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Showing 1 to 20 of 1593 Records
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2022 (3) TMI 1594
Writ petitions dismissed as withdrawn - As petitioner submits that during the pendency of these Writ Petitions, before it is moved for admission, assessment orders since have been passed, on instructions, the petitioner counsel wants to withdraw these Writ Petitions, of course, with a liberty to workout the remedy as against the assessment orders now passed.
With the said liberty, these writ petitions are dismissed as withdrawn. No costs. Consequently, connected miscellaneous petitions are closed.
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2022 (3) TMI 1593
Grant of injunction in favour of the original Plaintiff restraining the Defendant from disturbing the possession of the Plaintiff - HELD THAT:- An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.
All the Courts below have erred in granting permanent injunction in favour of the Plaintiff and against the Defendant No. 1, who is the true owner. After having held that the Plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the Plaintiff is not entitled to relief of permanent injunction against Defendant No. 1-the true owner.
Appeal allowed.
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2022 (3) TMI 1592
Reopening of assessment u/s 147 - reopening beyond period of 4 years - mandation to get prior approval of the Commissioner of Income Tax - challenge is to a notice u/s 148 which has been issued after approval by the JCIT and not the CIT - HELD THAT:- As following the order of this Court in M/S. AMBIKA IRON AND STEEL PVT. LTD., SUNITA DALMIA, NIRU AGARWAL, BIDESH BARAN ROY and others [2022 (1) TMI 1291 - ORISSA HIGH COURT] wherein held Officer authorized to record the necessary satisfaction had to be the Chief Commissioner of Income Tax / Commissioner of Income Tax. The impugned notice and all consequential proceedings are hereby quashed. The writ petition is disposed of.
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2022 (3) TMI 1590
condonation of delay in filing application for substitution - Substitution of Official Liquidator appointed by the learned National Company Law Tribunal to prosecute the writ petition in view of winding up of the Petitioner-Company - HELD THAT:- The delay in filing the application for substitution is condoned and the Official Liquidator is permitted to represent the Petitioner-Company being under liquidation.
Application allowed.
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2022 (3) TMI 1589
Interference in contract awarded to the Appellant - power of judicial review - HELD THAT:- The interference in contract awarded to the Appellant is wholly unwarranted and has caused loss to public interest. Construction of roads is an essential part of development of infrastructure in any State. The learned Single Bench and the Division Bench of the High Court were exercising power of judicial review to find out whether the decision of the State was manifestly arbitrary or unjust as laid down by this Court in TATA CELLULAR VERSUS UNION OF INDIA [1994 (7) TMI 307 - SUPREME COURT] and to act as appellate authority over the decision of the State.
In AFCONS INFRASTRUCTURE LTD. VERSUS NAGPUR METRO RAIL CORPORATION LTD. & ANR. [2016 (9) TMI 1292 - SUPREME COURT], this Court held that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents.
The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ Petitioner was one of them. It is not the case of the writ Petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ Petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.
The Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues.
The action of the Respondent in setting aside the letter of acceptance granted to the Appellant suffers from manifest illegality and cannot be sustained. Consequently, the appeal is disposed of with a direction to the Respondent State to allow the Appellant to resume and complete the work by excluding the period spent in the stay of execution of the contract.
Appeal disposed off.
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2022 (3) TMI 1588
Levy of service tax - deemed sale or rent a cab scheme operator service - operating lease entered by the appellant with their client in respect of the motor vehicles provided by them in terms of MLA - service tax is leviable on the charges collected by the appellant towards Fleet Management Service, as part of the lease rent should be subjected to service tax or not - extended period of limitation - penalties.
Whether the operating lease entered by the appellant with their client in respect of the motor vehicles provided by them in terms of MLA, are cases of “deemed sale”, as per Article 366 (29A) (d) of the Constitution of India and will be subjected to sales tax/ VAT, or they are covered by the definition of “rent a cab scheme operator” service as defined by Section 65(91) of the Finance Act, 1994 and taxable service under section 65(105)(o) of the said Act? - HELD THAT:- After taking note of the agreement Commissioner has in the impugned order, analyzed the agreement, and have concluded that the condition at ‘d’ of the Board Circular by referring to the decision in case BHARAT SANCHAR NIGAM LTD. (BSNL) VERSUS UNION OF INDIA [2006 (3) TMI 1 - SUPREME COURT], is not satisfied and hence the transaction in terms of “operating lease cannot be said to be one of deemed sale as per Article 366 (29A) (d) of the Constitution of India.
Commissioner has concluded in the impugned order by referring to the various clauses in the agreement that there was no transfer of the right to use. However while doing so his emphasis is more on the transfer in the property of the vehicle(s) - the “transfer of right to use” cannot be equated to “transfer in the property of vehicles”. The intent of the transaction undertaken needs to be determined in terms of the various clauses of the agreement.
Since as per the terms of the agreement as stated in the above table, we find that the conditions as laid down by the Hon’ble Apex Court in case of BSNL are satisfied, there are no hesitation in holding that the transaction is of deemed sale as per Article 366 (29A) (d) of the Constitution of India - It is also found that co-ordinate bench has in case of ARVAL INDIA PRIVATE LIMITED VERSUS PRINCIPAL COMMISSIONER OF SERVICE TAX – IV AND (VICE-VERSA) MR CJ MATHEW, MEMBER (TECHNICAL) [2020 (9) TMI 125 - CESTAT MUMBAI] concluded in respect of similar operating lease agreement, that the said agreement was that of deemed sale.
The question is answered in favour of the appellant holding that “operating lease agreement” is squarely a case of deemed sale as per Article 366 (29A) (d) of the Constitution of India.
Whether the service tax is leviable on the charges collected by the appellant towards Fleet Management Service, as part of the lease rent should be subjected to service tax? - HELD THAT:- Undisputedly appellant before was not paying service tax in respect of these services, whereas in case of Arval India Pvt Ltd., bench had specifically noted that Arval was discharging service tax on these services provided by them. Counsel for the appellant has in his submissions admitted to liability to service tax on the said services - Taking note of the submissions made by the appellant the matter needs to be reconsidered by the original authority to determine the demand in respect of the charges recovered by the appellant towards providing of these services which form the part of lease rental. Hence matter to this extent needs to be remanded back to the original authority for re-determination of the demand after taking into account the submissions made by the appellant.
Whether the demand is hit by the limitation as extended period of limitation cannot be invoked in the present case? - HELD THAT:- Taking note of the fact that appellants had been discharging the VAT on the transactions undertaken by them in terms of the operating lease agreements, appellant was under genuine and bonafide belief that they are discharging the tax on the transactions undertaken by them. In view of such a bonafide belief, whereby appellants were discharging the VAT on these transactions which was much higher than the tax that could have been demanded treating these transactions to taxable under the category of rent a cab services, the extended period of limitation cannot be invoked.
Whether any penalties under Section 76, 77 or 78 be imposed on the appellant? - HELD THAT:- Since extended period of limitation cannot be invoked, penalty imposed under Section 78 cannot be sustained in view of the decision of the Hon’ble Apex Court in case of UNION OF INDIA VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS AND COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VERSUS M/S. LANCO INDUSTRIES LTD. [2009 (5) TMI 15 - SUPREME COURT] - In respect of the penalties imposed under Section 76 and 77 and for invocation of the Section 80 of the Finance Act, 1994, no pronouncement at this stage and the same needs to be considered by the Commissioner in the remand proceedings while determining the service tax demandable.
Appeal allowed in part and part matter on remand.
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2022 (3) TMI 1587
Grant of bail - smuggling - commercial quantity of narcotic was recovered from the possession of the petitioner - HELD THAT:- Considering the fact that commercial quantity of narcotic was recovered from the possession of the petitioner, the petitioner is unable to overcome the restrictions under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Bail cannot be granted to petitioner - bail application rejected.
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2022 (3) TMI 1586
Seeking bail application u/s 439 CrPC - Offence punishable under Sections 132(1)(c),(f),(h) and (1) r/w 132(5) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- In view of the fact that the similarly situated co-accused of this case; Lakshya Agarwal has already been granted bail by this Court in S.B. CRLMB No. 20392/2021 and the allegations against the present petitioner are identical in nature. There is nothing from which the case of the petitioner can be distinguished from the case of Lakshya Agarwal, thus, this court deems it just and proper to enlarge the petitioner on bail. Accordingly, the bail application is allowed.
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2022 (3) TMI 1585
Seeking bail application u/s 439 CrPC - Offence punishable u/s 132(1)(b)(c) r/w Section 1(i) of Central Goods and Service Tax Act, 2017 - HELD THAT:- Looking to the facts that petitioner is behind the bars since 25.03.2021, co-accused persons have been released on bail and the matter pertains to defalcation of amount and is essentially an economic offence, charge-sheet has been submitted, this court deems it just and proper to enlarge the petitioner on bail. Accordingly, the bail application is allowed,
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2022 (3) TMI 1584
Entitlement for interest on delayed payment of tax - levy of interest on the gross tax liability and not on the net cash - HELD THAT:- In view of the proviso to Section 50 of the CGST Act, the grievance of the petitioner as to levy of interest on the gross tax liability without reducing the input tax credit has been adhered to, which is not disputed by the learned Government Pleader, Commercial Tax. However, the details of interest to be paid by the petitioner, in terms of amended proviso to Section 50 of the CGST Act, has to be worked out by the concerned authorities.
The Writ Petitions are allowed with a direction to the 1st respondent to calculate the interest to be paid after issuing notice to the petitioner and all concerned in terms of amended proviso to Section 50 of the CGST Act.
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2022 (3) TMI 1583
Application for revocation of cancelled GST registration of the petitioner - petitioner submits that in spite of repeated request the said application is not yet decided - HELD THAT:- Considering the fact that the application filed by the petitioner for revocation of cancellation of the order dated 30 April 2021 is still pending, interest of justice would be sub-served by passing the following order.
The respondent No.3 shall take decision on the application of the petitioner within four weeks from the date of appearance of the petitioner before him - petitioner shall appear before the Authority on 22 March 2022 - writ petition is disposed off.
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2022 (3) TMI 1582
Suit for mandatory and permanent injunction as also for damages for defamation - HELD THAT:- The Delhi Government, through the plaintiff, has kept the purchase and maintenance orders on hold, stating no reason. Hence, it is reasonable to infer that the Committee report and the CBI inquiry may have had some effect on this decision of the Government. It would, no doubt be upon the defendant No. 1 to actually prove justification during trial. But on the material placed on the record, there is nothing on which basis the tweets can be treated as blatant lies and hence defamatory.
In Tata Sons Limited Vs. Greenpeace International & Anr 2011 [2011 (1) TMI 1587 - DELHI HIGH COURT], a Coordinate Bench of this Court concluded that wider viewership or a degree of permanence characteristic of publication on the internet would not change the essential fact that it too is "but a medium of expression and called for no different standards for grant of interlocutory injunction". This Court does not find any reason to take a different view.
On an assessment, on the cardinal principles for grant of interim relief, i.e., existence of a prima-facie case, balance of convenience and irreparable loss and injury, no case for grant of interim injunction to restrain the defendant No. 1 from tweeting/publishing his views or to take down or archive the existing tweets, is made-out.
Application dismissed.
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2022 (3) TMI 1581
Confiscation Order of Appellant's truck - exercise of powers Under Section 11(5) of the M.P. Prohibition of Cow Slaughter Act, 2004 and Rule 5 of the M.P. Govansh Vadh Pratishedh Rules, 2012 - High Court affirmed the orders passed by the forums below, while holding that no error has been committed by the District Magistrate in ordering the truck's confiscation, even after acquittal of the Accused persons from the criminal case - onus of proof (shifting burden) - HELD THAT:- By reason of an order of confiscation, a person is deprived of the enjoyment of his property. Article 300A of the Constitution provides that no person shall be deprived of his property save by authority of law. Therefore, to deprive any person of their property, it is necessary for the State, inter-alia, to establish that the property was illegally obtained or is part of the proceeds of crime or the deprivation is warranted for public purpose or public interest.
At this stage, reference made to this Court's opinion in State of W.B. v. Sujit Kumar Rana [2004 (1) TMI 684 - SUPREME COURT]. Here it was emphasized on the need to maintain balance between statutes framed in public interest such as the Forest Act, 1927 (and the relevant insertions Under W.B. Act 22 of 1988) and the consequential proceedings, depriving a person of his property, arising therefrom. It was accordingly observed that "commission of an offence" is one of the requisite ingredients for passing an order of confiscation and an order of confiscation should not be passed automatically.
Insofar as the submission of the State Counsel that the burden of proof is on the truck owner in the process of confiscation, it is observed that Section 13A of the 2004 Act, which shifts the burden of proof, is not applicable for the confiscation proceedings but for the process of prosecution. By virtue of Section 13A of the 2004 Act, the burden on the State authority to legally justify the confiscation order, cannot be shifted to the person facing the confiscation proceeding. The contention to the contrary of the State's counsel, is accordingly rejected.
The confiscation of the Appellant's truck when he is acquitted in the Criminal prosecution, amounts to arbitrary deprivation of his property and violates the right guaranteed to each person Under Article 300A. Therefore, the circumstances here are compelling to conclude that the District Magistrate's order of Confiscation (ignoring the Trial Court's judgment of acquittal), is not only arbitrary but also inconsistent with the legal requirements.
The confiscation order of the District Magistrate cannot be sustained and it is declared so accordingly - Consequently, the High Court's decision to the contrary is set aside - Appeal allowed.
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2022 (3) TMI 1580
Non-calling of petitioner Nos.2 and 3 for recording of statement - HELD THAT:- Issue notice.
Learned counsel for respondent No.2 accepts notice. Reply be filed within two weeks - In the meantime, the petitioners be not arrested but shall cooperate with the investigation.
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2022 (3) TMI 1579
Rejection of plaint - plaint rejected on the ground that the suit would be barred under the provisions of Section 257 of M.P. Land Revenue Code, 1959 - Order 7 Rule 11 of Code of Civil Procedure, 1908 - HELD THAT:- The High Court has not at all appreciated the fact that when the appellant – original plaintiff approached the Revenue Authority/Tehsildar he was nonsuited on the ground that Revenue Authority/Tehsildar had no jurisdiction to decide the dispute with respect to title to the suit property.
When the suit was filed and the respondents defendants took a contrary stand that even the civil suit would be barred. In that case the original plaintiff would be remediless. In any case the respondents – original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority. Therefore, in the facts and circumstances of the case, the learned trial Court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint. The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the MPLRC. The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside.
The impugned judgment and order passed by the High Court dated 27.11.2019 in Civil Revision Application No.385 of 2019 allowing the same and setting aside the order passed by the learned trial Court and consequently rejecting the plaint under Order 7 Rule 11 CPC is hereby quashed and set aside - Appeal allowed.
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2022 (3) TMI 1578
Recovery of dues - civil dispute - Cheating - Non-payment of amount borrowed from the defacto complainant to settle the financial discrepancies with sub-contractors at Kuwait - the defacto complainant has approached the concerned civil court and filed a suit for recovery of the amount and the said suit is pending for consideration - HELD THAT:- In an identical matter fell for consideration before the Apex Court reported in between Prof. R.K. Vijayasarathy and another vs. Sudha Seetharam and another [2019 (2) TMI 2064 - SUPREME COURT] where in also the defacto complainant has also instituted a civil suit for recovery of amounts. Thereafter they have filed complaint against the accused under section 405, 415 and 420 IPC alleging that the accused colluded to siphon away said money from the defacto complainant and the complaint was filed after long lapse of time. In the said matter, the court has observed An attempt has been made by the first respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. Thecomplaint filed by the first respondent against the appellants constitutes an abuse of process of court and is liable to be quashed.
A perusal of the record and on hearing the parties, no doubt the petitioners have filed a suit and complaint made by the defacto complainant no specific averments with regard to cheating. There are no specific proof to support the said allegations made in the complaint. The respondents in its complaint itself clearly states that basing onsome information, the petitioners have not paid the amounts to the sub-contractors and utilized for the benefit of the business. That itself shows that the allegations are made bold and baseless.
As per the ratio decided by the Hon'ble Apex Court reported in Sharad Kumar Sanghi vs. Sangita Rane [2015 (2) TMI 1117 - SUPREME COURT] it is clear that once a transaction is made with the company, the company being a legal entity, unless and until the company is made as co-accused, the complaint is not maintainable. On this ground alone, the complaint required to be quashed. On perusal of the record and considering the facts of the case, it is purely a civil dispute and there are no allegations or supporting material to substantiate that the petitioners have cheated the defacto complainant.
The criminal petition is allowed.
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2022 (3) TMI 1577
Issuance of summons by Magistrate to any person not arraigned as an Accused in the police report - Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190(1)(b) of The Code of Criminal Procedure, 1973 - HELD THAT:- The legal proposition laid down while dealing with this point was not confined to the power to summon those persons only, whose names featured in column (2) of the chargesheet. In the case of Dharam Pal [2013 (7) TMI 1181 - SUPREME COURT], the second point formulated (para 7.2) related to persons named in column (2), but the issue before the Constitution Bench related to that category of persons only. This is the position of law enunciated in the cases of Hardeep Singh (supra) and Raghubans Dubey (supra). In the latter authority, the duty of the Court taking cognizance of an offence has been held "to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons". Such duty to proceed against other persons cannot be held to be confined to only those whose names figure in column (2) of the chargesheet - It is already observed that in the aforesaid authorities, the question of summoning the persons named in column (2) of the chargesheet was involved, in our opinion inclusion in column (2) was not held to be the determinant factor for summoning persons other than those named as Accused in the police report or chargesheet. The principle of law enunciated in Raghubans Dubey [1967 (1) TMI 83 - SUPREME COURT], Dharam Pal [2013 (7) TMI 1181 - SUPREME COURT] and Hardeep Singh [2014 (1) TMI 1819 - SUPREME COURT] does not constrict exercise of such power of the Court taking cognizance in respect of this category of persons (i.e., whose names feature in column (2) of the chargesheet).
In the present case, the name of the Accused had transpired from the statement made by the victim Under Section 164 of the Code. In the case of Dharam Pal (supra), it has been laid down in clear terms that in the event the Magistrate disagrees with the police report, he may act on the basis of a protest petition that may be filed and commit the case to the Court of Session. This power of the Magistrate is not exercisable only in respect of persons whose names appear in column (2) of the chargesheet, apart from those who are arraigned as Accused in the police report. In the subject-proceeding, the Magistrate acted on the basis of an independent application filed by the de facto complainant. If there are materials before the Magistrate showing complicity of persons other than those arraigned as Accused or named in column 2 of the police report in commission of an offence, the Magistrate at that stage could summon such persons as well upon taking cognizance of the offence - For summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police some other persons are involved in the offence. These materials need not remain confined to the police report, charge sheet or the F.I.R. A statement made Under Section 164 of the Code could also be considered for such purpose.
There are no error in the order of the Magistrate, which was affirmed by the High Court - appeal dismissed.
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2022 (3) TMI 1576
Validity of ITAT orders - allegation of orders as arbitrary in nature and contrary to the applicable rules and Regulations - Petitioner seeks a direction to the respondent to restore the appeal of the petitioner as was filed initially and to pass a reasoned, lawful and valid order - petitioner states that though the petitioner’s proxy counsel had prayed for an adjournment and even filed an adjournment application, yet the Tribunal in the impugned order had recorded the concession of the appellant’s proxy counsel to the impugned order being set aside with a direction to the CIT(A) to decide the appeal on merits
HELD THAT:- On the last date of hearing respondent had prayed for some time to obtain instructions. Today he states that the Assessing Officer has no objection to the present matter being remanded back to the ITAT for a fresh decision.
Consequently, with the consent of learned counsel for the parties, the impugned orders dated 16th January, 2020 and 18th November, 2021 are set aside and the matters are remanded back to the ITAT to decide the matter afresh. The rights and contentions of all the parties are left open.
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2022 (3) TMI 1575
Maintainability of petition - Whether the power of Judicial Review, a basic feature of the Constitution of India conferred upon the High Courts under Articles 226 and 227 has been taken away totally in view of the judgment passed by the Supreme Court in UNION OF INDIA & ORS. VERSUS MAJOR GENERAL SHRI KANT SHARMA & ANR. [2015 (11) TMI 1316 - SUPREME COURT] thereby denying litigants the right to approach High Court in writ jurisdiction against the judgment and orders passed by Armed Forces Tribunal?
HELD THAT:- The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved.
The Armed Forces Tribunal Act, 2007 excludes the administrative supervision of the High Court under Article 227(4) of the Constitution but not judicial superintendence and certainly not jurisdiction under Article 226 of the Constitution.
In ROJER MATHEW VERSUS SOUTH INDIAN BANK LTD. & OTHERS [2019 (11) TMI 716 - SUPREME COURT], a Constitution Bench of the Supreme Court has held that Article 226 of the Constitution does not restrict writ jurisdiction of High Courts over the Armed Forces Tribunal observing the same can neither be tampered with nor diluted. Instead, the Supreme Court has held that High Court’s jurisdiction has to be zealously protected and cannot be circumscribed by the provisions of any enactment.
The preliminary objection raised by Union of India with regard to the maintainability of the present writ petitions is rejected. List the present batch of matters before the roster bench for consideration in accordance with the parameters laid down hereinabove on 21st March, 2022.
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2022 (3) TMI 1574
Violation of principles of natural justice - ex parte assessment order - HELD THAT:- This writ petition came to be filed before this Court on 28.02.2022, i.e. nearly over two and half years after the impugned order was passed. Apart from the above, since alternative remedy is available under the statute, we do not want to interfere in the matter. It would be pertinent to note herein that there is absolutely no explanation provided in the writ petition even attempting to explain the delay in filing of the writ petition.
The writ petition is dismissed.
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