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2004 (10) TMI 621 - SUPREME COURT
Allegations of cheating and dishonest inducement against the accused under Section 415, 418, and 420 of the Indian Penal Code based on a memorandum of understanding (MOU) between the accused and the complainant company - HELD THAT:- The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay.
We have examined the complaint and it is clear from its substance that present is a simple case of civil disputes between the parties. Requisite averments so as to make out a case of cheating are absolutely absent. The principles laid down in Alpic Finance Ltd. were rightly applied by learned Additional Sessions Judge and it cannot be said that the ratio of the said decision was wrongly applied. On due consideration, the learned Additional Sessions Judge had rightly set aside the order of the Magistrate issuing process to the Appellant.
Thus, we set aside the impugned judgment and restore that of the Additional Sessions Judge.
The appeal is allowed accordingly.
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2004 (10) TMI 620 - COMPANY LAW BOARD, CHENNAI
... ... ... ... ..... he petitioner, I do not understand as to any other act, which would be oppressive to the interests of the petitioner and the Company. The other grievances being personal in nature may not likely fall within the scope of Sections 397 and 398. It is for the CLB to form opinion as to whether the alleged acts of oppression would justify the making of a winding up order on just and equitable grounds. In these circumstances, unless the respondents file a detailed reply and the petitioner establishes her grievances set out in the company petition, this Bench will not be in a position to adjudicate the question whether the petition satisfies the requirements of Sections 397 and 398. This has to be decided ultimately on the merits, while considering the company petition. Accordingly, the respondents are hereby directed to file counter-statement to the company petition by 30.11.2004 and rejoinder to be filed by 15.12.2004. The company petition will be heard on 20.12.2004 at 10.30 a.m.
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2004 (10) TMI 619 - COMPANY LAW BOARD NEW DELHI
... ... ... ... ..... falls as the decision taken, in the 14th AGM has been declared null and void. However, the parties are not in a position to work with each other and in order to put an end to the conflict, I am of the view that either party should be given an option to go out of the company on return of their investment in shares of the Respondent Company. In case, either party is willing to part with their shares, then the Petitioner/respondent should purchase the shares on valuation to be made by an independent valuer. The valuation will be based on the balance sheet as on 31.3.98. In case either party desires to go out of the company, then on an application made by them, a suitable valuer will be appointed by this Board in consultation with both the parties. On equitable grounds, the status quo with regard to properties of movable and immovable be maintained until the implementation of this order. 23. With the above directions, the petition is disposed of. There are no orders as to cost.
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2004 (10) TMI 618 - GUJARAT HIGH COURT
... ... ... ... ..... he applicant be paid a sum of ₹ 17 lacs which is lying as term deposit receipt with the applicant Bank. The Official Liquidator is directed to make payment as aforesaid on the date of maturity of the term deposit receipt. 7 The Official Liquidator has stated in paragraph No.3 of his report that vide orders dated 24/1/1997 in Company Application No. 103 of 1995 with Company Application No.102 of 1995 this Court has issued orders to stay the sale of land and building till further orders and the applicant of the said application, viz. Gita Timber Mart has been permitted to file suit against Company in liquidation. In the circumstances, the applicant Bank as well as the Official Liquidator shall inquire about the latest position of the said suit so that further direction as regards continuing the stay against sale of land and building or lifting the said stay may be made. 8 In view of the aforesaid circumstances this application stands disposed off to the aforesaid extent.
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2004 (10) TMI 617 - DELHI HIGH COURT
... ... ... ... ..... jurisdiction of article 226. The BCCI which is the smile repository of everything cricket in India has attained this ''giant'' stature through its organisation, skill, the craze for the game in India and last but not the least by the tacit approval of the Government. Its objects are the functions and duties it has arrogated to itself. Many of these are in the nature of public duties and functions. Others may be in the field of private law such as private contracts, internal rules not affecting the public at large etc.,. Therefore, BCCI cannot be said to be beyond the sweep of article 226 in all eventualities for all times to come. That is the certificate that BCCI wants from this court. We are afraid, we cannot grant that. Consequently, this petition cannot be thrown out on the maintainability issue. This does not necessarily mean that the petitioners would be entitled to the orders, directions or writs that they seek. That will have to be examined on merits.
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2004 (10) TMI 616 - DELHI HIGH COURT
... ... ... ... ..... hip agreement and that reads as under 8. ...Any claim, disputes or differences between the parties hereto arising out of or in relation to or under or in any manner connected with the agreement shall be referred to and decided by arbitration as provided in the rules, bye-laws and regulations of OTCEI.... Such arbitration shall be governed by the provisions of the Arbitration Act, 1940 or any modification or re-enactment thereof. The arbitration shall be held in Bombay only. 11. This is a subtle and fine distinction and has to be kept in mind. Once we appreciate this distinction it becomes apparent that the approach adopted by the CLB in the impugned order is perfectly valid and justified Naveen Kedia v. Chennai Power Generation Ltd. (1998) 4 Comp LJ 128 (1999) 95 Comp Cas 640 (CLB) . In view of the above, I do not find any infirmity in the impugned order. 12. This appeal is without any substance and is, therefore, dismissed. The applications also stand disposed of. No costs.
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2004 (10) TMI 615 - DELHI HIGH COURT
... ... ... ... ..... ect provided in the Code about which the Act of 1996 is silent, needless to say, when the Court exercises its substantive power under the Act of 1996 shall be applicable but the guiding factor for exercise of power by the Court under Section 9(ii)(b) has to be whether such order deserves to be passed for justice to the cause. The learned Single Judge has relied upon the provisions of Order 38 Rule 5 Code of Civil Procedure to exercise his discretion for the purposes of exercising power under Section 9(ii)(b) as to whether that was a fit case for grant of an Order of attachment or not. Therefore, it can't be said that the impugned order suffers from infirmity merely because the learned Single Judge has stated in one sentence that the provisions of Order 38 of the Code of Civil Procedure must be kept in view while disposing of such application. 3. We do not find any infirmity with the order passed by the learned Single Judge. There is no merit in this appeal. 4. Dismissed.
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2004 (10) TMI 614 - COMPANY LAW BOARD , CHENNAI
Act of oppression - Allotment of shares - transfer of shares - Removal of petitioners from the office of directors - Violation of the pre-emption clauses contained in the article of association - Powers of the CLB under Section 402 - close knit group of different families - HELD THAT:- In the present case there is no record to show as to whether any offer was made to the petitioners before making the impugned allotment exclusively in favour of the respondents 2 & 3 or any disclosure to the shareholders on further issue of shares or any issuance of notice of further shares. While the impugned allotment of shares was made in lieu of the amounts available to the account of the second respondent the quantum of which is under dispute, Form No. 2 filed with the Registrar of Companies is not in consonance with the stand taken by the second respondent. Form No. 2 filed after a delay of 19 months remains unexplained. It is not denied that the petitioners had also repaid the matured deposits in favour of certain depositors on behalf of the Company, towards which no shares were allotted in favour of the petitioners.
Furthermore, there is no documentary evidence establishing the allotment of shares at any meeting of the Board of directors of the Company. By allotment of the impugned shares in favour of the respondents 2 & 3, the shareholding of the petitioner group has been reduced to a minority. In a number of cases, this Board has categorically held that, if further issue of shares results in conversion of majority into minority, or creation of new majority, then such issue of shares is an act of oppression.
I am, therefore, of the "view that the allotment of shares impugned in the company, petition made for personal gains and with a view to gain advantage against the other shareholders of a closely held Company was neither in compliance with the legal requirements nor ensured the fair play and probity in corporate management, resulting in the enhancement of the shareholding of the second respondent, which would constitute an act of oppression
There is no material to substantiate that the petitioners or any other shareholders have been afforded any opportunity to exercise their right of pre-emption to purchase the shares sold by the respondents 5 to 8, which is clearly in violation of the articles, constituting an act of oppression in the affairs of the Company.
There is nothing on record to show that the notice of extraordinary general meeting dated 28.06.2002 was served upon the petitioners, in the absence of which it cannot be said that the requirements of Section 284 have been duly met. Any omission to serve a special notice on the directors sought to be removed constitutes denial of their statutory right of reply and the absence of such notice to the directors, any resolution for their removal would be vitiated by such omission. I do not see any other material substantiating the fulfilment of the requirements of Sections 284 and 190, before removing petitioners from the post of directors. Moreover, the first petitioner is one of the promoter -directors of the Company.
The second petitioner having had acquired shares of Kasthuri Swamy, yet another promoter of the Company, has been director of the Company. Under these circumstances, the resolution passed at the extraordinary general meeting on 08.07.2002, even if it were perfectly legal, yet would be oppressive, warranting appropriate reliefs. The various discrepancies appearing in the share certificates issued in favour of a number of shareholders and the irregularities as pointed out by Shri Ramakrishnan, learned Counsel in the minutes of certain general meetings of the Company, in my view, cannot disentitle the petitioners from claiming any equitable relief, especially when the second respondent was forming part of the management and no prejudices were shown to be suffered by the Company or the shareholders.
Therefore, I am of the view that the most equitable relief would be that the first petitioner group, the second petitioner group and the second respondent group shall quote their price per share and the group that quotes the higher price should purchase the shares of the other group at that price.
Thus, in exercise of the powers of the CLB under Section 402, the following order is passed :
i) The allotment of 50,000 shares in favour of the respondents 2 & 3 as well as the transfer of 40,000 shares by the respondents 5 to 8 in favour of ninth respondent are declared as invalid. Consequently, the paid up capital of the Company shall be reduced to 25,00,000/- only.
ii) The removal of the petitioners from the office of director of the Company is declared as null and void.
iii) The Board of directors of the Company shall stand reconstituted by the petitioners and the second respondent with the immediate effect.
iv) M/s Jaggannathan & Vishwanathan, Chartered Accountants, Coimbatore are appointed to verify all payments made towards repayment of deposits, financial obligations assumed and expenses incurred, whatever may be the nature, on behalf of the Company by the first petitioner group, second petitioner group and second respondent group as the case may be, after taking into account the submissions of the parties and the books of accounts, financial vouchers or any other document which may produced by them. The whole exercise shall be completed by 30.11.2004. The amounts so verified and found to be due to the various groups shall be reimbursed by the Company with ten per cent simple interest till date of settlement. The Company shall bear the remuneration payable to the Chartered Accountants.
The company petition is disposed of with these directions, reserving the right to pass a consequential order on 15.12.2004.
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2004 (10) TMI 613 - SUPREME COURT
Recovery of excess payment made by the Food Corporation of India to the Assam Cooperative Marketing and Consumer Federation Limited - limitation centers around two letters - effect of acknowledgment of liability on the limitation period - whether the two letters have been proved - HELD THAT:- Both the letters Exhibits 8 and 9 are written on the letter pad of the Federation. Both bear despatch numbers. The letter dated 29th March, 1977 has been written in response to plaintiffs dated 14/03/1977. The letter dated 30th July, 1977 (Exhibit-9) has been written in response to Plaintiff's dated 16/07/1977. In both the letters, the Federation has disputed its liability to pay the amount in view of certain disputes relating to settlement of accounts. The fact remains that both the letters acknowledge an amount of ₹ 2 crores having been received by the Federation from the plaintiff.
It is true that the letters Exhibits 8 and 9 were not written in the presence of P.W.1. He has also not deposed to any such facts as would amount to proof of execution of document. The fact remains that both these letters formed part of the official record of the plaintiff and are placed as pieces or links found in the chain of long correspondence entered into between the parties.
The documents having been tendered in evidence without any demur by the defendants, the same coming from proper custody and forming part of official record of the appellant-Corporation and being part of the chain of correspondence can be said to have been proved by P.W.1 more so when his deposition to the effect that the two letters were received from the Federation was not disputed by the defendant-Federation either by directing any cross-examination on that part of the statement or by making any suggestion to the contrary indicating the defendant's case as regards the said two letters. In our opinion, the documents were proved and their contents can be read in evidence. Needless to say, there is no rebuttal of the letters on the part of the defendants by way of evidence adduced in the case.
Once it is held that the two letters are proved then the next question which arises is as to their effect on limitation.
The two letters dated 29/03/1977 and 30/07/1977(Exhibits 8 and 9) clearly acknowledge the amount of ₹ 2 crores having been received by the Federation from the Food corporation of India whether by way of advance or by way of deposit. The letters also indicate that the amount of two crores was by way of advance or deposit against paddy procurement. This is admission of jural relationship of buyer and seller which stood converted into relationship of creditor and debtor on the failure of the principal transaction. However, the acknowledged liability is sought to be disowned by submitting that on an account being taken nothing would be found due and payable by the plaintiff to the Federation. Disputing the liability to repay the amount acknowledged to have been received does not dilute the fact of acknowledgement in so far as Section 18 of the Limitation Act is concerned. The two letters have the effect of extending the period of limitation prescribed for filing the suit and calculated from the date of the latter of the two letters i.e. 30/07/1977, the suit filed on 30/05/1980 was well within the period of limitation.
Thus, we cannot countenance the view taken by the trial court and the High Court that the suit filed by the appellant was barred by limitation.
The appeal is allowed. The judgments and decrees of the trial court and the High Court are set aside.
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2004 (10) TMI 612 - DELHI HIGH COURT
... ... ... ... ..... d not to insist upon the strict literal compliance of the condition in appropriate cases." 17. The afore-extracted observations in Poddar Steel, (supra), were approved by the Supreme Court in Tata Cellular's case (supra). Thus, the view taken by us is fortified by the said decisions as also the aforenoted two decisions relied upon by learned counsel for the petitioner. 18. We are therefore, of the opinion that the decision of the MTNL in not opening the envelope containing the bid of the petitioner is irrational and arbitrary and, Therefore, deserves to be quashed. Accordingly, the writ petition is allowed; the impugned action of the MTNL is set aside and the rule is made absolute. Subject to petitioner's fulfilling other tender conditions, MTNL shall open the envelope submitted by the petitioner and consider the bid as expeditiously as practicable and in any case not later than two weeks from the date of this order. There will, however, be no order as to costs.
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2004 (10) TMI 611 - SUPREME COURT
Conflict between two 3-Judge Benches - Interpretation of Section 51A of the Land Acquisition Act, 1894 -Admissibility and evidentiary value of certified copies of sale transactions u/s 51A - Judicial discretion in accepting certified copies as evidence - conflict between two 3-Judge Benches of this Court in the case of Special Deputy Collector & Anr. vs. Kurra Sambasiva Rao & Ors. [1997 (4) TMI 547 - SUPREME COURT] and Land Acquisition Officer & Mandal Revenue Officer vs. V.Narasaiah, another [2001 (2) TMI 1056 - SUPREME COURT] 3-Judge - The former held that Section 51A of the Land Acquisition Act, 1894, only facilitated the production of certified copies of sale transactions but did not make their contents admissible unless duly proved by witnesses. The latter, however, interpreted Section 51A to allow the certified copies to be accepted as evidence without the need for examining the vendor or vendee.
HELD THAT:- In this appeal originally the Land Acquisition Officer awarded ₹ 3707/- per acre for the acquired land. On reference being made by the claimant, the Reference Court enhanced the said compensation to ₹ 8,000/- per acre which was challenged by the beneficiary of the acquisition before the High Court in a writ petition which was allowed and the matter was remanded back for fresh disposal to the Reference Court. Before the Reference Court, the respondent herein produced two certified copies of two sale transactions which were marked as Ex. P1 and P2. The Reference Court, however, refused to place reliance on the said documents on the ground that the contents of the said document were not proved. Hence, it rejected the reference. Being aggrieved by the said order, the claimants-respondents preferred an appeal before the High Court, the High Court disagreeing with the reference court relied on the contents of Ex. P1 and P2 and enhanced the compensation to ₹ 15,000/- per acre.
While doing so, the High Court proceeded merely on the contents of Ex.P1 and P2 and did not take into consideration the other evidence available on record i regard to the comparative nature of the land, location of the land, the market potentiality of the land etc. and fixed the compensation on an arithmetic calculation based on the value found in Ex. P1 and P2. We do not think this is the correct approach. While it is true the contents of Ex.P1 and P2 should be looked into as evidence produced by a party the evaluation of such evidence should be made taking into consideration other evidence if available on record like other sale transactions that may be produced, the comparative nature of the location, suitability, marketability etc. to fix the market value of the land acquired.
The Supreme Court concluded that the decision in V. Narasaiah's case lays down the correct law regarding Section 51A of the Land Acquisition Act. The certified copies of sale transactions may be accepted as evidence without the need for oral testimony, but their contents must be judicially evaluated along with other evidence. The case was remanded to the High Court for reconsideration in light of this interpretation.
The facts of the other cases being different, we think it appropriate that it is not necessary for a 5-Judge Bench to decide the issues involved in these cases, because the question of law has been decided in C.A. Therefore, these appeals should be placed before an appropriate Bench of this Court for final disposal. It is ordered accordingly.
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2004 (10) TMI 610 - SUPREME COURT
Interpretation of clause (c) of Section 73 of the Mumbai Provincial Municipal Corporation Act, 1949 ('the Act) - Locus standi - Requirement of documents for the Standing Committee's approval - Alternative remedy u/s 451 of the Act - Public interest and statutory duty - First Respondent issued notices inviting tender for supply of various materials - Appellant herein, Chairman of the Standing Committee of the Second Respondent-Municipal Corporation of City of Kalyan and Dombivali ('the Corporation') -
HELD THAT:- The proviso appended to Section 73 carves out an exception to the general rule which evidently has been enacted for the purpose of avoiding any delay and would apply in a situation where despite meeting, the Standing Committee deliberately or otherwise refuses or fails to take any decision. No doubt a legal fiction has been created but the same cannot be given effect to in vacuum. It is to be applied having regard to the legislative intent and a restricted meaning is to be attributed thereto in a situation of this nature. A statute, it is also well-known, must be read in such a manner whereby it is made workable - Ut res magis valeat quam pereat. In any event, where a difficulty arises in a given situation to construe the statute upon applying a plain meaning thereof, it is well-settled, the rule of purpose construction should be applied.
We have noticed hereinbefore that the functions of the Standing Committee must be exercised in public interest and, thus, cannot be said to be a formal ones. The members of the Standing Committee must apply their mind to the proposal of the Commissioner where for they must have before them the relevant records.
A statutory authority, as is well known, when acts in terms of a statute, is bound by his action. He cannot supplement or supplant the reason later on by way of Affidavit. Furthermore, we find that apart from the fact that no such question had been raised by the Commissioner in his letter dated 9.5.2001, the reasons sought to be assigned in the Counter Affidavit either are unjustified or irrelevant. A Statutory Committee should not be denied access to the documents to which it is entitled to, even according to the State Government. Rule 24 whereupon reliance has been placed by the State Government in its letter dated 18.5.2001 (although may not be a verbatim copy of the extant rules) would also go to show that each member of the Committee is entitled to have access to the documents. No privilege had been claimed nor can be claimed in law in the matter of disclosure of such documents. Furthermore, the apprehension expressed by the Commissioner in his Affidavit as regard the consequences which may ensue by disclosure of such documents is not correct, having regard to the fact that the tender had reached the final stage.
The contention of the Respondent that all informations had been supplied in the proforma in the light of Chapter V of the Act also appears to be incorrect as in sub-paragraph (E) of paragraph 5 of the Counter Affidavit, the Respondent himself stated that Chapter V of the Schedule of the Act relates to execution of the contract and evidently, thus, would not be applicable for the purpose of grant of approval at the threshold. In any event, the information given in a form is merely a matter of procedure and what matters in a situation of this nature is the substance thereof. The Commissioner, furthermore, despite referring the matter to the State Government did not wait for its opinion on the subject. He invoked the proviso to Section 73(c) much before the opinion of the State as contained in its letter dated 18.5.2001 reached his hands.
Submission of Mr. Radhakrishnan that the Appellant has no locus standi to maintain the writ petition cannot be accepted keeping in view the fact that he was the Chairman of the Standing Committee and although the Standing Committee itself was not the writ petitioner. A question involving proper interpretation as regard the statutory provisions conferring a statutory right on a statutory authority vis-`-vis a statutory duty on the part of the Commissioner could be gone into by the High Court even in a public interest litigation.
We fail to understand as to how the matter can be said to be pending before the State Government.
The Supreme Court set aside the High Court's judgment, directing the Commissioner to provide all requested materials to the Standing Committee as per its resolution dated 26.4.2001. The appeal was allowed with no order as to costs.
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2004 (10) TMI 609 - COMPANY LAW BOARD, CHENNAI
... ... ... ... ..... e allotment of 10,000 shares in favour of the respondents 2 & 3 Karl Marz and his wife is set aside. In view of the irreconcilable differences and loss of mutual trust between the petitioners and the respondents, the Company cannot run smoothly with the co-existence of both the parties. The only way to ensure the smooth functioning of the Company is that the warring parties must part ways by the exit of one group from the management of the Company. Towards this end, the second respondent who expressed his willingness to go out of the Company, will sell his shares to the petitioner or his nominee at par value. Accordingly, within 30 days from the date of receipt of the original share certificates with the blank transfer forms from the second respondent, the petitioner or his nominee will pay consideration for the shares at par value. With the above directions the company petition stands disposed of and the interim order made by this Bench is vacated. No order as to costs.
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2004 (10) TMI 608 - SC ORDER
... ... ... ... ..... ing of facts cannot be interfered by this Court. The appeal is dismissed accordingly.
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2004 (10) TMI 607 - ITAT DELHI
... ... ... ... ..... are represents supplementary commission. The forth is that such a commission is paid by the assessee to the travel agents one of these assumptions is a fact borne out by the agreement between the parties or the actual dealings between them. Hence, the section is not attracted. 18. We, therefore, conclude 35 follows (a) he amount realized by the travel agent in excess of the net fare cannot be considered as commission. b) The assessee cannot be said to be a person responsible for paying the "commission" to the travel agent. (c) There was no crediting of the difference between the net fare and the published fare to the account of the travel agent in the assessee book. d) There was no payment either of such excess by the assessee to the travel agent in cash of cheque or any other mode. We therefore, set aside the order passed by the AO treating the assessee as in default under Section 201 (1) and levying interest of ₹ 21,13,224 u/s. 201(1A) and allow the appeal.
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2004 (10) TMI 606 - SUPREME COURT
Non-applicability of Trade Notice and false declaration regarding cheque payment - Cancellation of warehousing license obtained by fraud - Evasion of duty by mala fide intent - willful mis-declaration and suppression of facts - Confiscation - penalty - Involvement of respondents 2 to 7 - HELD THAT:- The CEGAT on the Issue no.1 observed that Commissioner failed to notice about non-applicability of Trade Notice. It was held that there was finding recorded that facility of cheque payment was not available because of false declaration. It was concluded that duty was paid on 25.2.1999 since payment of cheque relates back to the presentation and the cheque was not dishonored.
It was observed by the Commissioner that cancellation of warehousing license was obtained by fraud. Reference was made to the undertaking given before the High Court accepting liability to pay duty. Consequently it was held that there was no cancellation under Section 68. Therefore, provisions of Section 15(1)(c) were applicable.
From the record, it was concluded by the Commissioner that in respect of the imported goods the aforesaid three persons have done or omitted to do acts which acts or omissions have rendered such goods liable for confiscation and they had also abetted in acts which they knew or had reasons to believe that the goods are liable to confiscation under Section 112 (j) of the Act and rendered themselves liable to action under Section 112 (a) of the Act. Accordingly penalties as noted above were levied on the respondents 2, 3 and 4.
CEGAT did not consider the aberrations highlighted by the Commissioner and in a very cryptic manner dealt with the issues. No plausible reason has been indicated as to why the allegations which are quite serious in nature and the conclusions in relation thereto recorded by the Commissioner were not to be maintained. Only an abrupt conclusion was reached that Sri Thakur and Sri Chaudhuri had absolutely no connection with the acceptance of cheques. There was not even any reference to the allegations regarding accepted backdating or acting contrary to specific directions. Sri Sharma was given a clean chit in view of the finding recorded about the date on which receipt of payment has to be taken. Here again the allegations were not considered in the proper perspective. The findings regarding deemed removal are really inconsequential in the present dispute as the very foundation for removal was based on established fraud. Therefore, it is not necessary in the present dispute to go into the question regarding effect of deemed removal.
The Supreme Court found that the CEGAT did not properly consider the fraudulent acts and mis-declarations by the respondents. The manipulative roles of respondents 2 to 7 were clearly established, and they were active participants in the fraud leading to duty evasion.
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2004 (10) TMI 605 - SUPREME COURT
Applicability of Section 104 CPC to Letters Patent Appeals - Interpretation of Clause 15 of the Letters Patent - Amendment or alteration of Letters Patent - powers conferred on the Trial Judge by Clause 15 of the Letters Patent - HELD THAT:- Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent but then which legislation is not subject to amendment or alteration. CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar’s case (supra) and Sharda Devi’s case a Letters Patent is the Charter of the High Court. As held in Shah Babulal Khimji’s case (supra) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A.
We find ourselves in respectful agreement with the reasoning of this Court in South Asia Industries (P) Ltd.[1965 (1) TMI 68 - SUPREME COURT]. The same reasoning would apply in respect of the submission that if it is held that Section 104(2) did not bar a Letters Patent Appeal an anomalous situation would arise in as much as if the matter were to come to the High Court a further Appeal would be permitted but if it went to the District Court a further Appeal would not lie. An Appeal is a creature of a Statute. If a Statute permits an Appeal, it will lie. If a Statute does not permit an Appeal, it will not lie.
Thus for example in cases under the Land Acquisition Act, Guardian and Wards Act and the Succession Act a further Appeal is permitted whilst under the Arbitration Act a further Appeal is barred. Thus different statutes have differing provisions in respect of Appeals. There is nothing anomalous in that. A District Court cannot be compared to a High Court which has special powers by virtue of Letters Patent. The District Court does not get a right to entertain a further Appeal as it does not have "any law for the time being in force" which permits such an Appeal. In any event we find no provisions which permit a larger Bench of the District Court to sit in Appeal against an order passed by a smaller Bench of that Court. Yet in the High Court even, under Section 104 read with Order 43 Rule 1 C.P.C., a larger Bench can sit in Appeal against an order of a Single Judge. Section 104 itself contemplates different rights of Appeals. Appeals saved by Section 104(1) can be filed. Those not saved will be barred by Section 104(2). We see nothing anomalous in such a situation. Consequently the plea of discrimination urged before us must be rejected.
Thus, the Order of the High Court cannot be sustained. It is hereby set aside. The appeals are accordingly allowed with no order as to costs. The matters are remitted back to the High Court for decision on merits.
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2004 (10) TMI 604 - SUPREME COURT
Maintenance and preservation of land u/s 4B - Permission for change of area, character, or use of land u/s 4C - Application of the Forest Conservation Act, 1980 - Restrictions on felling of trees in non-forest private plantations - Interpretation of statutory provisions and legislative intent - Appellant is the owner of certain land classified as `Bagan' (garden) in the record of rights - HELD THAT:- It is well-settled principle of interpretation that a statute is to be interpreted on its plain reading; in the absence of any doubt or difficulty arising out of such reading of a statute defeating or frustrating the object and purpose of an enactment, it must be read and understood by its plain reading. However, in case of any difficulty or doubt arising in interpreting a provision of an enactment, courts will interpret such a provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment is brought into force.
If two interpretations are possible, the one which promotes or favours the object of the Act and purpose it serves, is to be preferred. At any rate, in the guise of purposive interpretation, the courts cannot re-write a statute. A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act but the courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation.
The High Court, being clear in its mind that the ban imposed in T.N. Godavarman Thirumulkpad [1996 (12) TMI 390 - SUPREME COURT]in the matter of felling of trees did not extend to non-forest private plantation and there being no State enactment dealing with the felling of trees in non-forest private plantation, in our view, was not right and justified in reading in the provisions of Sections 4-B and 4-C that a permission of the authorities is required for felling of trees even in non-forest private plantation/orchard. The High Court was also not correct in imposing further restrictions and conditions on the appellant for felling trees in his private non-forest garden land. The High Court in impugned judgment itself has observed that the State Government may consider the desirability of having enacted a comprehensive law as early as possible regarding felling of the trees in non-forest areas with a view to taking care of environmental necessities of the time. If the provisions of Section 4-B read with Section 4-C of the Act serve such a purpose and if the High Court was clear in that regard, there was no reason to make such a observation. Nothing prevents the State Government to enact law in this regard but in the absence of such a law and till law is enacted in that regard, the High Court was not right in imposing restrictions as is done in this case in regard to felling of trees.
The Supreme Court set aside the High Court's imposition of restrictions and conditions on the appellant for felling trees in non-forest private plantations. It clarified that no permission is required for felling trees in non-forest private plantations/orchards/bagans. The appeal was allowed, and the High Court's judgment was modified accordingly.
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2004 (10) TMI 603 - DELHI HIGH COURT
... ... ... ... ..... aking the recovery, has to strictly follow the order made by the Settlement Commission and, accordingly, he has to charge interest and not de hors the order made by the Settlement Commission. It is not open for the AO to charge interest under s. 220(2) of the IT Act, 1961, which is not indicated in the Settlement Commission's order. Accordingly, it is directed that the AO shall reconsider the same strictly in the light of the order made by the Settlement Commission. 4. In view of this, the orders made by the Tribunal, the first appellate authority, and the AO are quashed and set aside. The appeals are disposed of.
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2004 (10) TMI 602 - KERALA HIGH COURT
... ... ... ... ..... affirming the Order? 3. When the matter came up for hearing, learned counsel for the respondent raised a contention that though the factory was under lock out so long as the Buildings, Plant and Machinery and other fixed assets relating to that factory formed an integral part of the Block of Assets owned by the assessee company, depreciation is allowable on such assets. The test of actual user is to be applied only in the year of purchase i.e. when the new asset is first put to use. Subsequently, on its merger into the Block of Assets, depreciation is allowable irrespective of the fact whether individual items in the Block has been put to use or not. 4. Since this matter was not considered by the Tribunal, according to us, the entire matter has to be heard by the Tribunal. Hence we set aside the order passed by the Tribunal and remand the matter to the Tribunal for fresh decision in accordance with law and the directions contained in the judgment. IT is disposed of as above.
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