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Showing 41 to 60 of 774 Records
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2009 (2) TMI 886 - KERALA HIGH COURT
Proceedings initiated u/s 67 of the KVAT Act, 2003 challenged on the ground of the orders passed being vitiated on the ground of period of limitation having expired - Adjudicating officer ceased to have jurisdiction by virtue of limitation of one year provided under the proviso to Section 67(1) - Notice was issued u/s 67 pointing out that variation in stock was noticed during inspection and consequently appellant was called upon to file objection against proposal for penalty - No reply from appellant - another notice was issued proposing penalty for attempted evasion of tax for two years - Even though the adjudicating authority is bound to complete adjudication pursuant to search u/s 67 within one year from the date of detection of offence, appellant did not raise any objection of time bar even after receipt of two notices
HELD THAT:- In this case we are told that the records were verified on 19.7.2007. However, it is not known whether the process of evaluation was carried out then or later. Counsel for the appellants contended that proceeding is time barred even with reference to date of verification of accounts which was on 19.7.2007.
The verification of accounts need not be the date of detection of offence. During verification, the officer has to evaluate the accounts and compare the same with physical stock and only when he detects offence, he gets jurisdiction to proceed to levy penalty. Even though statute does not require the officer to record detection of offence, initiation of proceedings u/s 67 is sufficient evidence of detection of offence.
We do not find anything in the Act to indicate the grounds on which Deputy Commissioner can extend the time for completion of proceedings u/s 67(1). In any case the contention of the counsel that the extension of time should be granted by the Deputy Commissioner within the time limit of one year is a tenable contention. If records prove that extension of time is granted beyond one year from date of detection of offence, then such proceedings automatically become invalid affecting the validity of the penalty order itself. This is a matter which requires to be examined by the appellate authority with reference to records.
However, we do not think any adjudication proceedings is contemplated under the Act requiring notice to be issued to the dealer or even issuing a communication extending the time. If the dealer raises objection to the penalty notice on ground of limitation, then AO is bound to communicate the order of the Deputy Commissioner and thereafter only he gets jurisdiction to continue the proceedings against the assessee.
In this case appellant has not raised the objection of limitation when notice was served proposing penalty. So much so, appellant can raise the objection only in appeal and ld Single Judge rightly held so. We, therefore, dismiss the Writ Appeal leaving freedom to the appellant to verify the records and raise limitation as a ground, which appellate authority will consider with reference to the records and in the light of the meaning assigned to the Section. Appellant is granted two weeks time from date of receipt of this judgment to file appeal, if it is not already filed.
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2009 (2) TMI 885 - SC ORDER
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... ... ..... connected papers. We do not find any ground, whatsoever, to entertain the same. The Review Petition is, accordingly, dismissed.
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2009 (2) TMI 884 - MADRAS HIGH COURT
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... ... ..... or specific performance. But it is actually unnecessary to do so, since a Suit for partition in C.S. No. 729 of 2006 is also pending between the same parties. In that Suit, the applicant/defendant is seeking a decree for partition of his 3/10 share in the suit property. Therefore the respondents/Plaintiffs can always file the MoU in the said Suit for partition and contend that the applicant/defendant is entitled only to ¼ share and not 3/10 share. Thus, the only result possible in the present Suit, can be achieved by the respondents/Plaintiffs in the other Suit. In view of the above, the Application A. No. 4386 of 2007 for rejection of Plaint is allowed and the Plaint in C.S. No. 701 of 2006 is rejected. However, this will not preclude the respondents/Plaintiffs from filing the MoU dated 24.9.2005 in the other Suit C.S. No. 729 of 2006 and plead estoppel against the applicant in so far as the share to which he is entitled to in the Suit schedule property is concerned.
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2009 (2) TMI 883 - BOMBAY HIGH COURT
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... ... ..... light of that, following order. 3. The second sentence "Considering that the question of law as framed wound not arise. Consequently appeal dismissed" be omitted and substituted by following sentence. "Considering that the question of law as framed is answered in favour of the assessee and against the revenue. Consequently, appeal allowed". 4. The Prothonotary & Sr.Master of this court to carry out the said correction and issue certified copy accordingly.
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2009 (2) TMI 882 - SUPREME COURT
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... ... ..... Shri Ghosh, Learned Senior Counsel, appearing for the respondents, at this stage, says that we should take a compassionate view of the matter, since as a result of this judgment, the respondent would be thrown in the state of unemployment. We are afraid, we cannot show any such misplaced sympathy, which was shown by the Division Bench. We are told at the Bar that this Court had issued directions to make the payment of salaries and some payments have been made to the respondent. We direct that such payments shall not be recovered from the respondent. Considering that the Writ Petition remained pending for 10 years and thereby, the respondent might now have become barred by age for fresh employment, we recommend that the Government may consider the condonation of the age bar, if any, on the part of the respondent. We accordingly set aside the judgment of the Division Bench and restore that of the Learned Single Judge and allow the appeal but without any orders as to the costs.
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2009 (2) TMI 881 - MADHYA PRADESH HIGH COURT
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... ... ..... circumstances of the case to impose. The words used in section 19 "in the manner directed by the Court" cannot be interpreted so as to dilute the very requirement of deposit of 75 amount itself. The manner of depositing 75 of amount has to be as ordered by the Court. In the circumstances 75 of the amount inclusive of interest is ordered to be deposited as that is pre-condition envisaged under section 19 of the Act of 2006. Let it be deposited within four weeks by way of Bank Draft. Considering the proviso to section 19 of the Act of 2006, 50 of the amount is ordered to be disbursed to the respondent No. 1, remaining amount of 25 shall be invested in the Fix Deposit to be disbursed in terms of the final decision to be rendered in the case. However, for withdrawal of 50 of the amount respondent No. 1 shall furnish solvent surety to the satisfaction of the District Judge, Sidhi. Writ petition is allowed in part, the order is modified to the aforesaid extent. No costs.
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2009 (2) TMI 880 - SUPREME COURT
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... ... ..... Bahadur Hussain. Such a case has neither been pleaded nor proved. No issue in this behalf was framed. Even otherwise, the question of the defendant's discharging the burden would arise provided the plaintiff is found to be entitled to a decree for specific performance of contract. 23. We, however, agree with Mr. Lalit that the conduct of the respondent was not good but, similarly, we cannot lose sight of the conduct of the appellants as well. She had also not brought any evidence to show that she did not have the notice of the said deed of sale. We, therefore, are of the opinion that interest of justice would be subserved if this Court refuses to exercise its discretionary jurisdiction in terms of Section 20 of the Act, directing the defendant to pay a sum of ₹ 60,000/- to the plaintiff which sum would include the amount of advance paid by her. 24. The appeal is disposed of. In the facts and circumstances of this case, however, there shall be no order as to costs.
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2009 (2) TMI 879 - DELHI HIGH COURT
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... ... ..... hile allowing the claim of the stock broker of the principal sum of ₹ 6,50,000/- also awarded interest thereon 18 per annum from 15th July 1996 till payment. I do not find any reason to set aside the award insofar as for the sum of ₹ 6,50,000/-, but following the dicta in Krishna Bhagya Jala Nigam Ltd v. G. Harischandra Reddy AIR2007SC817 and Flex Engineering Ltd. v. Antartica Construction Co. 2007 (2) ARB LR 387 the rate of interest during the pendency of the petition in this Court is reduced from 18 per annum to 12 per annum, considering that the transaction between the parties was a commercial transaction. However, if the petitioner fails to pay the amount within 30 days of this order, the stock broker shall thereafter again be entitled to interest at 18 per annum. 45. The RSA as well as the OMP challenging the award, therefore fail and are dismissed with costs of ₹ 50,000/- to the counsel for the stock broker and the stock exchange to be shared equally.
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2009 (2) TMI 878 - GUJARAT HIGH COURT
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... ... ..... ent the entire hotel business of the de- merged company will be concentrated in Atithya Inn, the resulting company. It has been further submitted that there are only two equity shareholders of the company and both of them have given their consents in writing to the proposed scheme of arrangement. The same are annexed to the present application as Annexure 'D'. The certificate from the Chartered Accountant confirming the status of the equity shareholders and creditors are annexed to the application respectively as Annexure 'E' and 'F'. Further, pursuant to the oral directions of this Court, the said consent letters are produced on individual affidavits of all the equity shareholders. In view of the aforesaid, the meeting of the equity shareholders of the applicant company, as required to be held under provisions of Section 391(2) of the Companies Act, 1956 is not necessary to be held and is hereby dispensed with. The application is hereby disposed off.
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2009 (2) TMI 877 - GUJARAT HIGH COURT
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... ... ..... e produced on individual affidavits of all the equity shareholders and unsecured creditors. In view of this, the meetings of the equity shareholders and unsecured creditors of the applicant company, as required to be held under provisions of Section 391(2) of the Companies Act, 1956 are not necessary to be held and are hereby dispensed with. Further, considering the submissions made in para 15 of the application, whereby it is pointed out that the restructure of capital in form of reduction of share capital as well as utilization of share premium account is proposed as a consequential and integral part of the composite scheme of arrangement and since it does not involve diminution of liability in respect of unpaid share capital, and since there are no secured creditors and the written consents are given by all the unsecured creditors, the procedure prescribed under Rules 48 to 65 of the Companies (Court) Rules, 1959, be dispensed with. The application is hereby disposed off.
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2009 (2) TMI 876 - CALCUTTA HIGH COURT
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... ... ..... er scripts to the information seekers/examinees concerned within four weeks from receipt of a copy of this judgment. 87. Prayer made by the examinees for reevaluation of the scripts, however, stands refused. It shall be open to them to seek relief in this behalf in appropriate proceedings, if initiated, after they have access to the assessed/examined answer scripts. 88. Photostat copy of this judgment, duly countersigned by the Assistant Court Officer, shall be retained with the record's of W.P. No. 208 of 2008, W.P. No. 5743 (W) of 2008, W.P. No. 5744 (W) of 2008, W.P. No. 5302 (W) of 2008 and W.P. No. 18189 (W) of 2008. 89. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefore S.S. Nijjar, C.J. 90. I agree. Later Prayer for stay of operation of the order has been made by learned Counsel for the University, the WBBSE and the CBSE. Such g prayer is considered and refused.
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2009 (2) TMI 875 - CALCUTTA HIGH COURT
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... ... ..... trate in his discretion decides to postpone the issue of process. 2. In cases where the learned Magistrate postpones the issue of process then it is mandatory on his part to inquire in case of accused persons who are residing outside the jurisdiction of the Court. 89. The revisional application is disposed of accordingly. In the result the judgment and order dated 13-11-2006 passed by learned Chief Judge, City Sessions Court in Criminal Revision No. 146 of 2006 is hereby set aside and quashed. 90. The original order directing issuance of process passed by the learned Metropolitan Magistrate in connection with Complaint Case No. 6333 of 2006, dated 4-7-2006 is hereby restored. 91. Learned Court below is directed to proceed with the case as expeditiously as possible. 92. Criminal Section is directed to forward a copy of the order to learned Court below. 93. Criminal Section is further directed to supply urgent Photostat Copy of the order to the parties as and when applied for.
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2009 (2) TMI 874 - CALCUTTA HIGH COURT
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... ... ..... ice resigns and/or his mandate is terminated. 24. As observed above, the expression "rules that were applicable to the appointment of the arbitrator being replaced" in section 15, have carefully been chosen. If the arbitrator being replaced was appointed by the Chief Justice and/or his designate in accordance with section 11 of the 1996 Act read with the applicable rules, the substitute arbitrator would also have to be appointed by the Chief Justice and/or his designate in the same manner. It is immaterial that the respondent has appointed an arbitrator in the meanwhile. The appointment of the arbitrator by the respondent, after filing of his application, is of no consequence. 25. The application is, thus, allowed. 26. Let the application be placed before the Hon'ble Chief Justice and or his designate for naming a substitute arbitrator. Urgent certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities.
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2009 (2) TMI 873 - SC ORDER
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... ... ..... Ms. Anil Katiyar, Adv., Mr. B.K. Prasad, Adv. For the Respondent Mr. T.R. Andhyarujuna, Sr.Adv., Mr. Soumik Ghosal, Adv., Mr. Devvrat, Adv., Mr. Vasudevan Raghavan,Adv., Mr. K.T. Anantharaman, Adv. ORDER Dismissed.
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2009 (2) TMI 872 - SC ORDER
Manufacture - Appellant receiving Clove oil and Sandalwood oil in bulk packing and repacking in the small packings - the decision in the case of DABUR INDIA LTD. Versus COMMISSIONER OF CENTRAL EXCISE, GHAZIABAD [2008 (8) TMI 262 - CESTAT NEW DELHI] contested, where it was held that No process was undertaken by the appellant which amounts to manufacture and there is no chapter note under chapter 33 of the tariff which states that the packing and repacking of goods classifiable under sub-heading 3301.00 amounts to manufacture and demand not sustainable - Held that: - the decision in the above case upheld - appeal dismissed.
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2009 (2) TMI 871 - DELHI HIGH COURT
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... ... ..... all bear the costs of the appellant. Counsel‟s fee assessed at ₹ 25,000/-. 15. There is considerable force therefore in the submissions of learned counsel for the Petitioner that the law as explained in Venkatesh Dutt may not longer be considered to be good law in the light of the judgment of the Supreme Court in Lalit Kumar Sharma. 16. In the considered view of this Court, the complainant cannot be without a remedy. If he cannot, as explained in Lalit Kumar Sharma, be permitted to file a fresh complaint on account of the dishonour of the cheques issued pursuant to the compromise, then the original complaint must be permitted to be revived. Accordingly, the impugned order of the learned MM is set aside. The complaint will now be revived before the learned MM. 17. The matter will now placed before the learned ACMM on 2nd March 2009 for being assigned to the concerned learned MM for being proceeded in accordance with law. 18. The petition is disposed of. 19. Dasti.
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2009 (2) TMI 870 - SUPREME COURT
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... ... ..... ct with the view expressed by this Court in Sajjan Singh's case (supra). 8. Learned counsel for the respondent submitted that even if the accused has no case on the legal question raised on facts the respondent was bound to succeed. We find that the High Court did not examine the other aspects and only dealt with the applicability of Section 5(1)(e) of the Act on the factual position highlighted above. While we set aside the order of the High Court so far as it relates to the scope and ambit of Section 5(1)(e) of the Act, we remit the matter to it for considering the other aspects which according to learned counsel for the respondent were in issue before the High Court in appeal filed by the accused person. Since the matter is pending since long we request the High Court to take up the matter at an early date and make an effort to dispose of the same within a period of four months from the date of receipt of our judgment. 9. The appeal is allowed to the aforesaid extent.
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2009 (2) TMI 869 - SUPREME COURT
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... ... ..... mpugned judgment dated 29.07.2005 meaning thereby that the appeal against acquittal of the appellant remained pending in the High Court for about 24 years. 28. No other point has been raised by the parties. We, thus, find no merit and substance in any of the submissions made on behalf of the State. The ratio of the decisions relied upon by the State as referred to above, will be of no use to the facts and circumstances of the present case. 29. In view of the aforesaid facts and circumstances, we are satisfied that the prosecution has failed to prove its case beyond all reasonable doubt and the High Court committed error in interfering with the trial court's order of acquittal. 30. We, accordingly, allow the appeal, set aside the order of the High Court and the appellant's conviction and restore the order of the trial court and acquit the appellant. The appellant is in jail, he shall be set free to liberty forthwith, if his detention is not required in any other case.
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2009 (2) TMI 868 - COMPANY LAW BOARD, NEW DELHI
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... ... ..... mpany especially when proceedings were going on in respect of the suit filed by Rishi Bhatia, it is inconceivable that the petitioner was not aware of the allotments made, at least, till he was a director on the Board. Even otherwise, according to his own averment, he came to know of the allotments in 2006 from the proceeding in CP 86/2006, but even then he did not approach this Board immediately. This petition was filed only in May 2008. Therefore, it is crystal clear that there had been undue delay and latches in filing this petition. Since on the day of filing of the petition, the petitioner did not hold 10 per cent shares nor constituted 1/10th of membership of the company, I dismiss this petition as not maintainable in terms of section 399 of the Act. 7. In view of the dismissal of the petition, CA 364 has become infructuous. I make it abundantly clear that this dismissal is not a bar in the respondents from negotiating for purchase of the shares held by the petitioner.
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2009 (2) TMI 867 - SC ORDER
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... ... ..... rkar, JJ. ORDER Appeal dismissed.
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