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2009 (7) TMI 1314
Maintainability of Petition - Family companies - Acts of oppression and mismanagement - Quasi judicial authority exercising equitable jurisdiction - Non service of proper notice - extraordinary general meeting was held without sending notices to all the directors - wherein resolution was passed (a) enhancement of share capital (b) allotment of additional shares amongst the members of respondent No. 2 group - Removal of Directors - Additional shares were issued in order to convert personal loans of the directors, i.e., respondent No. 2 group into equity on the say of financial investment, there are two meetings of the same date at two different places, one which is available on the Registrar of Companies record, and another one filed along with the reply by the respondents.
Maintainability of Petition - HELD THAT:- The petitioners have to meet the requirement u/s 399 either in terms of the number/percentage of shares or in terms of the number of shareholders. Further, it has been held in a number of cases that if the shareholding of the petitioner in a petition u/s 397 and 398 got reduced to below 10 per cent, on issue/allotment of further shares and if the said issue/allotment is the very act which is challenged as "oppressive" in the said petition, the maintainability of the petition would be decided after determining the validity of the issue of allotment.
The requirement of share qualification is relevant and material for maintaining the petition. The prima facie evidence to the shares could be either the share certificate(s) or even the register of members. However, even in the absence of share certificates or entry in the register of members, if a person could establish that certain shares have been allotted to him, then, for the purposes of Section 399 of the Companies Act, 1956, he could be treated as a member.
In the case of Navin Ramji Shah v. Simplex Engineering and Foundry Works P. Ltd.[2006 (9) TMI 574 - COMPANY LAW BOARD NEW DELHI], it has been held that in family companies any reduction in the percentage of shareholding irrespective of quantum of percentage, the affected parties can always allege oppression as his position vis -a -vis other family members gets altered due to non -allotment of shares and in this case the petitioners have alleged that their 50 per cent, shareholding has been reduced to 26.6 per cent, besides that the transfer shown is fraudulent showing their 50 per cent, shareholding as reduced to nil.
Thus the respondents' contention that before filing a petition u/s 397 and 398 of the Act the petitioners should seek the rectification of register of members under Section 111/111A of the Act is misplaced. In any case, this objection was not taken by the respondents in their reply. The petitioners have succeeded in making out a case that they held 50 per cent, shares in this closely held family company in the nature of quasi -partnership.
The respondents' preliminary objection regarding non -maintainability of the company petition in terms of the requisite qualification u/s 399 is not tenable. The petition cannot be thrown out at the threshold.
Acts of oppression and mismanagement - It is well -settled proposition that the provision of Sections 397 and 398 of the Act, are to be invoked to get the grievances of oppression and mismanagement redressed. The petitioner has rightly invoked the provisions of these sections. If a member who holds 50 per cent, of the shares in a company is reduced to the position of minority shareholder in the company by an act of the company or by its board of directors' mala fides, the said act must ordinarily be considered to be an act of oppression to the said member.
Therefore, the allotment of shares impugned in the company petition made for personal gains and with a view to gain advantage against the other shareholders of a closely held company was neither in compliance with the legal requirements nor ensured the fair play and probity in corporate management, resulting in the enhancement of the shareholders of the second respondent, which would constitute an act of oppression.
Quasi judicial authority - The Company Law Board is a quasi judicial authority exercising equitable jurisdiction. The court exercising equity jurisdiction, cannot ignore the well known maxims of equity. Two such maxims are that he who seeks equity must do equity and he who comes into equity must come with clean hands. I agree that it is a settled proposition of law that the conduct of the parties is a very relevant factor to be considered in equitable proceedings u/s 397.
In Srikanta Datta Narasimharaja Wadiyar v. Sri Venkateswara Real Estate Enterprises P. Ltd.[1989 (4) TMI 268 - HIGH COURT OF KARNATAKA], it was held that the petitioner seeking equitable relief must come with clean hands and good conduct, failing which the petition would constitute a gross abuse of the process of the court, and the petitioner is not entitled for any relief u/s 397. It also held that the conduct of the parties in other proceedings could also be taken into consideration.
The settled Principle of law is that when a person seeks equity he must come with clean hands. In the present case the instances of unclean hands of the respondents are with respect to the affairs of the company and even otherwise the instances of unclean hands are enumerated.
The entire action of the respondents of removal from directorship and issue of additional shares was only to oust the petitioner and his wife from the company to illegally gain control and management of the company and is indisputably amenable to the jurisdiction of the Company Law Board. The petitioners are not seeking to enforce the family settlement dated September 26/27, 1987. The family settlement was referred to by the petitioners only to show that the intention of the family members was to have respondent No. 1 company in joint control. As mentioned in the memorandum of understanding the hotel business was not split.
The respondents having failed to refute the allegations of the petitioners regarding the acts of oppression and mismanagement complained of in this petition and the petitioners having succeeded in making out their case distinguishing the case law relied upon by the respondents, there being no dispute with the principles laid down in those cases, but the facts of those cases being inapplicable to the facts of this case, each case turns on its own facts, to do substantial justice between the parties, I, hereby order as follows:
(I) The petitioners' (petitioner No. 1 and petitioner No. 2) cessation/removal as directors, the petitioners did not cease to be directors, they were illegally removed from directorship, is hereby held as illegal, all resolutions and statutory forms filed in this regard are declared as null and void restoring status quo ante. Petitioner No. 1 and petitioner No. 2 continue to be the directors of respondent No. 1 company.
(II) Increase in the authorised share capital and allotment of additional shares is hereby set aside being illegal, status quo ante is restored declaring the resolutions passed and the statutory forms filed as null and void.
(III) since the respondents are still in possession of the share certificates of the petitioners, which amounts to an act of oppression, the respondents are hereby directed to hand over the same to the petitioners within two weeks of receipt of this order.
Company Petition No. 47 of 2004 is hereby allowed and disposed of in the above terms. All company applications stand disposed of. All Interim orders stand vacated. No order as to costs.
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2009 (7) TMI 1313
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... ... ..... e same can be quashed. The validity of an order issued by the State Government, furthermore should be questioned by a person aggrieved upon raising grounds therefor. The State must be given an opportunity to file a counter-affidavit meeting those grounds. 39. We, therefore, are of the opinion that the impugned judgment cannot be sustained. The same is, therefore, set aside. 40. The writ petitioners, however, would be at liberty to file additional affidavit (s) questioning the validity or otherwise of the said Memorandum. The High Court must also give an opportunity to the State and other interested parties to present their respective cases before the High Court. 41. The High Court in the peculiar facts and circumstances of this case may also consider the desirability of consideration of the matters pending before it together, if not already disposed of, so that the points raised by the writ-petitioners may be dealt with comprehensively. 42. The appeals are allowed. No costs.
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2009 (7) TMI 1312
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... ... ..... JJ. ORDER Delay condoned. Dismissed.
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2009 (7) TMI 1311
Condonation of delay in filing first appeal - delay of 272 days - deficit court fees stamp - An application under Order VII Rule 11(c) was moved by the respondents seeking for rejection of the plaint urging for the first time that the suit presented on 5th October 1998 was barred by limitation as the extension of time granted by the trial court u/s 149 r/w Section 151 of the Code and condonation of delay in re-filing was passed without issuing notice to them. The appellant contested the said application by filing a counter affidavit thereto.
The trial court dismissed the said application. Aggrieved thereby, the respondents preferred a Revision Petition under Article 227 of the Constitution of India before the High Court, which has been allowed by reason of the impugned judgment. Appellant is, thus, before us.
HELD THAT:- Appellant while presenting the plaint inter alia contended that sufficient court fee stamps were not available in the sub-treasury. The Presiding Officers of the local Civil Courts in a given situation would be aware thereof. It may, therefore, consider the prayers made in that behalf by a suitor liberally. If court fees are not available in a sub-treasury for one reason or the other, the court having regard to the maxim ''lex non cogit ad impossibilia" would not reject such a prayer.
Payment of court fees furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the court at the behest of a defendant for rejection of the plaint in terms of Order VII rule 11(c) of the Code, several aspects of the matter are required to be considered.
The respondents in their written statement did not raise any issue with regard to the correctness or otherwise of the orders dated 7th October, 1998, 8th November 1998, 20th November, 1998 and 21st January, 1999. Rightly or wrongly, the plaint was accepted. The deficit court fee has been paid. The court was satisfied with regard to the bona fide of the plaintiff. Hearing of the suit proceeded; not only issues were framed but the witnesses on behalf of the parties were also examined by both the parties. It is difficult to believe that from 10th January 2001 to 4th January 2008, the respondents or their counsel did not have any occasion to inspect the records. Any counsel worth itself would not only do so but even without doing so would address himself a question as to why a suit filed on 4th October 1998 was entertained in the year 2000. The suit was at one point of time decreed ex parte. The same was set aside on certain conditions. Evidently, the conditions laid down had been satisfied only upon obtaining an extension of time.
Indisputably, the courts were required to assign reasons in support of their orders. Had the validity and/or legality of those orders been challenged before an appropriate court, it would have been possible by the plaintiffs to contend that the defendants had waived their right by their subsequent conduct and they would be deemed to have accepted the same. Even on later occasion, the courts would assign reasons upon satisfying itself once over again. If an order has been passed without hearing the one side, he may be heard but by reason thereof, the plaint would not be rejected outrightly. Before doing so, the applications of the plaintiff u/s 149 of the Code have to be rejected.
It is now a well settled principle of law that an order passed by a court having jurisdiction shall remain valid unless it is set aside.
Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power u/s 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. An application for rejection of the plaint was filed only in the year 2008. Evidently, that was not the stage for entertaining the application. Order VII rule 11(c) of the Code could not have been invoked at that point of time.
For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed.
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2009 (7) TMI 1310
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... ... ..... 9 (238) ELT 705 (S.C.), we have held in the case of CIT V/s. Grasim Industries Ltd. (Notice of Motion No.787 of 2009 in I.T.A. (L) No.3592 2008) decided on 8/7/2009) that this Court has no power to condone the delay in filing an appeal under section 260A of the Income Tax Act, 1961. 2. In this view of the matter, both appeals are dismissed being barred by limitation with no order as to costs.
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2009 (7) TMI 1309
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... ... ..... equent to the clearance of goods is as good as not taking any credit. The Tribunal had set aside the demand for 10 of the exempted goods on the ground that the assessees had reversed the credit. In the light of the above decisions, we hold that demand for 10 of the net sale price of the exempted goods is not sustainable subject to verification of the claim of the appellants that they had reversed the entire credit which is not legally available to them. The case is remanded to the adjudicating authority for the above purpose of verification. He is also required to verify the claim of the assessees that they are not liable to interest for the reason that at any given point of time they had sufficient credit balance in their account (RG 23A). 3. Fresh orders have to be passed upon verification, after extending a reasonable opportunity to the assessees of appearing and explaining their case. 4. The appeal is thus allowed by way of remand. (Dictated and pronounced in open court)
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2009 (7) TMI 1308
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... ... ..... that effect. In the instant case, after such inquiry the assessing officer found that the prescribed Form “F” was not obtained from the competent authority and the declaration was fake/bogus and it was not a genuine one. Letter dated 22.3.2004 issued by the Office of the Sales Tax Officer, Ward 28, New Delhi at Annexure “D” and another letter dated 24.5.2006 issued by the Office of the Joint Commissioner of Sales Tax (Admn.), Thane at Annexure “E” clearly indicate that no “F” Forms were issued to the dealers referred to therein. That being the factual situation, the Forms used for transportation of the goods is found to be bogus. This is the findings of fact arrived at by the authorities. In view of this, no substantial question of law arises. This Court in its jurisdiction is not justified in re-appreciating the facts found by the authorities. Appeal stands dismissed. 7. Consequently, Civil Application also stands disposed of.
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2009 (7) TMI 1307
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... ... ..... t accepted by the Revenue but all the necessary particulars are declared by the assessee in the return of income, it cannot be said by any stretch of imagination that the assessee has concealed his income or furnished inaccurate particulars of income in respect of the claim of deduction which stands repelled by the authorities. If penalty is imposed under such circumstances also then probably there will remain no course open to the assessee for genuinely claiming a deduction which in his opinion is admissible, because the fear of such claim being rejected in eventuality will expose him to the rigour of penalty. Obviously such a proposition is beyond any recognized canon of law." 11. In view of our aforesaid discussion, we are of the view that this is not a case where the assessee has submitted the inaccurate particulars of his income while submitting the IT return and, therefore, we delete the penalty imposed under s. 271(1)(c). 12. In the result, the appeal is allowed.
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2009 (7) TMI 1306
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... ... ..... am, JJ. ORDER Appeal Dismissed.
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2009 (7) TMI 1305
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... ... ..... ire amount of ₹ 67,56,033/- and appellant M/s. Raj International to deposit the amount of ₹ 1,00,05,250/- within four weeks from today and make compliance on 30th July, 2009. In the result, both the stay applications are rejected.” 3. We find from the above that the Tribunal has formed a prima facie view and on that basis the aforesaid order has been passed. The Tribunal, thus, took into consideration all relevant facts, including the interest of the revenue, in view of the judgment of the Supreme Court in Benara Valves Ltd. (supra). 4. We, therefore, do not find any reason to interfere with the aforesaid order in exercise of our extraordinary jurisdiction under Article 226 of the Constitution of India. It goes without saying that at the time of hearing of the appeal, the Tribunal shall consider the submissions made by both the parties without being influenced by the observations made in the impugned order. The petitions are, otherwise, dismissed.
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2009 (7) TMI 1304
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... ... ..... ereira Conwood Agencies (P) Ltd. was the principal developer who acquired the development rights of this plot of land from the said owner. Mumbai Municipal Corporation sanctioned a building plan to the principal developer for the construction of the building consisting of 11 wings. The principal developer constructed only 2 wings and granted the delegated right of the remaining 9 wings to the assessee to whom the deduction under s. 80-IB(10) was allowed. In the said case, neither the ownership of the land nor the municipal approval having been received in the name of the principal developer was disputed as has been done in this case. So, this decision of the Mumbai Bench in Saroj Sales Organisation (supra) also strengthens the claim of the assessee. In view of above, the CIT(A) was justified in granting deduction to the assessee under s. 80-IB(10) of the Act. We uphold the same. 15. In the result, the appeals of the assessee and the Revenue are dismissed, as indicated above.
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2009 (7) TMI 1303
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... ... ..... am, JJ. ORDER Appeal dismissed.
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2009 (7) TMI 1302
Effect of a writ of or in the nature of mandamus issued by a High Court directing implementation of an enactment vis-`-vis a subsequent legislation altering or modifying the right of the beneficiaries under the former Act, inter alia - Constitutional validity of the 1999 Act, specially the proviso appended to Section 5(1), Section 5(2), Section 6 and Section 22 were challenged - The State of Kerala enacted the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (`the 1975 Act') with the object of providing restriction on transfer of land by Members of Scheduled Tribes in the State of Kerala and for restoration of possession of lands alienated by such members and for matters connected therewith.
The said Act received the assent of the President of India. It was included in the Ninth Schedule of the Constitution of India, being item No.150, by the Constitutional 40th Amendment Act. It was published in the Kerala Gazette Extraordinary on 14th November, 1975. However, only on 24th January, 1986 a Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982. Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Land) Rules, 1986 (1986 Rules) were framed for effective implementation of the 1975 Act and were published in the Kerala Gazette Extraordinary on 18th October, 1986.
Indisputably the Legislature of the State thereafter enacted the Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 (`the 1999 Act'), which inter alia deals with transfer and alienation of agricultural lands.
HELD THAT:- We have noticed hereinbefore that the Division Bench of the High Court has upheld the legislative competence of the Legislature of the State of Kerala. We, therefore, really at pains to understand as to how the doctrine of `Colourable Legislation' could be invoked by the learned Judge of the High Court.
The Doctrine of `Colourable Legislation" is directly connected with the legislative competence of the State. Whereas the 1975 Act was enacted in terms of Entry 6 List III of the Seventh Schedule of the Constitution of India providing for transfer of lands; the 1999 Act was enacted in terms of Entry 18 List II thereof.
We have pointed out here to before that the Doctrine of Colourable legislation is strictly confined to the question of legislative competence of the State Legislature to enact a statute. Once it was opined by the High Court that having regard to Entry 51, List II of the Seventh Schedule of the Constitution of India, the Legislature of the State of Kerala had the requisite legislative competence to enact the 1999 Act, that should have been held to be the end of the matter. The High Court could not have, in our respectful opinion, entered into the said question through a side- door so as to hold that the transgression of the limitations of constitutional power may be disguised, covert or indirect.
The High Court, in our opinion, again with utmost respect, has committed a fundamental error in failing to keep a distinction in mind in regard to the power of a law making authority which is of a qualified character and the power granted to a legislative authority which is absolutely without any limitation and restriction, being plenary in character.
It is also a trite law that the State is entitled to change its legislative policy having regard to the ground realities and changing societal condition. In fact, the legislature is expected to take steps for enacting a new statute or amending the same so as to keep pace with the changing societal condition as well as taking into consideration the development of law, both domestic and international.
The High Court, in our opinion, furthermore committed a serious error in opining that although the legislature had the legislative competence to enact Act 12 of 1999, but nevertheless, proviso to Sections 5(1) and 5(2) thereof would be held to be colourable. The High Court should have examined the question of their constitutionality on the touchstone of Articles 14 and 21 of the Constitution of India and not on the premise that the said provisions are colourable in nature.
PRESIDENTIAL ASSENT - The 1975 Act dealt with both agricultural and non-agricultural lands. Transfer of land comes within the purview of Entry 6, List III of the Seventh Schedule of the Constitution of India. There exists a Parliamentary Act in that behalf, as for example, Transfer of Property Act. Only because the 1975 Act could be held to be in conflict with the provisions of the Transfer of Property Act, the Presidential Assent was necessary having regard to Clause (2) of Article 254 of the Constitution of India but once the said statute is repealed and in its place a new Act is brought on the statute book, which comes strictly within the purview of Entry 49, List II of the Seventh Schedule of the Constitution of India, no Presidential Assent would be necessary. Presidential Assent would be necessary for the purpose of amendment of the Act and not for enacting a separate statute which came within the purview of a different entry and a different List.
It is furthermore well-known that Article 254 of the Constitution of India would be attracted only in a case where two statutes are enacted under the Concurrent List, viz., one by the State Legislature and the other by the Parliament of India, and not in any other case.
VESTED RIGHT VIS-@-VIS ARTICLE 14 - No territory in the State of Kerala has been declared as Scheduled Area within the meaning of Article 244 read with the Fifth Schedule of the Constitution of India. A distinction, thus, must be borne in mind in regard to the enactments which deal with tribal areas and which do not. If a law (e.g. Scheduled Area Regulation Act) deals with the tribal areas, the same amends provisions of the other Acts including the Limitation Act, 1963.
If a person is in possession of a land, which he had obtained by reason of a valid transaction as it then was, which was subsequently sought to be invalidated, he would ordinarily receive protection by reason of doctrine of prescription provided for under the Limitation Act, by reason whereof if he has been in possession thereof for a period of more than 12 years, he would have acquired an indefeasible right thereto despite the fact that the transaction has been invalidated by a later Act. It was so held in Manchegowda [1984 (4) TMI 313 - SUPREME COURT]. Therein, a distinction was made between a defeasible right and an indefeasible right and this Court was concerned with a transaction which was voidable in nature.
In a case involving members of the Scheduled Tribe living in Scheduled Area the period of limitation can be extended, but it is not permissible in respect of an area which has not been declared to be a Scheduled Area. When a person acquires an indefeasible right, he can be deprived therefrom only by taking recourse to the doctrine of Eminent Domain. If a person is sought to be deprived of an indefeasible right acquired by him, he should be paid an amount of compensation.
In a case of this nature, therefore, where an amount of compensation has not actually been tendered, the vendees of the land could not be deprived of their right to be dispossessed. In that view of the matter, a distinction must be made between a case where an amount of compensation has been paid and in a case where it has not been. If a vested right has not been taken away, the question of applicability of Article 14 of the Constitution of India would not arise.
The High Court, however, proceeded to apply Article 14 of the Constitution of India on the premise that the provisions of the 1999 Act clearly seek to destroy the right conferred on Scheduled Area by Act 31 of 1975. The approach of the High Court being not correct, the same cannot be sustained.
REASON FOR AMENDMENT - On the basis of the discussions and deliberations the Government thought it proper to introduce a suitable legislation which would adequately take care of the interests of the Tribals and also find a solution to the problems of landlessness and homelessness of the Tribals. Accordingly, the Kerala Restriction on transfer by and Restoration of Land to the Scheduled Tribes Act, 1999 was introduced in the State Assembly and the same was unanimously passed by the Assembly. The Bill became an Act (Act 12 of 1999) on 20.4.1999."
While doing so, the State had taken into consideration the change in the situation by reason of passage of time. The tribals had been out of possession of their lands for decades. It was for the elected representatives of the people to determine as to whether by reason of the provisions of the 1999 Act the members of the Scheduled Tribe would face dislocation or that it would impinge on their culture connected with their lands.
BENEFICIENT NATURE OF THE 1999 ACT VIS-A-V-S 1975 ACT - The 1999 Act, in our opinion, is more beneficial in nature so far as the people of the State of Kerala are concerned. The 1975 Act came into force with retrospective effect from 1.01.1982. But, as noticed hereinbefore, the Rules were framed only on 18.10.1986. Act 12 of 1999, however, came into force on 20.04.1999 but was given a retrospective effect and retroactive operation from 24.01.1986.
Broadly, speaking, the provisions of the 1999 Act are more beneficial to the members of the Scheduled Tribe. For determining the said question, we must take a holistic view of the matter. However, we are not oblivious of the fact that restoration in respect of non-agricultural land and to the extent of 2 acres are not contemplated by the 1999 Act. We are also not oblivious of the fact that, it would appear, on the basis of the statistics furnished by the learned Additional Advocate General before the High Court, to which we have referred to heretobefore itself that a large number of members of the Scheduled Tribe would be deprived of the benefit of restoration of their own lands constituted in forest areas.
It is necessary, according to us, to bear in mind that the law postulates grant of compensation in a case where the right on a land is sought to be taken away. The 1975 Act postulates grant of compensation to the alienees, the amount wherefor was required to be determined by a competent authority. The amount of compensation so determined was to be paid by the members of the Scheduled Tribe to their vendees in respect whereof he was to take loan from the State. The amount of loan taken was, thus, required to be repaid. The 1999 Act, however, provides for a grant which need not be repaid.
The members of the Scheduled Tribe were further to get one acre of land from the State although they might have transferred even 5 or 10 cents of land. In the case of a transfer made upto two acres, he is to be allotted two acres of land by the State. Whether such land is available with the State Government or not is a different question, which we intend to deal with separately. The statute also contemplates building of houses for the members of the Scheduled Tribes. It provides that the land to the extent of one acre also be provided to the landless tribals. It contemplates constitution of a rehabilitation fund.
The 1999 Act, therefore, if given a holistic view, is more beneficial to the members of the Scheduled Tribe than the 1975 Act. If the State contemplated a legislative policy for grant of more benefits to a vast section of people, taking care of not only restoration of land but those who have not transferred any land at all or otherwise landless, the statute by no stretch of imagination can be treated to be an arbitrary and an unreasonable one.
ARTICLE 21 ISSUE - right of tribals to be rehabilitated in their own habitat - We are satisfied that the legislature of Kerala kept in view the necessity of protecting the interest of the small land holders who were in possession and enjoyment of property which had belonged to tribal community and at the same time ensured that the tribals are not thrown out of their land and rendered homeless. Having regard to the studies conducted by the State Government and as a balance of interest between tribals and non-tribals which has been sought to be achieved, the provisions of the 1999 Act are intra vires.
NON-AVAILABILITY OF THE LAND - Keeping in view the promises made by the 1999 Act, it is obligatory on the part of the State to provide the land meant for the members of the Scheduled Tribe. If they do not have sufficient land, they may have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations will fulfill its legislative promise failing which the persons aggrieved would be entitled to take recourse to such remedies which are available to them in law. We must also make it clear that while allotting land to the members of the Scheduled Tribe, the State cannot and must not allot them hilly or other types of lands which are not at all fit for agricultural purpose.
The lands, which are to be allotted, must be similar in nature to the land possessed by the members of Scheduled Tribe. If in the past, such allotments have been made, as has been contended before us by the learned counsel for the respondent, the State must allot them other lands which are fit for agricultural purposes. Such a process should be undertaken and completed as expeditiously as possible and preferably within a period of six months from date.
EFFECT OF INVALIDATING THE ACT AND CONSEQUENTLY REVIVING OF THE OLD ACT - We may in this connection notice certain decisions relied upon by Mr. Krishnan. A.T.B. Mehtab Majid & Co. v. State of Madras[1962 (11) TMI 24 - SUPREME COURT], was a case of substitution of an old rule by a new rule. It, therefore, ceased to exist and did not automatically get revived when new rule was held to be invalid. We are, however, dealing with a Legislative Act, validity whereof was determined in the light of constitutional provisions.
In B.N. Tiwari v. Union of India and others,[1964 (12) TMI 40 - SUPREME COURT], this Court was again dealing with a statutory rule. It was held that the old rule did not revive opining :- "When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive."
Repeal of a statute, it is well known, is not a matter of mere form but one of substance. It, however, depends upon the intention of the legislature. If by reason of a subsequent statute, the legislature intended to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal.
In Southern Petrochemical Industries [2007 (5) TMI 591 - SUPREME COURT], the subsequent Act did not contain the words "unless a different intention appears". It was held that the later Act was not different from the earlier Act.
This Court is required to assume that the Legislature did so deliberately. In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submission of Mr. Dayan Krishnan.
AGRICULTURAL AND NON-AGRICULTURAL LAND - Once they have made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was possible also in so far as non-agricultural lands are concerned. Such a right conferred on the owners of the non-agricultural land, therefore, could not have taken away without payment of compensation.
We, therefore, are of the opinion that to that extent the 1975 Act would continue to be applied. The State has no legislative competence to repeal that portion of the 1975 Act.
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2009 (7) TMI 1301
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... ... ..... though fairly agrees that the said demand has to be paid by them in terms of the final order of Commissioner (Appeals), but submits that the lower authorities was not justified in adjusting the refund amount against the confirmed demand, inasmuch as the said demand was confirmed in the year 1991, whereas, the adjustment stands made by the adjudicating authority in the year 2009. He submits that in terms of the provisions of Section 11, such recovery of demand after a gap of so many years was not justified, though he fairly agrees that there is no time limit for recovery of demand. 3. I find no merits in the above submissions of the learned advocate. His reliance upon the Hon'ble Gujarat High Court judgment in the case of M/s. Ani Elastic Industries 2008(222) ELT 340 (Gujarat) is not appropriate, as the facts of the instant case are entirely different from the facts of the present case. As such, I find no merits in the appeal and reject the same. (Pronounced in the Court)
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2009 (7) TMI 1300
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... ... ..... w in this regard is well settled, the interpretation which has been put by Hon'ble Bombay High Court in the case of CIT vs. Punit Commercial Ltd. (supra) has to be followed being favourable to the assessee. We decide the issue accordingly. 22. So far as it relates to netting, it is observed that netting under section 80HHC has even been upheld by Hon'ble Delhi High Court in the case of CIT vs. Shree Ram Honda Power Equipments Ltd. (supra) wherein their Lordships have approved the decision of Special Bench in the case of Lalson Enterprises (supra) for the proposition that netting was permissible. So on that account also we find no infirmity in the order of the Ld. CIT (A) wherein he has directed the Assessing Officer to allow the netting. 23. In view of the above discussions, we find no infirmity in the order of the Ld. CIT (A) and the said order is upheld. 24. In the result, the appeal filed by the revenue is dismissed. Order pronounced in the Open Court on 16.07.09.
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2009 (7) TMI 1299
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... ... ..... me Court in the case of Shipra Retailers (Pvt.) Ltd. in SLP No.451/08 dated 21.1.08 as also in the case of Divine Leasing and Finance Ltd. in SLP No.375/08 dated 21.1.08. 5. In these circumstances, the deletion of addition made on account of share application money as made by the CIT(A) is on the right footing and consequently, the same is confirmed. 6. As the addition made on account of the share application money as deleted by the CIT(A) stands confirmed, consequently, the deletion of the alleged commission would also stand confirmed as the transaction of share application money itself has been accepted in the hands of the assessee. In the result the appeals of the revenue stand dismissed. 7. As the order of Ld. CIT(A) on the issue of share application money has been confirmed, the C.O. as filed by the assessee becomes infructuous and consequently the same is dismissed. 8. In the result, both the appeals of the revenue and the cross objection of the assessee are dismissed.
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2009 (7) TMI 1298
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... ... ..... plain the shortage and failure to do so attracting duty liability is well established. Therefore, the demand of duty is to be sustained. However, Board has prescribed the condonable limit of 2 which shall be allowed on the quantity of 12917.20 qtls which was stored, as per the records, in the tanks and the duty amount shall be reworked accordingly. The allegation / finding of clandestine removal is a serious charge. No evidence of clandestine removal has been relied upon as rightly observed by the Commissioner (Appeals). In view of the above, the penalty of ₹ 20,000/- imposed is reduced to ₹ 5,000/- (Rupees Five thousand only) for improper maintenance of accounts. 7. In view of the above, the appeal is partly allowed by reducing the demand on shortages by allowing the condonation to the extent 2 of the stock of 12972 qtls stored in tank No. 2. In respect of tank No.1, the shortage is within the limit. The duty demand and penalties are modified on the above terms.
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2009 (7) TMI 1297
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... ... ..... nd the orders of the authorities below. There is no dispute to the fact that as per lease agreement, the rent payable to the assessee was ₹ 4,500 per month. The assessee has not brought any material on record that there was any dispute between the assessee and the tenant and the rent had not accrued to the assessee. Since the assessee is admittedly following mercantile system of accounting, we are of the considered view that the action of the AO to consider the total rent for the assessment year under consideration at ₹ 49,500 as accrued to the assessee as per lease agreement is in order. As the assessee credited rent of ₹ 22,500 in P&L a/c, we hold that the AO was justified in making the addition of ₹ 27,000 towards rent to the income of the assessee. Hence we reverse the order of the learned CIT(A) by confirming the action of the AO. Therefore, ground No. 3 of the appeal is allowed. 12. In the result the appeal of the Revenue is allowed in part.
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2009 (7) TMI 1296
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... ... ..... law up to 12/07/2006. Further placed the reliance on the decision in the case of CC Vs. Hindustan Zinc Ltd., (2009 (91) RLT 255 (CESTAT-LB) 2009 (235) ELT 629 (Tri-LB) wherein it was held that prior to 13/07/2006, refund, which became due on final assessment is to be made without the claim being submitted by the assessee and, therefore, did not attract the provisions of unjust enrichment. 9. Heard. 10. On perusal of the record, I find that this case pertains to period prior to 13/07/2006. The doctrine of unjust enrichment was not applicable at that time and the amended provisions of Section 18 were applicable only from 13/07/2006. 11. In view of the above discussion, I hold that prior to 13/07/2006, the appellant is entitled for the refund on finalization of provisional assessment without the claim being submitted by the appellant and the refund is not attracted by the provisions of unjust enrichment. 12. Accordingly, the appeal is allowed with consequential relief, if any.
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2009 (7) TMI 1295
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... ... ..... g to law. If the confirmation is contrary to law it cannot be upheld. 29. For the aforesaid reasons, we are constrained to allow the writ petition with the following directions - (1) The confirmation of sale in favour of Respondent No.2 is quashed. (2) The secured creditor is free to proceed further in holding a further auction by giving appropriate notice as required. (3) It would be obviously open to Respondent No.2 to withdraw the amount already deposited or keep such amount in deposit, if he decides to participate in the further auction. (4) The cost of the earlier auction notice as well as cost of any subsequent auction notice would obviously be debited to the account of the borrower. (5) Before the subsequent auction takes place, it would be obviously open to the borrower to discharge the loan along with all accrued interest and costs, etc., as contemplated under section 13(8). 30. The writ petition is accordingly allowed, subject to the aforesaid directions. No costs.
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