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Showing 41 to 60 of 692 Records
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2010 (5) TMI 925 - GUJARAT HIGH COURT
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... ... ..... . 4. Co.Appln. No. 176 of 2005 dt. 1152005, Arvind Clothing Limited. 5. Co.Appln. No. 411 of 2005 dt. 16.12.2005, Dinesh Platechem Limited, 4. Therefore, it is submitted that it is not necessary for the Holding Company to take out separate proceedings for amalgamation of wholly owned subsidiary. 5. Heard the learned advocate appearing on behalf of the applicant. 6. Having gone through the aforesaid decisions as well as the order passed by this Court in Company Application No. 619 of 2006 as well as the Scheme of Amalgamation, and in light of various judgments referred to hereinabove, holding that separate proceedings are not necessary for the Transferee Company being the Holding Company, it is held in the present case also that separate proceedings, as required to be taken out under the provisions of Section 391(2) of the Companies Act, 1956, are not required to be undertaken by the applicant Company. This application is accordingly allowed to the aforesaid extent. No costs.
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2010 (5) TMI 924 - ITAT MUMBAI
Addition u/s 68 - Gift received by the assessee from his brother in USA - Deemed unexplained income of partnership - creditworthiness of the donor - HELD THAT:- We have considered the issue. Without going into the legalities of the addition made by the A.O. u/s 68, we are of the opinion that there was no case for treating the gift received by the assessee from his brother in USA as unexplained income of the assessee. As seen from the facts available on record the assessee’s brother is also partner in various firms in India and he has substantial capital towards his credit in India. The assessee’s brother is also filing returns in India on the profits from firms and other incomes earned in India.
As seen from the bank account furnished the assessee has large amount of credit as opening balance which was ignored by the A.O. in coming to the conclusion that the credits are only to the extent of US$16,500/- whereas the gift was to the extent of US $35,000. The opening credit of the month itself was about US $27,466. In view of these facts, we are of the opinion that the donor has creditworthiness to gift the amount to his brother and accordingly, the order of the CIT(A) is upheld.
In the result, appeal of the Revenue is dismissed.
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2010 (5) TMI 923 - ITAT AHMEDABAD
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... ... ..... ion in respect of the same bank accounts in the name of the Trust. We have held above that the bank accounts belong to the Trust and the amount lying in the bank accounts of the Trust is already considered in the case of the Trust by the Department and even refund has been granted to the Trust. We have also held that there is no evidence on record to prove that the amount lying in the bank account of the trust belong to the assessee. By following the reasons for decision in the appeals of the assessee, we do not find any infirmity in the order of the learned CIT (A) in deleting the addition on merit in the individual case of the assessee. We accordingly, do not find any merit in the departmental appeal. The same is accordingly dismissed. 15 As a result, departmental appeal in ITA No.3339/Ahd/2007 is dismissed. 16. In view of the above finding, the appeals of the assessee are allowed and the departmental appeal is dismissed. Order pronounced in the open court on 21 -05- 2010.
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2010 (5) TMI 922 - DELHI HIGH COURT
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... ... ..... n Delhi have jurisdiction. This question has now been raised before the High Court and the respondent No. 1 have filed the affidavit and documents and have taken a clear and categorical stand. It is further pointed out that the respondent No. 1 complainant is entitled to file documents even after the accused is summoned. Thus, there is merit in the contention raised by respondent No. 1. In case the learned trial court had raised the said contention it was open to respondent No. 1 to file an additional affidavit and documents to show and establish the territorial jurisdiction of the Delhi Courts. The said contention has now been raised and has been answered in the reply along with the supporting documents. 11. In view of the aforesaid, I do not find merit in the present petition and the same is dismissed. It is however clarified that this Court has taken a prima facie view. There are disputed questions of fact which have to be gone into and examined by the trial court. Dasti.
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2010 (5) TMI 921 - ITAT VISAKHAPATNAM
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... ... ..... exemption u/s 54 of the Act if the long term capital gain arising on transfer of a residential property is invested within a certain period either in purchase or construction of another residential property. The undisputed facts are that the entire building was let out by the assessee for commercial purposes. Accordingly the Ld CIT(A) held that though the municipal approval relating to the third and fourth floors are meant for residential purposes, yet, since the property has been let out for commercial purpose, the character of the property would remain as “Commercial property” only. Accordingly he rejected the claim of exemption u/s 54 of the Act. We do not find any infirmity in the decision of Ld CIT(A) since the property has been let out for commercial purposes. Accordingly we uphold the order of Ld CIT(A) on this issue. 9. In the result, the appeal of the assessee is treated as partly allowed for statistical purposes. Pronounced accordingly on 5th May, 2010.
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2010 (5) TMI 920 - COMPANY LAW BOARD MUMBAI BENCH, MUMBAI
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... ... ..... n hands. In the instant case, the Petitioner Company itself has failed to prove its bona fide conduct as the Respondent No. 4, who has filed this petition on its behalf has been found guilty of fabricating the documents and therefore the Petitioner is not entitled to the reliefs sought for. Moreover, the petition has not filed with proper valid and lawful authority, I am, therefore, left with no option but to dismiss the petition. 70. For the reasons discussed hereinabove, I hereby dismiss the petition. Order a. C.P. is dismissed. b. However, in the interest of justice, it is directed that all interim orders passed in this C.P. shall remain in force until 26/06/2014, to enable the Petitioner Company to prefer an appeal against the judgment, if it is so advised. In case, no Appeal is preferred, the interim orders shall stand vacated on 26/06/2014. c. C.As. also stand disposed off in the above terms. d. No order as to costs. e. Let copy of order be circulated to all concerned.
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2010 (5) TMI 919 - SUPREME COURT
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... ... ..... under Section 16 of the Act to rule on its own jurisdiction, including rule on any objections with respect to existence or validity of the Arbitration Agreement, on a plea being raised before him that he has no jurisdiction. 16. For the foregoing reasons, the petition is allowed and Mr. Justice M. Jagannadha Rao, a former Judge of this Court is appointed as the sole Arbitrator to adjudicate upon the claims/disputes raised by the petitioner, subject to his consent and such terms as he may deem fit and proper. It goes without saying that the learned Arbitrator shall deal with the matter uninfluenced by the observations made by the High Court of Andhra Pradesh in its order dated 6thFebruary 2007 or in this order, on the rival stands of the parties. 17. The Registry is directed to communicate this order to the learned Arbitrator to enable him to enter upon the reference and give his Award as expeditiously as practicable. The petition stands disposed of with no order as to costs.
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2010 (5) TMI 918 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... y defendant No. 1 in favour of defendant No. 2 in Civil suit No. 176 of 1988 by way of admission is patently illegal because the donor/plaintiffs had not empowered the donee/defendant No. 1 to transfer the suit property by virtue of a consent decree even if the donee/defendant No. 1 had the power to sell or to enter into a compromise in a suit because the sale of land is against a consideration and a compromise in suit is in writing and signed by the parties as provided under Order 23 Rule 3 of the Code of Civil Procedure, 1908 (for short 'CPC') but a decree on the basis of admissions, which is governed by Order 12 Rule 6 of the CPC has altogether different connotations. 12. Thus, from the aforesaid discussion, no question of law, much less substantial, is found to have been involved in this second appeal against the concurrent finding of facts recorded by both the Courts below and as such the same is hereby dismissed in limine, though, without any other as to costs.
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2010 (5) TMI 917 - SUPREME COURT
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... ... ..... challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of ‘backward classes’ under Art. 243- D(6) and Art. 243-T(6) should be distinct from the identification of SEBCs for the purpose of Art. 15(4) and that of backward classes for the purpose of Art. 16(4). (iv) The upper ceiling of 50 vertical reservations in favour of SC/ST/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas. (v) The reservation of chairperson posts in the manner contemplated by Article 243-D(4) and 243-T(4) is constitutionally valid. These chairperson posts cannot be equated with solitary posts in the context of public employment. 49. With these observations, the present set of writ petitions stands disposed of.
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2010 (5) TMI 916 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... eading, we wonder how such non accounting information could form part of the financial results which ever y listed company is requ ired to declare. It is axiomatic that notes to the financial results are an integral part thereof and, as we understand, the same are nece ssary to present a true and fair view of the financial position of the company as on that date. When we pointed out to the authorised representative of the appe llants as to how such non ac counting information could form part of the financial results, he st ated that it was a common practice among the listed companies to do so. We are not awar e of any such practice or convention. However, this is a matter which needs to be looked into by the Board as a market regulator and take a call whether such pr ice sensitive corporate announcements could be made in this manner even if they are not misleading. Having said this, we leave the matter at that. The appeals are disposed of as a bove with no order as to costs.
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2010 (5) TMI 915 - SC ORDER
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... ... ..... pta, Kunal Bahri, B. V. Balaram Das For the Respondent(s) Ajay Vohra, Kavita Jha, Akansha Aggarwal ORDER Delay condoned. The special leave petition is dismissed.
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2010 (5) TMI 914 - ATPMLA
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... ... ..... the charge sheet filed by the CBI and self contradictions in the statements of Sh. Parag P. Jhaveri, the appellant's contentions that he was not in the know of illegal activities of the key operators for cornering shares; he was not a financier for subscribing shares of IDFC IPO; the shares were acquired by him in a legal manner and the payment for purchase of shares were explained by the him etc., have substantial force and appears convincing. We are therefore of the considered opinion that the appellant was a bona fide purchaser/transferee of shares of IDFC in good faith for consideration. We accordingly hold that the financial gain from sale of 23,79,772 shares of IDFC in the hands of the appellant are not proceeds of crime and hence not involved in money laundering. Resultantly, the appellant is not covered under the provisions of the Act. For the reasons aforesaid, the appeal is allowed and impugned order of Adjudicating Authority confirming attachment is set aside.
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2010 (5) TMI 913 - ITAT AHMEDABAD
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... ... ..... rned Departmental Representative could not bring any material to controvert the above finding of the Learned Commissioner of Income Tax(Appeals). From the order of assessment, it is observed that the assessee in engaged in the business of manufacturing and trading of machinery parts. On the above facts, the explanation of the assessee that the technical drawing was an integral part of the above business of the assessee cannot be held as incorrect. Thus, the drawing charges in question being integral part of the main business of the assessee of manufacturing and selling of machinery and parts, we do not find any error in the order of the Learned Commissioner of Income Tax(Appeals), which is confirmed and this part of the ground of the appeal of the revenue is dismissed. Thus, this ground of appeal of revenue is partly allowed. 16. In the result, the appeal of the revenue is partly allowed as above. Order signed, dated and pronounced in the Court on this 21st day of May, 2010.
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2010 (5) TMI 912 - ORISSA HIGH COURT
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... ... ..... Company as claimed and appear before the opp. party as and when required to answer the queries to be made by opp. party, adduce evidence on behalf of the Managing Director/Company to which he/the Company will have no objection and the same shall be binding on him/Company. In addition to the above, the Managing Director shall also furnish an undertaking by way of an affidavit to that effect. This precaution is necessary for further progress in the proceedings and verification of the evidence. 16. The opposite party after being satisfied that the petitioner has acted in accordance with the direction issued by this Court, he shall dispense with personal appearance of the Managing Director. If the Managing Director fails to act according to the direction of this Court, it will be open to opposite party to proceed with the summons dated 05.02.2010 (Annexure-9) issued against the petitioner in accordance with law. 17. With the above observations, the writ petition is disposed of.
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2010 (5) TMI 911 - ITAT VISAKHAPATNAM
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... ... ..... s Tribunal ultimately confirmed the estimate at 5 of the sales. When an income is deemed to have been earned by the assessee, the benefit of availability of such income should also be given to the assessee and such amount should be deemed to have been available for making investments in the subsequent years. Having regard to circumstances, I set aside this issue to the file of the Assessing Officer, who is directed to verify the additions made for the immediately preceding year, towards deemed income, and such income should be treated as available with the assessee for the purpose of utilising the same towards introduction of capital and in the form of introduction of money as unsecured loans. Since these details were not available, I set aside the issue to the file of the Assessing Officer to verify the same and to provide appropriate relief. 22. In the result, appeal filed by the assessee is partly allowed. Pronounced accordingly in the open Court on 05th day of May, 2017.
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2010 (5) TMI 910 - ITAT HYDERABAD
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... ... ..... e case relied on by the learned counsel, the assessee filed appeal subsequent decision of the Sales Tax Tribunal in the assessee's own case. Similarly, in the case of Mahalakshmi Real Estates, Hyderabad vs. ITO, Ward-6(3), and Hyderabad dated 18th December, 2009, some ambiguity was existed in filing of appeal and if the condonation is denied, it amounts to double taxation. Hence the delay was condoned by the Tribunal. In the instant case, no such ambiguity exists and the delay is mainly due to negligence on the part of the assessee and the assessee appears to have woke up and filed the present appeal when the department pursued recovery action. Considering the totality of facts and the circumstances of the case, we refuse to condone the delay. Since the appeal remains un-admitted on the grounds of limitation, we are not inclined to go into the merits of the issues. 8. In the result, the appeal of the assessee is dismissed. Order was pronounced in the Court on 14 -5-2010.
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2010 (5) TMI 909 - DELHI HIGH COURT
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... ... ..... lies in the domain of the executive and it is upto the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation. It must also be borne in mind that there are provisions in the Code of Criminal Procedure which empower the courts of first instance to exercise a certain degree of control over ongoing investigations. The scope for intervention by the trial court is hence controlled by statutory provisions and it is not advisable for writ courts to interfere with criminal investigations in the absence of specific standards for the same.” Having regard to the aforesaid pronouncement, we are not inclined to exercise our extraordinary jurisdiction for directing monitoring of investigation by the CBI so that the investigation, as Mr. Bhushan would submit, came in the realm of control of the Court. Resultantly, the writ petition, being sah and substration stands dismissed. No orders as to costs.
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2010 (5) TMI 908 - SC ORDER
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... ... ..... ubstantial amount, let the Assessing Officer proceed with the assessment proceedings. However, no recovery will be made, till further orders. The interlocutory applications are, accordingly, disposed of. Let the civil appeals be listed on 31st August, 2010, for final hearing as first item on Board, subject to over-night part-heard, if any.
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2010 (5) TMI 907 - SUPREME COURT
Involuntary administration of scientific techniques - narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test - improving investigation in criminal cases - involves tensions between the desirability of efficient investigation and the preservation of individual liberties - Implications of permitting the use of techniques - fundamental rights to all citizens - Whether the results gathered from the impugned tests amount to `testimonial compulsion', thereby attracting the prohibition of Article 20(3) - HELD THAT:- we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as `personal testimony', since they are a means for `imparting personal knowledge about relevant facts'. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of `testimonial compulsion', thereby attracting the protective shield of Article 20(3).
Whether the involuntary administration of the impugned techniques is a reasonable restriction on `personal liberty' as understood in the context of Article 21 of the Constitution? The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty' under Article 21. Hence, our understanding of the `right to privacy' should account for its intersection with Article 20(3). Furthermore, the `rule against involuntary confessions' as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer.
We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual's decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. It is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person's mental processes is not provided for under any statute and it most certainly comes into conflict with the `right against self-incrimination'.
However, this determination does not account for circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse, surveillance, undue harassment and social stigma among others.
Whether the act of forcibly subjecting a person to any of the impugned techniques constitutes `cruel, inhuman or degrading treatment', when considered by itself - we must also highlight some practical concerns that strengthen the case against the involuntary administration of the tests in question. Firstly, the claim that the results obtained from these techniques will help in extraordinary situations is questionable. All of the tests in question are those which need to be patiently administered and the forensic psychologist or the examiner has to be very skilful and thorough while interpreting the results.
In a narcoanalysis test the subject is likely to divulge a lot of irrelevant and incoherent information. The subject is as likely to divulge false information as he/she is likely to reveal useful facts. Sometimes the revelations may begin to make sense only when compared with the testimony of several other individuals or through the discovery of fresh materials.
In a polygraph test, interpreting the results is a complex process that involves accounting for distortions such as `countermeasures' used by the subject and weather conditions among others.
In a BEAP test, there is always the possibility of the subject having had prior exposure to the `probes' that are used as stimuli. All of this is a gradually unfolding process and it is not appropriate to argue that the test results will always prove to be crucial in times of exigency. It is evident that both the tasks of preparing for these tests and interpreting their results need considerable time and expertise.
the compulsory administration of the impugned techniques violates the `right against self- incrimination'. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the CrPC it protects accused persons, suspects as well as witnesses who are examined during an investigation.
The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue'. The results obtained from each of the impugned tests bear a `testimonial' character and they cannot be categorised as material evidence.
We are of view that forcing an individual to undergo any of the impugned techniques violates the standard of `substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973.
Such an expansive interpretation is not feasible in light of the rule of `ejusdem generis' and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to `cruel, inhuman or degrading treatment' with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the `right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the `right against self-incrimination'.
Therefore, We hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. T
he National Human Rights Commission had published `Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique' and the `Brain Electrical Activation Profile' test. The text of these guidelines has been reproduced.
The present batch of appeals is disposed of accordingly.
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2010 (5) TMI 906 - DELHI HIGH COURT
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... ... ..... pplication. The learned Special Judge has given his reasons by passing detailed speaking orders. The petitioner has not challenged those remand orders by preferring any appeal or other proceedings in the High Court. Instead, present writ petition is filed, that too, at a time when the investigation is at a nascent stage. Since statutory remedy to challenge these remand orders is provided under law, which has not been availed of as yet by the petitioner, it would not be appropriate for us to comment on the merits of those orders. Stating at the cost of repetition that the scope of this writ petition is very limited and as we do not find that the proceedings pending before the learned Special Judge are ex-facie without jurisdiction, we have no option but to dismiss this writ petition giving liberty to the petitioner to challenge the orders of the Special Court in accordance with law, if he so desires. 16. In the circumstances of this case, there shall be no orders as to costs.
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