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Case Laws
Showing 1 to 20 of 247 Records
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1988 (7) TMI 419 - ORISSA HIGH COURT
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... ... ..... Judge, he was free to exercise the powers vested in him and in the language of the Supreme Court it was obligatory in character. In other words, once he was satisfied that the evidence of a witness was necessary for just decision of the case, he was bound to summon the witness and record his evidence. Mr. Misra drew attention to a case of this Court reported in (1984) 1 Ori LR 709, Nurun Nisha Begum v. Hasina Khatun. In that case the order of sanction had been exhibited and a passing reference was made to the first part of Section 311 of the Code and not the second part. No specific opinion was also expressed in that case. Therefore, it is of no help for disposal of the present case. 6. For the foregoing reasons, I am of the opinion that the learned Judge did not commit any illegality or irregularity in passing the impugned order. Accordingly interference is uncalled for. 7. In the result, the criminal revision is dismissed. The lower court records may be sent back forthwith.
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1988 (7) TMI 418 - CALCUTTA HIGH COURT
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... ... ..... t. 1, the sanctioning authority has stated that he was the competent authority to accord sanction for taking cognizance of the offence but while actually according the sanction he did it for the prosecution as found in the last paragraph and not for taking cognizance. In the circumstances, taking cognizance of the alleged offence under Section 5(2) of the Prevention of Corruption Act and the Customs Act must be held to be bad for lack of proper sanction and the charge on these two counts are liable to be quashed. In view of the finding above the charge framed against the petitioner under Section 5(2) of the Prevention of Corruption Act and Section 136(1) of the customs Act are set aside. The charge framed under Section 477A, IPC remains undisturbed and the learned Judge will consider whether the petitioner can be tried before him for such a charge and if so shall proceed with the trial with utmost expedition. This rule is thus disposed of. Let the records go down immediately.
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1988 (7) TMI 417 - SUPREME COURT
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... ... ..... the relief. In this connection, we may refer to a decision of the Lahore High Court in Atma Ram Charan Das v. Bisheshar Nath Dina Nath, AIR 1935 Lah 689. In that case also the question was whether the plaintiff had correctly valued the relief for the rendition of accounts, in the plaint, the plaintiff stated that a sum of ₹ 8,000 was due to him from the defendants, but he valued the suit for purposes of jurisdiction and court fee at ₹ 5000 tentatively. It was held that the plaintiff could not be prejudiced or damnified merely because he added to the plaint a computation which was unnecessary for him to give. 25. We have considered the facts and circumstances of the case and also the legal position and, in our view, the valuation of the relief for the rendition of accounts under Section 7(iv)(f) of the Court Fees Act is neither unreasonable nor it is demonstratively arbitrary. 26. In the circumstances, the appeal is dismissed with costs quantified at ₹ 5,000.
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1988 (7) TMI 416 - KARNATAKA HIGH COURT
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... ... ..... a partner in the old firm would regrettably not save the limitation from running. The result therefore is the suit filed in Feb 1964 for accounts of the erstwhile firm of M/s Shah Vaktaji Dalichand and Company being beyond three years from the date of death of the DaliChand the husband of her plaintiff was clearly barred by time. She was of course not entitled to any relief with regard to accounts or dissolution of the new firm, which was also a prayer made in the suit, but rightly negated by the Courts below. The result, therefore, is the decree in her favour made by both the Courts below directing the defendants to render accounts of the old firm M/s. Shah Vaktaji Dalichand and Company has to be and is hereby set aside. This appeal, therefore, stands allowed and in lieu of the judgments and decrees of the Courts below, there will now be a decree dismissing the suit in C.S. No. 11/64 as barred by time. Parties will bear and pay their own costs throughout. 10. Appeal allowed.
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1988 (7) TMI 415 - CEGAT, SPECIAL BENCH C, NEW DELHI
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... ... ..... stances will differ from case to case but it is obligatory on the part of the Collector to draw the inference from the facts of the case and he should record his findings that there was an intention on the part of the appellants to evade payment of duty by suppression of facts or wilful mis-statement etc. We find from the order-in-original that the Collector has not drawn any such inference in his order although the allegations in terms of the proviso were made in the show cause notice in this regard. In view of this, we find in the present cases, in the absence of any such finding, the duty demand beyond a period of 6 months for the extended period cannot be invoked. We in view of the above, while upholding the levy of duty on ANFO in terms of the order of the Collector's order that the demand of duty be limited to a period of six months reckoned from the date of receipt of the show cause notice by the appellant. The appeals are thus partially allowed in the above terms.
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1988 (7) TMI 414 - ITAT HYDERABAD
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... ... ..... ot by called a gainful employment. A gainful employment is one which offers opportunities to a person to get himself elevated vertically in his occupation or employment or to seek more lucrative avenues of employment elsewhere. The Persons suffering from permanent disability or handicapped persons as we may call them, have got slender chances for elevation. In fact their very employment itself is based on humanitarian consideration only. It is stated before us that the assessee could not get promotion as Development Officer though he is otherwise qualified. Thus, from the angle of gainful employment also, it can be said that a permanent disability is certainly a permanent barrier and mere employment Which does not offer chances of promotion cannot be called a gainful employment, as it can only be described as a subsistence employment. Looking from this angle also, we cannot sustain the order of the learned Commissioner of Income-tax. 8. In the result, the appeals are allowed.
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1988 (7) TMI 413 - ALLAHABAD HIGH COURT
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... ... ..... was not seeking any advantage for himself. The assessee faithfully produced the stock register, which had been maintained in regular course of business. The possibility of the assessee's case being true cannot be ruled out. The Tribunal also did not take into account that the production of Khand shown by the assessee was accepted by the Excise Authorities. On the totality of the circumstances, in my opinion, there is no warrant for a conclusion that the assessee's account books were unreliable and an assessment on best judgment was called for. 19. For the reasons discussed above, the account books of the assessee were liable to be accepted and the finding to the contrary of the Sales Tax Tribunal cannot be sustained. 20. This revision succeeds and is allowed with costs. A copy of this order shall be sent to the concerned Bench of the Sales Tax Tribunal who shall pass an order in conformity with this judgment, as required under sub-section (8) of Section 11 of the Act.
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1988 (7) TMI 412 - SUPREME COURT
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... ... ..... cede to this submission. 23. Equally meritless in the submission that the presumption embodied in Section 3(1)(b) is unreasonable. The High Court has unhesitatingly negatived this plea. The High Court has reasoned With regard to the presumption, which is impugned, it is a rebuttable presumption and a rule of evidence. The non-tribals who have acquired the lands, and properties of the tribals could be reasonably expected to disclose their title to the properties. This also accords with the rule of evidence, that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him vide-Section 106 of the Indian Evidence Act. The tribals are mostly ignorant persons, and naturally suffer from inevitable handicaps in the matter of setting up or proving their rights to lands, and property which they had lost. The reasoning is impeccable and faultless. The plea must accordingly fail. 24. The appeals must therefore fail and be dismissed. No costs.
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1988 (7) TMI 411 - ITAT HYDERABAD
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... ... ..... pra), for the proposition that if the order of the initial authority is void, an order of the appellate authority cannot make it valid. It is not the case of the assessee that the entire assessment was void ab initio and the assessee was only objecting to that part which dealt with the addition of ₹ 85,150 which was made on a protective basis. This protective addition was rightly deleted by the CIT (Appeals) and the same is not an inseparable part of the assessment order and, therefore, it cannot be contended that the entire assessment was void ab initio. As for the main question whether the CIT (Appeals) was justified in setting aside the entire order, we hold in the light of the discussions in the preceding paragraphs, that this is not a fit case where the CIT (Appeals) should have set aside the entire assessment directing assessment de novo. The assessment as framed by the ITO sans the addition on protective basis is upheld. 29. In the result, the appeal is allowed.
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1988 (7) TMI 410 - SUPREME COURT
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... ... ..... re, 1973 for grant of bail. A learned Single Judge by his order dated January 4, 1988 directed that respondent accused persons be also enlarged on bail since bail had been granted to the co-accused Kulwant Singh against whom the evidence collected by the Investigating Officer is of the same type. We are of the view that the High Court had no jurisdiction to entertain an application for bail under Section 439 of the Code. See Usmanbhai Dawoodbhai Memon & Ors. v. State of Gujarat, 1988(1) RCR(Crl.) 540 (SC) 1988(2) SCC 271. We accordingly grant leave, set aside the order passed by the High Court releasing the respondents on bail and direct that they be taken into custody forthwith. 3. We however wish to make it clear that the respondents may move the Designated Court for grant of bail afresh. The Designated Court shall deal with such application for bail, if filed, in the light of the principles laid down by this Court in Usmanbhai Dawoodbhai's case. Order accordingly.
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1988 (7) TMI 409 - SUPREME COURT
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... ... ..... e is not a matter within the jurisdiction of the arbitrator. In this connection reference may be made to the observations of this Court in Executive Engineer (Irrigation), Balimela & Ors., v. Abhaduta Jena & Ors., 1988 1 SCC 418 where this Court held that the arbitrator could not grant interest pendente lite. In the aforesaid view of the matter this a direction in the award for the payment of such interest must be deleted from the award. The order of the High Court is modified to the extent that the award is confirmed subject to deletion of the interest pendente lite. We make it clear that in the facts of this case interest for the period from 26.9.81 to 18.3.83, the date of the award be deleted. The High Court has, however, granted interest from the date of the decree. That is sustained. The appeal is, therefore, dismissed except to the extent indicated above. In the facts and circumstances of the case the parties will pay and bear their own costs. Appeal dismissed.
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1988 (7) TMI 408 - SUPREME COURT
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... ... ..... Act has retrospective operation in the sense that amended section 23(2) and section 28 apply also in relation to an order under appeal against an award made by the Collector of Court between April 30, 1982 and the commencement of the Amending Act. This must depend on the decision of the Constitution Bench which is expected soon. The appellant Will be entitled to the benefit of Central Amending Act (Act 68 of 1984) in case the Constitution Bench upholds the view expressed in Bhag Singh case 1985 3 SCC- p. 737 and overrules the view expressed in Kamalajammanniavaru Case 1985 1 SCC p. 582. In case the Constitution Bench affirms the view taken in Kamalajammanniavaru Case, the appellant will not be entitled to such benefit. Appeal is partly allowed accordingly to the aforesaid extent. Order passed by the High Court is modified to the corresponding extent. Having regard to the facts and circumstances of the case there will be no order regarding costs in this Court. Appeal allowed.
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1988 (7) TMI 407 - SUPREME COURT
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... ... ..... vacant on the same day, that is, on April 1, 1969. We have, therefore, no hesitation in holding that the vacancies had occurred before that day, but the Board did not care to take up the question of confirmation for reasons best known to it. That facts stated here in above, disclose that the Board had acted arbitrarily at its sweet will and without any justification whatsoever in making the appellant junior to the respondents Nos. 2 and 4 to 19, who are admittedly juniors in service to the appellant. For the reasons aforesaid, the judgment of the learned Single Judge and that of the Division Bench of the High Court and the impugned seniority list are set aside. We direct that a fresh seniority list shall be prepared by placing the appellant immediately below Pawan Kumar Aggarwal and above Sudesh Kumar Tuli within six weeks from date and maintain the seniority of the appellant, as directed, in the post to which the appellant has been promoted in the meantime . Appeal allowed.
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1988 (7) TMI 406 - SUPREME COURT
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... ... ..... cle 14. We do not see any substance in this contention. In the very nature of things, only an officer or appointee of the Government, statutory authority or Corporation can be thought of for implementing the provisions of the Act. That apart, personal bias cannot necessarily be attributed to such officer either in favour of the bank or against any occupant who is being proceeded against, merely because he happens to be such officer. Moreover, as pointed out earlier, the Act provides for an appeal to an independent judicial officer against orders passed by the Estate officer. These provisions do not, therefore, suffer from any infirmity. In fact, Dr. Chitale did not pursue this objection seriously. o p /o p No other contention was urged. The appeal, therefore, fails and is dismissed. We would, however, make no order as to costs as it is the existence of a multiplicity of statutory provisions that enabled the appellant to come to Court. o p /o p S.L. Appeal dismissed. o p /o p
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1988 (7) TMI 405 - SUPREME COURT
Whether a teacher employed in a school falls within the definition of the expression 'workman' as defined in section 2(s) of the Industrial Disputes Act, 1947?
Held that:- Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as 'workmen' as defined under the Act. Thus the High Court was right in holding that the appellant was not a 'workman' though the school was an industry in view of the definition of 'workman' as it now stands. Appeal dismissed.
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1988 (7) TMI 404 - ALLAHABAD HIGH COURT
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... ... ..... his account books were accepted and the applicant was taxed on his entire turnover. It may be that 15 days turnover of one month of one assessment year was first not shown but thereafter it was shown and the tax was levied. In view of this, the order of the Trade Tax Tribunal upholding the order of penalty cannot be sustained. 3.. The assessing authority had also imposed a penalty of Rs. 3,600 on the applicant under section 15-A(1)(c) for importing goods without furnishing proper certificate, which has been upheld by the Tribunal. No revision has been preferred against the said decision of the Tribunal which has now become final. 4.. The result is that the revision succeeds and is allowed. The order dated May 12, 1988 passed by the Trade Tax Tribunal is set aside to the extent that it is held that the applicant is not liable to pay any penalty under section 15-A(1)(c) for concealment of turnover and the penalty imposed under that provisions is knocked off. Petition allowed.
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1988 (7) TMI 403 - ANDHRA PRADESH HIGH COURT
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... ... ..... ere the reason given by the authorities for classification of an article under a particular item is foreign to such determination, the court would interfere. The purpose of this exercise is merely to emphasize that functional test is not the only test to be applied in determining whether a particular article falls within a particular entry, and that it cannot be applied to the exclusion of all other tests, aids, and considerations. We also do not agree that in Atul Glass Industries (P.) Ltd. v. Collector of Central Excise 1986 63 STC 322 (SC) functional test alone was applied. The test of commercial parlance was also applied and conclusion arrived at. Now coming to the goods concerned herein, since the Tribunal has said that it has been consistently taking a particular view, we do not think it. appropriate to take a different view in these particular revisions. The T.R.Cs. accordingly fail and are dismissed. No costs. Advocate s fee Rs. 400 consolidated. Petitions dismissed.
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1988 (7) TMI 402 - RAJASTHAN HIGH COURT
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... ... ..... ed, would be refunded. This part of the order has been challenged in this revision. 3.. The learned counsel for the petitioner has urged that when the appeal was allowed and the imposition of interest was confirmed by the learned Tribunal, there was no question of the refund of any amount. 4.. The learned counsel for the assessee could not support the order of the refund of the amount. 5.. Admittedly, the learned Tribunal allowed the appeal of the department and confirmed the imposition of the interest under section 11-B of the Act read with section 9(2) of the Central Sales Tax Act. As such there was no question of the refund of the amount of interest, if deposited. It appears that the learned Tribunal passed the order for the refund of the amount of penalty for which no appeal was filed by the department. 6.. The amount of interest is not refundable. The amount of penalty is refundable. 7.. Consequently, the revision petition is disposed of with the aforesaid observations.
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1988 (7) TMI 401 - MADHYA PRADESH HIGH COURT
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... ... ..... , we are of the view that the consideration paid by the dealer to the Forest Department was in lieu of sale of mahul patta to the dealer and not as licence fees as contended by the Revenue. 4.. The utility or commercial value of mahul leaves does not increase or decrease with their packing. The leaves remain the same and, therefore, it cannot be said that there was any manufacturing process in packing of mahul leaves, or that with the packing of mahul leaves, any different commodity of any commercial value was brought into existence. We are, therefore, of the view that the Tribunal was justified in holding that no manufacturing process was involved in the packing of mahul patta and as such no new commodity had come into existence which could be subjected to tax. 5.. In the result, both the questions referred to us are decided in favour of the assessee and against the department. 6.. There shall be no order as to costs of this reference. Reference answered in the affirmative.
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1988 (7) TMI 400 - ANDHRA PRADESH HIGH COURT
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... ... ..... idual sales or purchases of goods effected during the relevant period and determine their exigibility to tax. It is not difficult to agree with the learned counsel that merely because a person is a dealer, all the activity undertaken by him should not automatically be treated as business activity with a profitmotive, and that it may be necessary to distinguish his activity from commodity to commodity and determine the liability to tax separately. But, as we have pointed out hereinbefore, the main activity and the activity in question herein are both of the same character, viz., distribution and sale of fertilisers. We, therefore, do not think that the said principle advances the case of the petitioner in any manner. For the above reasons, we find no grounds warranting interference in this Tax Revision Case under section 22 of the Andhra Pradesh General Sales Tax Act. Tax Revision Case, accordingly, fails and is dismissed. No costs. Advocate s fee Rs. 160. Petition dismissed.
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