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2012 (5) TMI 872 - DELHI HIGH COURT
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... ... ..... ovided for. Having regard to the fact that execution proceedings would end only in one order of satisfaction, this court is of the opinion that till final orders are made in the pending special leave petition, the executing court should not proceed to act on the entire decree, as regards the liability of Dr. B.K. Modi. Therefore, the execution proceedings as against him would proceed for recovery of the interest liability, i.e. Rs.13 crores. The executing court shall proceed to recover the other amounts, from Dr. Modi in the light of, and subject to final order of the Supreme Court. All rights of Dr. Modi, to recover any amounts from the principal borrower, or to seek restitution of any amounts which may become due from the decree holder, available in law, in terms of provisions of the Contract Act, and the Civil Procedure Code, are expressly reserved. EFA (OS) No. 23/2011 is dismissed, but subject to the directions in the preceding paragraph. EFA (OS) No. 26/2011 is allowed.
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2012 (5) TMI 871 - DELHI HIGH COURT
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... ... ..... efendant/UOI. I probably feel that the correct position is that appellant/plaintiff is trying to take advantage of an alleged admission of payment due of the disputed 17 bills in an execution proceedings although the bills were subject matter of arbitration proceedings and an Award i.e. a due adjudication. The appellant/plaintiff must have thought that UOI have committed a mistake of admitting amounts due of the 17 bills (although there was due adjudication/Award for these bills) in a collateral execution proceedings. In view of the above, the appeal being wholly devoid of merit, is dismissed with costs of ₹ 40,000/- in view of the ratio of judgment in the case of Ramrameshwari Devi and Others v. Nirmala Devi and Others, (2011) 8 SCC 249 and in terms of Volume V of the Punjab High Court Rules and Orders (as applicable to Delhi) Chapter VI Part I Rule 15. Costs shall be paid within a period of 4 weeks from today. Decree sheet be prepared. Trial Court record be sent back.
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2012 (5) TMI 870 - SUPREME COURT
Murder - Offence punishable u/s 120B r/w Section 302 Indian Penal Code - inordinate and unexplained delay in lodging the FIR - Time of occurrence cannot be validly related to the expert medical evidence - Plea of Alibi - Challenge the Conviction Judgment of the High Court as well as that of the Trial Court - HELD THAT:- It is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of a case, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of the version put forward. If the Court is satisfied, then the case of the prosecution cannot fail on this ground alone. Shubh Shanti Services Ltd. V. Manjula S. Agarwalla and Ors.[2005 (5) TMI 324 - SUPREME COURT].
It is a case where the ocular evidence of PW11 is corroborated by medical evidence and is also partially supported by the statement of PW10, the husband of the deceased. Thus, in our considered view, the statements of PW10 and PW11 cannot be said to be doubtful or which cannot be believed by the Court. Their presence at the place of occurrence was natural and what they have stated is not only plausible but completes the chain of events in the case of the prosecution.
The accused in the present appeal had also taken the plea of alibi in addition to the defence that they were living in a village far away from the place of occurrence. This plea of alibi was found to be without any substance by the Trial Court and was further concurrently found to be without any merit by the High Court also. In order to establish the plea of alibi these accused had examined various witnesses. Some documents had also been adduced to show that the accused Pawan Kumar and Sunil Kumar had gone to New Subzi Mandi near the booth of DW-1 and they had taken mushroom for sale and had paid the charges to the market committee, etc. Referring to all these documents, the trial court held that none of these documents reflected the presence of either of these accused at that place.
On the contrary the entire plea of alibi falls to the ground in view of the statements of PW-10 and PW-11. The statements of these witnesses have been accepted by the Courts below and also the fact that they have no reason to falsely implicate the accused persons. Once, PW-10 and PW-11 are believed and their statements are found to be trustworthy, as rightly dealt with by the Courts below, then the plea of abili raised by the accused loses its significance.
The proposition of law advanced by the counsel for the Appellants cannot be disputed. The fact of the matter remains that statement of Ratti Ram u/s 313 Code of Criminal Procedure is part of the judicial record and could be used against Ratti Ram for convicting him, if the prosecution had proved its case in accordance with law. Ratti Ram, unfortunately, died during the pendency of the proceedings. The part of his statement that supports the case of the prosecution as well as the statement of PW-10 and PW-11 can be relied upon by the prosecution to a limited extent. This statement may not be used against the present accused as such, but the fact that the statement of Ratti Ram u/s 313 Code of Criminal Procedure supports the case of the prosecution cannot be wiped out from the record and would have its consequences in law. Without using the statement of Ratti Ram against these accused, the courts below have correctly relied upon the statement of PW-10 and PW-11 and the medical evidence. This finding recorded by the Courts cannot, therefore, be faulted with.
The present accused have not been convicted on the basis of a mere suspicion. The prosecution has been able to establish its case beyond reasonable doubt by ocular, documentary and medical evidence. The bangles which were recovered from the place of occurrence and the injuries that were inflicted upon the body of the deceased clearly show that she struggled for life and was murdered at the hands of accused. Thus, it is not a case of mere suspicion.
We have noticed that Pawan Kumar had preferred a separate appeal which came to be dismissed by this Court on the ground of delay as well as on merits. of course, dismissal of the SLP at the admission stage itself may not adversely affect the case of the present Appellants. We do not intend to dwell on this issue any further.
We also do not propose to rely upon the dismissal of the SLP filed by Pawan Kumar since we have come to an independent conclusion on merits that the prosecution in the present case has been able to bring home the guilt of the Appellants-accused and the judgment of the High Court under appeal does not call for any interference.
Thus, both the above appeals are dismissed.
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2012 (5) TMI 869 - ITAT CHENNAI
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... ... ..... ingly. Connected M.P. is closed. 6. As such, as of now, the substantive block assessment completed in the hands of Shri Ku.Pa.Krishnan stands set aside and the matter is remanded to the Assessing Officer for fresh disposal in accordance with law after considering the additional evidences that may be produced by Shri Ku.Pa.Krishnan. 7. As the substantive block assessment made in the hands of Shri Ku.Pa. Krishnan is set aside and remanded back to the Assessing Officer for fresh disposal, the impugned protective assessments also need to be remanded back to the Assessing Officer to consider the same in the light of the judgment pronounced by the Hon ble Jurisdictional High Court. 8. In result, the appeals filed by the assessees as well as the appeals filed by the Revenue are treated as allowed for statistical purposes and the cases are remitted back to the assessing authority. Orders pronounced in the open court at the time of hearing on Wednesday, the 9th of May, 2012 at Chennai
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2012 (5) TMI 868 - SUPREME COURT
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... ... ..... e property till the disposal of the suit. The High Court lost sight of the fact that if the temporary injunction restraining Liberty Agencies and its partners from allowing, leasing, sub-leasing or encumbering the suit schedule property was not granted, and the Respondent No. 1 ultimately succeeded in the suit, it would be entitled to damages claimed and proved before the court. In other words, the Respondent No. 1 will not suffer irreparable injury. To quote the words of Alderson, B. in The Attorney-General v. Hallett 153 ER 1316 (1857) 16 M. W. 569 I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause. 18. For the aforesaid reasons, we set aside the order of temporary injunction passed by the trial court as well as the impugned judgment and the order dated 16.07.2010 of the High Court. The appeals are allowed with no order as to costs.
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2012 (5) TMI 867 - ITAT CHENNAI
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... ... ..... ing to the above conclusion, the Hon'ble Supreme Court has referred to its various decisions in this judgment which also favour the case of the assessee. We, therefore, do not find any force in this ground of Revenue as well. 6. Assessee here also was using the logo owned by Shriram Chits and Investments Ltd. and therefore, respectfully following the decision of co-ordinate Bench, we are of the opinion that the CIT(Appeals) was justified in directing the A.O. to allow the royalty expenses as revenue. The Tribunal had, while giving the above decision, considered the decision of Hon'ble Apex Court in the case of Jonas Woodhead and Sons (India) Ltd. v. CIT (224 ITR 342). 16. Respectfully following the Tribunal s order dated 24.06.2011, we decide this issue in favour of the assessee. The grounds of appeal of the Revenue on this issue are dismissed. 17. In the result, the appeal of the Revenue is partly allowed. Order pronounced on Tuesday, the 8th of May, 2012 at Chennai.
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2012 (5) TMI 866 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... of income of the trust for charitable and religious purposes in the subsequent year in which adjustment has been made having regard to the benevolent provisions contained in section 11 of the Act and that such adjustment will have to be excluded from the income of the trust under Section 11(1) (a) of the Act. Our view is also supported by the judgment of the Gujarat High Court in the case of CIT v. Shri Plot Swetamber Murti Pujak Jain Mandal, 1995 211 ITR 293. Accordingly, we answer question No.3 in the affirmative, i.e., in favour of the assessee and against the Department. 6. In view of the judgment of the Gujarat High Court in Shri Plot Swetamber Murti Puja jain Mandal's case (supra) and Bombay High Court in Institute of Banking's case (supra), it is held that the issue herein stands concluded against the revenue. Accordingly, no question of law much less substantial question of law arises for consideration in this appeal. 7. Consequently, the appeal is dismissed.
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2012 (5) TMI 865 - SUPREME COURT
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... ... ..... ous disposal of the trial is also a facet of fairness of the trial and speedy trial is infact a fundamental right as observed by this Court in Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 81. When witnesses from distant places are sought to be summoned, early conclusion of the trial becomes so much more difficult apart from the fact that the prosecution will have to bear additional burden by way of travelling expenses of the official and non-official witnesses summoned to appear before the Court. 13. In the result, we allow this petition and transfer Criminal Case No. 45 of 2008 entitled C.B.I v. Mrudul Milind Damle and Anr. pending in the Court of Special Judge, CBI Cases, Rohini Courts, New Delhi to the Court of Special Judge, CBI Cases, Court of Sessions at Thane, Maharashtra. The record of the case shall be forthwith transferred to the transferee Court which shall take up the matter and dispose of the same as expeditiously as possible.
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2012 (5) TMI 864 - ALLAHABAD HIGH COURT
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... ... ..... e public on account of their high good will in the society. People purchase the items of branded companies blindly because of their goodwill and they rely on the contents displayed on the wrapper of the company. In the present case, the petitioners' company has rather played fraud with the public at large by displaying that they are producing toilet soaps in accordance with the prescribed standards, whereas the fatty contents were altogether very low. It appears that the fatty contents were reduced on account of their interpolation in the manufacturing. Less fatty contents can affect the skin of the public and it can also be susceptible to various skin deceases. Therefore, the petitioners' company, being a high reputed company, cannot be absolved in such a manner from prosecution. On a consideration of the aforesaid case laws, I do not find any ground to quash the proceedings instituted against the petitioners. Petition is devoid of merit. It is accordingly dismissed.
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2012 (5) TMI 863 - ITAT DELHI
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... ... ..... the Act whereas the AO has imposed penalty for concealment of income under the normal provisions of the Act. Thus there is no finding in assessment order that income has been under assessed. Moreover the assessee had furnished all information relating to computation of capital gains. The assessee made a claim for indexation w.e.f. 1.4.1981 which was not sustainable under law. It will not amount to furnishing of inaccurate particulars of income in view of decision of Hon’ble Supreme Court. Moreover, as discussed above computation of loss under capital gains is academic in nature in view of the fact that income was finally assessed under MAT provisions. Hence penalty u/s 271(1)(c) is not imposable. Accordingly we do not find any infirmity in the order of the CIT(A) deleting the penalty u/s 271(1)(c) with reference to loss under capital gains. 8. In the result, the appeal filed by the Revenue is dismissed. 9. This decision is pronounced in the Open Court on 18th May, 2012.
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2012 (5) TMI 862 - ITAT CUTTACK
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... ... ..... of the financial year when a demand is made in the ensuing FY to be liquidated within a period of 15 days. As it is a voluntary contribution from all the miners of the District, the Government authorities are particular to require the periphery development expenses to be borne in proportion to their working in the earlier year cannot be considered for accounting the same under the mercantile system of accounting when the expenditure had not crystallized in the earlier years and could be paid only after ascertaining the contribution to be borne by the respective mine owners as periphery development expenses to be borne as their share. 8. For the reasons discussed above, we have no hesitation to hold that the assumption of jurisdiction by the learned CIT was not proper and we therefore, quash the impugned orders passed by the learned CIT for both the AYs under consideration by allowing the appeals of the assessee. 9. In the result, both the appeals of the assessee are allowed.
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2012 (5) TMI 861 - ITAT MUMBAI
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... ... ..... e even if it is assumed that the payment for broadcasting cricket constitutes royalty, such royalty does not arise in India within the meaning of provisions of art. 12(7) of the tax treaty-Stanley Keith Kinnett, In re (1999) 154 CTR (AAR) 193 (1999) 238 ITR 155 (AAR) and CIT vs. Elitos SPA. (2005) 196 CTR (All) 638 (2006) 280 ITR 495 (All) relied on.” 6. Before us, both the parties agree that the proposition laid down in this case is applicable to the facts on hand. Thus, respectfully following the same, we dismiss the ground raised by the Revenue. 7. Ground no.3, reads as follows - “3. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that the assessee was not liable to the provisions of section 201(1) and 201(1A) of the Act.” 8. This ground is consequential in nature. Accordingly, the same is dismissed. 9. In the result, Revenue’s appeal is dismissed. Order pronounced in the open Court on 18th May 2012.
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2012 (5) TMI 860 - DELHI HIGH COURT
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... ... ..... long way in controlling the tendency of filing false cases. 30. Conclusion On consideration of totality of the facts and circumstances of this case, I do not find any infirmity in the well reasoned impugned judgment. The appellant has misused the process of law by raising a false claim. The appellant has no respect for truth and has made false statements on oath. The appellant has shamelessly resorted to falsehood and has attempted to pollute the pure fountain of justice with tainted hands and, therefore, the appellant is not entitled to any relief. This case is squarely covered by the above mentioned judgments and warrants prosecution as well as imposition of penal costs on the appellant. However, considering that the Courts are already overburdened, directing prosecution of the appellant would further burden the system. This appeal is consequently dismissed with costs of Rs. 2,00,000/- on the appellant. The cost be paid by the appellant to the respondent within four weeks.
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2012 (5) TMI 859 - DELHI HIGH COURT
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... ... ..... n Vedanta Alumina Ltd (supra) has unequivocally held on an interpretation of Sec. 11 of the NEAA Act, 1997 that the expression “aggrieved person‟ used therein denotes an elastic and to an extent an elusive concept and has to be given the widest operation as the language will permit. Accordingly, it was held that an organization working in the area in question, closely following issue of setting up of industries and the impact thereof on the environment, would be a “person aggrieved‟ and entitled to exercise of right to appeal. We have no reason to differ from the said view. No argument also in this regard has been raised though clarifying that the same should not constitute an admission. Once that is the position, it axiomatically follows that the order of the NEAA under challenge in this petition cannot be sustained. The same is accordingly set aside and the appeal remanded to the NEAA and/or its successor for decision on merits. No order as to costs.
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2012 (5) TMI 858 - SUPREME COURT
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... ... ..... ther as owner or on hire. Borrowing or using the means owned by someone else is impermissible. If someone offers gift for going for Hajj one is within rights to accept or reject the offer. The expenses of traveling and mode of transport means that one should have, besides a house for residence, clothes, household articles, sufficient money for traveling to Makkah and for coming back; if there are any loans, to repay them and to leave behind sufficient money for expenses on those dependent upon him. (Fatawa-e-alamgiri edited and corrected by Abdul Latif Hasan Abdul Rehman Darul Kutubul Ilmiya Beirut, Lebanon 2000 Vol. 1 Page 240). See also the Religion of Islam by Maulana Mohammad Ali S. Chand and Company Pages 525-526. See also Kitab-ul-fiqh by Abdul Rehman Al Jazeeri translated by Mr. Manzoor Ahsan Abbassi, published by Mehqama Auqaf Punjab, Lahore, 1977 Pages 1034-1035. See also Qamusool Fiqh by Khalid Saifulla Rehmani, Kutubkhana Naiyeemya Deoband 206, Vol. 3 Pages 195-196
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2012 (5) TMI 857 - ITAT DELHI
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... ... ..... r. 5. Against this order the Assessee is in appeal before us. 6. We have heard the rival contentions in light of the material produced and precedent relied upon. We find that lower authorities have put the onus on the assessee to prove that the said bank account is bogus. In this regard, assessee has categorically stated that the said account was not opened by the assessee. The bank has not replied to the query of the Assessing Officer. So adverse inference on the assessee cannot be made in this regard. In our considered opinion, interest of justice will be served if the matter is remitted to the file of the Assessing Officer to consider the issue afresh. Accordingly, we remit this issue to the file of the Assessing Officer to consider the issue afresh. Needless to add that the assessee should be given adequate opportunity of being heard. 7. In the result, the appeal filed by the Assessee stands allowed for statistical purposes. Oder pronounced in the open court on 11/5/2012.
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2012 (5) TMI 856 - BOMBAY HIGH COURT
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... ... ..... is Court, is binding on me. In this judgment, it has been upheld that land bearing survey No. 106 of Carapur village belongs to Manoramabai Rauji Rane Group. It is not known as to how long the Special Leave Petition before the Hon'ble Apex Court would take for its final disposal. There is no point in keeping the present appeal pending till then. If the judgments are set aside in the said Special Leave Petition, Sanyogita Rane Group can take recourse to Section 144 of the Code of Civil Procedure. 29. Various contentions were also advanced on the point of maintainability of the cross objection. However, I need not go minutely in the same. 30. In view of the above, there is no substance in the present appeal as well as the cross objection. 31. The impugned judgment and award is in accordance with the settled principles of law. No interference with the same is called for. In the result, the appeal and the cross objection are both dismissed, however, with no order as to costs.
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2012 (5) TMI 855 - ITAT CHANDIGARH
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... ... ..... ddition has been added by the Assessing Officer naturally this sum would be available to explain various assets against this income. Naturally it cannot be presumed that whole of the income has been spent by the assessee. On a specific enquiry by the Bench the Revenue could not show that the assessee had utilized this amount for explaining any other assets, therefore, in our opinion, this amount was available to explain the cash during survey amounting to ₹ 4.00 lakhs, ₹ 4.00 lakhs deposited in the bank and ₹ 10.00 lakhs paid on account of agreement to sell for purchase certain properties. Therefore, these amounts should have been telescoped against the income of ₹ 83.50 lakhs. Accordingly we allow the benefit of telescoping and deleted the addition of ₹ 18.00 lakhs on account of addition of said three items. Accordingly we set aside the order of ld. CIT(A). 7. In the result, appeal filed by the assessee is allowed. Order pronounced on 21.5.2012.
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2012 (5) TMI 854 - ITAT MUMBAI
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... ... ..... as the computation of indexation cost is concerned, the Assessing Officer computed the indexation cost as per the date of payment by the assessee to the builder instead of the year of purchase taking as a base year. In our view, this issue of taking the indexation cost, as per the payment date, is only in the nature of disallowing the claim of the assessee as the Assessing Officer was having a different opinion that of the assessee. Therefore, the claim of the assessee was neither bogus nor absolutely wrong but because of the bonafide mistake and difference of opinion. 5 In view of these facts and c circumstances of the case, it cannot be held that the assessee has furnished inaccurate particulars of income or concealed any particulars of income leading to levy of penalty u/s 271(1)(c) of the I T Act. Accordingly, we delete the penalty levied u/s 271(1)(c) of the Act. 6 In the result, the appeal filed by the assessee is allowed. Order pronounced on this 16th, day of May 2012.
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2012 (5) TMI 853 - ITAT AHMEDABAD
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... ... ..... his action and decline to interfere in the matter.” 18.3 In the present case, the facts are still better because in the present case, the reserve was directly credited to P & L account instead of reducing form expenses incurred. Therefore, in the light of this tribunal decision cited by the Ld. A.R., we are of the opinion that the amount of money transferred from equity premium (reserve and surplus) has to be allowed to be reduced from book profit as per clause (i) of Explanation (1) to Section 115JB(2) of the Act. We, therefore allow this claim of the assessee for reduction from book profit. Accordingly, ground No.1(d) of the revenue’s appeal in assessment year 2006-07 is also rejected. 19. In the result, both these appeals of the revenue are dismissed. 20. In the combined result, all the three appeals of the revenue are dismissed and both the appeals of the assessee are partly allowed. 21. Order pronounced in the open court on the date mentioned hereinabove.
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