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2013 (8) TMI 1062
... ... ... ... ..... s have been transferred in contravention of the settlement/agreement/arrangement. The said shareholders have not even been impleaded as parties to the suit. Granting any relief in the suit would naturally affect the rights of the said shareholders and who are not before this Court. The appellant/plaintiff cannot be granted relief on this ground also. 22. I am however unable to agree with the acceptance by the learned Addl. District Judge of the contention of the respondents/defendants of the appellant/plaintiff Union having no locus to maintain the suit. A perusal of the Trial Court record shows that the settlement of the year 1974 was under Section 2 (p) r/w Section 18 of the Industrial Disputes Act, 1947 and to which the appellant/plaintiff Union was a party and it would thus have a locus to challenge any breach/violation of the said agreement. 23. No merit is otherwise found in the appeal which is dismissed, however with no order as to costs. 24. Decree sheet be drawn up.
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2013 (8) TMI 1061
... ... ... ... ..... decision has been taken by respondent No.2. We have considered the request made by counsel for the petitioner and though the revenue relies upon judgments to contend that the petitioner is dis-entitled to re-export the consignment without payment of excise duty etc., dispose of the present writ petition by directing the Commissioner of Customs, Delhi-IV to decide the petitioner's representation/letter dated 18.09.2012 (Annexure P-9) in accordance with law within one month of the receipt of copy of this order.
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2013 (8) TMI 1060
... ... ... ... ..... sent case, by way of an application under Rule 27 of Income Tax Appellate Tribunal Rules has sought adjudication of two issues i.e. disallowance of an expenditure under section 40(a)(ia) of the Act and further disallowance of expenditure on account of expenditure of car expenses/depreciation and telephone expenses. The appeal filed by the revenue is against the sales held to be ingenuine by the Assessing Officer, which were treated as income from undisclosed sources and the said addition was deleted by CIT (Appeals). We find no merit in the present application moved by the assessee under Rule 27 of Income Tax Appellate Tribunal Rules and the same is dismissed. Even otherwise both the issues raised by way of the present application are factual and the same cannot be raised under the garb of application under Rule 27 of Income Tax Appellate Tribunal Rules. 27. In the result, appeal of the revenue is allowed. Order Pronounced in the Open Court on this 30t h day of August, 2013.
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2013 (8) TMI 1059
... ... ... ... ..... llery/bullion, it is palpable that the debt incurred has a direct nexus with the acquisition of such assets under consideration. Going by the language of section 2 (m) of the WT Act, such debts outstanding on the valuation dates are required to be deducted from the value of assets declared by the assessee in the returns of wealth for both the years under consideration. We, therefore, modify the decision of Ld. CWT (A) in both the years under appeal and remit the matter back to the Assessing Authority so that the assessable wealth as on valuation date is recomputed afresh after deducting the debts so payable on the valuation date in the light of discussions as contained herein before from the value of assets held by the assessee in both the years under consideration. 8. In the result, both the appeals and cross objections stand allowed for statistical purposes. Order pronounced in the open court in the presence of parties immediately after conclusion of hearing on 19.08.2013.
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2013 (8) TMI 1058
... ... ... ... ..... rkers has sought to allege that RMMS as a representative union is alone entitled to represent the textile mill workers. We make it clear that for the purposes of these proceedings, the legality and the validity of the MOU which was entered into by RMSS with the Appellants has not been an issue which falls for consideration. Insofar as the locus of the workmen represented by Mr.Singhvi is concerned, we have no doubt in coming to the conclusion that they have a substantial standing in these proceedings. When the court has to consider whether a permanent stay should be granted in regard to the order of winding up, every creditor, and workmen in this case being preferential creditors, is entitled to be heard. 29. For these reasons, we have come to the conclusion that the learned Single Judge was not in error in refusing to stay the winding up of Svadeshi Mills. There is no merit in the Appeal. 30. The Appeal shall accordingly stand dismissed. There shall be no order as to costs.
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2013 (8) TMI 1057
... ... ... ... ..... les we are disposed to think that the Division Bench has rightly allowed the amendment on the base that the claim put forth could be treated as a plea in the nature of equitable set-off, for it has treated the stand taken in the amendment petition to be a demand so connected in the nature and circumstances that they can be looked upon as a part of one transaction. The view expressed by the Division Bench has to be treated as a prima facie expression of opinion. Needless to emphasise, whether the claim would be allowable or not will depend upon the evidence adduced before the Court so as to sustain a claim of equitable set-off. These aspects are to be gone into by the learned single Judge while disposing of the suit. As the suit is pending since 1993, the High Court is requested to dispose of the same as expeditiously as possible preferably within one year from today. 18. Ex-consequenti, with the aforesaid observations, the appeal stands disposed of with no order as to costs.
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2013 (8) TMI 1056
Unconscionable and Unexplained delay of about 12 years for completing the proceedings by SEBI - Charge of Manipulation of Scrip Price & Creation of Artificial volumes - Securities and Exchange Board of India Act, 1992 - Merger of 3 Appeals - After prolonged and protracted proceedings, the investigation culminated into the impugned order. Whereby the Respondent has restrained the three Appellants from buying, selling or dealing in the securities market, whatsoever, directly or indirectly for a period of two years. With consent of the learned counsel for the parties concerned, these three appeals were, therefore, heard together and are being disposed of by this common order.
The Respondent-SEBI is stated to have conducted some investigation into dealings in the scrip of the Company and reaching prima facie conclusion that all three Appellants had undertaken synchronized trades and thereby the Appellants are alleged to have manipulated the price of the scrip during relevant time. The Respondent also claims that there were irregular patterns in volumes of trading on the Company's scrip. the SCN was based on the trade and order logs were not supplied to the Appellant, and most of the documents, in legible form, were supplied only after more than 10/11 years of occurrence of the event.
HELD THAT:- The court quashed and set aside the impugned order in each case and allow the three appeals on merit as well as on the ground of unconscionable and unexplained delay of about 12 years in initiating and completing the proceedings against the three Appellants in question. Regarding the abnormality in the volume of the scrip as a result of the Appellants' trades. The court observed that the SCN as well as documents, other material and certain graphs produced by the parties before us. The facts clearly indicate that fluctuations of a similar nature in the volumes of the scrip existed even during the period when the Appellants did not execute any trade. The SCN itself makes it clear that there were ups and downs in the volume during the preceding and subsequent six months of the period of investigation in question. Therefore, we find that the charge of volume manipulation is also hollow and baseless. Also the existence of unnatural and unexplained delay of more than a decade and prejudice caused due to such undue delay is writ large in the matter. Therefore, the impugned order deserves to be quashed on this ground as well.
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2013 (8) TMI 1055
Prayer for transfer the investigation of his case/complaint to CBI - HELD THAT - the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having “a fair, honest and complete investigation”. Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases.
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2013 (8) TMI 1054
... ... ... ... ..... rest bearing funds. This finding recorded by the learned CIT(A) has not been controverted before us. In the grounds of appeal, the Revenue has referred to Section 28 and claimed that the benefit or perquisite whether convertible into money or not arising from business or profession is chargeable as business income. However, in our opinion, on the facts of the assessee's case, there is no benefit or perquisite. It is simply a debit balance in the accounts of the partners. Similarly, vide ground No.2, the Revenue has claimed that the overdrawn amount should be treated as deemed dividend under Section 2(22)(e). That the question of deemed dividend can arise in the case of a company and not in the case of the partnership firm. The assessee is a partnership firm. In view of the above, we do not find any merit in the Revenue's appeal. The same is dismissed. 5. In the result, the appeal of the Revenue is dismissed. Decision pronounced in the open Court on 27th August, 2013.
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2013 (8) TMI 1053
... ... ... ... ..... of the amount as directed above, the petitioner shall be bound to transfer his shares in favour of respondent Nos. 1 and 2 on proportionate basis of their respective shareholdings. In the event, he does not execute the transfer deed, CLB may appoint any person to carry out the necessary legal formalities for transfer of shares in the name of the respondents. Upon the transfer of shares, the amount together with interest accrued thereon deposited with CLB shall be paid to the petitioner. (v) The expenses of the valuer shall be borne out by the petitioner and respondents in equal proportions. (vi) Parties are left to bear their own cost of the petition. (vii) Parties are at liberty to seek clarification if required, in the implementation of the order, despite CP being disposed of. (viii) The interim order if any stands vacated. CA if any, pending also stands disposed of. (ix) CP stands disposed of accordingly. Let the copy of the order be circulated to the parties as per rule.
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2013 (8) TMI 1052
... ... ... ... ..... n 23.8.2013. Affidavit-in-reply and reply-in-rejoinder will be filed within four days i.e. on 27.8.2013. 20. We are preponing the date of hearing of the application under Section 8 and the interim relief and fixing the same before the Company Law Board on 30.8.2013 and on that date, Company Law Board shall decide the applicability of section 8 of the Act either prima facie or finally as to whether condition mentioned under Section 8 is satisfied and what order are required to be passed by the Company Law Board on the application under Section 8 and interim relief and petition and prayer for interim relief. 21. The order dated 29.7.2013 passed by the Company Law Board is hereby quashed and set aside. 22. This Original Jurisdiction Appeal is allowed with the aforesaid directions and observations. There shall be no order as to costs. 23. Since the main O.J. Appeal has been allowed, therefore, Civil Application No. 479 of 2013 does not survive and stands disposed of accordingly.
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2013 (8) TMI 1051
... ... ... ... ..... e judgment and award of the reference court is not only erroneous on facts but is also erroneous in law. Accordingly, we answer the first point in favour of the appellants. 25. Since, we have answered the first point in favour of the appellants, the second point is also answered in favour of the appellants and it would be just and proper for this Court to restore the judgment and award passed by the reference court. Since we have affirmed the award of the reference court, having regard to the undisputed fact that this acquisition is of more than 23 years, it would be just and proper for this Court to direct the respondent No.3 - M.I.D.C. to issue the Demand Draft in favour of the landowners/appellants or their legal representatives or deposit the same in their bank accounts within six weeks from the date of receipt of a copy of this judgment and submit the compliance report before the reference court. 26. The appeal is allowed accordingly. There shall be no order as to cost.
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2013 (8) TMI 1050
... ... ... ... ..... asi-partnership is pleaded and proved. Admittedly, the present case is not the case, where the principles of quasi-partnership have been pleaded. According to the case of the petitioner himself, he was an investor in the company. Admittedly, he holds only 10 shares as on the date of filing of the petition and his holding constitutes only 0.050 percent of the total shareholding of the company. Therefore, in my opinion, claim for his representation on the Board does not seem necessary, just and proper. I, therefore, agree with the view of the learned PCS appearing for the respondents that directorial complaint cannot be said to be an act of oppression having regard to the facts of the case in hand. The said ground of oppression is also found untenable and rejected accordingly. For the reasons discussed hereinabove and taking into consideration the stock of entire facts and circumstances of the case, I am of the view that the petition has no merits and is liable to be dismissed
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2013 (8) TMI 1049
... ... ... ... ..... alpataru Colours & Chemicals Ltd.(328 ITR 451) in which it was held that the entire DEPB income including the face value has to be considered as a profit u/s 28(iii d). However the Hon’ble Supreme Court recently in case of Topman Exports Ltd. (Supra) have not upheld the view taken by the Hon’ble High Court of Bombay and have confirmed the order passed by special bench of Tribunal on this issue, as per which the face value of DEPB has to be considered as income u/s 28 (iiib) and excess of sale price over the face value has to be considered as profit u/s 28(iii d). The deductor u/s 80HHC is, therefore, required to be computed accordingly. We, therefore, set aside the order of CIT(A) and direct the AO to re compute the deduction u/s 80HHC in respect of DEPB income in the light of Judgment of Hon’ble Supreme Court in case of Topman Exports Ltd (Supra). 9. In the result appeal of the assessee is allowed for statistical purposes. Order pronounced on 28-8-2013
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2013 (8) TMI 1048
... ... ... ... ..... questions are raised, the court will not force a payment which is bonafide disputed. The apex court in the case of IBA Health (I) Pvt. Ltd., vs. Info -Drive Systems SDN BHD, reported in 2010(10) Supreme Court Cases 553, has emphasized the consequence of admission of a winding up petition. The apex court has stated that the company court cannot be reduced as a debt collecting agency or petition cannot be meant of bringing improper pressure on the company to pay a bona fide disputed debt. After admission the issuance of advertisement in the newspaper may attract adverse publicity, which damage cannot be easily undone. 32 In view of the above, the petition cannot be entertained and it is rejected. It is however, clarified that the observations made above as regards the merits of the rival contentions are only to ascertain whether the respondent has bonafide defence and in case the petitioner files a civil suit/summary suit, those proceedings will be decided on their own merits.
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2013 (8) TMI 1047
... ... ... ... ..... and if the same are to be retained, copies thereof ought to be given to the assessee. We, however, are not in position to adjudicate on the stand of the Department that 11 documents in question have already been furnished to the assessee. This can be better determined by the adjudicating authority, with reference to the record available with it. 8. Accordingly, we dispose of this appeal with a direction that either the documents in question be furnished, as directed by the Single Judge, or a finding be recorded that the said documents have already been furnished and, if not furnished, the effect thereof. The writ petitioners will be at liberty to raise the plea that the documents have not been furnished and absence thereof will prejudice their case. The adjudicating authority will decide the objection before proceeding further. Reply to the show cause may be filed within one month from today subject to their objection. 9. The appeal stands disposed of accordingly.
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2013 (8) TMI 1046
... ... ... ... ..... n for the Petitioners to raise and substantiate them at an appropriate stage in the pending Special Case. We clarify that all contentions of parties on facts, merits and particularly in relation to attachment of properties of KIFL by the Designated Court and powers of the same visavis the winding up proceedings, are kept open. ( 64. ) As a result of the above discussion, Rule in each of these petitions, is discharged. The Writ Petitions are dismissed. ( 65. ) At this juncture, Mrs.Kuttikrishnan, learned Advocate appearing for the Petitioners in each of these matters, prays for continuation of the interim order for a period of 6 weeks to enable the Petitioners to challenge this judgment in a higher court. None is present to oppose this request. In the larger interest of justice and without prejudice to the rights and contentions of the parties, we direct that the interim order shall be continued for a period of 6 weeks, after which period it will automatically come to an end.
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2013 (8) TMI 1045
Recovery of Possession - Suit filed by a licensor against a gratuitous licensee under Section 41(1) of the Presidency Small Causes Courts Act, 1882 (the PSCC Ac), as amended by the Maharashtra Act No.XIX of 1976 (1976 Amendment Act) is maintainable before a Small Causes Court, Mumbai - Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947 (the Rent Act) - HELD THAT:- In the instant case, the concept of licence and lease were dealt with by contemporary statutes - Indian Easement Act, Transfer of Property Act and Section 41 of the PSCC Act and, as already indicated, all those statutes were enacted in the year 1882. Therefore, Section 41(1) of the PSCC Act could not have been contemplated any other meaning of the term “occupation with permission” but only the permission as contemplated by Section 52 of the Indian Easements Act. The PSCC Act is a procedural law and as already indicated, the expression “licensor” and “licensee” or “landlord” and “tenant” used in Section 41 of the PSCC Act (as amended by Maharashtra Act No. XIX of 1976) relate to immovable property and Section 52 of the Indian Easements Act which defines a licence has an inseparable connection to immovable property and property law. Legislature was well aware of those contemporaneous statutes, that was the reason, why the expression licence as such has not been defined in the PSCC Act with the idea that the expression used in a contemporaneous statutes would be employed so as to interpret Section 41 of the PSCC Act.
ONE UMBERALLA POLICY High Court has correctly noticed that the clubbing of the expression “licensor and licensee” with “landlord and tenant” in Section 41(1) of the PSCC Act and clubbing of causes relating to recovery of licence fee is only with a view to bring all suits between the “landlord and tenant” and the “licensor and licensee” under one umberalla to avoid unnecessary delay, expenses and hardship. The act of the legislature was to bring all suits between “landlord and tenant” and “licensor and licensee” whether under the Rent Act or under the PSCC Act under one roof. We find it difficult to accept the proposition that the legislature after having conferred exclusive jurisdiction in one Court in all the suits between licensee and licensor should have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. The various amendments made to Rent Act as well the Objects and Reasons of the Maharashtra Act XIX of 1976 would clearly indicate that the intention of the legislature was to avoid unnecessary delay, expense and hardship to the suitor or else they have to move from the one court to the other not only on the question of jurisdiction but also getting reliefs.
That the expression ‘licensee’ in Section 41(1) of the PSCC Act would take a gratuitous licensee as well. The reason for such an interpretation has been elaborately discussed in the earlier part of the judgment. Looking from all angles in our view the expression ‘licensee’ used in the PSCC Act does not derive its meaning from the expression ‘licensee’ as used in Subsection (4A) of Section 5 of the Rent Act and that the expression “licensee” used in Section 41(1) is a term of wider import intended to bring in a gratuitous licensee as well.
We are, therefore, in complete agreement with the reasoning of the Full Bench of the High Court. In such circumstances, the appeals lack merits and are, therefore, dismissed. There is no order as to costs.
Golden Rule is that the words of a statute must be prima facie be given their ordinary meaning when the language or phraseology employed by the legislature is precise and plain. This, by itself proclaims the intention of the legislature in unequivocal terms, the same must be given effect to and it is unnecessary to fall upon the legislative history, statement of objects and reasons, frame work of the statute etc. Such an exercise need be carried out, only when the words are unintelligible, ambiguous or vague.
Noscitur a sociis Principle - “a word or phrase in an enactment must always be construed in the light of the surrounding text. “….words and particularly general words, cannot be read in isolation; their colour and their content are derived from their context.” Noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words are intentionally used by the legislature in order to make the scope of the defined word correspondingly wider.
Contemporenea Expositan is the best and most powerful law and it is a recognized rule of interpretation.
PARI MATERIA - to be a right and duty to construe every word of a statute in its context and used the word “context” in its widest sense, including “other statutes in pari materia”. that when two pieces of legislation are of different scopes, it cannot be said that they are in pari materia. this Court held that the Rent Act 1947 and the Bombay Land Requisition Act, 1948 were not held to be the acts in pari materia, as they do not relate to the same person or thing or to same class of persons of things.
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2013 (8) TMI 1044
... ... ... ... ..... the provisions of Section 35F of the Central Excise Act, read with Section 83 of the Finance Act. On the ground that appellant had not deposited an amount of ₹ 12,00,000/- as per the stay order dt. 14.11.2012. The contention of appellant is that as per the stay order, the compliance was to be reported on 18.12.2012, whereas the appellant deposited an amount on 20.12.2012. As per stay order, the compliance report is to be waived within four weeks from the date of receipt of the order. The order was received by the applicant on 27.11.2012. Thereafter, appellant made the deposit within four weeks from the date of receipt of the order, as the appellant had complied with the condition of the stay order passed by the Commissioner (Appeals). Therefore, the impugned order is set aside and matter is remanded to the Commissioner (Appeals) to decide afresh, after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand. (Dictated in court)
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2013 (8) TMI 1043
... ... ... ... ..... 18/- out of total addition of ₹ 12,20,366/- made on account of undisclosed income. 2) On the facts and in the circumstances of the case, the Ld.Commissioner of Income-Tax (Appeals)-XV, Ahmedabad ought to have upheld the order of the Assessing Officer. 3) It is therefore, prayed that the order of the Ld.Commissioner of Income-Tax (Appeals)-XV, Ahmedabad may be set-aside and that of the Assessing Officer be restored. 6.1. Grounds raised by the Revenue in this appeal are also similar as were in Revenue’s appeal for AY 2006-07(supra) except change in figures. Since no change in the facts and circumstances are pointed out by the ld.Sr.DR, therefore taking our consistent view taken in Revenue’s appeal in assessee’s own case for AY 2006-07 in ITA No.59/Ahd/2013(supra), for this year also this ground of the Revenue is dismissed. 7. In the result, both the appeals of the Revenue are dismissed. Order pronounced in Open Court on the date mentioned here-in-above.
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