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2011 (7) TMI 1402
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... ... ..... , 200 and 209 of Indian Penal Code, 1860 (IPC). Prima facie, in the present case there is made out a case for a complaint to be registered by the Registrar General of this Court acting under Section 340, Cr.P.C. against Mohd. Sabir through whom the present appeal has been filed and through whom the claim petition was also filed before the Railway Claims Tribunal and who has committed the offences of perjury, giving false evidence, giving and using false declaration and making a false claim. 6. Accordingly, while dismissing the appeal, I direct the Registrar General to make a complaint to the concerned Metropolitan Magistrate having jurisdiction and also take such other steps as are required in law under Section 340(1)(d) and (e), Cr.P.C. The matter be listed before the Registrar General of this Court on 10.8.2011 in terms of the present order. A copy of this order be sent to Railway Claims Tribunal. With the aforesaid observations, the appeal stands dismissed and disposed of.
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2011 (7) TMI 1401
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... ... ..... re-opened even without having obtained the valuation report. Therefore, in the light of legal proposition laid down through various judgements of the High Courts and the apex court, we are of the considered view that if the reference is made to the DVO without rejecting the books of accounts, the reference is not valid and cannot be relied on for making additions on account of unexplained investment in cost of construction. Similar view was expressed by this bench of the Tribunal in the case of S.V.V. Subrahmanyam Vs. ACIT in IT(SS) No.1 2/Vizag/2007. 15. Since in the instant case, the reference was made to DVO without rejecting the books of accounts, the reference is invalid and if any addition is made on the basis a valuation report, that is not sustainable in the eyes of law. We accordingly, set aside the order of the CIT(A) in this issue and delete the additions. 16. In the result, the appeals of the assessees are partly allowed. Pronounced in the open Court on 18.7.2011.
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2011 (7) TMI 1400
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... ... ..... ne will not apply it first charge by way of priority is not claimed under the statute. (iv) The doctrine of first charge/priority of the State over the property will prevail over the private debts, which is an unsecured debt, but such doctrine of first charge/priority over the property cannot prevail over secured debts of a person. If the statute permits to have first charge/priority over the property having regard to the plain meaning of Article 372 of the Constitution of India, then only the State can claim priority over an unsecured debt. The aforesaid Division Bench judgment of this Court squarely applies to this case. 16. Therefore, the Petitioners are entitled to succeed and accordingly, the writ petitions are allowed and a direction is issued to the first Respondent to file a copy of the sale certificates concerned in the respective writ Petitioners, by making necessary entries in the Book No. I, in accordance with Section 89(4) of the Registration Act, 1908. No costs.
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2011 (7) TMI 1399
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... ... ..... enalty, the CIT(A) has cancelled the order on the sole reason that the assessment order itself was set aside. Therefore, the question of penalty consequent to that order does not arise. We do not see any reason to interfere with the orders of the CIT(A) who simply cancelled the penalty under section 271(1)(c) without considering the merits. The judgements relied on by the Revenue in ground No. 2 were rendered in the context of deciding the penalty on merits when no assessment order was alive. The application of the principles established therein to the facts of the case is not correct and the Revenue contested the issue without examining the facts. Therefore, we so no reason to interfere with the order of the CIT(A). Accordingly the grounds are considered dismissed. A.O. however, is free to consider initiation of penalty proceedings afresh while completing the assessment. In the result, appeal of the Revenue is dismissed. Order pronounced in the open court on 22 nd July 2011.
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2011 (7) TMI 1398
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... ... ..... Report, Appellant possessed disproportionate assets worth Rs. 5.58 lakhs. However, according to the charge-sheet, the disproportionate assets were to the extent of Rs. 1.44 lakhs only. State Government while declining to grant sanction for prosecution observed that assets possessed by the Appellant are not disproportionate to his known source of income. 11. We are further of the opinion that no disputed question being involved, the High Court instead of making observation as to whether in present case sanction order is necessary and whether that was refused by the State Government and what would be the consequence thereof to be decided by the trial court, ought to have decided the issues itself. The facts being not in dispute the High Court erred in not deciding these issues. 12. In the result, we allow this appeal, set aside the order of the High Court and quash the Appellant's prosecution in TR No. 113 of 1999, pending in the Court of Special Judge (Vig.) Bhubaneshwar.
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2011 (7) TMI 1397
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... ... ..... AD are applicable to it because it is in the prescribed business having turnover of less than Rs.40 lacs. Hence, the assessee was required to disclose income suo moto to the extent of 8% of gross receipt. Since it was not done, it amounts to concealment of income in our considered opinion and the deeming of income is as per the specific provisions of Section 44AD of Income tax Act, 1961 as per which, the assessee was required to declare income to the extent of 8% of gross receipt and not for this reason that the A.O. is not satisfied with the explanation of the assessee as in the case of addition u/s 69. Hence, this judgement is of no help to the assessee in the present case. We, therefore, uphold the penalty. 13. In the result, this appeal of the assessee is dismissed. 14. In the combined result, the appeal of the assessee for assessment year 2003-04 is allowed but appeal for the assessment year 2006-07 is dismissed. 15. Order pronounced in the open court on 29th July, 2011.
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2011 (7) TMI 1396
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... ... ..... hat there was under statement or concealment of consideration in respect of transfer of property to the assessee, the addition on the basis of value of land for stamp duty purposes, or on the basis of DVO’s report cannot be made. 20. In the case of CIT vs. Naresh Khattar, HUF, 261 ITR k664 (Del), the Hon’ble Delhi High court has held to invoke the provisions of sec. 69B of the Act, the burden is on the revenue to prove that the real investment exceeds the investment shown in the books of account of the assessee. 21. In the light of the discussions made above, we find no justification to interfere with the order of the learned CIT(A) in deleting the addition of Rs.11,21,476/- made by the AO on the basis of district circle rate applied by the DVO to determine the fair market value. Thus, the order of the learned CIT(A) is upheld. 22. In the result, the appeal filed by the revenue stands dismissed. 23. This decision is pronounced in the Open Court on 15th July, 2011.
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2011 (7) TMI 1395
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... ... ..... ase under consideration, neither the AO nor the CIT(A) has examined and brought on record that the assessee has committed default in payment of advance tax. After considering the facts of the case and in view of the decision of the Jurisdictional High Court in the case of Prime Securities Ltd. (supra), we remit the matter back to the file of the AO with a direction to examine and decide the issue in the light of the decision of the Hon’ble Jurisdictional High Court in the case of Prime Securities Ltd. (supra) after giving reasonable opportunity of hearing to the assessee. This ground is treated as allowed for statistical purposes. 47. In the result, appeal of the assessee is allowed for statistical purposes. 48. To sum up, appeal being 3272/M/06 is treated as partly allowed for statistical purposes, appeal being 1501/M/07 is allowed and the appeal being 1502/M/07 is treated as allowed for statistical purposes. Pronounced in the open court on this 27th day of July, 2011.
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2011 (7) TMI 1394
Application for Site Clearance for Limestone Mining Project at Nongtrai village - MoEF in the prescribed form to excavate 2.0 million tonnes per annum of limestone and to transport the same to Chhatak in Bangladesh through belt conveyor (7.2 km long within Indian territory) - Nature of land - Whether ex post facto environmental and forest clearances dated 19.4.2010 and 22.4.2010 respectively stood vitiated by alleged suppression by M/s. Lafarge regarding the nature of the land - "Doctrine of proportionality" - cross-border cement manufacturing project - National Forest Policy, 1988 stood enunciated pursuant to Resolution No. 13/52-F - followed in the management of State Forests in India - HELD THAT:-The land was left unused covered with degraded forests and this was the reason for the Durbar to lease out the said land to the project proponent for mining. The village Durbar also felt that in the area unscientific limestone quarrying was going on resulting in loss of revenue both to the State as well as the inhabitants of the village particularly because the said mining was undertaken by unorganized sectors and, thus, it was decided to enter into the lease with the project proponent so that mining could be done on scientific basis. The site was also selected because of easy accessibility by road and less vegetation clearance stood involved. According to the NEHU Report, the site is located in the area on the outskirts of the forest.
Validity of ex post facto clearance - The learned Counsel appearing for SAC submitted that the MoEF, as the authority which decides on diversion of forests and which grants environmental clearances, is duty bound to examine the diversion application in the context of the 1988 Policy, particularly, where tropical moist forests are sought to be cleared by the project proponent. According to the learned Counsel, where MoEF grants environmental clearance in ignorance of the existence of a forest due to mis-declaration, it is duty bound to take severest possible action against the party that made the false declaration for profit. According to the learned Counsel, since impact assessment and EIA clearances are processes based on self declarations by the project proponent (s), the decision making by MoEF depends upon honest and cogent material supplied by the project proponent and since the said process is premised on a full and fair disclosure of relevant facts by the project proponent, in cases where material facts are not disclosed, the MoEF should withdraw both the site as well as the environmental clearances.
According to the learned Counsel, the most important input in this regard must be received by MoEF in the course of its decision making from the public which is an essential check for a failure to disclose correct facts or to have regard to environmental issues that may have escaped the attention of the project proponent. According to the learned Counsel, the requirement of public hearing is, thus, mandatory both under the 1994 Notification and the 2006 Notification. That, the requirement for payment of NPV does not automatically mean that environmental clearance is to be granted.
"Doctrine of proportionality" - Time has come for us to apply the constitutional "doctrine of proportionality" to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well-recognized principles of judicial review.
Accordingly, this matter stands disposed of keeping in mind various facets of the word "environment", the inputs provided by the Village Durbar of Nongtrai (including their understanding of the word "forest" and the balance between environment and economic sustainability), their participation in the decision-making process, the topography and connectivity of the site to Shillong, the letter dated 11.5.2007 of the Principal Chief Conservator of Forests and the report of Shri B.N. Jha dated 5.4.2010 (HPC) (each one of which refers to economic welfare of the tribals of Village Nongtrai), the polluter pays principle and the intergenerational equity (including the history of limestone mining in the area from 1858 and the prevalent social and customary rights of the natives and tribals). The word "development" is a relative term. One cannot assume that the tribals are not aware of principles of conservation of forest. In the present case, we are satisfied that limestone mining has been going on for centuries in the area and that it is an activity which is intertwined with the culture and the unique land holding and tenure system of the Nongtrai Village.
Therefore, we are satisfied with due diligence exercise undertaken by MoEF in the matter of forest diversion. Thus, our order herein is confined to the facts of this case.
Hence, we see no reason to interfere with the decision of MoEF granting site clearance dated 18.6.1999, EIA clearance dated 9.8.2001 read with revised environmental clearance dated 19.4.2010 and Stage-I forest clearance dated 22.4.2010. Accordingly, I.A. No. 1868 of 2007 preferred by M/s. Lafarge stands allowed with no order as to costs. Consequently, I.A. No. 2937 of 2010 preferred by SAC is dismissed. The interim order passed by this Court on 5.2.2010 shall also stand vacated. All other I. As. shall stand disposed of.
Learned Counsel for the Petitioner states that he does not press this petition. Accordingly, this transfer petition is dismissed as not pressed. The High Court is requested to proceed to hear PIL No. 40 of 2007 pending before it.
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2011 (7) TMI 1393
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... ... ..... oever. 6. Having regard to the facts enumerated above and the submissions made by the learned advocate for the petitioner - company, the Official Liquidator attached to this Court is appointed as Provisional Liquidator. By way of interim arrangement, the relief as prayed for in para 22-c and 22-d are granted. The Provisional Liquidator i.e. Office of the Official Liquidator shall take necessary steps, as may be required, in view of the present order. The respondent - company shall abide by the directions as granted in terms of para 22-d. 7. The Provisional Liquidator is allowed 3 weeks time from the date of service of present order to take inventory and other necessary steps and to file interim report on or before 4th August, 2011. In addition to the usual mode of service of the directions, the petitioner - company is permitted to serve Direct Service of present order to the respondent - company as well as to the office of the Provisional Liquidator. S.O. to 4th August, 2011.
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2011 (7) TMI 1392
Application for interim bail - withdrawn application for regular bail - Whether the petitioner, on the basis of medical record produced by him, has been able to make out a case for his release on interim bail? - HUTT procedure - petitioner was sent to judicial custody on dismissal of his bail application by the Trial Court - During his stay in jail, the petitioner complained of medical problems - He was accordingly sent to G.B. Pant Hospital for medical examination and treatment -
HELD THAT- The medical record placed on record by the petitioner starts from the year 1991. From the aforesaid record, it transpires that the petitioner underwent by-pass surgery around the year 2007. Thereafter, for a continuous period of 4 years, there is no medical record, which prima facie indicates that during the period from 2007 to 2011, the petitioner did not suffer any medical complication.
On perusal of the report from the Board of Doctors of G.B. Pant Hospital, the medical condition of the petitioner appears to be stable and he has been advised to continue treatment and precautions as recommended to him at the time of discharge from G.B. Pant Hospital on 24th June, 2011. The report does not suggest that his medical condition cannot be managed in jail hospital.
As per current medical status report of the petitioner submitted by the Board of Doctors constituted by the Medical Superintendent, G.B. Pant Hospital. It is recorded in that report that when Head-up- Tilt Test(HUTT) was being conducted, the petitioner became unconscious with unrecordable blood pressure and slowing of pulse to 47 beats/minutes, suggesting neurocardiogenic Syncope as the cause, predominantly vasodepressor type. Ld counsel has urged that such a situation can re-occur in jail and this may even prove fatal.
I am not convinced with the aforesaid submissions. HUTT procedure is an invasive procedure. Therefore, a possibility cannot be ruled out that the complication in the medical condition of the petitioner during HUTT test occurred only because of the invasive nature of the procedure.
On careful consideration of the previous medical reports of the petitioner and the medical reports received from the Board of Doctors of G.B. Pant Hospital, it is apparent that since his detention in jail, the condition of the petitioner is stable and it is being properly managed by medication. Thus, I do not find it a fit case for grant of interim bail on medical grounds, particularly when the release of the petitioner for a period of 4-6 weeks would not change his medical history or situation.
Application is, accordingly, dismissed.
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2011 (7) TMI 1391
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... ... ..... 2008. For the reasons stated therein, the question No.1 cannot be entertained. 3. As regards question (b) is concerned, the finding of fact recorded by the ITAT is that the assessee firm had an Exchange Earners' Foreign Currency (EEFC) Account, the balance of which in the current account as on 31st March, 2003 was U.S. dollars 2,38,168.84/- The rupee valuation of this balance amount in the books was Rs.12,672,436/-. If the said balance was restated at the prevailing rate on 31st March, 2003 it would amount to Rs. 12,413,698/-. The assessing officer sought to tax the differential amount, which was deleted by the ITAT on the ground that the assessee has been following cash system of accounting and therefore gain on account of exchange rate can be brought to tax only when the amounts lying in the EEFC account were utilized by the assessee. No fault can be found in the reasoning of the ITAT. Thus, the second question cannot be entertained. 4. Accordingly, appeal is dismissed.
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2011 (7) TMI 1390
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... ... ..... d rolled into the joint development agreement. The Arbitrator will examine the validity and binding nature of the joint development agreement. There is nothing in the claims and contentions of the Society which excludes the operation of the arbitration agreement or necessitates rejection of the request for appointment of an arbitrator. 11. The appeal is therefore dismissed with costs of Rs. 25,000/- payable by the Appellant to the Respondent. We find that the arbitration has been delayed for nearly one and a half years on account of the pendency of this special leave petition. We therefore request the Arbitrator to proceed with the matter expeditiously. 12. We make it clear that what we have considered is the limited question as to who is the executant of the agreement. We have not pronounced upon the question whether Father A. John Bosco was authorized to execute such a joint development agreement. Nor have we considered the contentions relating to the title to the property.
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2011 (7) TMI 1389
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... ... ..... urt in J.L.Koul and others v. State of Jammu and Kashmir in Civil Appeal No. 3809 of 2005 decided on 27.10.2009, on which firm reliance has been placed by learned Single Judge. Even reliance has been placed on another judgment rendered by Delhi High Court in P.K.Handoo v. Estate Officer 2006(132) DLT 672. 2. We have heard learned counsel for the appellant and are of the view that the opinion expressed by the learned Single Judge does not warrant interference. The matter is squarely covered by the judgment noticed in the first para of the order. 3. The appeal does not warrant admission and is hereby dismissed.
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2011 (7) TMI 1388
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... ... ..... d, as the case may be should be restored to the petitioner, it is open to the Government to do accordingly (see also Gurunath Narayanan Betgori In Re, supra) I leave petitioner to that remedy. If Petitioner makes a such request to the Government in that regard, the Government shall look into the mater and pass appropriate order as circumstances warranted. 20. Learned Senior Advocate submits that petitioner has only a fractional interest in the property attached and that there are other persons having interest in the property. If there is any person other than petitioner having interest in the property attached, they can move the learned Magistrate under sub sec. (1) of Sec.84 of the Code and to their claim or objection, the decision in Pharma Kuries (P) Ltd. v. Soju would apply. They can also move the Government as aforesaid, for appropriate reliefs as the case is not pending before the learned Magistrate. With the above observations and directions this Crl. M.C is dismissed.
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2011 (7) TMI 1387
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... ... ..... The High Court has rightly rejected the same, observing that Joga Singh, appellant, could not even suspect that the complainant party was nurturing a sinister design against him when he was called from his house initially. 33. In view of above, we do not find any force in either of these appeals. The same are dismissed. The judgment of the High Court dated 15.12.2006 is affirmed in its totality. The appellants in Criminal Appeal No. 562 of 2007, namely, Bhajan Singh, Puran Singh and Gurdeep Singh have been enlarged on bail by this Court vide orders dated 2.8.2007 and 22.7.2009. Their bail bonds are cancelled, they are directed to surrender within a period of two weeks from today, failing which, the Chief Judicial Magistrate, Jind, (Haryana) shall ensure to take them into custody and send them to jail to serve their remaining part of the sentence. A copy of this judgment and order be sent to the learned Chief Judicial Magistrate, Jind, (Haryana) for information and compliance.
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2011 (7) TMI 1386
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... ... ..... payment and the identity of the payee." The Supreme Court further held that the word "expenditure" is not defined under the Act. The word "expenditure" is of a wide import. All outgoings are covered under the word "expenditure" for the purposes of Section 40A(3) of the Act. In the present case the assessee was required to transport cement pipes at various locations of constructions of U.P. State Electricity Board. The truck drivers were not supposed to have bank accounts there. The supplies of Gitti were also made at the factory side where also payments are not supposed to be made by cross-cheques or demand drafts. Since genuineness of the transactions were not in dispute, the applicability of Section 40A(3) of the Act as a rule is not to deny basic expenditure. The disallowance was rightly accepted by the CIT(A) of the Tribunal. The question is decided against the department and in favour of the assessee. The Income Tax Appeal is dismissed.
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2011 (7) TMI 1385
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... ... ..... Rajmati Devi (assessee). The assessee has also submitted a copy of Sale Certificate by KTL Limited, Lucknow which is available at page 23 of the assessee’s paper book. As per this Certificate, the name of the buyer is Smt. Rajmati Devi, wife of Late Shri. Phuleshwar Rai. Shri. Manoj Bhatnagar, C.A., appearing on behalf of the assessee submitted that all the above documents as available in assessee’s compilation were produced before the Assessing Officer. Keeping in view the above documents, the issue is very clear that the vehicle i.e. Car No.UP-32 AF-4016 has been purchased by the assessee, Smt. Rajmati Devi in her name and during the year under consideration the assessee was the owner of the vehicle and therefore there was no justification in making the disallowance under the above head. Accordingly, we allow this ground of appeal and delete the addition of ₹ 61,959. 14. In the result, appeal is allowed. Order was pronounced in the open court on 13.7.2011.
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2011 (7) TMI 1384
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... ... ..... an, an Inspector of Police, was one of the accused persons, the High Court should have directed the Superintendent of Police to entrust the investigation to an officer senior in rank to the Inspector of Police under Section 154(3) Code of Criminal Procedure and not to the CBI. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the Police to carry out the investigation properly, and can monitor the same. (see Sakiri Vasu v. State of U.P. and Ors. (2008) 2 SCC 409). 11. For these reasons, we quash the impugned order of the High Court and direct that the Superintend of Police, Virudunagar District, Tamil Nadu, will entrust the investigation of Crime No. 14 of 2006 to a police officer senior in rank to P. Kalaikathiravan. The appeals are accordingly allowed.
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2011 (7) TMI 1383
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... ... ..... Chambers, Delhi High Court) is appointed as Local Commissioner who will visit the site and inspect the property in the presence of the parties and if need arises, to obtain the help of Assistant Engineer as earlier appointed by this Court vide order dated 1.9.2009 and then suggest ways and means in which the property can be partitioned by metes and bounds. It is directed that all the parties shall provide full cooperation for compliance of the commission. If necessary, the Local Commissioner is authorized to take the police assistance in order to comply the order. The Local Commissioner shall file his report within 12 weeks from today. The fee of the Local Commissioner is tentative fixed at ₹ 60,000/- which is to be shared by Plaintiff and Defendant Nos. 1 and 2. In case help of Assistant Engineer is required, his fee is fixed at ₹ 30,000/- which would be paid in the same manner. All pending applications stand disposed of. CS (OS) No. 2362/2008 List on 20.10.2011
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