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Showing 61 to 80 of 936 Records
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2010 (9) TMI 1237 - ITAT NEW DELHI
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... ... ..... months after ‘record date’. Therefore, the CIT (A) was not justified in holding that ‘month’ start from the 1st date of the month. He pleaded to set aside the order of CIT (A). 10. Learned DR relied on the orders of authorities below. 11. After hearing both the sides in detail, we find that the language of section 94(7) is very plain and unambiguous which clearly provides that within a period of three months after such date here such date is ‘record date’. In assessee’s case, it was 21.3.2002. From there the period of three months can be calculated only upto 21.6.2002. The redemption of units was effected on 24.6.2002. Therefore, in our considered view, the authorities below were not justified in invoking the provisions of section 94(7) of the Act and we set aside the order of authorities below on this issue. 12. In the result, the appeal of the assessee is allowed. Order pronounced in open court on this 10th day of September, 2010.
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2010 (9) TMI 1236 - BOMBAY HIGH COURT
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... ... ..... aid Act. However, CIT (A)I in the Appeal filed by the Petitioner has set aside the penalty holding that there was reasonable delay in filing the return late by one month. Therefore, the CIT (Appeal) accepted the very same facts as were mentioned by the Petitioner in the Application under Section 119(a)(b) of the said Act. 8 It is well settled that in matters of condonation of delay a highly pedantic approach should be eschewed and a justice oriented approach should be adopted and a party should not be made to suffer on account of technicalities. 9 In that view of the matter the above Petition is required to allowed. The impugned order dated 18-3-2010 is required to be set aside and is accordingly set aside and resultantly the delay in filing the return to stand condoned and the Petitioner would be entitled to the carry forward and set off of losses in accordance with law. 10 Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.
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2010 (9) TMI 1235 - SUPREME COURT
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... ... ..... n. The issue herein only related to a tenancy and subletting. There was no lis relating to the ownership of the land on which the superstructure or the demised premises had been constructed. The whole issue of ownership of plot of land No 2, Block-B, transport area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter of a civil suit being Suit No 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought not to have given any opinion on the question of ownership. 26. We are of the opinion the High Court traveled beyond the well defined contours of its jurisdiction under Article 227 of the Constitution of India. 27. We, therefore, allow this appeal and set aside the impugned judgment and order. Civil Appeal No. 8234 of 2010 Special Leave Petition (C) No.1925 of 2008 1. Leave granted. 2. In view of the judgment in Civil Appeal No.8233 of 2010 SLP (C) No. 16995 of 2009, this appeal becomes infructuous and is dismissed as such.
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2010 (9) TMI 1234 - CALCUTTA HIGH COURT
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... ... ..... rdinate Bench of Learned Tribunal and it was accepted by the same Bench. However, it is recorded that the facts and circumstances of the issue was identically same with that of the assessment year 2005-06. The learned Tribunal while accepting the decision of the coordinate Bench and having found the CIT (A) has followed the decision of the Jurisdictional High Court we do not think the Learned Tribunal has passed any wrong order in any manner, whatsoever. We, therefore, do not find any infirmity in the same, though Mr. Bhowmick urged that the decision of the High Court was not on proper discussion or reason and it was dismissed with one line verdict. But we are of the view when the High Court dismissed an appeal and upheld the action of the learned Tribunal it is an acceptance of the High Court itself. Therefore, this appeal is dismissed accordingly. Certified photostat copy of this order, be made available to the parties, if applied for, upon compliance of usual formalities.
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2010 (9) TMI 1233 - ITAT AHMEDABAD
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... ... ..... hich is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars. Decision of the Gujarat High Court affirmed.” Hon’ble Supreme Court in the case of M/s. Rajasthan Spinning & Weaving Mills 2009 TIOL 63 SC held that “on every demand penalty is not automatic”. 20. Considering the facts of the case as noted above, in the light of the above decisions, we are of the view that it is not a fit case for imposition of penalty. The orders of the authorities below are accordingly set aside and penalty u/s 271 (1) ( c ) of the IT Act is cancelled. 21. In the result, the appeal of the assessee is allowed. 22. In the result, the appeal of the assessee in ITA No.1215/Ahd/2007 is partly allowed. However, the appeal of the assessee in ITA No.3266/Ahd/2009 is allowed. Order pronounced in the open Court on 09-09-2010
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2010 (9) TMI 1232 - SUPREME COURT
Doctrine of basic structure - Whether the inclusion of the Janmam Act (Act 24 of 1969) in the Ninth Schedule amounted to direct negation and abrogation of judicial review - Validity of Thirty-fourth Amendment Act, 1974 - According to the learned Counsel, in the absence of any provisions for distribution of lands having vested in the State, the impugned Section 3 of the Act 24 of 1969 and its insertion in the Ninth Schedule to the Constitution as Item 80 was arbitrary, discriminatory and not only violated Article 14 but also the basic structure of the Constitution in terms of separation of powers and rule of law. According to the learned Counsel, the impugned legislation inter alia violated the rule of law which is a facet of the doctrine of equality and, therefore, it is not validated under Article 31B of the Constitution.
HELD THAT:- We find no merit in the submissions advanced by Shri Viswanathan, learned senior counsel for the petitioner (s) that inclusion of the Janmam Act (Act 24 of 1969) in the Ninth Schedule (Item No. 80) amounted to direct negation and abrogation of judicial review as the impugned Constitution (Thirty- fourth Amendment) Act, 1974 confers naked power on the Parliament to obliterate the judicial decision in Balmadies case which became final, without changing the basis of the decision or the law and, therefore, the said impugned Constitutional Amendment Act destroys the basic feature of the Constitution, namely, judicial review. the amending power under Article 368 of the Constitution is a derivative power. The doctrine of basic structure provides a touchstone on which the validity of the Constitutional Amendment Act could be judged. While applying this doctrine, one need not go by the content of a "right" but by the test of justifiability under which one has to see the scope and the object of the Constitutional Amendment. In the present case, we are concerned with the validity of the Constitution (Thirty-fourth Amendment) Act, 1974. It is true that all lands including forests falling in the janmam estate vest in the State u/s 3 of the Act 24 of 1969. Under that Act, the State gave pattas for cultivable lands though such pattas were not given for forests which vested in the State. It is also true that after Act 20 of 1972 forests which earlier stood exempted from the provisions of the Ceiling Act, 1961 got included in the Ceiling Act (Act 20 of 1972).
we are of the view that the requirement of public purpose and compensation are not legislative requirements of the competence of Legislature to make laws under Entry 18, List II or Entry 42, List III, but are conditions or restrictions under Article 31(2) of the Constitution as the said Article stood in 1969. Breach of such conditions would attract only Part III challenge. Therefore, when the Janmam Act (Act 24 of 1969) was put in the Ninth Schedule in 1974, the Act received immunity from Article 31(2) with retrospective effect. Lastly, in pith and substance, we are of the view that the Janmam Act (Act 24 of 1969) was in respect of "land" and "land tenure" under Entry 18, List II of the Constitution. For the afore-stated reasons, we find no merit in the contention of the learned Counsel for the petitioners that the Tamil Nadu Legislature had no legislative competence to enact the Janmam Act (Act 24 of 1969).
In our view, the scope and ambit of the two Acts are completely different and they operate in different spheres. Secondly, the Ceiling Act (Act 20 of 1972) came into force from 1.3.1972. Prior to that date, forests stood exempted from the provisions of the 1961 Act. It is only on and after 1.3.1972 that forests stood included in the 1961 Act by virtue of the Ceiling Act (Act 20 of 1972). The important point to be noted that before ceiling could be determined and before compensation to be paid for excess lands which vested in the State under the Ceiling Act (Act 20 of 1972), the Janmam Act (Act 24 of 1969) came into force on 27.11.1974 under which the forests vested in the State. The main focus of the Ceiling Act (Act 20 of 1972) was to fix a ceiling of agricultural land holding and to distribute the excess lands to the landless and other agricultural population. The scope of the Ceiling Act (Act 20 of 1972) was made wide enough to cover the lands in the hilly areas. In short, before the excess lands could be determined for vesting in the State under the Ceiling Act (Act 20 of 1972), the Janmam Act (Act 24 of 1969) came into force which, as stated above, operated in a different sphere vis-a-vis the Ceiling Act (Act 20 of 1972). For the afore-stated reasons, we find no merit in the argument on behalf of the petitioners that both the Acts operated in the same field and, consequently, it was not open to the State Government to act according to the provisions of the Janmam Act (Act 24 of 1969).
we see no merit in this batch of cases. Accordingly, the same are dismissed with no order as to costs.
K.S. Panicker Radhakrishnan, J.
Coelho Principle:- Coelho held that the object behind Article 31B is to validate certain legislations, which otherwise may be invalid and not to obliterate Part III in its entirety or to dispense with judicial review of those legislations. The Court held that Article 21 confers right to life, which is the heart of the Constitution and when Article 21 read with Articles 14, 15 and 19 is sought to be eliminated not only the "essence of right" test but also the "right test" has to be applied.
Fundamental rights enshrined in Part III can be extinguished by Constitutional amendments and if it abrogates or abridges such rights, would not as such, abrogate or abridge the basic structure. The test is whether it has the effect of nullifying the over arching principles of equality, secularism, liberty and so on especially when such a law is placed in the 9th Schedule, which test in the present case has not been satisfied.
I, therefore, fully concur with the view of the Lord Chief Justice that the writ petitions and the civil appeals deserve dismissal, and there shall be no order as to costs.
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2010 (9) TMI 1231 - ITAT LUCKNOW
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... ... ..... did not appear before the ld.CIT(A), therefore, the appeal was rightly dismissed for non-compliance. 13. We have considered the submissions of both the parties and gone through the material available on the record. In the instant case, although the ld. CIT(A) has stated that the case was fixed eight times for hearing, but nowhere it is stated that the assessee did not comply the notices. It is also noticed that the ld.CIT(A) had not decided the appeal on merit, but dismissed the same in limine. We, therefore, deem it appropriate to set aside the order of the ld.CIT(A) and remand the case to be decided on merit in accordance with law, after providing due and reasonable opportunity of being heard to the assessee. The assessee is also directed to co-operate and not to seek unwarranted and unreasonable adjournments. 14. In the result, the Miscellaneous Application is allowed and the appeal is allowed for statistical purposes. The order pronounced in the open Court on 17.9.2010.
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2010 (9) TMI 1230 - CALCUTTA HIGH COURT
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... ... ..... endant to file its written statement is extended till September 8, 2010. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2010 (9) TMI 1229 - DELHI HIGH COURT
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... ... ..... 38 of the Act, prima facie appears to have arisen within the jurisdiction of the courts in Delhi. However, it is clarified that if after taking cognizance, the respondent/accused is able to place such material facts on the record which demonstrate that the Courts in Delhi do not have the territorial jurisdiction to entertain the complaint, the learned Metropolitan Magistrate shall still have a free hand to ascertain the truth of the allegations made by the petitioner/complainant and arrive at a different conclusion. 26. The present petitions are therefore allowed and the impugned order is set aside. The case is remanded back to the trial court with directions to proceed further and deal with the complaint of the petitioner under Section 138 of the Act, in accordance with law. The petitioner shall appear before the learned Metropolitan Magistrate on 18.10.2010 at 2 00 PM. 27. A copy of this order shall be forwarded by the Registry forthwith to the trial court for information.
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2010 (9) TMI 1228 - BOMBAY HIGH COURT
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... ... ..... of ₹ 300 crores before the Registrar (O.S.)/Prothonotary & Senior Master of this Court in Suit No. 1869 of 2010 (Suit (Lodging) No. 1901 of 2010) within six weeks from today. To enable the plaintiff to comply with the said condition, for a period of six weeks from today, the respondent-defendant World Sports Group (Mauritius) Limited is restrained from continuing with the above arbitral proceedings. 64. Upon deposit, the amount shall be invested with a Nationalised Bank for a period of one year, under the cumulative interest scheme, with instructions to the Bank to continue to renew the deposit until further orders of this Court in Suit No. 1869 of 2010 (Suit (Lodging) No. 1901 of 2010). 65. If the condition of depositing the amount is not complied with within the above time limit, the injunction shall stand vacated upon expiry of the said time limit. 66. Since the appeal is disposed of, notice of motion filed in the appeal does not survive and stands disposed of.
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2010 (9) TMI 1227 - DELHI HIGH COURT
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... ... ..... at the appropriate time, in view of the fact that the proceedings have attained finality will not set aside the decree, unless prejudice is caused on merits. In our view, if the plaint discloses some facts, which may however, be incomplete to vest territorial jurisdiction in the Court, the Court would entertain an Application for amendment of the pleadings. This is more so, as such an amendment would not set up a new case. However, if no facts are disclosed qua territorial jurisdiction then the defect cannot be even cured by amendment and in such a case an Application for amendment cannot be entertained. 24. Indubitably, at this stage the Respondent's response cannot be looked into. However, on merits in the present case, as discussed above, even taking the pleadings and documents annexed thereto by way of amendment, this Court has no territorial jurisdiction to entertain the plaint. 25. For the reasons stated above the present Appeal is dismissed. No order as to costs.
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2010 (9) TMI 1226 - DELHI HIGH COURT
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... ... ..... no business in India. He is not recognized in India. His product has not come on the Indian road. Production of his vehicle, due to technical reasons has now been suspended. None of the ingredients for continuing of the interim injunction in favour of the plaintiff arise. If injunction is allowed to continue, the loss to be suffered by the defendant would become irreparable as his business would come to stand still. In these circumstances, balance of convenience is also in favour of the defendant. The application of the defendant under Order 39 Rule 4 CPC is accordingly allowed and the interim ex parte injunction granted on 22.12.2009 is set aside. 62. I.A. No. 16776/2009 and I.A. No. 110/2010 are disposed off accordingly. 63. plaintiff has not produced any evidence to show that the defendant has violated the order of this Court dated 22.12.2009; ingredients of perjury have also not been established. I.A. No. 1156/2010 and I.A. No. 1032/2010 are without any merit. Dismissed.
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2010 (9) TMI 1225 - CESTAT MUMBAI
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... ... ..... claimed rebate of duty on the clearance made by the appellants, after opting the exemption. The case law relied on by the learned DR in the case of Nisma Aircon International Ltd.(supra) deals with Rule 11 (1) and (2) wherein the exemption is based on value and quantity which is not the case here and the case law of Hotline Teletubes & Components Ltd. (supra) is also not relevant as it deals with the Rules prior to 2002. The case law relied on by the learned Advocate are squarely applicable to these cases wherein it was held that the assessee is entitled for the CENVAT credit availed by them correctly and thereafter their goods become exempted and as held by this Tribunal in the case of Shree Prakash Textiles (Guj.) Ltd (supra). The appellants are entitled to claim the refund of the unutilised credit lying in their CENVAT credit account. With these observations, the impugned orders are set aside. 7. The appeals are allowed with consequential relief. (Pronounced in Court)
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2010 (9) TMI 1224 - ITAT LUCKNOW
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... ... ..... irmed view that ratio laid down by the Hon'ble Delhi High Court in the case of Director of Income Tax (Exemption) vs. Bagri Foundation ((supra),) is squarely applicable to the facts of the present case. In that view of the matter, we are of the view that no interference is called for in the impugned order passed by learned CIT(A). 15. As regards to the Cross Objection filed by the assessee is concerned, the learned counsel for the assessee, during the course of hearing, submitted that the grounds raised in the Cross Objection may be considered as of academic interest if the order of the learned CIT(A) is upheld. Since in the former part of this order we have confirmed the order of the learned CIT(A), therefore, the Cross Objection filed by the assessee is treated as of academic interest and accordingly dismissed. 16. In the result, the appeal of the department as well as the Cross Objection of the assessee is dismissed. (Order pronounced in the open court on 09/09/2010 )
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2010 (9) TMI 1223 - MADRAS HIGH COURT
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... ... ..... oogle, including the adwords policy, are framed by Google Inc., USA. Perhaps, the policies are trimmed by the subsidiaries in different jurisdictions, depending upon the local laws. But, ultimately, it is the holding company which owns the search engine. Therefore, the proposed defendant is a proper party, even if construed to be not a necessary party. Hence, A.No.247 of 2010 is allowed. 224. In fine---------- (i) O.A. Nos.977 and 978 of 2009 are dismissed. But the dismissal of these applications shall not be construed to mean that the first defendant (Google) may henceforth deprive the plaintiff, of the benefit of their Adwords Trademark Policy, as reflected in document Nos.2, 3 and 4 filed by them. (ii) A.No.6001 of 2009 is dismissed. (iii) A.Nos.6380, 6382 and 6383 of 2009 are dismissed. (iv) A.No.247 of 2010 is allowed. The parties shall bear their own costs. It is made clear that the main suit shall proceed, uninfluenced by all observations and findings recorded herein.
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2010 (9) TMI 1222 - SUPREME COURT
Maintainability of the suit - Principles of constructive res judicata - barred u/s 69 of the Partnership Act, 1932 - suit is dismissed barred by Order 2 Rule 2 of the Code - the appellant filed an appeal. The appellant bench affirmed the decision of the trial bench. It however held that as it was agreeing with the learned Single Judge that the suit was barred by Order 2 Rule 2 of the Code and that the appellant had settled all her claims with the respondent under the Bayana Agreement dated 29.6.2004, it was not necessary to decide upon the question as to whether the partnership deed dated 5.4.2000 could be enforced in a court or not. The said order is challenged in this appeal by special leave. For the reasons following, we are of the view that the orders of the learned Single Judge and the Division Bench which ignore several basic principles of Code of Civil Procedure cannot be sustained.
HELD THAT:- In this case, the respondent did not contend that the suit was barred by Order 2 Rule 2. No issue was framed as to whether the suit was barred by Order 2 Rule 2. But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2. Res judicata relates to the plaintiff’s duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable. The observation of the learned Single Judge that "the facts of this case do not require any opportunity for leading evidence to be given to the plaintiff" violates Order 15 Rule 3 of the Code. Where summons have been issued for settlement of issues and where issues have been settled, unless the parties agree, the court cannot deny the right of parties to lead evidence. To render a final decision by denying such opportunity would be highhanded, arbitrary and illegal.
The High Court recorded factual findings on inferences from the plaintiff’s (appellant) conduct and branded her as an unscrupulous person who abuses the process of court and as a person who utters falsehoods and manipulates documents without there being a trial and without there being an opportunity to the plaintiff to explain her conduct. To say the least, such a procedure is opposed to all principles of natural justice embodied in the Code of Civil Procedure. At all events, the alleged weakness of the case of the plaintiff or unscrupulousness of plaintiff are not grounds for dismissal without trial.
We therefore allow this appeal, set aside the order and restore the suit to the file of the High Court with a direction to decide the same in accordance with law, after giving due opportunity to the parties to lead evidence.
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2010 (9) TMI 1221 - BOMBAY HIGH COURT
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... ... ..... he financing companies who give money to the customers interest free to buy the products and these types of loan result into a vibrant economy benefiting all concerned and if the view taken by the Revenue Authorities is accepted then, all such transactions can be taxed as income u/s.56(2)(v) of the Act which cannot be the intention of the legislature, hence, in our view, the interpretation of Section 56(2)(v) made by the Revenue Authorities is not at all valid and justified. Accordingly, we hold that a transaction of loan can be without interest and a transaction of loan implies an agreement to repay the money i.e. borrowed which also gives reply to the Revenue’s query regarding existence of the obligation to repay the money at the time of taking of such loan.” 3. In the above view of the matter, it is difficult to find fault with the view taken by the Tribunal. The appeal is, therefore, dismissed for want of substantial question of law with no order as to costs.
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2010 (9) TMI 1220 - HIMACHAL PRADESH HIGH COURT
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... ... ..... ch held as follows “In order to qualify for relief under section 80J (4) (iv) of the Income Tax Act, 1961, substantial compliance with the requirement that the new industrial undertaking must have employed in the manufacturing process carried on with the aid of power ten or more workers, is all that is required. The undertaking must have employed ten or more workers substantially during the period for which relief is claimed. There can be no hard and fast rule by which one can determine whether there has been substantial compliance. It is for the authority or the court to so decide based upon the facts before it.” 5. It may be true that substantial part does not mean the entire year, but employment for 1/6th of the year or half of the year can under no circumstance be termed to be employment for a substantial part of the year. 6. Therefore, the appeals are dismissed and the questions of law are answered against the assessee and in favour of the Revenue. No costs.
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2010 (9) TMI 1219 - MADRAS HIGH COURT
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... ... ..... that when, there is a possibility of appeal all issues have to be taken up and decided. The facts of the case clearly indicates that there is a definite possibility of appeal against the decision of the Tribunal and the present writ petition itself is one such illustration. Therefore, in our view, the Tribunal rightly directed the miscellaneous petitions to be considered along with the respective Original Revocation Applications and also directed the case to be posted on a specific date and the hearing to be continuous on day to day basis. 12. Hence, we find no good grounds to interfere with the order passed by the Tribunal. Accordingly, the writ petition stands dismissed. The Tribunal is requested to take up the Original Revocation Application along with the miscellaneous petition and hear and dispose of the same preferably within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
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2010 (9) TMI 1218 - BOMBAY HIGH COURT
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... ... ..... measures), was not found to be unjustified. The prayer of the petitioner for direction against the Revenue to refund ₹ 72,19,395/- is based on the assumption that after adjusting ₹ 85,69,370/-, the petitioner would be entitled to claim refund of the balance amount of ₹ 72,19,395/- which would constitute return of ₹ 1,57,88,765/-. The very premise or the assumption of the petitioner that on the basis of the judgment and order of this Court dated 19th December, 2009, the petitioner would be entitled to claim refund of ₹ 1,57,88,765/- is erroneous. Consequently civil application moved by the petitioner is liable to be rejected. 10. In the result, Civil Application No. 2113/2009, moved by the Revenue, is allowed. The registry is directed to refund the said amount of ₹ 85,69,370/- to the Revenue by drawing payees account cheque in their favour. The Civil Application No. 2114/2009, moved by the petitioner, is rejected. No order as to costs.
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