Impugned orders are valid in law. For the reasons stated above, we therefore hold that the writ petition is liable to be dismissed. Accordingly, the same is dismissed. Consequently, connected miscellaneous petitions are closed. No costs.
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2009 (4) TMI 966 - DELHI HIGH COURT
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... ... ..... ns in statutes that attract penal consequences admit of a strict interpretation. They do not permit courts administering the criminal law to resort to pragmatism when faced with an insurmountable procedural hurdle. The deprivation of liberty is CRL.M.C. 1979 of 2006 page 9 of 10 constitutionally permissible only in accordance with the procedure established by law. In the instant case, it was legally impermissible for the learned ACMM to take cognizance of the offence punishable under Section 56 FERA after 31st May 2002. That position did not and could not change only because the accused did not appear in court prior to that day. 14. Accordingly, the impugned order dated 16th March 2006 passed by the learned ACMM is hereby set aside. The Complaint Case No. 180 of 1991 titled "A.K.Roy, Assistant Director, Enforcement Directorate v. Bachraj Bengani" and all proceedings consequent thereto herby stand quashed. The petition is accordingly allowed and disposed of as such.
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2009 (4) TMI 965 - CESTAT CHENNAI
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... ... ..... t admissible for the reason that the power generated by the windmill was supplied to the T.N.E.B. and such power was drawn by the assessees from the T.N.E.B grid nearer to the plant. In other words, it is the case of the department that credit is admissible only if the power generated in windmills is directly drawn by the assessees. 3) We find that in a recent decision of the Tribunal in L.G. Balakrishnan & Bros. Ltd. Vs CCE Coimbatore, 2009 (13) S.T.R. 619 (Tri.-Chennai), predeposit of amount confirmed on identical issue has been waived, after considering the final order of the Tribunal in Rajans Metals (P) Ltd. Vs CCE Rajkot, 2007 (8) S.T.R. 498 (Tri.-Ahmd.) taking a contra view. At this stage, prima facie case can, therefore, be said to have been made out by the assessees on the basis of L.G. Balakrishnan order cited (supra). We, therefore, waive predeposit of the amounts in question and stay recovery thereof pending the appeal. (Dictated and pronounced in open court)
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