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Showing 1 to 20 of 1306 Records
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2020 (9) TMI 1308
Validity of assessment against non-existent company - assessee company was merged on the date notice was issued - HELD THAT:- The assessee company was not in existence as on the dated of passing of the assessment order. Hence the assessment order passed on a non-existent company is bad in law. We are holding so by respectfully following the judgement of PCIT vs. Maruti Suzuki India Ltd. [2019 (7) TMI 1449 - SUPREME COURT] assessment itself is bad in law as it was made on a nonexistent company - Decided in favour of assessee.
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2020 (9) TMI 1307
Seeking grant of (first) bail - it is alleged that petitioner has laid a scathing attack citing political vengeance for false implication of the petitioner in this case - HELD THAT:- A perusal of the records is in itself illustrative how the deceased having been illegally apprehended within the jurisdiction of District Mohali, at no point of time over this long period was ever produced before the Judicial Magistrate and it was only before an Executive Magistrate in another District in Gurdaspur he is alleged to have been produced on 14.12.1991 before the SDM from where he is stated to have escaped from huge posse of police and paramilitary forces; rather rightly strengthens the belief of the complainant and a rationale person that it was with a preconceived plan the entire gamut was played to facilitate easy elimination of Balwant Singh Multani. Prior thereto the police admits being in custody of the deceased and therefore a heavy onus lay on it to remove this needle of suspicion which it has not been prima-facie able to succeed.
In the case of SUSHILA AGGARWAL AND OTHERS VERSUS STATE (NCT OF DELHI) AND ANOTHER [2020 (1) TMI 1193 - SUPREME COURT], the Supreme Court has held that an order of anticipatory bail does not in any manner limit or restrict the rights or the duties of the police/investigating agency to investigate into the charges against a person who seeks and is granted pre-arrest bail.
More so, a million dollar question arises whether under the garb of interim bail/anticipatory bail, the hands of the investigating agency can be tied so as to frustrate its endeavours to unearth the truth and reach into the circumstances unfolding into the manner of the crime. If it would have been the intention of the legislature then no crime in this world could have been detected and the culprits would have gone scotfree - In JAPANI SAHOO VERSUS CHANDRA SEKHAR MOHANTY [2007 (7) TMI 572 - SUPREME COURT], the Supreme Court of India has held that general rule of criminal justice is that a crime never dies.
Applying the same very ratio to the instant case, a look at the complaint and undisplaced facts before this Court, shows that since the day of his disappearance and prior thereto the family had been making every conceivable effort in initiating judicial process and which rather had remained in oblivion to the constitutional rights of the deceased’s family, are matters which certainly are of much relevance and substantiate the plea of State the unbridled powers of petitioner. Even in the innumerable cases that one experiences in life, shows that for one reason or the other, be it political or otherwise, many of the crimes remain buried for a period of time and it is with passage of time the same are unearthed and therefore, does not discourage the investigating agency from laying off its hands from such grave crimes against humanity.
Since it is at this juncture, the investigating agency has woken up and gathered courage to investigate its own officer and therefore, the vital pieces of evidence which would come handy in leading to various leads would inch towards unraveling this puzzle which too has baffled the citizenry who are looking upon the justice system as a last resort to get justice. Even otherwise, it is a well settled proposition of law that provisions of Section 438 Cr.P.C. are to be sparingly used. In the light of the seriousness of offences that have come about there being every likelihood of petitioner stifling fair investigations and trial and for which custodial interrogation of the petitioner is very much essential to piece together this unfortunate incident, necessitates dismissal of the instant bail application.
Bail application dismissed.
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2020 (9) TMI 1306
Seeking grant of bail - smuggling - Heroin - charge sheet was not filed within the statutory period of 60 days - petitioner having been prevented from filing an application seeking the default bail, for the reason, he was not represented by a lawyer - HELD THAT:- In the present case, the petitioner could not file an application seeking indefeasible right to bail under Section 167(2) CrPC on account of inaction on the part of the learned Special Court in ensuring that the petitioner was represented by a counsel during the period of remand as well and that he was informed of the said right.
Hon'ble Supreme Court has repeatedly emphasized the bounden duty of the Trial Courts to inform the accused of his right to seek default bail. In the decision reported as Rakesh Kumar Paul Vs. State of Assam [2017 (8) TMI 1526 - SUPREME COURT], expounding the duty of the Courts in providing free legal assistance to the accused as also informing him of his right to seek the statutory bail, held the petitioner had satisfied all the requirements of obtaining 'default bail' which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail - The facts of the present case are undoubtedly distinguishable from the facts in Rakesh Kumar Paul as between the period of 4th February, 2020 to 13th February, 2020, the petitioner having not been informed about his indefeasible right to default bail, he could not seek the same by filing an application and as held in a catena of decisions of the Hon'ble Supreme Court, unless the accused applies for the default bail during the said period, the accused will not be entitled to the same as a matter of right.
Though this Court is of the view that the decision of the Division Bench of the Punjab and Haryana High Court is an appropriate opinion in relation to cognizance of an offence under NDPS Act without the FSL report being an illegality, however, bound by the Division Bench decision of this Court, judicial discipline mandates this Court to follow the same. Consequently, in view of the decision of the Division Bench of this Court in Kishan Lal Vs. State [1989 (9) TMI 408 - DELHI HIGH COURT], it is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non-filing of the FSL report along with the charge sheet.
In the alternative petitioner also seeks bail on merits. The petitioner was apprehended by a team of Narcotics Squad on 6th December, 2019 pursuant to an information received that the petitioner along with the co-accused was supplying smack in the area of Sultanpuri and Wazirpur J.J. colony and would come for the supply at about 6.30-7 pm. On the pointing out of the informer, the petitioner and the co-accused were apprehended and a notice under Section 50 of the NDPS Act was served on the petitioner and the co-accused and they were informed about their right to be examined before a Gazetted Officer and Magistrate. Despite refusal of the petitioner and the co-accused, ACP (Operations) was present when the search was conducted and on the search of the petitioner, 50 gms of Heroin was recovered and another 50 gms of Heroin was recovered from the co-accused. Two samples of 5 gms each were drawn and kept in separate pullandas. The samples and the remaining contraband were sealed and after performing the necessary codal formalities, the same were deposited in the Malkhana.
Considering the nature of drug/Heroin allegedly recovered from the petitioner and no procedural infirmity having been pointed out, this Court finds no ground to grant bail to the petitioner on merits as well.
Petition is dismissed.
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2020 (9) TMI 1305
Seeking transfer of Criminal cases pending on the file of the Court of the Additional Judicial Magistrate, Gurugram, Haryana, to any competent Court in New Delhi - lack of territorial jurisdiction - cause of action - HELD THAT:- Chapter XIII of the Code of Criminal Procedure, 1973 contains provisions relating to jurisdiction of criminal Courts in inquiries and trials. The Code maintains a distinction between (i) inquiry; (ii) investigation; and (iii) trial. The words "inquiry" and "investigation" are defined respectively in Clauses (g) and (h) of Section 2 of the Code.
Apart from Sections 177 to 184, which lay down in elaborate detail, the Rules relating to jurisdiction, Chapter XIII of the Code also contains a few other sections. Section 185 empowers the State Government to order any case or class of cases committed for trial in any district, to be tried in any Sessions division. Section 186 empowers the High Court, in case where 2 or more courts have taken cognizance of the same offence and a question as to which of them should inquire into or try the offence has arisen, to decide the district where the inquiry or trial shall take place. Section 187 speaks of the powers of the Magistrate, in case where a person within his local jurisdiction, has committed an offence outside his jurisdiction, but the same cannot be inquired into or tried within such jurisdiction. Sections 188 and 189 deal with offences committed outside India.
Clause (a) of Section 26 makes the provisions contained therein, subject to the other provisions of the Code. Therefore, a question arose before this Court in the State of Uttar Pradesh v. Sabir Ali [1964 (3) TMI 137 - SUPREME COURT] as to whether a conviction and punishment handed over by a Magistrate of first class for an offence under the Uttar Pradesh Private Forest Act, 1948 were void, in the light of Section 15(2) of the Special Act. Section 15(2) of Uttar Pradesh Private Forest Act made the offences under the Act triable only by a Magistrate of second or third class. Though the entire trial in that case took place before a Magistrate of second class, he was conferred with the powers of a Magistrate of first class, before he pronounced the Judgment. This Court held that the proceedings were void Under Section 530(p) of the Code of Criminal Procedure, 1898 (as it stood at that time). It is relevant to note that Section 461(l) of the Code of 1973 is in pari materia with Section 530(p) of the Code of 1898.
What is now Clause (a) of Section 26 of the Code of 1973, is what was Section 28 of the Code of 1898. The only difference between the two is that Section 28 of the Code of 1898 referred to the eighth column of the second schedule, but Section 26(a) of the Code of 1973 refers to the first schedule - Similarly, Clause (b) of Section 26 of the Code of 1973 is nothing but what was Section 29 of the Code of 1898.
It is possible to take a view that the words "tries an offence" are more appropriate than the words "tries an offender" in Section 461(l). This is because, lack of jurisdiction to try an offence cannot be cured by Section 462 and hence Section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of Section 462, provided there is no other bar for the court to try the said offender (such as in Section 27). But Section 461(l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.
The upshot of the discussion is (i) that the issue of jurisdiction of a court to try an "offence" or "offender" as well as the issue of territorial jurisdiction, depend upon facts established through evidence (ii) that if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various Rules enunciated in Sections 177 to 184 of the Code and (iii) that these questions may have to be raised before the court trying the offence and such court is bound to consider the same.
As seen from the pleadings, the type of jurisdictional issue, raised in the cases on hand, is one of territorial jurisdiction, atleast as of now. The answer to this depends upon facts to be established by evidence. The facts to be established by evidence, may relate either to the place of commission of the offence or to other things dealt with by Sections 177 to 184 of the Code. In such circumstances, this Court cannot order transfer, on the ground of lack of territorial jurisdiction, even before evidence is marshaled. Hence the transfer petitions are liable to be dismissed.
Accordingly, transfer petitions are dismissed.
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2020 (9) TMI 1304
Ex-parte interim order passed by WTM - illegal gains made using unpublished price sensitive information - directing the Appellant to deposit a sum in an escrow account in a Nationalised Bank towards - WTM further directed the Banks to freeze all debits to the extent of the above amount till such time the escrow account is opened and the amount is transferred and directed the depositories to suspend all debits and, therefore, restrained the Appellants from disposing or alienating any assets or properties till such time the amount is credited in the escrow account - Appellant contented that there was no urgency in passing an ex-parte order with regard to the trades done by the Appellants
HELD THAT: In the instant case, we do not find that the matter is one of extreme urgency which requires passing of an ex-parte interim order. We find that the trades were done in the year 2017. Nothing has come on record as to when the Respondent became aware of these transactions. However, we find that the proceedings were initiated in February, 2019 which continued till 11th March, 2020 and, thereafter, it took the Respondents another 4 months to pass the impugned order.
This by itself indicates that there was no extreme urgency in passing the impugned order. We, therefore, are of the opinion that merely by arriving at a prima facie case that the Appellants were an insider as defined under the PIT Regulations, 2015 cannot be made the sole basis for passing the impugned order without considering the balance of convenience or irreparable injury.
Only reason given for passing the interim order has been provided in para 34 of the impugned order namely that the illegal gains should be impounded otherwise it would result in irreparable injury to the interest of the securities market and investors. In our view, illegal gains are yet to be adjudicated and, therefore, in the absence of adjudication it will not be proper to impound the so called illegal gains especially when there is no assertion that the Appellants are disposing of the property in question or they are obstructing or delaying the proceedings.
The impugned order in so far as it relates to the Appellants cannot be sustained and is quashed at the admission stage itself without calling for a reply except the show cause notice. The Appeal is allowed and the Misc. Application are accordingly disposed of.
We further direct the Appellants to file a reply to the show cause notice on or before 7th October, 2020. The Respondent will thereafter decide the matter finally after giving an opportunity of hearing to the Appellants either through physical hearing or through video conference within 6 months thereafter.
During the interim period, in order to safe guard the interest of the investors in the securities market and also to protect the integrity of the securities market, we direct the Appellants to provide a fixed deposit of Rs 2,60,93,085.85 in the name of SEBI for a period of one year, within two weeks from today. This fixed deposit receipt will be kept in the safe custody with the respondent and will not be encashed till three months after the passing of the final order by the respondent.
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2020 (9) TMI 1303
Levy of service tax - renting of immovable property service/mandap keeper service - eligibility for Mega Exemption Notification No.25/2012 dated 20.06.2012 - time limitation - penalty - HELD THAT:- The issue is no longer res integra. The Division Bench of the Madras High Court had already decided the issue in the decision GV. MATHESWARAN VERSUS THE UNION OF INDIA AND OTHERS [2015 (3) TMI 391 - MADRAS HIGH COURT]. After upholding the validity of Section 65(105)(zzzz) of the Act, in Paragraph No.56, the Hon'ble Division Bench observed that it is open to the local body to pass on the burden to the recipient of the service.
When the Division Bench of the Madras High Court has already held that the local bodies are also liable to pay service tax for rendering “renting of immovable properties” service/mandap keeper services etc., then, it is not required to go into the issue once again. Judicial discipline demands to respectfully follow these binding precedents.
Whether the impugned demand are hit by limitation? - HELD THAT:- Admittedly, the petitioners did not register with the respondent department immediately. From the date of registration as an assessee, the petitioner is liable to pay service tax. If limitation is computed, the impugned demands are well within time - this issue had been specifically dealt with by the Division Bench of the High Court of Judicature of Chhattisgarh in PAWAN ENGINEERING WORKS VERSUS COMMISSIONER OF CUSTOM AND CENTRAL EXCISE & SERVICE TAX, RAIPUR [2019 (11) TMI 1206 - CHATTISGARH HIGH COURT] where it was held that non-registration of the appellant, in the given circumstances, definitely will amount to suppression of the relevant facts, which came to the notice of the Department, only later, on the basis of some intelligence gathered by the Preventive Officers of the Central Excise. This being the position, it squarely comes within the purview of 'sub-Clause (d)' under the proviso to Section 73(1) of the Finance Act, 1994 and hence it was open for the Department to have invoked the extended period of 'five years' for issuing the show cause notice.
Thus, in the present case, the impugned demands are within limitation.
Levy of penalty - HELD THAT:- Since the local bodies are discharging statutory obligation by way of providing public service without any profit making intent and amount so collected is eventually spent for the welfare of the public, there cannot be any malafide intention to evade payment of service tax. It is for this reason, the Tribunals throughout India have been taking a consistent stand in directing waiver of penalty. The respondent authorities are bound by the view taken by the jurisdictional Tribunal. Therefore, levying of penalty on the local body is clearly not warranted and they are accordingly set aside.
Petition allowed in part.
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2020 (9) TMI 1302
Maintainability of the execution petition - Execution of decree passed by the High Court of Justice, (Queen’s Bench Division) Commercial Court of England and Wales - HELD THAT:- The petitioner submits that the commercial court does not have the jurisdiction to entertain an Execution Petition under the Commercial Courts Act. Liberty is given to the petitioner to raise this contention before the Execution Court.
SLP disposed off.
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2020 (9) TMI 1301
Suspension Order - Demand of illegal gratification to fix the change over switch - HELD THAT:- The undisputed position, in this case, is that criminal proceedings were initiated against the Respondent on the basis of the trap laid by the Vigilance and Anti-Corruption Department. Such proceedings are admittedly pending before the Chief Judicial Magistrate, Thiruvannamalai in S.C. No. 53 of 2018. Therefore, this is clearly a case wherein a charge sheet was filed and the criminal process is underway. The law relating to suspension orders and their revocation should be examined against this background.
On perusal of the Full Bench judgment in S. RAVI AND ORS. VERSUS THE DISTRICT COLLECTOR AND ORS. [2015 (3) TMI 1428 - MADRAS HIGH COURT], it is clear that the Court did not direct the revocation of suspension if the suspension period exceeds a specific duration.
On perusal of the judgment in Ajay Kumar Choudhary [2015 (6) TMI 592 - SUPREME COURT], it is clear that the Hon'ble Supreme Court was dealing with a case wherein the Appellant had been served with a charge sheet before the judgment was pronounced. On that basis, on the facts of that case, paragraph 22 reflects that the order of suspension was not set aside although the suspension period exceeded three months. However, while disposing of the case, the Hon'ble Supreme Court held that the suspension period should not extend beyond three months if the memorandum of charges/charge sheet is not served on the delinquent officer/employee.
Upon considering the law laid down in the judgments that have been discussed herein above, it is clear that there is no absolute rule in respect of the validity of suspension orders from the perspective of duration especially when such suspension is in the context of a pending criminal proceeding. In other words, in these situations, the law on suspension as laid down in R.P. Kapur v. Union of India, [1963 (11) TMI 87 - SUPREME COURT], by a Five Judge Bench upholding suspension pending enquiry subject to payment of subsistence allowance as per service conditions and that in UNION OF INDIA & ANR. VERSUS ASHOK KUMAR AGGARWAL [2013 (11) TMI 1658 - SUPREME COURT], wherein it was held that the court does not sit in appeal and that such orders would be interfered with only if the charges are patently baseless, mala fide or vindictive would continue to hold the field.
Appeal allowed in part insofar as it directs the Appellants to revoke the suspension and to post the Respondent in a non-sensitive post.
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2020 (9) TMI 1300
Maintainability of the present petition - alternative efficacious remedy of an appeal - Recovery of VAT dues - HELD THAT:- The present petition is disposed of with liberty granted to the petitioner to approach the Competent Authority to assail the Assessment orders passed in respect of the Assessment years 2011-2012 to 2014-2015, in accordance with law, within a period of two weeks from today. The respondents shall not take any coercive action against the petitioner in terms of the impugned Writ of demand dated 04.09.2020, for the aforesaid period.
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2020 (9) TMI 1299
Cancellation of bail granted - HELD THAT:- The bail granted to the respondent-accused by the learned ASJ, Patiala House Court, New Delhi vide order dated 30.04.2020 and affirmed vide order dated 06.05.2020 by the Delhi High Court cannot be cancelled - it is deemed appropriate to impose certain conditions on grant of bail.
SLP disposed off.
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2020 (9) TMI 1298
TP Adjustment - MAM - HELD THAT:- We find, the tribunal in M/S TOWER WATSON INDIA PVT LTD VERSUS THE DY. C.I.T GURGAON [2019 (5) TMI 327 - ITAT DELHI] has thoroughly discussed the issue in question and held that CUP is the most appropriate method in the instant case.
Since the facts of the instant case are identical to the facts for the A.Y. 2011- 12, therefore, respectfully following the decision of the Tribunal in assessee’s own case and in absence of any distinguishable features brought to our notice, we are of the opinion that CUP is the most appropriate method in the instant case which has been applied by the assessee for benchmarking the transactions for provision of consultancy services rendered. We hold and direct accordingly. Since the ground of appeal No.2 is decided in favour of the assessee.
Denial of TDS credit - HELD THAT:- We, therefore, deem it proper to restore this issue to the file of the AO with a direction to verify the record and give proper credit of the TDS - AO shall give due opportunity of being heard to the assessee and decide the issue as per fact and law. Ground raised by the assessee is allowed for statistical purposes.
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2020 (9) TMI 1297
Revision u/s 263 - eligibility of deduction claimed on account of foreign exchange loss - As per CIT AO had not enquired this issue from the angle of allowability of notional foreign exchange fluctuation loss on restatement of allowability at the year ending and further the applicability of section 43A was not considered as per which the loss on account foreign exchange loss was to be allowed at the time of making payment and not on year to year basis - HELD THAT:- We find that the ld. Pr. CIT has recorded a categorical finding that the AO did not examine this issue at all in the assessment order. The Hon’ble Supreme Court in Malabar Industrial Company Ltd. [2000 (2) TMI 10 - SUPREME COURT] has held that CIT can revise an assessment order where the AO does not apply his mind before finalising the assessment.
In an earlier judgment in Tara Devi Aggarwal [1972 (11) TMI 2 - SUPREME COURT] has also laid down similar proposition. Similar view has been taken in Gee Vee Enterprises[1974 (10) TMI 29 - DELHI HIGH COURT].
Since it is evident from the facts and circumstances of the instant case that the AO did not consider this issue and simply allowed the deduction, we are satisfied that the assessment order turned out to be erroneous and prejudicial to the interest of revenue, rightly warranting interference at the hands of Pr. CIT u/s.263 of the Act. Decided against assessee.
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2020 (9) TMI 1296
Smuggling - four hundred grams of Methamphetamine - ten grams of cocaine - appellant contends that the case of the prosecution is fabricated and is based solely on the testimonies of certain police officials - whether the time spent leading to the arrest of the appellant at 4.30 a.m. has been explained? - whether the responses received pursuant to the information sought under the Right to Information Act, 2005 raise any doubt as to the presence of the raiding party at the spot near the ISBT and the appellant's apprehension at the said spot? - HELD THAT:- In the present case, the police officials did not include any witnesses from the public or any other independent witnesses. However, the testimony of police witnesses cannot be ignored or doubted on this ground. In absence of evidence of any public or independent witness, it is essential that the testimony of the official witnesses should be subjected to greater scrutiny.
Thus in absence of testimonies of any independent witness, even minor inconsistencies in the evidence of the official witnesses may be considered as material. In the present case, this Court has carefully examined the evidence led by various official witnesses and there is no material inconsistency regarding apprehension of the appellant at the spot. Thus this Court has no doubt that the appellant was apprehended at about 07.55 pm on 19.11.2013, as claimed by the prosecution.
Whether the prosecution has established the chain of custody of the samples, beyond any reasonable doubt? - HELD THAT:- Even though the forwarding letter under the cover of which the two samples were forwarded to FSL, Rohini have not been produced; this Court is unable to accept that there is any doubt as to the chain of custody. The prosecution has led evidence of the police official who had sealed the two parcels (that is, SI Rajni Kant, who was examined as PW12). Further, the evidence of the police officials that had carried the parcels to PS Crime Branch and had deposited it into the Malkhana and thereafter, had withdrawn the same from the Malkhana and carried to the FSL, have been brought on record. The Chemical Examination Report (Ex. PX) also clearly records that the seals on the parcels when received were intact and it also confirms that the parcels were bearing the seals "5APSNB Delhi" and "VSS" - the contention that the accused is liable to be acquitted only on the ground that the chain of custody of the samples allegedly drawn has not been established, is unmerited.
This Court is of the view that the manner in which the samples were drawn is fatal to the prosecution's case regarding recovery of four hundred grams of methamphetamine from the appellant. The sample drawn after mixing the contents of both the polythene pouches cannot be stated to be representative of the contents of the two polythene pouches. The prosecution has been unable to establish that both the polythene packets, which were recovered from the metallic box, contained methamphetamine. This is because the contents of each of the polythene pouches were not tested prior to the same being kept together - However, once it is held that the quantity of the entire mixture including the neutral substances have to be considered for the purposes of determining whether the quantity of the illicit substance is a small quantity or a commercial quantity, then it is important that the substances found in separate packets are not mixed prior to ascertaining the nature of the substance in each packet. This is because if one of the packets does not contain any illicit substance, mixing the same with contents of another packet containing illicit substance, would increase the quantity of the offending substance (which includes neutral substance) that is required to be considered for determining the punishment liable to be imposed on the accused.
The appellant's conviction for committing an offence punishable under Section 22(c) of the NDPS Act, cannot be sustained - The appellant has also been convicted for committing an offence punishable under Section 21(b) of the Act on account of ten grams of cocaine recovered from the rear pocket of the lower apparel worn by the accused. The evidence led by the prosecution (testimony of PW12, PW10 and PW8) clearly established the recovery of cocaine from the appellant.
The impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 22(c) of the Act on account of being found in possession of four hundred grams of methamphetamine, is unsustainable and is set aside - The appeal is partly allowed.
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2020 (9) TMI 1295
Removal of a set of counsel, who represented the DDCA before the Supreme Court - HELD THAT:- UPON hearing the counsel the Court adjourned the case.
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2020 (9) TMI 1294
Removal of a set of counsel, who represented the DDCA before the Supreme Court - HELD THAT:- The respondents have long concluded their arguments. Indeed, the appellant is in the process of concluding its rejoinder arguments. The learned Additional Solicitor General appearing for the appellant with the new set of counsel, submits that she be heard as the counsel who have thus far appeared for the appellant have no authority to appear. The Apex Council’s resolution is in the face of the Supreme Court’s aforesaid order and, ex facie, is an interference in these proceedings. The court would not pass any orders, apropos the same, at this stage.
The only focus now is to decide the FAO by 22.9.2020, as directed by the Supreme Court - Arguments heard. Order reserved.
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2020 (9) TMI 1293
Gross misconduct and indiscipline by virtue of ordering of a false GD Entry - extra-constitutional authority by issuing unlawful orders to Constable KK Sharma to give false statement to substantiate the aforementioned fake GD entry - corruption for illegally collecting bribes from contractors of BPCL through his subordinates - Effect of criminal enquiry on disciplinary proceedings.
HELD THAT:- It is well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority - The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the Appellant's guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidences and was detailed and well-reasoned.
Even in general parlance, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder.
Effect of criminal enquiry on disciplinary proceedings - HELD THAT:- It is beyond debate that criminal proceedings are distinct from civil proceedings. It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence - The employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding. Furthermore, the CBI report dated 07.03.2000 does recommend major disciplinary action against the Appellant. The said report also buttresses the Respondent's case.
Punishment and plea of leniency - HELD THAT:- The Appellant's contention that the punishment of dismissal was disproportionate to the allegation of corruption, is without merit. It is a settled legal proposition that the Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying-degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent, but must also factor the financial effect and societal implication of such misconduct. But unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked. Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.
It is clear that the punishment of dismissal from service is far from disproportionate to the charges of corruption, fabrication and intimidation which have unanimously been proven against the Appellant. Taking any other view would be an anathema to service jurisprudence. If we were to hold that systematic corruption and its blatant cover-up are inadequate to attract dismissal from service, then the purpose behind having such major penalties, which are explicitly provided for Under Article 311 of the Constitution, would be obliterated.
Appeal dismissed.
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2020 (9) TMI 1292
Recovery of demand - HELD THAT:- The Respondent Department are directed not to take coercive steps for recovery of demand raised on account of the issue which is now pending with the Adjudicating Authority in pursuance of the remand order passed by the learned Tribunal on 4.11.2019.
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2020 (9) TMI 1291
Willful defaulters - it is urged by the petitioners that the respondents have already made up a mind to treat the petitioners as willful defaulters - HELD THAT:- It is found that this is merely a tentative opinion expressed and it is not adjudication that the petitioners are declared as willful defaulters. The hearing is yet to be conducted, as informed by the learned counsel for the petitioners. The hearing would obviously be conducted on the show cause notice dated 13.11.2019. It is only after grant of hearing to the petitioners that the final adjudication shall be done by the Bank.
This order is passed on the basis of the contention of the learned counsel for the petitioners. However, if at all after granting of hearing to the petitioners, an order is already passed declaring the petitioners as willful defaulters, the observations made above, will not apply.
Petition dismissed.
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2020 (9) TMI 1290
Search and seizure operation u/s 132 - Survey operations were also carried out u/s 133A - addition based on statements recorded in search when retraction was during the course of search itself - At office premises of the assessee, the documents marked as GG/IO were found and seized - CIT-A deleted - HELD THAT:- In this case, no corroborative evidence has been brought on record by the Assessing Officer in support of his findings that the notings made on the printouts of the balance sheets taken from the pen drive, are in fact the income of the assessee.
Writing on a paper taken as a print out from a pen drive found during the course of search cannot be income by any stretch of imagination. When the assessee makes certain serious allegation during the search operations and denies the content of the statement recorded from him u/s 132(4) of the Act, the burden shifts to the revenue to prove that the same is income. CIT (A) in our view has correctly analyzed the factual and legal position in this case. Hence we uphold the same. Decided in favour of assessee.
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2020 (9) TMI 1289
TP Adjustment - comparable selection - exclusion of Engineers India Limited from the list of comparables, being a Government company - HELD THAT:- Dispute Resolution Panel (DRP) rejected the Government undertaking as comparable by following the order of Tribunal in assessee’s own case for AY 2008-09 [2013 (11) TMI 930 - ITAT MUMBAI]. We do not find any merit in ground No.1 of the appeal. Accordingly, the same is dismissed.
TP adjustment on account of payment of royalty, project engineering and manufacturing drawings - assessee applied to the RBI seeking approval in respect of payment of royalty and technical fee through Central Bank of India - HELD THAT:- We find that the DRP has deleted the addition by placing reliance on the order of the Tribunal in assessee’s own case for assessment year 2008-09 [2013 (11) TMI 930 - ITAT MUMBAI] when a payment is made after obtaining due approval from the RBI, how its ALP can be computed at Rs. Nil, is anybody's guess. The fact of approval of the payment by the RBI has been succinctly recorded by the TPO in his order as well. He still chose to propose adjustment in respect of full payment. In our considered opinion, when the rate of royalty payment and fee for drawings etc. has been approved or deemed to have been approved by the RBI, then such payment has to be considered at ALP. We, therefore, direct to delete addition - Decided in favour of assessee.
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