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1992 (5) TMI 205 - SUPREME COURT
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... ... ..... contentions raised by the parties. However, we direct that the Writ Petition No. 156/87 and Writ Petition No. 1547/87, pending before the Bombay High Court against the appellants will stand disposed of in terms of this order. The appeals are accordingly disposed of without expressing any opinion on the contentions raised by the parties or on the questions decided by the High Court, under appeal. 32. A perusal of the observations made in the above order leave no manner of doubt that this Court had clearly mentioned that it was not expressing any opinion on the contentions raised by the parties nor on the question decided by the High Court. Thus, the above decision cannot be considered as a precedent for the cases in hand before us and no help can be sought by the petitioners on the questions now raised before us and decided by giving detailed reasons as mentioned above. 33. In the result, we find no force in these petitions and the same are dismissed with no order as to costs.
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1992 (5) TMI 204 - ALLAHABAD HIGH COURT
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... ... ..... d production before the Magistrate and then granting police remand for five days and then judicial remand for the subsequent period suffers from no patent illegality as to require interference under Article 226 of the Constitution of India. 43. Consequently the petition of Zakir lacks merits and has to be dismissed. 44. In the result, Habeas Corpus Petition No. 13545 of 1992 succeeds and is allowed. Sher Bahadur singh detained regarding Case Crime No. 402 of 1992 under Sections 364/302, IPC, P.S. Colonelganj, Allahabad, be released forthwith unless wanted in any other case, with liberty to the courts below to issue process and proceed in accordance with law if a charge sheet is filed against him. 45. Habeas Corpus Petition No. 13688 of 1992 by Mahendra Bhushan and another, Habeas Corpus Petition No. 12541 of 1992 by Israr Ahmad and Habeas Corpus Petition No. 7643 of 1992 by Zakir alias Chachu fail and are dismissed. Parties to bear their own costs in all these four petitions.
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1992 (5) TMI 203 - ALLAHABAD HIGH COURT
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... ... ..... o have been caused to the petitioner as the notice for intimating the date of the pronouncement of the judgment was effectively served and the counsel for the petitioner was able to make the prayer for the grant of the certificate contemplated under Article 134A of the Constitution. 17. The question relating to the procedure, relating to the pronouncement of judgment relied upon by the counsel for the petitioner is not such which may be said to involve a substantial question of law of general importance which needs to be decided by the Supreme Court. 18. In view of the conclusions indicated hereinbefore, I am not satisfied that the present case involves any substantial question of law of general importance which needs to be decided by the Supreme Court. I do riot think that the present case is a fit one for the appeal to the Supreme Court. 19. The oral application for the grant of certificate for the appeal to the Supreme Court is, therefore, rejected. 20. Petition dismissed.
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1992 (5) TMI 202 - ALLAHABAD HIGH COURT
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... ... ..... berty to dispose of applications for bail espeditiously without adjourning the cases unnecessarily. In appropriate cases they may also consider the notice not to be issued as has been provided by the law. These would be the cases where the prosecution is already in the possession of all the material or the entire material is otherwise available in the Court. The incarceration of a person in jail at this stage can never by justified for punitive purposes. The process in the Court should reassure the innocents in not being harassed while the Court is proceeding to decide the application for bail or trying the case. It is only the judgment of the Court which has to provide necessary deterence to the guilty. 78. Expecting that the bail application in this case, if moved, shall also be disposed of without undue delay, the petition is hereby dismissed. A copy of this judgment be laid before Hon'ble the Chief Justice for such action as he may deem proper. 79. Petition dismissed.
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1992 (5) TMI 201 - CEGAT, NEW DELHI
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... ... ..... rtment. 3. The learned Counsel brings to our notice decisions of the Tribunal reported in 1991 (18) ETR 240,1991 (31) ECC 262 and 1992 (19) ETR 134 to show that it has been consistently held by the Tribunal that credit can be taken subsequently. 4. On going through the order relied upon by the Department it appears that as if the Tribunal has laid down that the six months period is to be treated as a reasonable limit and has not held that credit can be taken only within a period of six months. 5. In this view of the matter we allow the application. We waive the pre-deposit of the MOD VAT credit involved pending disposal of the appeal. 6. At this stage, with the consent of both sides we proceeded to hear the appeal itself. In the light of the discussions contained in the order granting the prayer for waiver of pnj-deposit based upon the earlier decisions of the Tribunal we set aside the impugned order and allow the appeal, with consequential relief. (Pronounced in open court).
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1992 (5) TMI 200 - ORISSA HIGH COURT
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... ... ..... and Diwan Chand v. Sant Singh, relied upon by learned counsel for the respondents was rendered where by an arrangements between principal judgment-debtor and decree holder time for discharge of debt was extended by former. It was held that its effect on discharge of surety depends upon the discretion of the Court. This decision would not also influence me in view of the decision of Supreme Court and of this Court. 11. In conclusion suit is to be decreed against all the defendants who are jointly and severally liable for the amount decreed. However, decree directing payment of ₹ 4,000/- monthly by instalment till complied with by proprietor of defendant No. 1 would have the effect of suspension of action against the sureties. No sooner the principal debtor fails to comply with the direction to pay any monthly instalment, decree can be executed against all or any of the judgment-debtors. 12. In result, appeal is allowed. There shall be no order as to costs in this appeal.
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1992 (5) TMI 199 - CEGAT KOLKATA
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... ... ..... ld that mens rea was not necessary to prove contravention of Section 52A of the Sea Customs Act, 1878. That case has no relevance in the present context as the said provision prohibited entry of vessels constructed or adopted so as to conceal goods. Where, of course, any statutory liability to pay duty is there which is not discharged, the element of mens rea is not required for imposition of penalty as laid down by the Supreme Court in Gujarat Travancore Agency v. Commissioner of Income Tax 1989 (42) ELT 350. But here, It is not a case where duty that should have been paid has not been, as already observed by us. In that view of the matter the penalty imposed is not sustainable. We, therefore, allow the appeals and set aside the order imposing penalty and demanding duty. In the circumstances, the Cross Objection filed by the Department seeking enhancement of the penalty imposed gets dismissed. The operative part of the order was announced in the Open Court after the hearing.
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1992 (5) TMI 198 - CALCUTTA HIGH COURT
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... ... ..... extent the order of the ITO merged with the order of the Commissioner (Appeals). The ITO while passing the order under section 154 sought to give relief to the assessee as an industrial company which the ITO had no jurisdiction to do in view of the first appellate order upholding the assessment order of the ITO wherein the assessee was treated as non- industrial company. The assessee did not prefer any further appeal against the said order. So long as the appellate order is not set aside by the Tribunal, on further appeal, the ITO had no jurisdiction to rectify the assessment order so far as the determination of status of the assessee-company as industrial company is concerned. 9. For the reasons aforesaid we are of the view that the Tribunal on the facts and circumstances of the case came to a correct conclusion. In the result, we answer the question in this reference in the affirmative and in favour of the revenue. 10. There will be no order as to costs. Sen, J. - I agree.
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1992 (5) TMI 197 - ITAT AHMEDABAD
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... ... ..... ehalf of the assessee before the Commissioner (Appeals) that the disallowance ought to have been restricted under r. 6D at ₹ 11,745 as per calculation submitted by the assessee company. The Commissioner (Appeals) directed the ITO to work out the disallowable amount under r. 6D by taking total expenditure for the whole year rather than taking the expenditure of the individual tour in consonance with the decision of the Tribunal in the case reported in S.V. Ghatalia v. ITO 1983 4 ITD 583 (Bom.). 19. After hearing the learned representatives we are of the view that there is no justification in interfering with the findings given by the Commissioner (Appeals), as the view taken by the Commissioner (Appeals) is based on the decision of the Tribunal (supra). No contrary decision has been brought to our notice. The view taken by the Commissioner (Appeals) is, therefore, confirmed. 20. In the result assessee's appeals are allowed and the Revenue's appeals are dismissed.
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1992 (5) TMI 195 - SUPREME COURT
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... ... ..... ve been laid down for the exercise of the power conferred by Sub-section (2) of Section 25-N of the Act; and 2) There is no provision for appeal or review against the order passed under Sub-section (2). 59. Both these questions have been considered by us while dealing with the contentions urged by learned Counsel appearing for the employers and we have rejected the same. In that view of the matter, we are unable to uphold the decisions of the said High Courts striking down Section 25-N as unconstitutional on the ground that it is violative of Article 19(1)(g) and is not saved by Article 19(6) of the Constitution. 60. In the result, it is held that Section 25-N does not suffer from the vice of unconstitutionality on the ground that it is violative of the fundamental right guaranteed under Article 19(1)(g) of the Constitution and is not saved by Article 19(6) of the Constitution. The matters may be placed before a Division Bench for consideration in the light of this judgment.
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1992 (5) TMI 194 - DELHI HIGH COURT
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... ... ..... e Association of Indian Engg. Industries. This contribution was made for the purpose of constructing a building just as in Delhi Cloth &General Mills Co. Ltd.'s case (supra) contribution was made for the construction of building of Rajasthan Chamber of Commerce. We find that the principle involved In this case is identical to that which was involved in the case of Delhi Cloth & General Mills Co. Ltd. (supra). 12. Following the decision dated 17-2-1981 of this Court in Delhi Cloth & General Mills Co. Ltd. 's case (supra) we are of the opinion that the answer to the second question is self-evident as the ratio of the decisions of the Supreme Court In Lakshmiji Sugar Mills Co.(P.) Ltd. 's case (supra) and L.H. Sugar Factory & Oil Mills (P.) Ltd.'s case (supra ) is clearly applicable. 13. For the aforesaid reasons we direct the Tribunal to state the case and refer the aforesaid question No. 1 only to this Court. There will be no order as to costs.
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1992 (5) TMI 193 - SUPREME COURT
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... ... ..... on. No appeal or proceedings under Art. 226 or 227 was taken by the respondent. Payment of mesne profit is consequential to the execution of the award for unlawful retention of the possession. Thus the court has power and jurisdiction to award mesne profits as a concomitant of order for delivery of the possession. Viewed from this perspective we hold that the civil court is right to award mesne profits as integral power to order delivery of possession as this would arise only due to non-delivery of possession. Accordingly the appellants are liable to pay mesne profits. o p /o p The appeal is accordingly dismissed with costs quantified at ₹ 3,000. The appellants are directed to pay the said cost to the Supreme Court Legal Aid Committee within a period of three months from today. In default the civil court suo motu should execute the decree for cost and make over the amount to the credit of the Supreme Court Legal Aid Committee. o p /o p V.P.R. Appeal dismissed. o p /o p
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1992 (5) TMI 192 - HOUSE OF LORDS
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... ... ..... pe of case it will have to be considered whether the expenditure has the result stated or whether it should be regarded as expenditure on maintenance or upkeep, and some cases may pose difficult problems." The question in this appeal is therefore whether the £50m. was paid to dispose of the shares in J. M. B. or whether it was paid to enable the taxpayer company to continue to trade by removing the danger of J. M. B.'s insolvency. My Lords, I must confess that I was attracted by the argument for the Crown that the payment was made to enable the taxpayer to dispose of the shares. However, the issue is narrow and I do not feel inclined to dissent from what I understand to be the view of the majority of your Lordships. I therefore agree that the appeal should be allowed and the decision of the general commissioners restored. Appeal allowed with costs. Determination of general commissioners restored. Solicitors Taylor Joynson Garrett ; Solicitor of Inland Revenue.
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1992 (5) TMI 191 - SUPREME COURT
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... ... ..... f fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody. We may, however, in the end clarify that the position of law stated above applies to Section 167 as it stands in the Code. If there are any State amendments enlarging the periods of detention, different consideration may arise on the basis of the language employed in those amendments. The appeals are accordingly dismissed. Appeals dismissed.
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1992 (5) TMI 190 - SUPREME COURT
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... ... ..... Central Government felt the necessity to strike a balance so that the Boards do not suffer and the plants for aluminium get proper supply of electricity at reasonable rates. It was noted that high rate of tariff and consequential increase in the price of aluminium caused prejudice to the Boards because the Boards were consumers of aluminium to a considerable extent. It appears to us that it is only desirable that interest of both the Boards and the aluminium industry are to be reconciled with a pragmatic approach and the Central Government, the concerned State Governments and the Boards should try to evolve a more realistic policy by which the interest of both the Boards and aluminium industry are safeguarded to the extent practicable. We have no manner of doubt that if a joint venture is made an effective policy may be evolved which will ensure to the benefit of both the supplier and the consumers in the field of production of aluminium, in the national interest as a whole.
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1992 (5) TMI 189 - GUJARAT HIGH COURT
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... ... ..... ications by the orders dated 31-1-1992. While speaking for the Bench one of us (Hon'ble Mr. Justice K.J. Vaidya) relying upon the above said decisions has reached the same conclusion. 19. Therefore it appears very clearly in the present petitions also that the grounds of detention were not formulated at the time of passing of the orders of detention which clearly violated the constitutional mandate under Article 22(5) of the Constitution of India. Moreover, as indicated above in almost all the matters the orders of detention were later on revoked. It would therefore mean that on both the counts the notice under Section 6 of the SAFEMA could not have been issued. In the result therefore this group of 7 petitions is hereby allowed. The impugned orders of detention passed against the concerned petitioner under Section 3(2) of COFEPOSA and the consequent notice issued under Section 6 of SAFEMA are ordered to be quashed and set aside. No order as to costs. Rule made absolute.
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1992 (5) TMI 188 - SUPREME COURT
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... ... ..... s, from 1976 to 1988, the period of two years was never given a trial, therefore, there was no occasion for the legislature to have reduced this period. The argument does not appear to have been advanced before the High Court. Necessary averments were not made even in Special Leave Petition. There was thus no occasion for other side to explain. That its action in reducing the period did not suffer from any infirmity. It may be mentioned that elections in the Municipal Board both of members and Presidents were held in December 1988 whereas general elections of the State Assembly leading to change of political power were held in 1989. In absence of any factual foundation the argument appears to be devoid of any merit. Moreover what persuaded the legislature to reduce the period is again a matter of legislative policy the wisdom of which cannot be scanned by this Court. In the result, this appeal fails and is dismissed. But there shall be no order as to costs. Appeal dismissed.
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1992 (5) TMI 187 - FOREIGN EXCHANGE REGULATION APPELLATE BOARD
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... ... ..... of a clear finding of the Adjudicating Officer in regard to the aforesaid correspondence and facts not earlier considered by him, it would be difficult for the Board to arrive at a just and fair conclusion. 10. Whether or not penalty should be imposed for violation of any statutory provision is of course a matter of discretion but such discretion has to be exercised judiciously by considering all the relevant facts before arriving at a decision to impose penalty. Non-consideration of all the relevant facts would naturally render the decision legally untenable. 11. In view of the above, both the cases (Appeal Nos. 533 and 535 of 1989) are remanded to the Adjudicating Officer for passing a fresh order in accordance with law within three months from the date of receipt of this order, failing which the penalty deposited by the appellant pursuant to the Board 39 s order dated 24-8-1990 shall be liable to be refunded. Parties may be afforded fresh opportunity to produce evidence.
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1992 (5) TMI 186 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... f the respondents is, therefore, based on a wrong premise it has been assumed that the industrial unit while manufacturing corrugated paper board is also required to do the processing of corrugation of the paper roll in its own factory. 13.. In the light of the foregoing discussion, it is held that the ground for rejection of the eligibility certificate adduced by the Assistant Commissioner and confirmed by the Additional Commissioner is not valid and this could not be a bar to allowing tax exemption to the applicant. 14.. In the result, the orders of the Assistant Commissioner dated February 12, 1991 and of the Additional Commissioner dated November 28, 1991 are set aside with the direction on the Assistant Commissioner concerned to issue eligibility certificate to the applicant, if otherwise found eligible within three months. 15.. The application succeeds and is allowed on contest. There will be no order for costs. L.N. RAY (Judicial Member).-I agree. Application allowed.
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1992 (5) TMI 185 - ORISSA HIGH COURT
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... ... ..... proper realisation of tax payable under the Act and for proper custody and use of forms referred to in clause (A) of sub-section (2) of section 5. Under section 9(3-b) the registering authority has power to forfeit whole or any part of the security furnished where the dealer is found to have misused any of the forms referred to in clause (A) of sub-section (2) of section 5 or has failed to keep them in proper custody. In a given case the aforesaid powers can be exercised on the registering authority being satisfied that necessary ingredients for such exercise are present. 7.. In the aforesaid premises, we quash the orders passed by the Sales Tax Officer and the revisional authority as per annexures 13 and 15 and direct opposite party No. 1 to issue form IB to the petitioner within two weeks from the date of receipt of our order. The writ application is accordingly allowed but in the circumstances without any order as to costs. S.K. MOHANTY, J.-I agree. Writ petition allowed.
