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2010 (1) TMI 1309
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... ... ..... e. Therefore, it is always necessary to record reasons in support of the order. We are constrained to set aside the impugned order since no reasons are to be found in support of the view taken therein. Looking to the consensus between the parties, the impugned order is set aside and the matter is remitted back to the lower Appellate Authority for consideration afresh. Needless to mention that the lower Appellate Authority shall keep in mind the law laid down by this Court, which is holding the field and shall decide each and every contention of the appellant by a reasoned order following the principles of natural justice within 8 weeks from the date of receipt of the copy of this order. All rival contentions on merits are kept open. The amount deposited shall continue to remain in deposit with this Court and disbursement thereof shall be subject to the result of the appeal. Both the petitions are allowed in terms of this order. Rule is made absolute with no order as to costs.
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2010 (1) TMI 1308
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... ... ..... e has also filed copy of the decision of the Hon ble Bombay High Court (Income-tax Appeal (L) No. 1236 of 2009 decided on 23rd June, 2009) in which the appeal of the Revenue in the case of the assessee was dismissed by following the decision in the case of Pfizer Corporation v. CIT, reported in 259 ITR 391. Therefore, following the decision of the Tribunal in the earlier year which has been confirmed by the decision of the jurisdictional High Court (supra), we decide the issue against the revenue by holding that the advertisement receipts would have been taxed only on cash basis as the assessee was not maintaining any books of account in India. 6. Ground No.4 relates to levy of interest under section 234-B and 234-C of the income-tax Act which is consequential in nature and, therefore, the Assessing Officer is directed to levy the interest in accordance with law. 7. In the result, the appeal filed by the Revenue is dismissed. Order pronounced on this 1st day of January, 2010.
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2010 (1) TMI 1307
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... ... ..... r of the first appellate authority is that this is a colourable transaction. In our humble opinion, these being group concerns and the facts of the case being well known to all in the group, the purchase of shares, that too at an inflated rate by the assessee company, despite of fact that it is well known that Polychem Ltd. is going to reduce its capital, is nothing but a colourable device and a make-belief transaction. There is no logic to the fact that shares are purchased at higher rate than what the assessee would get after reduction, specifically when, what would be obtained on reduction is well known to all parties as the order of B.I.F.R is clear on the matter. The genuineness of the transaction is not proved. Thus, we uphold the findings of the first appellate authority and dismiss this ground of the assessee. 25. In the result, the appeal of the assessee is allowed in part and the appeal of the Revenue is dismissed. Order pronounced on this 20th day of January, 2010.
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2010 (1) TMI 1306
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... ... ..... t between the same parties, Justice B.N. Srikrishna, former Judge of this Court is adjudicating the same as an Arbitrator at Mumbai, it is but proper and convenient for both parties to have the assistance of the same Hon'ble Judge. 21. Accordingly, Hon'ble Mr. Justice B.N. Srikrishna, former Judge of this Court is appointed as an Arbitrator to resolve the dispute between the parties. It is made clear that this Court has not expressed anything on the merits of the claim made by both parties and whatever conclusion arrived at is confined to appointment of an Arbitrator. It is further made clear that it is for the Arbitrator to decide the issue on merits after affording adequate opportunity to both parties. In terms of the Arbitration clause, the place of Arbitration is fixed at Mumbai. The Arbitrator is at liberty to fix his remuneration and other expenses which shall be borne equally by both the parties. 22. Arbitration petition is allowed on the above terms. No costs.
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2010 (1) TMI 1305
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... ... ..... enced only with fine. Learned Advocate V. Menezes for the appellant submitted that essentially the prosecution is launched for getting the money due under the dishonoured cheque, and therefore, the amount of fine on which the accused would be released ought to be proportionate to loss suffered by the appellant/complainant from the time the cheque was dishonoured till this date. 18. Offences under N.I. Act, 1881 are compoundable. This signifies that there is freedom for parties to remove blame of punishment under this Act on their terms. Considering the facts and circumstances in the present case, the following order is passed i. The respondent/accused is sentenced to a fine of Rs. 60,000/- and in default to undergo S.I. for a period of three months. ii. Fine to be deposited in this Court within four weeks. iii. The amount of Rs. 50,000/- from the amount deposited towards fine shall be paid to the appellant/complainant as compensation. iv. Registry to arrange for such payment.
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2010 (1) TMI 1304
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... ... ..... nces of the case, since the matter has already been admitted as back as on 25.9.1984, and therefore decided to hear and decide this matter while sitting at Nagpur. That decision cannot be considered as authority for the proposition that the matter arising outside the specified districts should be entertained by this Bench at Nagpur. 10. We thus find that mere receipt of three communications dated 23.12.2008, 9.1.2009 and 16.6.2009, by the Petitioner at Nagpur pertaining to a corrigendum to the tender notice, the date and time of the opening of the tender and whether a certificate submitted by the Petitioner is appropriate, do not furnish even part of the cause of action and thus, the Petitioner is not entitled to move this Bench at Nagpur. 11. In the result, we are of the view that this petition ought not to be entertained by this Bench at Nagpur. Papers are therefore, directed to be returned to the Petitioner for filing before the Principal Seat at Bombay. Order accordingly.
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2010 (1) TMI 1303
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... ... ..... said cheques were to be returned by the Complainant on the execution, of the Sale Deed, therefore, appears to be more probable. The trial Court, therefore, on consideration of the evidence on record has rightly come to a conclusion that the accused has by the cross-examination of the Complainant raised a serious doubt about the loan transaction. In my view, therefore, considering the facts and circumstances of the case as mentioned hereinabove, the accused has successfully rebutted the presumption under Section 139 of the Act by raising a probable defence and, therefore, the Complainant was not entitled to any reliefs under Section 138 of the Act and the trial Court was right in dismissing the complaint. 19. In my view, therefore, no case for interference is made out. The Criminal Appeal is accordingly rejected. 20. The personal bond and surety which has been directed to be furnished by the Respondent-Accused on 11-8-2009 for an amount of Rs. 10,000/-, would stand discharged.
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2010 (1) TMI 1302
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... ... ..... upon the decision of this Court in Ramaswamy v. Bharti Infotel Ltd. 148 (2008) DLT 79 where a learned Single Judge of this Court observed in para 21 of the judgment that the date of commission of the offence cannot be said to be the date of its dishonor of the cheque, but the date on which it was drawn. In view of the authoritative pronouncements of the Hon'ble Supreme Court in Kusum Ingot (supra) and K. Bhaskaran (supra), it is not possible for me to go by the view taken in this case. More importantly, this judgment does not take into consideration, the decision of the Hon'ble Supreme Court in the case of Kusum Ingot as well the subsequent decisions of this Court relying upon and following the decision of the Hon'ble Supreme Court in the case of Kusum Ingot and, therefore, does not bind this Court. 13. For the reasons given in the preceding paragraphs, both the petitions are allowed and the criminal complaints, subject matter of these petitions are here quashed.
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2010 (1) TMI 1301
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... ... ..... lam, JJ. ORDER Appeal dismissed.
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2010 (1) TMI 1300
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... ... ..... cluding that since the advertisement did not mention that a separate selection will be held, for the post reserved for sportsmen, the same would not be permissible in law. The deduction of 34 posts for separate selection would not in any manner affect the overall ratio of reservation as provided by law. Furthermore, there is no carry forward of any post. The separate selection is clearly part and parcel of the main selection. In view of the factual situation, we are of the opinion, that the conclusions recorded by the learned Single Judge and the Division Bench with regard to the 34 posts reserved for the outstanding sportsmen category i.e. (29 SICP) (5 PC) also cannot be sustained. 65. Therefore, the aforesaid appeals filed by the State and the Director General of Police are allowed. The direction issued by the learned Single Judge in the final paragraph as well as the directions issued by the Division Bench in modification of the order of learned Single Judge are set aside.
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2010 (1) TMI 1299
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... ... ..... the approved facility and therefore not included in the cost of in house research facility. 11. The AR submitted that identical issues has been decided by CIT(A) in the assessee’s own case for the assessment years 2003-04 in ITA.No.0559/CIT(A)/II/05-06 wherein after going into the details of the issue, allowed the ground of the assessee and the same may be followed. 12. We have heard from both the parties and perused the material on record. In our humble opinion, following the principles of consistency, for the assessment years under consideration also the department cannot have any grievance against this issue. Accordingly, we decline to interfere with the order of the CIT(A) on this issue and the grounds taken by the Revenue in these appeals are dismissed. 13. In the result, the appeals of the Revenue in ITA Nos.558/560/636/Hyd/2007 are partly allowed and ITA No. 559/Hyd/2007 and ITA No.1327/Hyd/2008 are dismissed. Order pronounced in the open Court 29th January, 2010
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2010 (1) TMI 1298
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... ... ..... Mr. Gaurav Singh, Adv. ORDER The special leave petition shall stand over for four weeks in order to enable the assessee herein to file an additional affidavit indicating therein the accounting treatment which has been given by the assessee to the expenses incurred towards payment of excise duty.
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2010 (1) TMI 1297
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... ... ..... ssued under section 131, no adverse inference can be drawn. Further, we find that the assessee had already submitted the names and addresses and IT details of the share applicants and under these circumstances the decision if the Hon’ble Apex Court delivered in the case of CIT vs. Lovely Exports 216 CTR 195 is directly applicable. In this case it was held that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the Assessing Officer, then the Department is free to proceed to reopen their individual assessments in accordance with law, but it cannot be regarded as undisclosed income of the assessee. 10. In the background of aforesaid discussion and precedent, we do not find any illegality or infirmity in the order of the ld. CIT(A). Hence, we uphold the same.” 9. In the result, the appeal filed by the revenue is dismissed. 10. This decision is pronounced in the open court on 22nd January, 2010.
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2010 (1) TMI 1296
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... ... ..... However, this does not call for any addition u/s.68 of the I.T. Act, 1961 as the possibility revealed that the amount received by the assessee was towards share application only and not from any income earning activity. The share applications were received from the persons who were in acquaintance with the then Directors. The assessee being Private Limited Company, the share applicants will the friends or relatives of the Directors only and, hence, it can be held that the amount received by the assessee is not the undisclosed income in the form of unexplained share capital. Therefore, the addition was rightly deleted by the Learned CIT(Appeals). 7. As regards, interest payable on the share application, since the amount was not borrowed for the purpose of business but only by way of raising share capital, interest payable thereon is not allowable. 8. In the result, the appeal and the cross objection are dismissed. Order signed, dated and pronounced in the Court on 12 /02 /2010
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2010 (1) TMI 1295
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... ... ..... r, if the assessee has not claimed deduction of the turnover tax on payment basis under Section 43B for 1990-91, 1991-92 and 1992-93 as stated in the order, then certainly there is no case for assessment of refund because if the amount happened to be assessed as it's income for any earlier year, repeated assessment is not called for on refund of the tax after payment by the respondent. In other words, if deduction of turnover tax paid was allowed in the assessment for any year prior to the year in which refund is issued, then the refund amount is assessable in the year in which it is received by virtue of operation of Section 41(1) of the Act. However, it will be open to the assessee to produce evidence that no deduction is claimed for payment of turnover tax for the assessment years 1990-91, 1991-92 and 1992-93 as stated in the assessment order and if the same is found to be a mistake, the Assessing Officer will exclude the amount from assessment by rectifying the order.
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2010 (1) TMI 1294
Negotiable Instruments Act - offence u/s 138 - cheques in question for examination - Whether the Courts can order to send documents for forensic opinion regarding the age of the writings and signatures on disputed documents? - HELD THAT:- No denial of the fact that the accused needs to be afforded a fair trial to exhaust all his defences available to him. Fair trial is the sine qua non of criminal jurisprudence and the same has been recognised as a fundamental right under Article 21 of the Constitution of India. To prove that the handwriting was not made by him or that the signature was not made by him, the accused can very well request the Court to forward the document for expert opinion. But the question is, in respect of the age of the writings on a document whether there is any expert in terms of Section 45 of the Evidence Act, who shall be competent to examine the same scientifically and to offer his opinion.
According to Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu, On a query made by this Court regarding the above position, he would explain to this Court that there is no scientific method available anywhere in this State, more particularly, in the Forensic Science Department, to scientifically assess the age of any writing and to offer opinion. However, he would submit that there is one institution known as Neutron Activation Analysis, BARC, Mumbai, where there is facility to find out the approximate range of the time during which the writings would have been made. It is a Central Government organisation. According to him, even such opinion cannot be exact. He would further submit that since it is a Central Government Organisation and confined only to atomic research, the documents relating to prosecutions and other litigations cannot be sent to that institution also for the purpose of opinion. Therefore, whole exercise adopted in various Courts in this State to send the disputed documents for opinion to the Forensic Department in respect of the age of the writings and the documents is only futile.
In view of all the above, in my considered opinion, sending the documents for opinion in respect of the age of the writing on documents should not be resorted to hereafter by the Courts unless, in future, due to scientific advancements, new methods are invented to find out the age of the writings.
In view of all the above, the revisions are allowed and the impugned orders of the learned Magistrate are set aside and the request for sending the documents for ascertaining the age of the writings is rejected. Connected miscellaneous petitions are closed.
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2010 (1) TMI 1293
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... ... ..... by an expert with scientific accuracy. Further, the use of the old ink manufactured long ago will definitely create a dent in the opinion furnished by an expert. Therefore, there is no necessity for sending the disputed cheque admittedly signed by the petitioner to an expert for his opinion. The Order passed by the learned Judicial Magistrate No. I, Erode in C.M.P. No. 2915 of 2007 in C.C. No. 1287 of 2006 does not suffer from any illegality or impropriety. Therefore, there is no warrant for interference with the well considered order passed by the Trial Court. In view of the above, this Court feels that the Order of the learned Additional District Munsif needs interference. Therefore, the order dated 11.06.2008 made in Crl. M.P. No. 1687 of 2007, passed by the learned Additional District Munsif, Thoothukudi, is set aside and this Criminal Revision Petition is allowed. The Trial Court is directed to expedite the trial. Consequently, connected Miscellaneous Petition is closed.
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2010 (1) TMI 1292
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... ... ..... security of civil liberty'. The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc." 25. As we find legal infirmities in the impugned order of detention, we have no option but to set aside the same. Rule is made absolute and order dated 26.02.2010 is set aside. As a consequence, the respondents are directed to release the petitioner forthwith setting him at large. The petitioner shall also be entitled to the cost quantified @ Rs.15,000/-
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2010 (1) TMI 1291
Seeking grant of bail u/s 439 CrPC - Offence punishable u/s 120B IPC and Section 7, 8, 12, 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 - discriminatory treatment of the petitioner qua the other co- accused - HELD THAT:- No doubt the petitioner was arrested on 23rd November, 2009 immediately after the other co-accused Manoj had delivered a sum of ₹ 7,00,000/- and the consequent recovery of ₹ 55 lakhs which included prima facie this amount shows that the petitioner had been ostensibly misusing his official position in amassing huge cash/wealth for which he has not been able to give any plausible explanation weighs heavily against him. This view further gets fortified by the huge cash recovery of ₹ 1,21,23,800/- or so from Chennai but then this ground in itself cannot be ground to deny the bail because then we will be punishing the accused even before he has been found guilty.
In the present case, the investigating agency has not adopted a just and fair approach in treating all the accused persons on a even pedestal while as the petitioner has been arrested on 23.11.2009 yet no action has been taken against the third co-accused Ankur Chawla despite the fact that he is specifically named in the FIR and where in view of the Court prima facie there is sufficient evidence to show that he was also a part of the conspiracy not only to commit the offence but also abettor of the offence. Beyond this the Court does not want to observe anything and leave the things to the wisdom of the investigating agency, therefore Court takes this also a valid consideration to exercise discretion for grant of bail to the present petitioner.
Merely because the petitioner's earlier of criminal misconduct of misusing of his position and amassing a huge cash, for which he is not able to give any reasonable explanation till date has gone un-noticed is not in itself a ground for release of bail. Similarly the vigilance or the IB reports also do not help him in any manner. The alleged non-compliance of Section 6A also does not help the petitioner because I agree with the contention of the learned Counsel for the CBI that the offence of corruption may so sudden that in a given case it may defeat the ends of justice if one has to obtain the sanction for registration of the offence.
There are two more considerations which weigh with the Court for enlarging the petitioner on bail. These are firstly that the petitioner's remand was obtained for seven days for taking him to Chennai but he was never taken there after he was remanded to judicial custody. The CBI never sought any permission to interrogate him, therefore, the continued incarceration of the petitioner in my view is not going to serve any purpose except to deny the benefit of bail to him by way of punishment. Secondly, the petitioner is admittedly patient who has undergone bypass surgery. Although no grievance has been raised by the learned senior counsel for the petitioner regarding the non availability of medical aid or medical checkup but still the medical status of the petitioner which has been placed on record is certainly also a valid consideration that he had undergone a coronary bypass surgery only in 2007. This in my view is also a ground to be taken into account.
Thus, I feel that this is a fit case where the petitioner, who is in custody since 23.11.2009, should be released on bail on furnishing personal bond in the sum of ₹ 50,000/- with two sureties for the like amount to the satisfaction of the learned Special Judge.
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2010 (1) TMI 1290
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... ... ..... s has not yet been taken. Consequently, we decline to entertain this appeal. However, the appellant has applied for approval of the Committee on Disputes. In case the Committee on Disputes grants approval, the Revenue would be at liberty to file a fresh appeal within 15 days of the appellant receiving the order granting approval. This appeal stands disposed of in these terms.
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