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1986 (10) TMI 332 - KERALA HIGH COURT
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... ... ..... the advocate is put in the form of a notice, and that notice is produced in Court in a defamation case then there is already a disclosure and when such an advocate is called upon to prove that notice, he is not disclosing any fact for the first time, but he is only substantiating what is already disclosed. Madhava Reddi, J., in that case, has followed the dictum in Palaniappa Chettiar v. Emperor 1935 Mad WN 460. In that case the Madras High Court held that Section 126 is not infringed if an advocate who asked a defamatory question on the information of his client, deposes to that effect when his client is sued for defamation, or when his reply notice to that effect is allowed to be produced in Court. These two decisions support the view which I have taken. 8. Therefore, the complaint filed against the petitioner is not liable to be quashed for the grounds urged in this petition. The case has to proceed further to reach its normal culmination. The Crl. M.C. is hence dismissed.
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1986 (10) TMI 331 - BOMBAY HIGH COURT
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... ... ..... ort of the expenses which they had stated. On the other hand, Ambadas (D.W. 4) the Manager of the Kailash Talkies stated that he did not know what was the income-tax paid. Purushattam Khandwekar (1-DW) stated that he had 1/3rd share in the profits of the cinema and that he got Rs. 6000/- to Rs. 7000/- per year as profit. No importance can be attached to the amount mentioned by him, because the account-books, though the appellants maintained them, were not produced. It was for the appellants and the persons in possession to state precisely what were the profits that they made from the business, and they kept back the material evidence on this point. No exception can be taken to the finding recorded by the trial Court in this respect and that finding is confirmed. 22. In the result, I see no merit in the appeal. It is dismissed with costs. The appellants are granted time upto 15th January, 1987, to hand over possession in accordance with the directions given by the trial Court.
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1986 (10) TMI 330 - SUPREME COURT
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... ... ..... ring of Writ Appeal No. 493 of 1983 and RFA No. 409 of 1983 together but the High Court had persuaded itself to take such a stand "because of the involvement of one of the sitting Judges of the High Court as the then Special Government Pleader in OS and the RFA". We express our strong condemnation of the reckless allegation made by the appellant. The appellant's obsession with the merits of his case on the basis of wrong assumptions appears to have impelled him to make such reckless averments in the Special Leave Petition. In the circumstances of the case we would be justified in mulcting the appellant with costs in the appeal. Even so we think we should give an opportunity to the appellant to realise his mistake and feel contrite for his reproachable conduct especially when he has chosen to be a counsel in his own cause and has not had the benefit of advice from competent legal minds. 25. With these observations, we dismiss the appeal with no order as to costs.
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1986 (10) TMI 329 - ANDHRA PRADESH HIGH COURT
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... ... ..... certainable, his share in the losses is not, indeed he had no share in the losses and this is certainly a strong indication against the assessee's case. Be that as it may, it is not any single aspect or factor that should be taken as conclusive one was or the other, as observed by us hereinbefore but all the relevant facts and circumstances should be taken together and the real intention of the parties and the real nature of the relationship between them determined, as directed in section 6. We have pointed out hereinbefore that the approach of the appellate authorities in this case has been totally different, which has vitiated their findings and conclusion, and that the conclusion arrived at by the Tribunal is unsustainable in law and the facts of this case. 23. For the above reasons, the questions referred to us are answered in the negative, i.e., in favour of the revenue and against the assessee. There shall be no order as to costs. Reference answered in the negative.
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1986 (10) TMI 328 - DELHI HIGH COURT
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... ... ..... placed before the detaining authority It may be that, after perusing the opinion of the advisory board, the detaining authority might still have come to the conclusion that it was necessary to continue with the detention of the petitioners herein, but it is not correct to say that the decision of the advisory board, which led to the release of Pawan Kumar and Balwinder Kumar, and who were ordered to be detained along with the petitioners and on whose statements under Section 108 reliance has been placed, was not a relevant circumstance We have no doubt that the aforesaid relevant material has not been taken into consideration by the detaining Authority while disposing of their representations and the petitioners' fundamental right under Article. 22 of the constitution has thus been violated. (12) For the aforesaid reasons, the writ petitions are allowed. It is ordered that the petitioners be released forthwith unless they are required to be detained under any other law.
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1986 (10) TMI 327 - RAJASTHAN HIGH COURT
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... ... ..... The learned Tribunal made out a draft statement of the case on 16th Sept., 1981 and referred two questions to the High Court. Suggestions on the draft statement were sought, and after hearing the parities, the Tribunal finally while drawing the statement of the case, referred only question No. 1 and question No. 4 though proposed to be referred by the draft statement, was not ultimately referred to the High Court. Hence the petitioner has moved this application under s. 256(2) of the Act. o p /o p We have carefully gone through the record of the case and have also heard the learned counsel for the parties. o p /o p We find that none of the questions mentioned by the petitioner arise in the present case. They are not questions of law arising out of the order of the Tribunal and in our view, the Tribunal was justified in passing the order dt. 16th Dec., 1981 (Annexure E'). o p /o p Therefore, this reference application is dismissed, without any order as to costs. o p /o p
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1986 (10) TMI 326 - SUPREME COURT
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... ... ..... .A. 2 Units by mistake remains undisturbed. 3. Learned Counsel for the allottees (original writ petitioners) in desperation has urged a contention based on the Punjab Package Deal Properties (Disposal) Act, 1976 (21 of 1976). This plea was neither taken in the writ petition nor urged in the High Court by the allottees. We do not think that we can permit the allottees who have enjoyed an undeserved benefit for 30 years (from 1956 to 1986) to raise this new plea for the first time in this Court. Under the circumstances, the appeal must be allowed, the orders passed by the learned single Judge as confirmed by the Division Bench of the High Court must be set aside, and the order passed by the Chief Settlement Commissioner must be restored. We order accordingly. While granting leave in this matter on 5th September, 1972, this Court had directed the appellants to pay the costs irrespective of the result. The appellants will therefore pay costs of this appeal to respondents 1 to 5.
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1986 (10) TMI 325 - SUPREME COURT
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... ... ..... quo;s case. In all such cases the smaller Banches had entertained the petitions and passed appropriate interim orders. In view of what is stated above, can it be said that in this case the DiVision Bench which having regard to the various constitutional issues involved in it merely granted Special Leave to Appeal and issued an interim order of stay had violated rules of judicial discipline? Even if all the issues are to be held against the appellant ultimately after hearing the appeal until that decision is given by this Court, is it not reasonable to stay the trial pending disposal of this appeal? 12. If ultimately it is found in this that the proceedings before the High Court consequent upon the order of transfer are not constitutional, what is the effect of that decision on all the proceedings which have gone on till now in the High Court and the decisions of this Court passed in appeals against the orders of the High Court passed at different stages in these proceedings?
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1986 (10) TMI 324 - BOMBAY HIGH COURT
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... ... ..... ka - Goa". We agree with learned counsel that failure to translate this word "engaged" which is of significant import would render the translation ineffective. On this ground also we are constrained to strike down the Order of detention. 22. It is regrettable that in this case we have had to set aside an order of detention in respect of an economic offender only because the Detaining Authority failed to mention the word "engaged" whilst dealing with Cl. (iii) of sub-s. (1) of S. 3 of the COFEPOSA Act. The word, however, as we have pointed out bristles with meaning and its omission conveys a radically different meaning. We have therefore been constrained to come to the conclusion that the Detention Order must be struck down. 23. In the result, the rule is made absolute. A writ of Habeas Corpus will issue with a direction that the Order of detention dt. 9th June, 1986 is hereby quashed. The detenu will be set at liberty forthwith. 24. Petition allowed.
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1986 (10) TMI 322 - KERALA HIGH COURT
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... ... ..... C 316. The Appellate Tribunal was justified in holding that the turnover relating to the trees of spontaneous growth are not liable to be taxed under the Kerala General Sales Tax Act. 3.. For the year 1969-70, the Revenue brought to tax the sale proceeds of old scrap and discarded machineries. In the light of the decision reported in State of Gujarat v. Raipur Manufacturing Co. Ltd. 1967 19 STC 1 (SC) and the decision of this Court reported in Deputy Commissioner of Sales Tax v. Carborundum Universal Ltd. 1981 47 STC 73 (Ker), it cannot admit of any doubt that the sale of discarded materials (sale of machinery and sale of gunnies) cannot be included in the taxable turnover of the assessee. On this point as well, we concur with the reasoning and conclusion of the Appellate Tribunal. 4.. We hold that the decision of the Appellate Tribunal is valid and justified in law and that no interference is called for. These tax revision cases are dismissed in limine. Petitions dismissed.
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1986 (10) TMI 321 - SUPREME COURT
Whether under the policy decision dated 30th December 1984, D-2 licence was to be granted to each of respondent Nos.5 to 11 only for a limited period of 5 years commencing from 1st April 1986 or it was to be granted for a minimum period of five years with a clause for automatic renewal from year to year after the expiration of the period of five years?
Held that:- A the first place, the Ratlam Alcohol plant was unable to supply the requirements of even Jabalpur and Betul districts and during the period ending 31st March 1986 Sagar Aggarwal himself had to purchase liquor from outside at higher rates in order to satisfy the requirements of these two districts for which he held D-1(S) licence. 'If that be so, how could Ratlam Alcohol plant which could not produce more than 60 lakh proof litres at the outside, possibly supply liquor for the whole of the territory of the State. If Ratlam Alcohol plant could be made to supply the requirement of the entire State there would be no need for any other distillery at all. But obviously the capacity of the Ratlam Alcohol plant was very limited and it was not able to achieve production on up to this capacity. Secondly, it was decided that the Ratlam Alcohol plant would manufacture only ractified spirit for making masala liquor which was more popular and which brought greater revenue to the State and obviously therefore Ratlam Alcohol plant could not be available for producing ordinary liquor for supply to the retail vendors. Thirdly, it is difficult to understand how the learned Judge could assume that Sagar Aggarwal would continue to get liquor from Ratlam Alcohol plant at the rate of ₹ 1.80 per proof litre. The rate for supply of liquor by the Ratlam Alcohol plant would naturally depend upon varying market conditions. And lastly we fail to understand how the learned Judge could proceed on the assumption that a rate of ₹ 4 per proof litre would be fixed by the Export Committee for supply of liquor by the existing contractors from the new distilleries. We do not know what rate would be fixed by the Expert Committee. That would depend upon diverse considerations and of course one of the considerations would certainly be that Sagar Aggarwal had offered minus 2.31 rupees per proof litre while taking D-1(S) licences for Jabalpur and Betal districts. The figure of ₹ 56 crores put forward by Sagar Aggarwal and accepted by the learned judge was clearly hypothetical and based on assumptions which were totally unwarranted. We do not think that the learned Judge was right in observing that the public exchequer would incur a loss of ₹ 56 crores by the policy decision dated 30th December, 1984 and that the policy decision was therefore vitiated by mala fides or under-hand dealing or improper or corrupt motive.
We must therefore hold that the High Court was in error in allowing the writ petitions even to a limited extent. We accordingly allow the appeals of the State Government and respondents Nos. 5 to 11 and dismiss the writ petitions.
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1986 (10) TMI 320 - KERALA HIGH COURT]
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... ... ..... f the first appeals. On these grounds, the plea of the Revenue that the appeals are not maintainable was found against. The Revenue has come up in revisions against the common order passed by the Appellate Tribunal dated September 30, 1985. 2.. We heard counsel for the Revenue, Mr. T. Karunakaran Nambiar. We are of the view that the Appellate Tribunal was justified in holding that in the instant case the director of the society has authorised the manager to file the second appeals and he is competent to do so. Such an appeal is maintainable. Moreover, as rightly observed by the Appellate Tribunal, this plea was not taken up by the Revenue before the first appellate authority. On this ground as well, we hold that it is not open to the Revenue to raise this objection at the second appellate stage. The decision of the Appellate Tribunal does not suffer from any error of law. 3.. There is no merit in these three tax revision cases. We dismiss them in limine. Petitions dismissed.
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1986 (10) TMI 319 - KERALA HIGH COURT
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... ... ..... thin the said entry. This Court held that the entries in the Third Schedule had been used only as a legislative device for the limited purpose of economy of words, and refused to read the words in India into the definition in item 1 of the First Schedule to the Central Excises and Salt Act. (vide State Trading Corporation of India Ltd. v. Assistant Commissioner 1986 61 STC 190 (Ker) 1985 KLT 973. This decision is on all fours with the present case. We are in agreement with the same. The tax revision case is, therefore, dismissed in limine. Immediately after pronouncement of the judgment, the Senior Government Pleader sought for certificate under article 133(1) of the Constitution to appeal to the Supreme Court. We are of the opinion that this case does not involve any substantial question of law of general importance, which needs to be decided by the Supreme Court. We therefore, decline to grant the certificate sought for by the Senior Government Pleader. Petition dismissed.
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1986 (10) TMI 318 - KERALA HIGH COURT
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... ... ..... matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. 7.. The petitioner herein has the right to challenge the assessments before the appellate authority under section 34 of the Kerala General Sales Tax Act and a second appeal is provided under section 39 of the Act. Against the order of the Tribunal the assessee can also file a revision under section 41 of the Act to the High Court. When such alternative remedy is available to the assessee, the petitioner is not entitled at this stage to the reliefs prayed for in the writ petition. The original petition is dismissed. Issue photo copy of the judgment on usual terms. Petition dismissed.
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1986 (10) TMI 317 - KERALA HIGH COURT
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... ... ..... the above statement of law. The ratio will equally apply to section 5A(1)(b) of the Kerala General Sales Tax Act as well. 5.. On these premises, we hold that in these revisions the Revenue has not established that the dealer has disposed of the goods (ice, basket and other consumable stores) in any manner other than by way of sale in the State. A mere user of the various consumable stores cannot be said to be a disposal of the goods in any manner other than by way of sale in the State. What is essential is that the title and possession of the dealer in the goods concerned should either be transferred or forsaken or abandoned. That is not the case in these revisions. 6.. We hold that the decisions rendered by the Appellate Tribunal are justified in the facts and circumstances disclosed in these cases. There is no error of law. These tax revision cases are without merit and they are dismissed. But, in the circumstances, there shall be no order as to costs. Petitions dismissed.
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1986 (10) TMI 316 - ORISSA HIGH COURT
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... ... ..... ng as maida . If a consumer goes to a dealer and asks for semiya , obviously the dealer will not give him maida , nor if a consumer asks for maida no dealer will give him semiya . Howsoever little the process of transformation there might have been, semiya is a commercially different article altogether, so much so that a dealer of atta, maida and suji may not be dealing with semiya at all. In this view of the matter, we are unable to accept the contention of Mr. Pasayat that semiya is included within entry No. 1 meant for atta, maida and suji . Necessarily, therefore, it has to be taxed under the residuary entry No. 101 meant for all other articles and the rate of tax is 8 per cent. The order of the assessing officer, therefore, is wholly justified and we do not find any infirmity in the same. 7.. In the result, the writ application fails and the same is accordingly dismissed, but in the circumstances, there will be no order as to costs. RATH, J.-I agree. Petition dismissed.
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1986 (10) TMI 315 - DELHI HIGH COURT
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... ... ..... persons including the petitioner and these could be written off without any punishment or penalty, are matters of defence which can be considered by the learned trial court at the appropriate stage of the case and cannot be looked into by the High Court in exercise of its inherent powers under section 482 of the Code for quashing the complaint and the subsequent proceedings including the impugned order, in view of AIR 1983 SC 67 (Municipal Corporation of Delhi v. Ram Kishan Rohlagi) as the assertion in the complaint and the alleged false information contained in the letter dated 4th February, 1980 of the petitioner in his capacity as secretary of the company to the Sales Tax Department, Delhi, and the annexure thereto and the complaint alleging the admitted facts that the goods in question were sent from Bombay to the various abovementioned places in U.P. where the sales took place. In view of the aforesaid discussion, the petition fails and is dismissed. Petition dismissed.
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1986 (10) TMI 314 - ALLAHABAD HIGH COURT
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... ... ..... was entitled to the exemption claimed by it. I have heard learned counsel for the parties. The relevant portion of section 5(3) of the Act reads as under Notwithstanding anything contained in sub-section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with the agreement or order for or in relation to such export. A reading of the above section however shows that the words used under the aforesaid provision do not make any distinction in the goods itself as has been sought to be drawn by the learned standing counsel in his argument above. The view taken by the Tribunal is, in my opinion, correct in law. I find no infirmity in the order of the Sales Tax Tribunal. In the result, the revision fails and is dismissed with costs. Petition dismissed.
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1986 (10) TMI 313 - ALLAHABAD HIGH COURT
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... ... ..... d under the provisions of section 3(1)(c) of the Motor Spirit Act, is neither under any of the aforesaid circumstance as there are no circumstances specified except the point at which tax is leviable nor any conditions are attached to the aforesaid levy nor can it be said that tax is levied at some specified stage. As regards the last portion of the explanation which says otherwise than with reference to the turnover of the goods will not be applicable because the present is a case of manufacture of goods and the law does not provide exemption of goods with reference to the turnover of the goods. Hence this circumstance also does not arise in the present case. Therefore, the conclusion, in my opinion is that the present case is also not hit by the explanation to the aforesaid section 8(2A) of the Central Sales Tax Act. In the result, the revision succeeds and is allowed with costs and it is held that the dealer had no liability to pay any Central sales tax. Petition allowed.
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1986 (10) TMI 312 - MADRAS HIGH COURT
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... ... ..... amil Nadu 1984 56 STC 53 (Mad.) which related to a consideration of red ripe fruit chillies which was considered as not vegetable. In fact the discussion shows that far from helping the Revenue it supports the view of the Tribunal that green garlic cannot be considered to be not a vegetable. Apart from this, we are concerned with the notification which exempted only dried and dehydrated vegetables from the definition of vegetables and therefore there are no grounds to interfere with the order of the Tribunal. The tax case is therefore dismissed. Petition dismissed.
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