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2008 (6) TMI 636 - CALCUTTA HIGH COURT
Application for contempt and an Application for review - willful and deliberate violation and disobedience of the order - mutation of the name of the writ petitioner in relation to the premises - Power of review - HELD THAT:- It is settled law that the expressions "any other sufficient reason" "mean a reason sufficient on grounds at least analogous to those specified immediately previously, that is to say, to excusable failure to bring to the notice of the Court new or important matters or error apparent on the face of the record." Upon an application for review the Court cannot proceed to deal with the case on the merits as if on an appeal.
The Supreme Court of India in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors. [1979 (1) TMI 228 - SUPREME COURT] holds that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review, which inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review.
Power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may, also, be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal - I am not satisfied that the judgment under review is erroneous on the face of it. This application for review is filed to re-argue the very same points rightly rejected by this Court - Therefore, this application for review stands rejected.
Application for contempt - HELD THAT:- Non-compliance of the order by the contemnors is admitted. By order dated December 3, 1998 this Court, inter alia, directed the respondents in the writ petition to mutate the name of the first petitioner, that is W. H. Targett (India) Limited, in the register instead and in place of Marble Trading Company Limited - An application for contempt is filed alleging willful and deliberate violation and disobedience of the said order. After filing of the application for contempt, an application for review is filed. In the application for review it is alleged that the charge of name to W H. Targett (India) Limited and the application for mutation to record the name of W. H. Targett (India) Limited are fraught with uncertainty, which was not brought to the attention of this Court.
As already, found that in the application for review virtually the points taken in the affidavit-in-opposition are reiterated. It is not open to the contemnors to give a wrong interpretation of the order. In any view of the matter, the view so taken by the contemnors are not found to be legally sustainable. I hold that the stand taken by the contemnors is not bona fide. The contemnors are bound to comply with the order of this Court.
Therefore, this is a fit case for taking action in contempt. However, as the application for review was filed, in order to giving contemnors an opportunity to purge the contempt before I pass the sentence, I adjourn the matter for 4 (four) weeks to enable the contemnors to report compliance, failing which this Court will proceed to pass appropriate orders in respect of the contempt. If not, the contemnors will run the risk of being sentenced.
The office is directed to put up this matter on July 2, 2008 under the heading for orders.
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2008 (6) TMI 635 - BOMBAY HIGH COURT
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... ... ..... the date and signature on the cheque is similar, and the ink in which the amount and name of payee was written, is different. The complainant has further stated that he cannot tell which part of the cheque is written by the accused. From the evidence on record it appears that the defence taken by the accused is probable. 6. Moreover, from the evidence on record it is clear that only amount of ₹ 63,292/- was due from the accused; whereas the amount of ₹ 2,98,096/- was written on the cheque. In such case, it cannot be said that any legal liability arose in respect of the amount of ₹ 2,89,096/- on the accused. Taking into account all these facts, the learned Magistrate had acquitted the respondent/accused. 7. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is reasonable and possible. Hence, no interference in the order in question is called for. In the result, the application for leave to appeal is rejected.
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2008 (6) TMI 634 - BOMBAY HIGH COURT
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... ... ..... t aside by this court which shows the predetermined mind of the Appropriate Authority, and total non-application of mind. 22. Thus, it cannot be said that the sale consideration in respect of the property in question is undervalued by more than 15 per cent, especially when no "fair market value" is determined. 23. Apart from the above, in respect of the sale instances referred to in the show-cause notice, the petitioners had specifically sought inspection of the documents but the same was not given. Failure to furnish relevant particulars of the sale instances by the revenue constitutes a clear breach of the principles of natural justice. 24. For all the aforesaid reasons, we are clearly of the opinion, that the impugned order cannot be sustained and we have no option but to quash and set aside the same which is passed under Section 269UD(1) of the Act. 25. Accordingly, the petition is allowed. Rule is made absolute in terms of prayer Clauses (a) and (b) with costs.
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2008 (6) TMI 633 - HIGH COURT OF BOMBAY
Revision u/s 263 - Seven notices issued by the CIT - seeking to revise the earlier assessment orders for a period of seven years - respondent No. 1 proceeded further and passed a revised assessment order with regard to all the aforesaid seven assessment years by seven different orders of the same revising the aforesaid assessment.
HELD THAT:- From the records, It is clear that the petitioner had approached under the Amnesty Scheme and after discussion with the Commissioner of Income Tax, it was agreed that rate of taxable income should be 8 per cent instead of 4 per cent and accordingly he was directed to file revised return at 8 per cent. Even thereafter, the second CIT, on scrutiny and verification found that the earlier decision of the CIT at 8 per cent to be fair and justifiable and accordingly, had issued directions to the LAC, BSD(S) Range, Bombay.
It is very pertinent to note that the revised assessment orders passed by the concerned ITO were solely based on the directives of the CIT, in fact the assessment orders do not indicate any other reason other than the directions mentioned by the CIT also could not dispute that the Department was bound by the Circulars.
We find that the ITO had passed revised assessment order based on the revised return at 8 per cent. The said order is solely based on the directives given by the earlier CIT and the same could not be revised by the subsequent CIT exercising the power u/s 263.
Over and above, we do not find any error or anything unsustainable in law. On the contrary, it appears that the second CIT consistently took a view that 8 per cent would be a fair percentage and a third CIT could not consider the same as 'erroneous' or 'unsustainable in law'. In fact both the notices which were issued u/s 263 as well as revised assessment orders passed by the CIT are totally unsustainable in law for the aforesaid reasons.
Hence, all the seven notices issued u/s 263 as well as seven assessment orders passed by the CIT stand quashed and set aside. Accordingly, rule is made absolute with no order as to costs.
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2008 (6) TMI 632 - BOMBAY HIGH COURT
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... ... ..... ted 22-9-1987 the accused was required to pay interest and the amounts paid by the accused would certainly be adjusted towards interest which the accused was required to pay. Learned Counsel further submits that as on 16-3-1999 and as per letter of that date the accused was required to pay a sum of ₹ 7,37,144-05 along with interest of ₹ 2,35,503/-. Learned Counsel further submits that the fine to be imposed could be double the amount which remains to be unpaid. 33. I am not inclined to accept the submission made on behalf of the Complainant on this aspect of the case. This is not a suit for recovery of the amount due. The cheque was for ₹ 5,00,000/-. The Complainant has received ₹ 4,45,000/-. Considering these facts and other circumstances of the case, in my view, the ends of Justice would be met by directing the accused to pay a compensation of ₹ 1,00,000/-, in default to undergo six months S.I. The fine to be paid within a period of sixty days.
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2008 (6) TMI 631 - COMPANY LAW BOARD, PRINCIPAL BENCH, NEW DELHI
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... ... ..... IV. Considering the state of affairs of the Accounts and the allegations of siphoning of the amounts, the R-1 is hereby directed to appoint an independent Auditor to investigate into the accounts of the R-1 for the year ending as on 31.3.2004, 31.3.2005, 31.3.2006 and upto 8.2.2007 within a period of three weeks on receipt of this order to ascertain the amounts siphoned off. The respondents are hereby directed to restore the amounts so ascertained and quantified by the Auditor to be appointed to the R-1 without any delay. V. The illegal shifting of the registered office of the R-1 company to R-2's residence is hereby cancelled. VI. Since P-1 is willing to go out of the R-1 on receipt of fair valuation of his shareholding and other dues he is given the option to go out of the R-1 on receipt of fair valuation of his shares and other dues. 55. C.P No. 19/2007 is disposed of in the above terms. All CAs stand disposed off. All interim order stand vacated. No order as to cost.
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2008 (6) TMI 630 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
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... ... ..... r is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. 10. These observations aptly sum up the legal position and apply to the facts before us. We have therefore no hesitation in holding that there was no violation of the principles of natural justice merely because the appellants were not given a personal hearing. 11. No other point was raised. In the result, the appeal fails and the same stands dismissed leaving the parties to bear their own costs.
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2008 (6) TMI 629 - KERALA HIGH COURT
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... ... ..... ficiaries, who are the employees. Besides this, the fund is constituted of contribution from employees and employers. Therefore, I feel it is a fit case for the State Government to take up the matter to Central Government, so that a policy decision is taken with regard to the claim of exemption by various Boards, which have the same object. Petitioners will, therefore, approach the Secretary, Department of Labour, State Government, for him to take up the matter with the Central Finance Minister and the Central Labour Minister for getting exemption. If the matter is taken up to the Central Government, the concerned department will take a decision without any delay. Since under interim orders, the tax portion of the interest is retained by the Banks, Treasuries etc. I direct the respondents to continue the arrangement for another six months from now also, within which time, petitioners can obtain orders from the Central Government. These writ petitions are disposed of as above.
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2008 (6) TMI 628 - KERALA HIGH COURT
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... ... ..... ion is dietary supplement or is it a medicine or is it a commodity that would not fall in any of the description that is enumerated in the Schedule to the Act. This cannot be done by us in a petition filed under Section 41 of the Act. Therefore, we set aside all the orders by the authorities under the Act and the Tribunal for the assessment years in question and we further issue a direction to the assessing authority to pass a fresh order in accordance with law after verifying the commodity in question and the purpose for which it is sold etc. This exercise the assessing authority shall complete as expeditiously as possible and at any rate within six months from the date of receipt of a copy of this court order. It is needless to say, that, before completing the assessment proceedings the assessee is afforded a reasonable opportunity of hearing. Accordingly, we dispose of these revision petitions. 13. All the pending interlocutory applications are closed. Ordered accordingly.
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2008 (6) TMI 627 - KERALA HIGH COURT
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... ... ..... rental income from furniture under the head "Income from other source". Apart from the past assessments consistent with the assessee’s claim, we do not think assessee has any case to ask for assessment of rental income from building under the head "Income from other source" because rental income from building squarely falls under the head "Income from house property". If the petitioner’s claim is accepted, then rental income received from any furnished accommodation will have to be assessed under the head "Income from other source". Since the Income-tax Act provides for assessment after classifying the income under the appropriate head, petitioner cannot ask for shifting of head of income to another merely because the agreement provides for collection of rent for the building along with furniture. We therefore uphold the order of the Tribunal and answer the question referred in favour of the revenue and against the assessee.
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2008 (6) TMI 626 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... they relied on the decisions in the case of Gem Star Enterprises Pvt. Ltd. v. CCE - 2007 (7) S.T.R. 342 (Tri. Bang.) and Foster Wheeler Energy Ltd. v. CCE 2007 (7) 443 (Tribunal) 2007 (81) RLT 893 (CESTAT, Ahmd.) . I can certainly term that the above approach is very absurd. It is a settled law that when fresh demand is raised, the principle of ‘cum-tax price’ has to be followed. Thus, this is another omission noticed like the adjudicating authority did not extend the SSI exemption limit. In view of the above, I agree with the contentions of the appellants and the above principle was not followed by the adjudicating authority. 12. From the above discussions, all the appellants have not only succeeded on merits, but also on time bar aspect and consequently, imposition of penalty and claiming of interest also do not survive. 13. In view of the above, I allow all the six appeals by setting aside all the Orders-in-originals connected with the above appeals.
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2008 (6) TMI 625 - SUPREME COURT OF INDIA
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... ... ..... be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.” 8. The backgrounds clearly show that the proceedings instituted were mala fide, based on vague assertions and were initiated with mala fide intents and constitute sheer abuse of process of law. No reason was shown before the High Court as to why the complainant chose not to proceed against one of the four persons initially named. The cases at hand fit in with Category (7) of Bhajan Lal case. 9. The appeals are allowed and the proceedings in Complaint Case No. 40 of 1994 in the Court of Judicial Magistrate, First Class, Patna City stand quashed.
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2008 (6) TMI 624 - NATIONAL COMPANY LAW BOARD, PRINCIAL BENCH, NEW DELHI
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... ... ..... o substantial justice between the parties, I hereby order as follows I. The notice for the EOGM for removal of the petitioner as Director of the R-1 company is hereby quashed being illegal and unwarranted. II. The illegal issue and allotment of 85 lakhs equity shares on 4 9.2004 being totally mala fide, only motive being to gain control of the company is hereby declared null and void, all allotments are set aside and status quo ante is hereby restored. III. The petitioner is hereby given liberty to get investigative Audit done in respect of the Accounts of the R-1 company for the five preceding years till the date of filing of this petition to get the siphoned off and diverted funds ascertained and quantified from the Auditors entitling R-1 to recover such dues from the respondents held responsible by the Auditors so appointed. 90. The petition is disposed off in the above terms. All CAs stand disposed off. All interim orders stand vacated. No order as to cost of litigation.
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2008 (6) TMI 623 - ALLAHABAD HIGH COURT
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... ... ..... ffected by the impugned order as they will be deprived of depositing their money and continuing to deposit their money with the petitioner, in various schemes launched by the petitioner and large number of employees, agents, staff will lose their livelihood, we have no option except to stay the operation and enforcement of the impugned order dated 4.6.2008 till further orders of this Court. The petitioner shall not accept any new deposit whose maturity will be beyond June, 2010. Since the Reserve Bank of India has mentioned in the impugned order that the deposit taking activities of the petitioner are not in conformity with the practices and directions and guidelines issued by the Reserve Bank of India, we direct that the petitioner shall complete all the required formalities and will follow the directions issued by the Reserve Bank of India from time to time. List this petition in the last week of July, 2008. In the meantime, the opposite parties may file counter affidavit.
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2008 (6) TMI 622 - CALCUTTA HIGH COURT
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... ... ..... tion, to the certified copy of the order without insisting on a hand written copy. None appears on behalf of the Central Government. The objection filed by the Central Government be kept on record. The applicants are directed to pay costs assessed at 300 GMs. to the Central Government. With the aforesaid direction, CP No.150 of 2008 is disposed of. All parties concerned are to act on a signed xerox copy of this order on the usual undertakings.
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2008 (6) TMI 621 - CESTAT MUMBAI
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... ... ..... Food Products (Supra). In the case MTR Foods the products was ‘Rasam Mix’ itself which was to be just added to boiling water, vehicle in the case before us the Rasam Powder is to be added to complete to complete prepared Rasam. Hence we are of the considered view that the decision of the Tribunal in the case of MTR Products (supra) may not apply to the facts and circumstances of the case before us. Accordingly, we are of the considered opinion that the impugned order of the adjudicating authority is correct and does not suffer from any infirmity in respect of the classification of the products except for ‘jiralu’. 17. The impugned order is upheld to the extent of all other products and as regards classification of product ‘Jiralu’ we remand the matter back to the adjudicating authority for limited purpose of considering the evidences and then arriving at a conclusion. Both the appeals are disposed off accordingly. (Pronounced in court on)
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2008 (6) TMI 620 - COMPANY LAW BOARD, CHENNAI
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... ... ..... 1.03.2005 shall be allowed to ascertain the net worth of the Company. (f) The petitioner shall exit the Company on receipt of the value of his shares, as per valuation of the Statutory Auditor. Towards this end, the respondents shall pay the consideration for the petitioner's shares by 31.08.2008, upon which the latter shall handover his share certificates together with a blank signed transfer form to the respondents. The whole process shall be completed by 15.09.2008. Till such time the respondents shall not sell the immovable properties of the Company. In the event of the Company purchasing the shares, the Company, under authority of this order, is permitted to reduce its share capital. 42. With the above directions, the company petition and all connected company applications stand disposed of, subject to the right of giving appropriate directions on the exit modalities of the petitioner from the Company. In view of this, all interims are vacated. No order as to costs.
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2008 (6) TMI 619 - BOMBAY HIGH COURT
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... ... ..... well as further affidavit of Shri. Bharat More dated 3rd December 2007 and produced alongwith the affidavits filed on behalf of the Official Liquidator, in this Court within eight weeks from today. On depositing the said documents, it would stand impounded and then made over to the Deputy Inspector General of Registration and Deputy Controller of Stamps, Old Custom House, Mantralaya, Mumbai-32 for proceeding against the said documents in accordance with law. All questions in that behalf are kept open to be decided on merits. (vi) Order accordingly. 47. After the Order was pronounced, Counsel for the Applicant seeks stay of operation of this Order to enable the Applicant to take up the matter in appeal. As the Applicant has remedy of appeal, in the interest of justice, it is ordered that the Official Liquidator may proceed to take other steps in terms of this Order except to dispossess the Applicant from the premises on the third floor, for a period of four weeks from today.
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2008 (6) TMI 618 - BOMBAY HIGH COURT
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... ... ..... erefore, the applicant ought to have filed the revision. 4. There can be no doubt that an amendment of the nature sought by the respondent No.1 herein cannot be permitted. The complainant had averred in his complaint that the cheques were drawn on a particular bank. The verification has also been recorded and process has been issued. Further, the plea of the accused has also been recorded. No amendment could have been allowed in the complaint at this stage. Besides, the change of the name of the bank in my opinion, results in a substantial change in the complaint and, therefore, such an amendment cannot be allowed. 5. The order allowing the amendment is set aside and is quashed. It is made clear that the application is being disposed of only in respect of prayer Clause (a). As regards prayer Clause (b), the applicant has an alternate remedy of filing a revision and, therefore, he is relegated to that remedy. 6. Application is disposed of accordingly. Application disposed of.
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2008 (6) TMI 617 - BOMBAY HIGH COURT
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... ... ..... correct in law, in allowing 100 CENVAT credit when as per the existing provisions of CENVAT Credit Rules, only 50 credit is admissible in the current financial year ? b) Whether, it is correct to allow the credit of sales tax in CENVAT account, when it is not at all admissible.
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