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Showing 1 to 20 of 1946 Records
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2014 (1) TMI 1949 - MADHYA PRADESH HIGH COURT
Appeal against an acquittal can be said to be a continuation of criminal case - Claim for settlement of wages of suspension period rejected.
Rejection on the ground that having acquitted of an offence under Section 13 (1) (e) and 13 (2) of Prevention of Corruption Act, 1988, filing of an appeal against the order of acquittal does not tantamount to judicial proceeding as would prevent the petitioner from claiming his lawful right of wages?
HELD THAT:- Section 2 (i) of the Criminal Procedure Code, 1973 defines expression "judicial proceeding" "includes any proceeding in the course of which evidence is or may be legally taken on oath." The definition as apparent is not exhaustive. Therefore, before proceeding can be held to be a judicial proceeding, it must be found that in the course of that proceeding evidence is or may be legally taken on oath. If evidence could not be taken legally on oath it would not judicial proceeding - With the acquittal the charges of commission of offence gets washed of. A person so acquitted of the charges stand at par with a person who is not being charged and was not subjected to a criminal proceeding.
The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial presumption of innocence gets re-enforced by the orders of acquittal. The contention, therefore, put forth by the respondents that the filing of revision against the judgment dated 12.12.2000 would tantamount to the pendency of judicial proceeding does not reason with the provisions as they stand under law.
Since with the acquittal of petitioner for an offence under Section 13 (1) (e) and 13 (2) of 1988 Act, his suspension which was based on criminal proceedings stands unjustified. The respondents are directed to settle the same within a period of 3 months from the date of communication of this order - Petition allowed.
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2014 (1) TMI 1948 - SC ORDER
Review petition - Rectification of mistake - error apparent on the face of the record to warrant recall or not - direction to the Appellant-State and its officials to regularize the services of Respondents-workmen - it was held by SC that the benefit should be granted to the eligible daily wage workers of the Forest and Environment Department working for more than five years including those who are performing work other than building maintenance and repairing but they will be entitled for the consequential benefit w.e.f. 29th October, 2010 or subsequent date from which they are so eligible within four months from the date of receipt/production of the copy of this order.
HELD THAT:- There are no error apparent on the face of the record to warrant recall - review petition dismissed.
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2014 (1) TMI 1947 - SUPREME COURT
Entitlement to claim pension under the General Insurance (Employees) Pension Scheme 1995 - Respondents opted for voluntary retirement from the service of the Appellant-companies - HELD THAT:- In the case at hand Para 2 of the Pension Scheme 1995 (extracted earlier) defines the expressions appearing in the scheme. But what is important is that such definitions are good only if the context also supports the meaning assigned to the expressions defined by the definition clause. The context in which the question whether pension is admissible to an employee who has opted for voluntary retirement under the 2004 scheme assumes importance as Para 2 of the scheme starts with the words "In this scheme, unless the context otherwise requires". There is nothing in the context of 1995 Scheme which would exclude its beneficial provisions from application to employees who have opted for voluntary retirement under the Special Scheme 2004 or vice versa.
The term retirement must in the context of the two schemes, and the admissibility of pension to those retiring under the SVRS of 2004, include retirement not only under Para 30 of the Pension Scheme 1995 but also those retiring under the Special Scheme of 2004. That apart any provision for payment of pension is beneficial in nature which ought to receive a liberal interpretation so as to serve the object underlying not only of the Pension Scheme 1995 but also any special scheme under which employees have been given the option to seek voluntary retirement upon completion of the prescribed number of years of service and age.
These appeals fail and are hereby dismissed.
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2014 (1) TMI 1946 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of regular bail - recovery of 50 bottles of “Rexcof” of 100 ml each having Chlorpheniramine Malteate IP-4mg. and Codeine Phosphate IP-10 mg. - alleged commission of an offence punishable under Section 22 of the NDPS Act - this application was filed on the ground that despite efforts made by the investigating agency the report of the Director Forensic Science Laboratory had not been received, thereby making it difficult to present the report under Section 173 Cr.P.C. within time - HELD THAT:- The application for extension of time for presenting the challan in the present case, only on the ground of non-reciept of the FSL report, without giving any reasons, as to why non-receipt of such report was sufficient cause for delay in the completion of investigation, would amount to non-application of mind, as is essential for seeking such extension of time by the public prosecutor, as has been held by the Supreme Court in Sanjay Kumar Kedia @ Sanjay Kedia vs. Intelligence Officer, Narcotic Control Bureau & another [2009 (8) TMI 1290 - SUPREME COURT] and Uday Mohanlal Acharya vs. State of Maharashtra [2001 (3) TMI 1032 - SUPREME COURT].
Though, it would be immaterial in the context of an application moved under Section 167(2) Cr.P.C., however, it is necessary to also mention that, upon enquiry from the learned State Counsel, Mr. Sidhu has stated, on instructions, that the petitioner is not a habitual offender.
The petitioner would, consequently, be released on bail upon providing adequate bail and surety bonds to the satisfaction of the learned trial Court - petition allowed.
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2014 (1) TMI 1945 - RAJASTHAN HIGH COURT
Maintainability of suit - time limitation - decree for suit for recovery of legitimate dues against the respondents-defendants No. 1, 2 and 3 jointly and severally - HELD THAT:- Admittedly, the appellant-bank preferred a suit before the learned trial court with the prayer for decreeing the suit for recovery of its legitimate dues against the respondents-defendants No. 1, 2 and 3 jointly and severally. The learned trial court reached to the conclusion that all the documents were executed by the defendants in favour of the Bank and accordingly decreed the suit against the respondents-defendants No. 1 and 2, however, learned trial court dismissed the suit as against the respondent-defendant No. 3 on the ground that it is instituted against him beyond the period of limitation.
So far as the main contention raised by the counsel for appellant-bank regarding the suit being within limitation in respect of defendant No. 3 in the light of the provisions Section 18 of the Limitation Act on the basis of acknowledgment letter executed by the defendants No. 1 and 2 confirming the balance due to acknowledging the liability, is concerned, it is to be noticed here that the defendant No. 3 executed guarantee agreement (Ex. 23) which bears the signature of the Guarantor from "A to B".
A perusal of Section 18 of the Limitation Act, makes it clear that where before expiration of the limitation prescribed in Limitation Act for filing a suit, an acknowledgment of the liability is accepted by the borrower or Guarantor or any person authorized by the Guarantor, then such acknowledgment made, shall also be applicable on the person on whose behalf it is given and fresh period of limitation shall be calculated from the date and time when the acknowledgment was signed and such acknowledgment can be signed by the borrower or Guarantor either personally or by the agent duly authorized in this behalf - a conjoint reading of the provisions of Section 18 of the Limitation Act and the condition No. 9 of the Guarantee Agreement, makes the position clear that the acknowledgment of the liability made by the principal borrowers i.e. Respondents No. 1 and 2 should be considered as an acknowledgment of the liability on behalf of the Guarantor i.e. the respondent-defendant No. 3 also, which shall be binding on him and would provide fresh period of limitation for filing suit against the defendant No. 3 either from the time it was signed by the principal borrower.
The present case is also relating the recovery of the loan amount by the sale of immovable property of defendant No. 3 which was mortgaged with the Bank to secure the loan amount - it is settled law that the liability of the principal borrower and the guarantor in respect of recovery of the loan amount is coextensive and not distinct and therefore, in the opinion of this Court, the acknowledgment for the purpose of the liability vide Ex. 21 made by the principal debtors/borrowers is also binding on the respondent-defendant No. 3 Guarantor and since the suit was filed claiming relief for recovery of the loan amount, out of the sale proceeds of the immovable property of the defendant No. 3, the suit is clearly covered under the provisions of Article 62 of the Limitation Act prescribing limitation of twelve years and accordingly, it was filed, which can be treated within the limitation.
The judgment and decree impugned passed by the trial court dated 16.8.2003 dismissing the suit as against the defendant-respondent No. 3 as barred by limitation by deciding the issue No. 2 and 3 against the appellant-bank and in favour of the respondent-defendant No. 3 is therefore, liable to be set aside and the appeal filed by the appellant-bank deserves to be allowed against the defendant No. 3 - Appeal allowed.
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2014 (1) TMI 1944 - ITAT AMRITSAR
Denial of exemption u/s 10(23C)(iiiab) - assessee has neither sought nor was granted any registration u/s 12AA for which the assessee is claiming the exemption in dispute - HELD THAT:- As in a matter of fact and record that the assessee derives income from running an educational institute in the name and style of the Malout Institute of Management and Information Technology at Malout which was established by Government of Punjab as per Memorandum of Association and Rules and under the Societies Registration Act, 1860 as amended by Punjab Amendment Act, 1947, vide No. 643 of 1998-99 dated 11.08.1998.
As assessee has claimed its income as applied towards charitable purpose as per Section 11(1)(a) of the Act. At the same time, the assessee has claimed its balance income as exempt under Section 10(23C)(iiiab). It is obvious that a question had arisen in the mind of the AO that how the assessee is claiming under two provisions of the Act i.e. Section 11(1)(a) and Section 10(23C)(iiiab) - AO asked the assessee to justify its claim and in response to the same, the assessee stated that its institute is approved as 100% Govt.
Autonomous Body and the Government has not financed any paisa to the institute in last 5 years because the institute is already having a good amount lying in Fixed Deposits with Banks. This very reply of the assessee is against the assessee which is contrary to the provisions of Section 10(23C)(iiiab). According to the provision of Section 10(23C)(iiiab) one can only get exemption, if it fulfills the conditions of this Section.
It is very much necessary for the assessee to fulfill all the conditions for exemption u/s 10(23C)(iiiab). In our considered view the assessee did not fulfill the required conditions as mentioned u/s 10(23C)(iiiab) of the Act and the FAA has wrongly deleted the additions in dispute without any basis as well without going through the relevant provisions of law.
Assessee itself admitted before the AO in its reply which we have reproduced above that the institute is approved as the 100% Govt. Autonomous Body and the Government has not financed any paisa to the institute in the last 5 years because the institute is already having a good amount lying in Fixed Deposits with Banks. We are of the view that the assessee is also not fulfilling the conditions regarding the Institute must be wholly or substantially financed by the Government.
FAA has deleted the addition in dispute contrary to the law and facts and on the file and without going through the provisions of law as well as documentary evidence establishing that the assessee is entitled for the exemption claimed under Section 12(23C)(iiiab) or Section 11 and 12 of the Act.
Principle of res-judicata - As regards to the deletion of addition in dispute on the basis that the same exemption has been allowed by the Revenue Authority in the earlier year and the learned First Appellate Authority has granted the same in the year in dispute also, we are of the view that every assessment year is an independent assessment year. In the income tax proceeding, there can be no question of res-judicata. The decision given by one Assessing Officer for one assessment year cannot affect or bind his decision for another year. This view is supported by various judgments rendered by Hon'ble Supreme Court of India, which includes in the case of New Jehangir Vakil Mills Co. Ltd. [1963 (4) TMI 60 - SUPREME COURT].
Assessee has not produced any documentary evidence before the Assessing Officer, learned CIT(A) and even before us, proving that the assessee has got approval from the prescribed authority for the exemption under Section 10(23C)(iiiab) of the Act.
Exemption claimed u/s 11(1)(a) - as mentioned in the computation of income regarding, its income applied towards charitable purpose and hence deducted 15% of its receipts deeming the same as to have been applied as per Sections 11(1)(a) of the Act. For claiming the exemption, u/s 11(1)(a) of the Act, the assessee required registration u/s 12AA of the Act. The same has also not been produced by the assessee before any authorities below and even not before us. Therefore, the assessee is not entitled for any exemption under Section 11(1)(a) of the Act.
Keeping in view the income and expenditure account as well as the fee structure of the assessee, we are of the view that the assessee is not charitable institution and it is doing business for profit and the assessee-institute has been accumulating funds year after year, which are parked with the banks in the form of FDRs, as is evident from its balance sheet as on 31.03.2009, total FDRs with the bank are of Rs. 11,27,93,116/-. Therefore, the assessee has not received any penny from the Government for the last 5 years as admitted by the assessee.
Keeping in view the aforesaid discussion, we are of the view that learned First Appellate Authority has wrongly allowed the exemption to the assessee without applying its mind to the relevant provision of law as well as lack of documentary evidence, which are required for granting exemption in dispute. Appeal filed Revenue is allowed.
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2014 (1) TMI 1943 - SUPREME COURT
Exercise of Jurisdiction under Section 482 of CrPC - Conversion of purely civil dispute into criminal act - High Court declined to quash the proceedings initiated against the Appellant on the ground that all the submissions relate to disputed questions of fact which cannot be adjudicated upon by the Court under Section 482 Code of Criminal Procedure - HELD THAT:- Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.
In Bhajan Lal's case [1990 (11) TMI 386 - SUPREME COURT], this Court enumerated the categories of cases, by way of illustration, wherein the High Court would be justified in exercising its inherent power under Section 487 Code of Criminal Procedure, or Article 226 of the Constitution of India to prevent abuse of the process of court or to otherwise secure the ends of justice.
The case pleaded by the Petitioner squarely falls within the ambit of propositions 5 and 7. In view of the above, the order passed by the High Court cannot be upheld, and the same is hereby set aside - The appeal is allowed.
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2014 (1) TMI 1942 - ITAT CHANDIGARH
Assessment u/s 153A - Addition u/s 68 - bogus LTCG - penny Stocks - any incriminating material found in the search or not? - whether in respect of completed / unabated assessment, any addition can be made by the AO in absence of any incriminating material found during the course of search u/s 132 or requisition u/s 132A or not.
HELD THAT:- In case of unabated assessment, the reassessment can be made on the basis of the satisfaction note pursuant to which the search has been initiated and books of account or other documents not produced in the course of original assessment but found in the course of search which indicate undisclosed income or undisclosed property, and secondly, the reassessment can be made on the basis of the undisclosed income or undisclosed property which is physically found and discovered in the course of search.
In case of completed assessment and not abated as on the date of search, as in the instant case, the AO has to reassess the total income of the assessee and the assessment already completed can be tinkered with or distrusted where some incriminating material is found and seized during the course of search indicating undisclosed income of the assessee.
AO would assume the jurisdiction to reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the return. In case no incriminating material is unearthed during the search, the AO cannot reassess taking into consideration the other material in respect of completed assessments/unabated assessments.
In the instant case, there is nothing on record and/or brought to our notice during the course of hearing that the Competent authority was seized of the aforesaid statement of Shri S. K Khemka at the time of recording of the satisfaction whereby the authorization has been issued and the search warrant was issued whereby the search has been initiated in case of the assessee.
Therefore, the statement of Shri S.K Khemka is availability of other material/documentation which has come in the knowledge and possession of the AO for the first time during the course of reassessment proceedings and therefore can’t be referred to and relied upon by the AO to augment, supplement and add to the material found during the course of search in terms of the share certificates and contract notes and in terming the same as incriminating material found during the course of search in case of the assessee. The contents advanced by the ld CIT/DR therefore cannot be accepted.
We are of the considered view that the addition made by the AO during the reassessment proceedings completed u/s 153A is not based on any incriminating material found or seized during the course of search and seizure action u/s 132 of the Act in case of the assessee. Being a case of completed/unabated assessment, in absence of any incriminating material found during the course of search, the addition so made cannot be sustained and is hereby directed to be deleted. In the result, the ground of the assessee’s appeal is allowed.
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2014 (1) TMI 1941 - CESTAT AHMEDABAD
Taxability - service provided by the SBL is chargeable to service tax or otherwise - Commercial or Industrial Construction Service or not - whether provisions of section 11B are applicable in case it is held that no service tax was chargeable on the services provided by SBL? - HELD THAT:- The Commercial or Industrial Construction Service includes within its scope construction of a new building or a civil structure or a part thereof. Construction of rooms for educational institutions would ordinarily be covered under the description of construction of new building or a civil structure or a part thereof. In that sense, ordinarily Erection, Commissioning or Installation of rooms would fall under the category of construction of new building or a civil structure or part thereof. The said activity would become taxable only if the same is provided for use for Commerce or Industries.
In the instant case, there is no dispute that the said rooms were not used for commerce/ industry and therefore, the appellant‘s service could not be classified under the head of Commerce or Industrial Construction Service. In view of above, it is clear that the tax has been paid wrongly.
Applicability of provisions of Section 11B to the refund claim - HELD THAT:- Hon‘ble Apex Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] has clearly underlined that unless tax has been collected under a provision which has been held to be unconstitutional in the appellant‘s own case all refunds would be covered by Section 11B of the Central Excise Act or Section 27 of the Customs Act, 1962. In view of above, the decisions cited by the appellant cannot be applied to the instant case, therefore, the provisions of unjust enrichment as provided under Section 11B become applicable to the case.
The appeal filed by the Revenue as well as the appeal filed by the Sintex BAPL Limited are dismissed.
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2014 (1) TMI 1940 - SUPREME COURT
Principle of contributory negligence - composite negligence - though the claim for compensation has been upheld, the liability to pay the same has been apportioned between the drivers/owners of the two vehicles involved in the motor accident.
Appellants contend that as they were third parties to the claim, the High Court ought to have made the drivers/owners of the vehicles jointly and severally liable to pay compensation.
HELD THAT:- Where the Plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the Plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the Plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence.
In the present case, neither the driver/owner nor the insurer has filed any appeal or cross objection against the findings of the High Court that both the vehicles were responsible for the accident. In the absence of any challenge to the aforesaid part of the order of the High Court, we ought to proceed in the matter by accepting the said finding of the High Court. From the discussions that have preceded, it is clear that the High Court was not correct in apportioning the liability for the accident between drivers/owners of the two vehicles.
The drivers/owners of both the vehicles are jointly and severally liable to pay compensation and it is open to the claimants to enforce the award against both or any of them. The order of the High Court dated 05.07.2006 is modified - Appeal allowed.
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2014 (1) TMI 1939 - ITAT AMRITSAR
Remission of liability in respect of unsecured loans from Bodies Corporate - Whether same represents the income of the Appellant Company within the meaning of section 28(iv) read with Section 2(24) ? - HELD THAT:- No interest was recovered and initially for one or two years, the interest expense or interest income was provided and thereafter no provision of the interest expense and interest income was made. Though there was nothing placed on record in this regard. In any case, with the present facts and circumstances of the case, the assessee company is doing business of raising loan on interest and advancing the same on interest i.e. the money lending business. Though the assessee has not provided the interest expenses and interest income during the impugned year for the reasons best known to assessee.
The said loans according to us has been raised during the course of business and the same were advanced during the course of business as a matter of main object of the assessee. The assessee has used the said loans for day to day business operation in the normal course during the year when loans were raised and advanced. No capital assets has been purchased on raising of such unsecured loans.
In the case of Solid Containers Ltd. vs. Dy. CIT [2008 (8) TMI 156 - BOMBAY HIGH COURT] the Hon’ble Bombay High Court applied the decision in T.V. Sundaram Iyengar & Sons Ltd. [1996 (9) TMI 1 - SUPREME COURT] distinguished its decision in Mahindra & Mahindra Ltd [2003 (1) TMI 71 - BOMBAY HIGH COURT] and held that the waiver of loan taken for business purposes, the amount is retained in the business and as such, the amount that initially did not have the character of income becomes income liable to tax.
Moreover, there is nothing on record that the company was dissolved and no certificate to this extent has been placed on record before any of the authorities below or even before us. Moreover, in view of the decisions relied upon hereinabove, we find no infirmity in the order of the ld. CIT(A), who has rightly confirmed the action of the A.O. Accordingly, the appeal of the assessee is dismissed.
As regards the argument with regard to section 28(iv), the same cannot help the assessee since the definition has expanded the ambit of income and not reduced the definition and therefore, the decisions relied upon by the ld. counsel for assessee in this regard cannot be made applicable to the facts and circumstances of the present case.
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2014 (1) TMI 1938 - GUJARAT HIGH COURT
Additional depreciation - a new plant and machinery were installed at Mother Dairy - “processing of Milk” v/s “not manufacturing of any item” - treatment to the process of making skimmed milk powder from milk as “manufacture” or “production” - whether production of skimmed milk powder is nothing but milk without water content? - HELD THAT:- The plant here is of making milk powder and process of producing the milk powder is complex and it is a completely different commercial commodity from the main ingredient milk.
The decision of Aspinwall & CO.Ltd [2001 (9) TMI 3 - SUPREME COURT] requires reference wherein held the word “manufacturing” has not been defined in the Income-tax Act but in the absence definition of word “manufacture” has to be given a meaning as is understood in a common parlance. It is to be understood as meaning the production of articles for use from raw or prepared materials by giving such materials new forms, qualities or combinations whether by hand labour or machines. If the change made in the article results in a new and different article, then the same would amount to manufacturing activity.
We can take note of the complex process explained by the assessee in making milk powder which is completely a different commodity. There is no way in which the final product could be restored to the original product. This process involves four different stages namely (I) Standardization (ii) Preheating( iii)Evaporation and (iv) Spray dying.
A distinct commodity is thus arising from the entire complex process and it is a commercially distinct marketable commodity resulting from this process and such transformation is irreversible and thus, the plant and machinery installed by the assessee for the purpose of manufacturing the milk powder has been rightly given the benefit of additional depreciation by the authorities.
Thus, the whole process of conversion of the raw material when leads to production of new article and when its character, use and nature also indicate complete transformation bringing into existence the new product altogether. The assessee has rightly been allowed the benefit of additional depreciation by both the revenue authorities.
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2014 (1) TMI 1937 - ITAT CHENNAI
Order passed ex parte for non-appearance -assessee submitted before us that on the earlier occasion adjournment was sought by the assessee since one of the Ho’ble Members of the Tribunal was conducting two Benches, and therefore, it was opined that sufficient time for argument would not be available for arguing the case of the assessee and further considering the fact that the arguing counsel had to travel from Delhi and he would have to give up arguing some urgent matters fixed before the Hon’ble Supreme Court, High Court and stay granted matters before the Delhi Benches of the Tribunal
HELD THAT:- Though we find that there was no reasonable cause for not being present at the time of hearing on the earlier occasion, yet in the in the interest of justice we hereby recall the appeal and post the case for fresh hearing on 02/04/2014. Since both the parties are intimated in the open court, notice need not be served.
In the result, the Miscellaneous Petition filed by the assessee is allowed.
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2014 (1) TMI 1936 - BOMBAY HIGH COURT
Income taxable in India - royalty receipts - reopening of assessment - HELD THAT:- Income Tax Appeal is admitted on the following substantial questions of law :
(i) Whether in the facts and circumstances of the case, the Tribunal was right in upholding the reopening of assessment proceedings for A.Y.2004-2005?
(ii) Whether in the facts and circumstances of the case, the Tribunal was right in holding that the income earned by the Appellant was taxable as royalty under Article 12 of the Double Taxation Avoidance Agreement between India and the United States of America?
(iii) Whether in facts and circumstances of the case, the Tribunal was right in not disposing off the without prejudice argument considered by the Appellant that the related support services are not taxable in India as Fees for Included Services under the India-US Tax Treaty?
To be heard along with THE DIRECTOR OF INCOME TAX. VERSUS SHRI. ALLIANZ SE. [2013 (1) TMI 1053 - BOMBAY HIGH COURT] - All the appeals will be listed for final hearing on 12 March 2014.
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2014 (1) TMI 1935 - BOMBAY HIGH COURT
Mis-conduct - mixing inferior quality cotton into superior quality cotton which were said to have caused a loss to the petitioner Cotton Federation - HELD THAT:- In the instant case, the Labour Court concluded that the findings of the Enquiry Officer are perverse and the entire complaint has been allowed by the same judgment without affording any opportunity to conduct a de-novo enquiry to the petitioners Management. The only distinction is that in the Permanent Magnet's case [2001 (7) TMI 1327 - BOMBAY HIGH COURT] , the final order of the punishment was passed and in the instant case, the punishment was proposed in the 2nd show cause notice.
The ratio in cases of Bharat Forge, K.S.R.T.C. and Permanent Magnet's case [2001 (7) TMI 1327 - BOMBAY HIGH COURT] shall equally apply to cases wherein the 2nd show cause notice is challenged on identical footings. Therefore, the right to conduct a de-novo enquiry is equally available to every employer, be it in a case where the order of punishment is issued or in a case where punishment is proposed by a 2nd show cause notice.
Unless the enquiry was set aside on any count, there was no scope for conducting a de-novo enquiry which right was reserved by the petitioners herein in its written statement. By-passing this settled procedure, the Labour Court in one stroke has branded the findings of the Enquiry Officer as perverse and by accepting the evidence adduced by the respondent, has delivered its final judgment. The conclusion drawn by the Labour Court of declaring the findings as perverse on the basis of evidence adduced before it and in the backdrop of the respondent employee having neither led evidence through his witnesses nor cross examined the management witnesses, is an unsustainable conclusion. Procedure unknown to Law has been resorted to by the Labour Court.
Since the respondent employee sought to brand the findings as perverse, such a challenge needs to be considered only on the basis of the evidence recorded in the enquiry and the findings arrived at by the Enquiry Officer in light thereof. The respondent employee led evidence before the Labour Court attempting to bring on record such material which was never before the Enquiry Officer. Fresh evidence recorded before the Labour Court, can not be the basis for branding the findings of the Enquiry Officer as perverse.
Going by the magnitude of the challenges to the disciplinary proceedings and disciplinary action, it is imperative that the delinquent should put forth substantive prayers in his complaint or statement of claim as regards the fairness of an enquiry and the findings of the Enquiry Officer. He should specifically set out his prayers seeking directions from the Labour Court for setting aside the domestic enquiry on account of violation of principles of natural justice or findings being perverse or for any other connected reason. Since this aspect of disciplinary proceedings happens to be of paramount importance, pleadings and prayers need to go hand in hand in order to enable the Labour Court to frame specific issues to that extent and deliver its part-I order/Award based on such prayers. A Court normally would not travel beyond the prayers put forth by a litigant.
The impugned judgments of the Labour Court and the Industrial Court are quashed - the complaint stands dismissed and the revision stands allowed.
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2014 (1) TMI 1934 - ITAT CHANDIGARH
Penalty levied u/s 271(1)(c) - addition made on account of sale tax subsidy by treating it as revenue receipt as against capital receipt declared by the assessee - HELD THAT:- As decided in own case [2013 (9) TMI 1105 - ITAT CHANDIGARH] in view of the debatable issue raised, the assessee is not exigible to levy of penalty u/s 271(1)(c) of the Act in the facts of the present case where the claim of the assessee that the receipts were capital in nature was rejected and the receipts were held to be revenue in nature and hence taxable. Appeal the Revenue is dismissed.
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2014 (1) TMI 1933 - SUPREME COURT
Framing of guidelines with respect to occupational safety and health Regulations to be maintained by various industries - directing Respondents to appoint and constitute a committee for the monitoring of the working of thermal power plants in India and to keep check on the health and safety norms for the workers working in their power stations - directing the Respondents to pay compensation to the workers who are victims of occupational health disorders and to frame a scheme of compensation for workers in cases of occupational health disorders - directing the Respondents to notify the recommendations as contained in paragraph 35 of the Petition as guidelines to be followed by thermal power plant.
HELD THAT:- The NIOH Report specifically refers to the occupational health and safety issues of workers in CFTPPs. The Report also refers to the hazards associated with (a) dust, (b) heat, (c) noise, (d) vibration, (e) radiation, and (f) disposal of waste. After dealing with those health hazards, the Committee has stated that the hazards associated with inhalation of coal dust might result in development of dust related morbidity in the form of pneumoconiosis (coal workers pneumoconiosis, silicosis) and non-pneumoconiosis persistent respiratory morbidities, such as chronic bronchitis, emphysema, asthma, etc.
CFTPPs are spread over various States in the country like Uttar Pradesh, Chhattisgarh, Maharashtra, Andhra Pradesh, and so on, and it would not be practicable for this Court to examine whether CFTPPs are complying with safety standards and the rules and Regulations relating to the health of the employees working in various CFTPPs throughout the country - these aspects could be better examined by the respective High Courts in whose jurisdiction these power plants are situated. The High Court should examine whether there is adequate and effective health delivery system in place and whether there is any evaluation of occupational health status of the workers. The High Court should also examine whether any effective medical treatment is meted out to them.
It is felt appropriate to relegate it to the various High Courts to examine these issues with the assistance of the State Governments after calling for necessary Reports from the CFTPPs situated in their respective States - Report of National Institute of Occupational Health (NIOH) titled Environment, Health and Safety Issues in Coal Fired Thermal Power Plants of the year 2011 may also be made available by the Secretary General of the Supreme Court to the Registrar Generals of the High Courts of the mentioned States.
Petition disposed off.
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2014 (1) TMI 1932 - ITAT RAJKOT
Addition u/s 40A(2)(b) - addition was made on the ground that interest paid by the assessee @ 24% to various persons covered u/s 40A(2)(b) is too excessive, and therefore, AO allowed the interest @12% - CIT-A restricted the addition - HELD THAT:- After appreciating the facts that the cost of loan to be taken from the bank is high because of legal charges, document charges etc., and therefore, unsecured loans at higher rate of interest has been taken keeping in view the business expediency. The view taken by the ld. CIT(A) in restricting the disallowance of interest u/s 40A(2)(b) need to be upheld. The ground No.2(i) of the assessee’s appeal and ground No.1 of Revenue’s appeal are dismissed.
Disallowance credit card expenses paid by the assessee are not open for verification - HELD THAT:- Neither before both the authorities below nor before us, the assessee has produced the supporting evidences; therefore, the view taken by the ld. CIT(A) confirming the disallowance of Rs.18,000/- is upheld. This ground of appeal is rejected.
Disallowance of computer expenses - assessee failed to produce relevant bills - HELD THAT:- As assessee fairly admitted that the same is not traceable. In this view of the matter, we decline to interfere. This ground of appeal is rejected.
Disallowance of interest - Interest free advances - assessee was paying interest, but has advanced interest free loan to the same person to whom interest has been paid in the proprietary concern and in one case, same was claimed to be advance to a friend of the assessee but no interest has been charged on the same - HELD THAT:- DR has not disputed the availability of interest free advance in personal books of accounts of the assessee as on 31.03.2005.
The advance to Falguni A Shah and Anup A Shah (HUF) were made by the assessee out of capital balance available in the personal books of accounts and therefore no disallowance is called for. The advance to Online Business System Rs.205000/- is a business advance given to obtain franchisee. Therefore, on this advance also no notional interest can be charged. We are convinced that there was no necessity to work out the notional interest and made disallowance - The view taken by the ld. CIT(A) in the impugned order in this regard is upheld and ground of this appeal is rejected.
Addition on account of low Gross Profit by rejecting the books of accounts u/s 145(3) - HELD THAT:- The books of accounts of the assessee are audited u/s 44AB. The assessee has also filed confirmation of all the parties to whom notices u/s 133(6) of the Act remain unserved. Q-tally and confirmations could not be filed on account of non availability of sufficient opportunities as the case was getting time-barred. Be that it may be, since no remand report was submitted by the AO on additional evidences furnished, we are of the view that it will meet the end of justice if GP addition is restored to the file of the AO with the direction that the Assessing Officer will re-examine the books of accounts in the light of additional evidences furnished before the ld. CIT(A) and re-adjudicate the GP addition afresh after allowing adequate opportunity of being heard to the assessee.
Addition on account of low household withdrawal - addition was made on the ground that the assessee failed to furnish the bill of electricity of his residence - CIT(A) has deleted the addition - HELD THAT:- As it is pertinent to note that this addition has been made on doubts and suspicion; therefore, the view taken by the ld. CIT(A) in this regard is upheld. This ground of appeal is rejected.
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2014 (1) TMI 1931 - BOMBAY HIGH COURT
Seeking grant of anticipatory bail under Section 438 of the Code of Criminal Procedure - no territorial jurisdiction over the offences committed and registered in State of Gujarat - HELD THAT:- Full Bench of Patna High Court, in the case of Syed Zafrul Hassan [1986 (1) TMI 382 - PATNA HIGH COURT] held that Section 438 of the Code does not permit grant of anticipatory bail by any High Court or any Court of Sessions within the country; where the accused may choose to apprehend arrest and the power vests only in the Court of Sessions or High Court having jurisdiction over the locale of the commission of the offence of which the person is accused.
In the case of N.K. Nayar [1985 (3) TMI 317 - BOMBAY HIGH COURT], the Division Bench of the Bombay Court has held that if the arrest is likely to be affected within the jurisdiction beyond High Court, then the concerned person may apply to the High Court for anticipatory bail even if the offence is committed in some other state. However, the Division Bench in the said case while exercising power under Section 438 of the Code, granted anticipatory bail for a period of one month so as to enable the applicants to move appropriate Court. Thus, the Division Bench of this Court has considered the gravity of pre-trial arrest and loss of liberty of an individual if a person is likely to be falsely implicated in any other state.
Generally the powers of High Courts in the cases of anticipatory bail are limited to its territorial jurisdiction and the power cannot be usurp by disregarding the principle of territorial jurisdiction which is in the interest of the comity of the Courts. However, temporary relief to protect liberty and to avoid immediate arrest can be given by this Court.
The transit bail granted for four weeks so as to enable the applicant to approach appropriate Court in Gujarat, on the terms and conditions imposed in the interim order dated 10th January, 2014, passed by this Court - application disposed off.
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2014 (1) TMI 1930 - KERALA HIGH COURT
Rummy - game of skill or not - Sections 7 & 8 of Kerala Gaming Act, 1960 - HELD THAT:- There are loss to find any allegation that the accused were found engaged in gaming as defined under the Act in a common gaming house run for profit or gain of the person owing as defined in Section 2(a) of the Act. Section 7 would reveal that the penalty is for opening, keeping etc. and to be used any common gaming house. In the absence of any allegation that the place of alleged gaming was a common gaming house, this section cannot be said to be attracted. Section 8 of the Act is all about the penalty for being found gaming in a common gaming house. Here also the offence is not attracted in the absence of an allegation even in the FIR or in the final report.
The petitioners are legally entitled to contend that the charge against them is unsustainable in the law. Therefore, this Court is persuaded to invoke jurisdiction under Section 482 CrPC to terminate a prosecution, which cannot stand the scrutiny of law.
Petition allowed.
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