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Showing 41 to 60 of 1299 Records
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2013 (9) TMI 1262 - SUPREME COURT
Offence Punishable u/s 468, 471, 120B and 201 of IPC - Complaint was initially made for disproportionate assets made by the Respondent No. 2 by purchase of huge lands either by himself or in the name of his wife or through benamis - Shri M.A. Khan, M.P. vide letter dated 23.5.2011 pointed out to the Central Government that he had not signed the complaint and his signature had been forged - Central Government had asked the State Government to conduct an inquiry into the said allegations - charge sheet filed and the cognizance had been taken by the magistrate concerned - the committal proceedings have not yet taken place; and some of the offences attracted in this case are exclusively triable by the Sessions Court. Umesh Kumar, Appellant approached the High Court u/s 482 CrPC and the charge sheet has been partly quashed observing that the provisions of Section 468 IPC are not attracted - whether such an order attained finality and in case the evidence is adduced before the court concerned, whether the trial court can still hold that the applicant is required to be tried for the offence Under Section 468 Indian Penal Code and further whether the trial would be competent on the said charge in exercise of its power Under Section 216 Code of Criminal Procedure?
Case against Umesh Kumar - Appellant - HELD THAT:- Allegations against any person if found to be false or made forging some one else signature may affect his reputation. Reputation is a sort of right to enjoy the good opinion of others and it is a personal right and an enquiry to reputation is a personal injury.
Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution. International Covenant on Civil and Political Rights 1966 recognises the right to have opinions and the right of freedom of expression under Article 19 is subject to the right of reputation of others.
In view thereof, if any person has forged in a letter under the name of the Samithi and forged the signature of Shri M.A. Khan, M.P., the matter being of grave nature requires investigation and, in view of above, we cannot find fault with the action initiated against Umesh Kumar, Appellant. Once criminal law is put in motion and after investigation the charge sheet is filed, it requires scrutiny in the court of law. However, before the charges could be framed, Umesh Kumar, Appellant, approached the High Court u/s 482 CrPC for quashing of the charge sheet.
However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed along with the petition labelled as evidence without being tested and proved, cannot be examined.
The scope of Section 482 CrPC is well defined and inherent powers could be exercised by the High Court to give effect to an order under the CrPC; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae.
Law does not prohibit entertaining the petition u/s 482 CrPC for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial.
Thus, it becomes evident that in case there is some substance in the allegations and material exists to substantiate the complicity of the applicant, the case is to be examined in its full conspectus and the proceedings should not be quashed only on the ground that the same had been initiated with mala fides to wreak vengeance or to achieve an ulterior goal.
Thus, in view of above, the order of the High Court impugned before us cannot be termed as a final decision. The order is subject to further order which could be passed by the trial court u/s 216 CrPC, on the basis of the evidence to be led during trial. If the impugned order is dubbed as having attained finality, the provisions of Section 216 CrPC would render otiose/nugatory. Thus, the same is to be read that the said order had been passed taking into consideration the material which was available "at that stage" and it is still open to the trial court to add or alter the charges according to the evidence produced before it.
Complaint against Respondent No. 2 - HELD THAT:- The complaint may be forged or fabricated, but it is nobody's case that the copies of sale deeds annexed along with the said complaint were not genuine. While issuing direction to hold inquiry/investigation as to who had fabricated the said complaint and forged the signatures of Shri M.A. Khan, M.P., the allegations of acquiring properties by the Respondent No. 2 have been abandoned and unattended altogether.
It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused.
More so, the court must conclude that it is genuine and free from tampering or mutilation. This Court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law. (Vide: Yusufalli Esmail Nagree v. The State of Maharashtra [1967 (4) TMI 199 - SUPREME COURT].
In reply to our order dated 24.7.2013, the Chief Secretary has filed an undated affidavit though attested by a Joint Secretary to Govt. of A.P., and has given numerous explanations in respect of the alleged pseudonymous petition filed with a fictitious name of the Samithi and with the forged signature of Shri M.A. Khan, M.P. The Chief Secretary has taken the plea that the Government of A.P. could not investigate an enquiry about the disproportionate assets of the Respondent No. 2 in view of the fact that the High Court of Andhra Pradesh vide order dated 2.5.2013 stayed the operation of the learned Single Judge's order to conduct an enquiry into the allegations.
The Chief Secretary to the Govt. of Andhra Pradesh has not revealed whether a preliminary enquiry or a domestic enquiry had ever been conducted till 2.5.2013 when the High Court passed the restraint order. The complaint was filed on 22.4.2011 and more than two years had elapsed when the High Court passed the order. No explanation has been furnished as to why for two years the enquiry could not be held in this regard.
Attestation of the undated affidavit is in utter disregard to the provisions of Section 139 of the Code of Civil Procedure, 1908. The Supreme Court Rules 1966 under Order XI, Rule 7 also require adherence to the provisions of Section 139 Code of Civil Procedure. Hence, his reply is not worth taking on record and being undated, renders the same to be a piece of waste paper.
Therefore, we have no hesitation to hold that the Chief Secretary had the audacity not to ensure the compliance of the order of this Court dated 24.7.2013, and we have no words to express our anguish and condemn the attitude adopted by the Chief Secretary. More so, holding such a responsible post in the State, he must have some sense of responsibility and should have been aware of what are the minimum requirements of law, and even if he did not know he could have consulted any law officer of the State before filing the undated affidavit.
Be that as it may, facts of the case warranted some enquiry in respect of the allegations of acquiring huge properties by Shri V. Dinesh Reddy - Respondent No. 2. The State took the courage to flout the order of the Central Government and did not look into the contents of the complaint and misdirected the enquiry against Umesh Kumar, Appellant. In such a fact-situation, this Court would not fail in its duty to direct the enquiry in those allegations.
The appeals are disposed of directing the CBI to investigate the matter against Shri V. Dinesh Reddy - Respondent No. 2 on the allegations of acquiring the disproportionate assets. However, this should not be considered as expressing any opinion upon the merits of the case. The Chief Secretary to the Government of Andhra Pradesh is directed to make the copies of the said sale deeds available to the CBI for investigation.
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2013 (9) TMI 1261 - ITAT CHENNAI
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... ... ..... TDS into the Government account. 4. Shri Shaji P Jacob, the learned Commissioner of Income-tax appeared for the Revenue and Shri B.Ramakrishnan, the learned chartered accountant appeared for the respondentassessee. In fact, various Benches of the Income-tax Appellate Tribunal have considered and held that the amendment is retrospective in nature and if the assessee has deducted tax and made the payment to Government account on or before the due date for filing the return of income, then the rigours of section 40(a)(ia) will not haunt the assessee. This view has also been taken by the Hon’ble Calcutta High Court in the case of CIT vs. Virgin Creations, 2012 - TIOL - 181- HC - KOL - IT. In these circumstances, we do not find any infirmity in the order passed by the Commissioner of Income-tax(Appeals). 5. In result, this appeal filed by the Revenue is dismissed. Order pronounced in the open court at the time of hearing on Wednesday, the 25th of September, 2013 at Chennai.
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2013 (9) TMI 1260 - SUPREME COURT
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... ... ..... suggesting that Respondent No. 1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost. 16. In the result, the appeal is allowed and the impugned order is set aside. The writ petition filed by Respondent No. 1 shall now be listed before a Single Judge of the High Court, who shall decide the same without being influenced by the observations contained in the impugned order or this order. 17. While disposing of the appeal in the manner indicated above, we consider it necessary to make it clear that this Court has not expressed any opinion on the merits of the case and the parties shall be free to advance all legally permissible arguments before the learned Single Judge of the High Court.
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2013 (9) TMI 1259 - ITAT CHENNAI
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... ... ..... given by the Hon’ble Apex Court or a stay has been obtained by the Revenue. Just because an SLP is pending before Hon’ble Supreme Court, it will not be correct not to follow the decision of Hon’ble jurisdictional High Court, We are, therefore, of the opinion that the CIT(Appeals) was justified in allowing the claim of the assessee for deduction of retention amounts.” Ld. D.R could not show any good reason as to why the order of the Tribunal for the assessment year 2008-09 in the case of the assessee itself should not be followed in the present year appeal. He also could not bring any material on record to show that the order of the Tribunal for Assessment Year 2008-09 was varied in appeal by any higher authority. Therefore, we respectfully following the order of the Tribunal for Assessment Year 2008-09, we dismiss the grounds of appeal. 8. In the result, the appeal of Revenue is dismissed. Order pronounced on Thursday , the 12th September, 2013 at Chen
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2013 (9) TMI 1258 - ITAT CHENNAI
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... ... ..... 0%, whereas, Revenue is aggrieved on the scaling down of the disallowance to 10% 25. Disallowance of 20% on business promotion expenditure was made by the Assessing Officer for a reason that proper evidence was not produced by the assessee. Total claim for business promotion expenses was ₹ 40,19,830/-. Ld. CIT(Appeals) considering the nature of business of the assessee and volume of his turnover, gave a finding that 20% disallowance made was excessive and unreasonable. He scaled down it to 10%. 26. We find no good reason to interfere with the order of CIT(Appeals) since ld. CIT(Appeals) had given the relief considering the turnover of the assessee and its nature of business. Therefore, ground No.4 of the Revenue as well as grounds 4 to 6 of the assessee are dismissed. 27. To summarize the result, appeal of the Revenue stands dismissed, whereas, that of the assessee is partly allowed. Order was pronounced in the Court on Thursday, the 26th of September, 2013, at Chennai.
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2013 (9) TMI 1257 - ITAT CHENNAI
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... ... ..... Bio Park Ltd. (supra), we hold that except the interest income of ₹ 7,74,19,358/- and other income of ₹ 21,29,999/- rest of the incomes are assessable under the head “income from business” for the purpose of computing deduction under section 80IA(4) of the Act. Therefore, we direct the Assessing Officer to treat interest income and other income only under the head “income from other sources” and allow deduction under section 80IA on rest of the incomes i.e. rent from premises, operation and maintenance income, revenue sharing income, common facilities such as rent from auditorium and rent from others. 13. In the result, the appeal of the assessee is partly allowed and that of the Revenue is dismissed. The cross objection filed by the assessee in support of the impugned order of the Commissioner of Income Tax (Appeals) is also disposed off accordingly. Order pronounced in the open court on Friday, the 27th day of September, 2013 at Chennai.
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2013 (9) TMI 1256 - ITAT CHENNAI
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... ... ..... of Ticel Bio Park Ltd. (supra), we hold that except the interest income of ₹ 7,74,19,358/- and other income of ₹ 21,29,999/- rest of the incomes are assessable under the head "income from business" for the purpose of computing deduction under section 80IA(4) of the Act. Therefore, we direct the Assessing Officer to treat interest income and other income only under the head "income from other sources" and allow deduction under section 80IA on rest of the incomes i.e. rent from premises, operation and maintenance income, revenue sharing income, common facilities such as rent from auditorium and rent from others. In the result, the appeal of the assessee is partly allowed and that of the Revenue is dismissed. The cross objection filed by the assessee in support of the impugned order of the Commissioner of Income Tax (Appeals) is also disposed off accordingly. Order pronounced in the open court on Friday, the 27th day of September, 2013 at Chennai.
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2013 (9) TMI 1255 - SUPREME COURT
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... ... ..... s not covered by Section 6 or 7 of the Act whereby any jurisdiction is conferred upon the Tribunal to decided such an issue. Moreover, relief of possession, which can be given by the civil court, depends upon the question as to whether the sale deed is valid or not. Thus, the issue of sale deed and possession and inextricably mixed with each other. We have made these observations to clarify the legal position. In so far as present case is concerned, since the suit was filed much before the Act came into force, going by the dicta laid down in Sardar Khan case, it is the civil court where the suit was filed will continue to have the jurisdiction over the issue and civil court would be competent to decide the same. 24. We, thus, allow the appeal and set aside the impugned judgment of the High Court thereby dismissing the application filed by the Respondent under Order 7 Rule 10 of the Code of Civil Procedure with the direction to the civil court to decide the suit. 25. No costs.
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2013 (9) TMI 1254 - RAJASTHAN HIGH COURT
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... ... ..... icians and others to delay legitimate administrative action or to gain a political objective." 24. Hence, in view of the facts and circumstances detailed out hereinabove, the writ application preferred by the petitioner stated to be public interest litigation, is bereft of any merit and deserves to be dismissed. 25. From the discussion above and keeping in view the serious disputed question of facts involved in the instant matter, we are not inclined to entertain the writ application under Article 226 of the Constitution of India much less in the form of a public interest litigation without there being any material fact and material particular detailed out. The writ application is devoid of any substance and deserves to be dismissed. Accordingly, writ application is hereby dismissed. No costs. In view of the order in the writ application, interim application number 12010/2013 stands also closed. 25. In the result, the writ application is dismissed. No order as to costs.
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2013 (9) TMI 1253 - GUJRAT HIGH COURT
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... ... ..... Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) deleting the addition of ₹ 2,47,30,143/- made by AO under Section 145A of the Act being the unutilized balances of excise duty/Modvat not included in the value of closing stock? To be heard with Tax Appeal Nos.329/2010 and 330/2010.
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2013 (9) TMI 1252 - SUPREME COURT
Allegations of connivance on District Excise Officer (DEO) - Replacement of deed - Appeal in HC for Quashing a complaint u/s 420 and 120-B of the IPC against DEO - Forged and fabricated Partnership deed - Excise Contracts for Business of liquor - On 27.2.2002, a partnership firm was constituted and a partnership deed was executed on the same date with the intention to carry on business of liquor. The said partnership firm was reconstituted and a deed dated 5.3.2002 was executed inducting among others the respondent no.1 a partner of the firm and the said firm now consisted of twelve partners. The excise auctions for the year 2003-2004 was held on 6.3.2003 and the said firm participated in the auction and being a successful bidder, the contract was awarded to it.
The respondent no. 1 filed a complaint alleging that while negotiating and accepting the contract for the year 2003-2004, the reconstituted partnership deed dated 5.3.2002 was utilised, he had also invested a huge amount, but the said deed was subsequently replaced by a forged/fabricated deed dated 6.3.2003 in which the respondent no.1 was not a partner, was implanted in the excise office in its place to deprive him of the profits of the firm.
HELD THAT:- When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither the court can embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence or nor the court should judge the probability, reliability or genuineness of the allegations made therein. More so, the charge sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 Cr.P.C.
It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a still born child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance.
When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither the court can embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence or nor the court should judge the probability, reliability or genuineness of the allegations made therein.
Enquiry proceedings to continue.
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2013 (9) TMI 1251 - ITAT MUMBAI
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... ... ..... ndex/stock future as on balance sheet date is also on account of fluctuation of prices hence we request you to kindly consider the same and allow mark to market loss and oblige.” 6. The AO, however, did not accept the contention of the assessee for the reasons mentioned in the assessment order for A.Y. 2006-07 in assessee’s own case. On an appeal filed by the assessee the learned CIT(A) accepted the plea of the assessee by following the order of the ITAT in assessee’s own case for A.Y. 2005-06 (ITA No. 1941/Mum/2009 dated 25th June, 2010). 7. The learned D.R. could not place before us any contrary decision on this issue. We, therefore, do not find any infirmity in the order passed by the learned CIT(A). Accordingly we reject ground No. 2 of the Revenue. 8. Ground No. 3 and 4 are general in nature and need not to be considered independently. 9. In the result, appeal filed by the Revenue is dismissed. Order pronounced in the open court on 30th September, 2013.
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2013 (9) TMI 1250 - ITAT JODHPUR
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... ... ..... f tax date of payment by the concerned employee can be treated as the ate of actual payment. When the payee has paid more tax than the tax payable by it and refund is due to it as a result of TDS by the assessee, interest u/s 201(1A) cannot be charged. In view of the above and particularly in the facts of the present case no interest u/s 201 1A is leviable on the assessee. Hence this ground is allowed.” 6. Therefore, by respectfully following the above Tribunal Order, we hold that the provisions of Section 194J of the Act are not applicable to this assessee’s and it is not liable to deduct tax at source qua the transmission and wheeling charges paid by it to RVPN for the use of their transmission system. Accordingly, the A.O. has wrongly held this assessee is a assessee in default u/s 201 of the Act and has incorrectly imposed interest u/s 201(1A). 7. In the result, all the appeals of the assessee are allowed. Order Pronounced in the Court on 27th September, 2013.
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2013 (9) TMI 1249 - ITAT COCHIN
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... ... ..... all-scale industrial undertaking even though it is not so registered under the provisions of the IDR Act." In the instant case, we notice that the tax authorities have held that the production of SSI certificate is mandatory for granting deduction u/s 80IB of the Act, which is against the view expressed by the Hon'ble Delhi High Court in the above cited case. It is not the case of the AO that these assessees are hit by the various criteria fixed by the Central Government for determining an undertaking as Small scale industrial undertaking under Industrial Development Regulation Act. Hence, by respectfully following the above said decision of Hon'ble Delhi High Court, we hold that it is not necessary to produce SSI certificate for treating these assessees as small scale industrial undertaking in terms of sec.80IB of the Act. Accordingly, we set aside the orders of tax authorities on this issue. 23. In the result, all the appeals filed by the assessees are allowed.
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2013 (9) TMI 1248 - ITAT MUMBAI
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... ... ..... e equalization charges for the purpose of computing total income under the Income Tax Act, the difference between the annual lease charge of the leased assets and depreciation allowed on the said leased asset under the Income Tax Act should be taken into consideration and not the difference between the annual lease charge and depreciation claimed by the assessee in the books of account as per the Companies Act. We, therefore, restore this issue to the file of the A.O. for deciding the same afresh. The assessee is directed to furnish the working of lease equalization charges based on the figures of the depreciation on the leased assets allowed as per the income Tax Act which the A.O. shall verify and allow the claim of the assessee for deduction on account of lease equalization charges based on such verification in accordance with law. 9. In the result, appeals of the assessee are treated as allowed for statistical purpose. Order pronounced in the open court on 6th Sept. 2013.
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2013 (9) TMI 1247 - ITAT DELHI
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... ... ..... entative’s argument that the case of the assessee is hit by explanation to section 73 does not carry any force as if that be the intention of legislature, the whole purpose of amending section 43(5) is defeated. The amendment was meant for the development and benefit of capital markets. Therefore, we are of the view that the loss incurred by assessee was not speculative loss but was a normal business loss and Ld. CIT (A) has rightly dealt with the issue. Moreover Delhi ‘E’ Bench of Delhi Tribunal in ITA No. 2168 has already dealt with similar matter and has held the loss incurred on account of transactions in share futures on a recognized stock exchange as normal business loss. Therefore respectfully following the judicial pronouncement, we also hold the loss incurred by assesssee as normal business loss. Therefore, we do not find any infirmity in the order of CIT (A). The appeal filed by Revenue is dismissed. Order pronounced in Open Court on 20th /09/ 2013
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2013 (9) TMI 1246 - GUJARAT HIGH COURT
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... ... ..... de. When all the facts were before the revenue, the revenue had enough authority to make some enquiries on the bona fides of the creditors. Further, the revenue has not brought anything on record to show that the sundry creditors had forgone their debts in favour of the assessee. From the case laws relied upon by the assessee supra, it is obvious that such addition under Section 41(1) of the Act cannot be made by the revenue in these circumstances.” 4. In view of the aforesaid facts and circumstances, it cannot be said that the tribunal has committed any error in deleting the addition made by the Assessing Officer for ₹ 45,72,591/- under Section 41(1) of the Act, which was further confirmed by the CIT(A). We see no reason to interfere with the impugned judgment and order. No question of law, much less substantial question of law, arises in the present Tax Appeal. Under the circumstances, the present Tax Appeal deserves to be dismissed and is accordingly dismissed.
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2013 (9) TMI 1245 - PATNA HIGH COURT
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... ... ..... Narayan has appeared for the respondent no.3, the Bihar State Electricity Board. He has submitted that the aforesaid sum of ₹ 11,61,20,158.00, demanded by the authorities, has been paid by the Board to the respondent authorities. No refund, therefore, can be claimed from the Board. Learned counsel Mr. Harshwardhan Prasad has not been able to contest the statement that the Corporation has suffered double jeopardy and that the Corporation has paid up its dues for the financial years 2003-04 to 2008-09; nor does he dispute that no demand is pending against the Corporation for the said years. In the aforesaid circumstances, it being a clear and indisputable case of double jeopardy, we direct the respondent authorities to refund the aforesaid sum of ₹ 11,61,20,158.00 to the petitioner. The refund amount shall be paid within six weeks from today. Petition stands allowed in the above terms. Registry will send copy of this order to the respondent nos. 1 and 2 forth with.
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2013 (9) TMI 1244 - DELHI HIGH COURT
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... ... ..... concerning or questionable, he will be at liberty to approach this Court for appropriate orders. (6) No dividend will be transferred abroad without permission of the Court till the next date of hearing. 12. At the suggestion of the revenue, learned counsel for the petitioner will obtain instructions whether any declaration can be furnished by the foreign principal or a third party to protect the interest of the revenue in case there is any shortfall or failure to pay tax arrears. 13. Without prejudice to the rights and contention of the parties the petitioner will continue to deposit instalments in terms of order dated 21.6.2013. We clarify that the stand of the respondent is that the instalments fixed by the said order have no relation or connection with the impugned order under Section 281B of the Act which has been passed on the basis of future demands which may be created in view of the pending assessments. A copy of be given dasti under the signature of the Court Master.
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2013 (9) TMI 1243 - SECURITIES APPELLATE TRIBUNAL
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... ... ..... no power or jurisdiction to order/direct SEBI to initiate investigation or take punitive action against Acquirer/Manager/its Directors. We make it clear that we are not suggesting that SEBI must take punitive action against respondent nos. 2 to 4. We are only holding that when complaint is filed alleging violation of Regulations framed by SEBI, it is obligatory on part of SEBI to consider the said complaint and pass appropriate orders as it deems fit. In the present case complaint filed by appellant has been rejected without considering allegations set out in the complaint which has resulted in miscarriage of justice. 22. For all the aforesaid reasons we set aside impugned order dated 8th June, 2012 and direct SEBI to reconsider complaint of appellant dated 16th January, 2012 afresh and pass appropriate orders as it deems fit. We make it clear that we have not expressed any opinion on merits of the case. 23. Appeal is disposed of in the above terms with no order as to costs.
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