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Showing 21 to 40 of 879 Records

• 2010 (1) TMI 1296
  
  Issues involved: Appeal against order of CIT(Appeals) for Assessment Year 1998-99, deletion of addition of unexplained cash credit u/s.68, and disallowance of interest payable on share application money.
  
  Deletion of addition of unexplained cash credit u/s.68:
  The assessee-company failed to prove the genuineness of share application money of Rs.14,71,000 for 17 parties. Despite opportunities, the assessee could not provide sufficient evidence for these cash credits. The Assessing Officer's inquiries were inconclusive as the addresses provided by the assessee were invalid. The onus to establish the genuineness of the funds was on the assessee, which was not discharged. Therefore, the addition of Rs.14,71,000 was justified.
  
  Disallowance of interest payable on share application money:
  The counsel for the assessee argued that the share application money represented capital receipt as no business activity was commenced during the pre-operative year. The company provided evidence to support this claim, including balance sheets and incorporation certificates. The Hon'ble Gujarat High Court's decision in Mitesh Rolling Mills case was cited to support the argument that the share application money was not unexplained income. The dispute among directors and lack of details about share applicants further strengthened the case for deletion of the addition. The interest payable on share application money was deemed not allowable as it was raised for share capital, not business purposes.
  
  Conclusion:
  The appeal and cross objection were dismissed, affirming the deletion of the addition of unexplained cash credit u/s.68 and the disallowance of interest payable on share application money. The decision was based on the lack of income-earning activities, the nature of share application money, and the failure to prove the genuineness of funds.

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• 2010 (1) TMI 1295
  
  Issues involved: Assessment of refund of turnover tax u/s 41(1) of the Income Tax Act for the assessment year 1995-96.
  
  Summary:
  The High Court of Kerala considered the issue of whether the Tribunal was justified in canceling the assessment of a refund of turnover tax amounting to Rs.25,27,734. The appellant argued that the turnover tax paid by the assessee was allowed as a deduction in previous assessment years, making the refund received in the relevant assessment year taxable under Section 41(1) of the Income Tax Act. The respondent, however, relied on a judgment in their own case where it was held that the turnover tax recovered and retained by the assessee is assessable as income. The Court noted that the assessment of this income in the hands of the assessee does not prevent the assessment of the refund under Section 41(1). The Tribunal's decision to cancel the assessment based on the refund not being considered as income was deemed untenable as the department did not file further appeals or claim return of the refund amount. The Court allowed the appeal, reinstating the assessment, but clarified that if the turnover tax deduction was not claimed in previous years, there would be no case for assessing the refund. The assessee was given the opportunity to provide evidence to rectify the assessment order if any mistakes were found regarding the turnover tax deductions in previous years.

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• 2010 (1) TMI 1294
  

  Negotiable Instruments Act - offence u/s 138 - cheques in question for examination - Whether the Courts can order to send documents for forensic opinion regarding the age of the writings and signatures on disputed documents? - HELD THAT:- No denial of the fact that the accused needs to be afforded a fair trial to exhaust all his defences available to him. Fair trial is the sine qua non of criminal jurisprudence and the same has been recognised as a fundamental right under Article 21 of the Constitution of India. To prove that the handwriting was not made by him or that the signature was not made by him, the accused can very well request the Court to forward the document for expert opinion. But the question is, in respect of the age of the writings on a document whether there is any expert in terms of Section 45 of the Evidence Act, who shall be competent to examine the same scientifically and to offer his opinion.

  According to Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu, On a query made by this Court regarding the above position, he would explain to this Court that there is no scientific method available anywhere in this State, more particularly, in the Forensic Science Department, to scientifically assess the age of any writing and to offer opinion. However, he would submit that there is one institution known as Neutron Activation Analysis, BARC, Mumbai, where there is facility to find out the approximate range of the time during which the writings would have been made. It is a Central Government organisation. According to him, even such opinion cannot be exact. He would further submit that since it is a Central Government Organisation and confined only to atomic research, the documents relating to prosecutions and other litigations cannot be sent to that institution also for the purpose of opinion. Therefore, whole exercise adopted in various Courts in this State to send the disputed documents for opinion to the Forensic Department in respect of the age of the writings and the documents is only futile.

  In view of all the above, in my considered opinion, sending the documents for opinion in respect of the age of the writing on documents should not be resorted to hereafter by the Courts unless, in future, due to scientific advancements, new methods are invented to find out the age of the writings.

  In view of all the above, the revisions are allowed and the impugned orders of the learned Magistrate are set aside and the request for sending the documents for ascertaining the age of the writings is rejected. Connected miscellaneous petitions are closed.

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• 2010 (1) TMI 1293
  
  Issues Involved:
  The judgment involves a Criminal Revision Petition against an Order made in a case under Section 138 of the Negotiable Instruments Act, 1881, regarding the sending of documents to a Handwriting and Finger Prints Expert for analysis.
  
  Details of the Judgment:
  
  Issue 1: Request to Send Documents to Handwriting Expert
  The respondent filed a Criminal Miscellaneous Petition seeking to send documents for analysis to determine the age of signatures and writings. The petitioner argued that the request was to delay proceedings. The Trial Court allowed the petition, leading to the Criminal Revision Petition.
  
  Issue 2: Consideration of Submissions
  The Court considered arguments from both parties. The accused claimed the documents were forged by the complainant, while the complainant argued against the need for expert analysis due to the age of the documents.
  
  Issue 3: Comparison of Signatures
  The accused admitted his signatures in the documents but sought analysis to determine the age of the signatures and writings. The complainant contested the necessity of expert opinion after several years had passed since the documents were executed.
  
  Precedent and Decision
  The Court referred to previous cases where the necessity of expert opinion was discussed. It was established that the age of ink and signatures could not be accurately determined after a significant period. The Court concluded that sending the disputed documents for expert analysis was unnecessary and set aside the Trial Court's order. The Trial Court was directed to expedite the trial, and the Revision Petition was allowed.
  
  This summary provides a detailed overview of the judgment, highlighting the key issues, arguments presented by both parties, and the Court's decision based on legal precedents and considerations.

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• 2010 (1) TMI 1292
  
  Issues Involved:
  1. Non-application of mind in the formulation of grounds for detention.
  2. Non-consideration of relevant material and non-supply of documents to the detenu.
  
  Detailed Analysis:
  
  1. Non-application of Mind in the Formulation of Grounds for Detention:
  
  Submissions:
  - The petitioner argued that the grounds for detention were formulated by the sponsoring authority and merely adopted by the detaining authority, indicating non-application of independent mind.
  - It was contended that the draft grounds of detention prepared by the sponsoring authority were not sent to the detaining authority. However, the petitioner found this claim unbelievable due to the remarkable similarity between the draft grounds and the actual grounds of detention.
  - The petitioner provided a chart showing identical errors, averments, chronology of facts, subjective satisfaction, spelling mistakes, and language between the draft and actual grounds, suggesting that the draft grounds were bodily adapted.
  
  Discussion:
  - The records showed that the Directorate of Enforcement sent a proposal for detention along with relied upon documents. The proposal was approved by the Central Screening Committee.
  - The detaining authority directed the Under Secretary to process the proposal, who then consulted an officer from the Enforcement Directorate, Chennai, for preparing the grounds of detention.
  - The actual grounds of detention contained stark similarities and identical errors with the draft grounds prepared by the sponsoring authority, proving that the draft grounds were available and used by the detaining authority.
  - The Under Secretary's involvement in drafting the grounds before the detaining authority's application of mind was impermissible and rendered the detention order void ab-initio.
  - The judgment in Praduman Singh Vs. Union of India was cited, emphasizing that the detaining authority must draft the detention order with possible assistance from subordinates but cannot delegate this essential task.
  
  2. Non-consideration of Relevant Material and Non-supply of Documents to the Detenu:
  
  Submissions:
  - The petitioner argued that the detaining authority did not consider relevant material, such as the counter affidavit filed by the sponsoring authority in the Madras High Court, which stated that the investigation was at an initial stage.
  - It was also contended that the writ petition, counter affidavit, and interim stay order from the Madras High Court were not considered by the detaining authority.
  - The petitioner argued that even if the detaining authority had considered these documents, it was incumbent to supply copies to the detenu pari passu the grounds of detention.
  
  Discussion:
  - The court found that the pendency of the petition in the Madras High Court and the stay order were brought to the notice of the detaining authority and considered.
  - However, the detaining authority's consideration of these documents was not reflected in the grounds of detention, and copies were not supplied to the detenu.
  - The court cited the judgment in Anil Kumar Vs. UP, stating that non-supply of relevant documents to the detenu amounts to not giving adequate opportunity for making an effective representation.
  - The Supreme Court's view in Union of India Vs. Ranu Bhandari was also referenced, emphasizing the necessity to supply all relevant documents to the detenu regardless of whether they had prior knowledge.
  
  Conclusion:
  The court found legal infirmities in the impugned order of detention due to non-application of mind in the formulation of grounds and non-supply of relevant documents to the detenu. Consequently, the detention order dated 26.02.2010 was set aside, and the respondents were directed to release the petitioner forthwith. The petitioner was also awarded costs quantified at Rs. 15,000/-.

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• 2010 (1) TMI 1291
  

  Seeking grant of bail u/s 439 CrPC - Offence punishable u/s 120B IPC and Section 7, 8, 12, 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 - discriminatory treatment of the petitioner qua the other co- accused - HELD THAT:- No doubt the petitioner was arrested on 23rd November, 2009 immediately after the other co-accused Manoj had delivered a sum of ₹ 7,00,000/- and the consequent recovery of ₹ 55 lakhs which included prima facie this amount shows that the petitioner had been ostensibly misusing his official position in amassing huge cash/wealth for which he has not been able to give any plausible explanation weighs heavily against him. This view further gets fortified by the huge cash recovery of ₹ 1,21,23,800/- or so from Chennai but then this ground in itself cannot be ground to deny the bail because then we will be punishing the accused even before he has been found guilty.

  In the present case, the investigating agency has not adopted a just and fair approach in treating all the accused persons on a even pedestal while as the petitioner has been arrested on 23.11.2009 yet no action has been taken against the third co-accused Ankur Chawla despite the fact that he is specifically named in the FIR and where in view of the Court prima facie there is sufficient evidence to show that he was also a part of the conspiracy not only to commit the offence but also abettor of the offence. Beyond this the Court does not want to observe anything and leave the things to the wisdom of the investigating agency, therefore Court takes this also a valid consideration to exercise discretion for grant of bail to the present petitioner.

  Merely because the petitioner's earlier of criminal misconduct of misusing of his position and amassing a huge cash, for which he is not able to give any reasonable explanation till date has gone un-noticed is not in itself a ground for release of bail. Similarly the vigilance or the IB reports also do not help him in any manner. The alleged non-compliance of Section 6A also does not help the petitioner because I agree with the contention of the learned Counsel for the CBI that the offence of corruption may so sudden that in a given case it may defeat the ends of justice if one has to obtain the sanction for registration of the offence.

  There are two more considerations which weigh with the Court for enlarging the petitioner on bail. These are firstly that the petitioner's remand was obtained for seven days for taking him to Chennai but he was never taken there after he was remanded to judicial custody. The CBI never sought any permission to interrogate him, therefore, the continued incarceration of the petitioner in my view is not going to serve any purpose except to deny the benefit of bail to him by way of punishment. Secondly, the petitioner is admittedly patient who has undergone bypass surgery. Although no grievance has been raised by the learned senior counsel for the petitioner regarding the non availability of medical aid or medical checkup but still the medical status of the petitioner which has been placed on record is certainly also a valid consideration that he had undergone a coronary bypass surgery only in 2007. This in my view is also a ground to be taken into account.

  Thus, I feel that this is a fit case where the petitioner, who is in custody since 23.11.2009, should be released on bail on furnishing personal bond in the sum of ₹ 50,000/- with two sureties for the like amount to the satisfaction of the learned Special Judge.

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• 2010 (1) TMI 1290
  
  The High Court of Delhi condoned a delay of 54 days in re-filing an appeal. The appeal was declined as approval from the Committee on Disputes was not obtained. The appellant can file a fresh appeal if approval is granted within 15 days.

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• 2010 (1) TMI 1289
  
  Issues involved: Appeal against acquittal u/s 138 of Negotiable Instruments Act.
  
  Summary:
  1. The Appellant filed Criminal Appeals against the acquittal of the Respondent u/s 138 of the Negotiable Instruments Act by the Additional District Judge. The impugned cheques were dishonored, leading to the complaint being filed. The Trial Court convicted the Respondent, but the Additional District Judge acquitted him, leading to the present Appeals.
  
  2. The Appellant claimed to be the holder in due course of the cheques endorsed by Gnanavel, which were dishonored due to insufficient funds. The Respondent failed to pay, leading to the complaint.
  
  3. The Trial Court convicted the Respondent, but the Additional District Judge acquitted him. The Appellant challenged this decision in the present Appeals.
  
  4. The High Court heard arguments from both sides and reviewed the evidence.
  
  5. The Appellant argued that the endorsement on the cheques by Gnanavel gave rise to the cause of action u/s 138 of the NI Act.
  
  6. The Respondent's Counsel contended that the Appellant was not a holder in due course as there was no proper endorsement as required by law. The endorsement was deemed insufficient.
  
  7. The Respondent's Counsel cited previous cases in support of their argument.
  
  8. The High Court noted that there was no proper endorsement as required by law, and without it, the Appellant could not be considered a holder in due course.
  
  9. The Respondent disputed the liability and privity of contract with the Appellant, which was not proven by the Appellant. The lack of proper endorsement further weakened the Appellant's case.
  
  10. Despite the Respondent's denial of liability, the Appellant did not provide sufficient evidence to prove the transfer of consideration. The absence of proper endorsement was a crucial factor.
  
  11. The High Court found no reason to interfere with the lower court's decision to acquit the Respondent. The Criminal Appeals were dismissed.

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• 2010 (1) TMI 1288
  

  Negotiable Instruments Act (NIA) - Petitioner No. 1 issued two cheques - Presented for Encashment - returned unpaid with the remarks signature different - In lieu of the previously dishonoured cheques, they issued three other cheques - Out of 3 cheques issued one cheque returned unpaid with the remarks stop payment - No payment made in notice period - complaint u/s 138/141 NIA and also u/s 420 of IPC - HELD THAT- Considering the matter on record, I hold that the complaint, subject matter of Crl.M.C. No. 2225/2009 is liable to be quashed because the complainant presented the cheque for encashment of the whole amount of ₹ 49,47,600/- though the amount due to him on the date of the presentation of the cheque was ₹ 32,9600/- and he also demanded the whole of the amount of ₹ 49,47,600/- as principal sum without even indicating the principal amount due to him under the cheque was ₹ 32,97,600/- and without even referring to the part- payment of ₹ 16,50,000/- which he had received by RTGS on 7.10.2008. The criminal complaint, subject matter of Crl.M.C.2224/2009 is liable to be quashed as the complainant presented the cheque for encashment of whole of its amount of ₹ 31,91,650/- though he had already received a sum of ₹ 10,50,000/- before presentation of the cheque and the principal amount due to him on the date of presentation of the cheque was only ₹ 21,41,650/-.

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• 2010 (1) TMI 1287
  
  The Bombay High Court dismissed the appeals filed by the Revenue as no fault was found with the Tribunal's decision. The Court stated that the view taken by the Tribunal was reasonable and no substantial question of law was involved. The appeals were dismissed with no order as to costs.

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• 2010 (1) TMI 1286
  
  Issues involved: Challenge to order rejecting application for exemption u/s 10(23C)(vi) of the Income Tax Act, 1961.
  
  Summary:
  The petition challenged the order rejecting the application for exemption under Section 10(23C)(vi) of the Income Tax Act, 1961. The Assessee-Petitioner, a Trust formed for educational and charitable purposes, filed an application seeking exemption for the financial year 2007-08 after the prescribed period. The Chief Commissioner of Income Tax rejected the application citing statutory requirements and non-compliance with the prescribed timeline. The judgment emphasized the importance of adhering to the statutory provisions and circulars issued by the CBDT, which are binding on revenue authorities.
  
  The Finance Act, 2006 introduced amendments requiring applications for exemption under Section 10(23C)(vi) to be filed during the financial year preceding the assessment year. The circular issued by the CBDT emphasized the time limit for granting exemption to charitable trusts and institutions. The Assessee-Petitioner filed the application after the prescribed period, leading to the rejection by the Chief Commissioner of Income Tax.
  
  The judgment upheld the decision of the Chief Commissioner of Income Tax, stating that the application was rightly rejected due to being filed after the prescribed period. The court found no grounds to interfere with the impugned order and dismissed the writ petition.

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• 2010 (1) TMI 1285
  

  Petition Challenging the order of HC reversing the judgment of Additional Sessions Judge for Aquittal - convicted appellant for the offence of rape punishable u/s 376 of IPC - The accused feeling aggrieved filled appeal before us - HELD THAT:- In the first information report and also in the evidence of PW-1, it has come on record that Victim could not cry out for help since her mouth was gagged by the accused. It has also come in the evidence that the victim was aged about 40 years and the accused persons were young and aged about 20 years and, therefore, she was not in a position of equal strength so as to resist the appellants. Even in the absence of any injuries on the person of the victim, in our view, with the other evidence on record, the prosecution is able to establish that the offence was committed.

  the blood stained clothes which were said to have been handed over to the Officer-in-Charge at the Police Station by the husband of the victim were not sent for chemical examination and, therefore, the corroboration with which such evidence could offer was absent. In our view, the failure of the investigating agency cannot be a ground to discredit the testimony of the victim. The victim had no control over the investigating agency and the negligence, if any, of the investigating officer could not affect the credibility of the statement of PW-1 - the victim. we are satisfied that on the basis of the evidence on record, the conviction of the appellant can be sustained.

  the doctor who has been examined as PW-2 has found that the victim PW-1 was used to sexual intercourse and as such absence of injury on the private parts of the victim may not be very significant. PW-1 was also used to sexual intercourse. The evidence of the victim has been corroborated by the evidence of PWs.2 and 3, the two post occurrence witnesses, as well as by the FIR which was lodged without any delay. Therefore, it is difficult to differ from the findings of the High Court.

  In the present case, the High Court on re-appreciation of evidence on record has differed with the findings of the Sessions Court on the innocence of the accused and has found him guilty of the charges leveled against him. The High Court after evaluating the manner in which the evidence and other materials on record has been appreciated as well as the conclusions arrived at by the Sessions Court, has come to the conclusion that the findings of the Sessions Court are perverse and has resulted in miscarriage of justice has re-appreciated the evidence and materials on record and has found that the appellant is guilty of the offence alleged. Therefore, in our view, the decision on which reliance has been placed by learned Counsel for the appellant would not assist him in any manner whatsoever.

  The result of the aforesaid discussion leads to only one conclusion that the accused committed forcible rape on the victim on the intervening night of 12/13th August, 1989, as alleged by her, and his conviction by the High Court is quite justified being based on evidence on record. It is, therefore, confirmed.

  We, therefore, find no merit in this appeal and the appeal is, accordingly, dismissed.

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• 2010 (1) TMI 1284
  
  Issues involved:
  The issues involved in this case are the dismissal of the petitioner's application and successive appeals under the Right to Information Act, 2005, seeking information regarding a judicial officer's decision, and the interpretation of the RTI Act in relation to seeking reasons for judicial decisions.
  
  Judgment Summary:
  
  Issue 1: Dismissal of petitioner's application under RTI Act
  The petitioner filed an application under Section 6 of the RTI Act seeking information on a judicial officer's decision. The High Court dismissed the writ petition on the grounds that the information sought cannot be asked for under the RTI Act and that judicial officers are protected by the Judicial Officers' Protection Act, 1850. The petitioner argued that the right to information is a fundamental right and that the application was maintainable. However, the Court held that a judge is not bound to explain the reasons for a decision beyond what is stated in the judgment or order. Seeking information on judicial decisions through the RTI Act is not permissible, as it could affect the independence of the judiciary.
  
  Issue 2: Interpretation of RTI Act in relation to judicial decisions
  The Court clarified that under the RTI Act, an applicant can only access information that is already in existence and accessible to the public authority under the law. While an applicant can obtain copies of opinions, advices, circulars, and orders, they cannot inquire about the reasons behind judicial decisions. Judges are not required to provide additional reasons beyond those stated in their judgments. The application filed by the petitioner was deemed illegal and unwarranted, as seeking reasons for a judge's decision through the RTI Act goes against the principles of judicial independence and protection.
  
  Conclusion:
  The Special Leave Petition was dismissed as the petitioner's application was considered a misuse of the provisions of the RTI Act. The High Court's decision to dismiss the writ petition was upheld, emphasizing the importance of preserving the independence of the judiciary and the protection afforded to judicial officers.

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• 2010 (1) TMI 1283
  
  Issues involved: Appeal against CIT(Appeals) order for Asst. Year 2003-2004.
  
  Grounds 1 and 4: Dismissed as not pressed by the assessee. Ground 5 is general.
  
  Ground 2: Challenge to disallowance of gross agricultural receipt of Rs. 1,58,217.
  
  Ground 3: Challenge to addition on account of undisclosed agricultural income of Rs. 3,10,941.
  
  The assessee filed an appeal against the CIT(Appeals) order for the assessment year 2003-2004. The Assessing Officer noted the nature of the assessee's business to include rental income, interest, and agricultural income. The assessee claimed income from agriculture totaling Rs. 5,38,850. The Assessing Officer found discrepancies in the claimed expenses related to agricultural income, specifically regarding the sale of vegetables and sugarcane crops. The Assessing Officer made additions to the income due to lack of evidence for the claimed expenses. The CIT(A) upheld the additions, leading to the appeal.
  
  The Tribunal considered the facts of the case along with a previous decision regarding a similar issue. It was noted that the assessee had rental and interest income from known sources, apart from agricultural income. As the income from these sources was specific and ascertained, the Tribunal found no justification for the additions made by the authorities. The Tribunal referred to previous decisions to support the deletion of the additions, as the Assessing Officer failed to provide evidence of income from other sources. Consequently, the Tribunal allowed the appeal and deleted the additions of Rs. 1,58,217 and Rs. 3,10,941, as the assessee had no other income apart from agricultural income.
  
  In conclusion, the appeal of the assessee was partly allowed by the Tribunal, as the additions made by the authorities regarding the agricultural income were found to be unjustified due to the lack of evidence for income from sources other than agriculture.

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• 2010 (1) TMI 1282
  

  Dishonour of Cheque - money lending business - legally enforceable debt or not - whether a person can be debarred from filing and prosecuting complaint u/s 138, if he is doing business of money lending without holding a valid licence - HELD THAT:- Since explanation to Section 138 of the N.I. Act clearly stipulated that the debt or liability means legally enforceable debt or other liability the claim by money lender against her borrower without production of valid and operative money lending license covering period of transaction was unenforceable claim u/s 138 of the N.I. Act was bound to be dismissed.

  The complainant moneylender despite availing of sufficient opportunity in the trial Court could not produce valid and operative money lending license at the time of transaction of loan, hence dismissal of complaint can not be faulted as the complainant failed to establish legally enforceable debt or liability of the accused.

  Hence this Court is of the considered view that the complainant could not establish her case against the accused so as to bring home the guilt on the part of the accused. The cheque in question was not issued to discharge loan enforceable according to law and, therefore, notwithstanding that it was dishonoured by nonpayment of loan remaining unpaid despite demand notice in writing, it cannot came within the purview of Section 138 of the N.I. Act.

  As such, it would not be possible for this Court to reverse the acquittal and to fasten criminal liability upon the accused, u/s 138 of the N.I. Act. The Appeal is, therefore, dismissed.

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• 2010 (1) TMI 1281
  
  Issues Involved:
  1. Summoning of petitioners u/s 138 of the Negotiable Instruments Act.
  2. Petitioners' resignation from directorship prior to cheque presentation.
  3. Vicarious liability of petitioners under Section 141 of the Negotiable Instruments Act.
  4. Consideration of Form 32 as evidence.
  5. Continuation of trial against other accused persons.
  
  Summary:
  
  1. Summoning of petitioners u/s 138 of the Negotiable Instruments Act:
  Criminal complaints u/s 138 of the Negotiable Instruments Act were filed against M/s. Sakura Seimitsu India Limited and others, including the petitioners, who were summoned by the Metropolitan Magistrate u/s 138 r/w Section 141 of the Act. The petitioners sought quashing of the complaint, claiming they had resigned from their directorship before the cheques were presented for encashment.
  
  2. Petitioners' resignation from directorship prior to cheque presentation:
  The petitioners presented certified copies of Form 32 from the Registrar of Companies, showing their resignation dates: M.L. Gupta on 4th September 1997, Rajiv Gupta on 5th June 1998, and Sanjeev Gupta claimed resignation on 25th September 1995, supported by previous court judgments.
  
  3. Vicarious liability of petitioners under Section 141 of the Negotiable Instruments Act:
  The court noted that the essential ingredients of the offence u/s 138 include drawing the cheque, presentation, return unpaid, notice of demand, and failure to pay within 15 days. The respondent conceded that the cheques were presented after the petitioners had resigned, thus they could not ensure encashment or compliance with the demand notice. The court cited the Supreme Court's decision in "DCM Financial Services Limited v. J.N. Sareen and Anr." emphasizing that mere past involvement does not attract liability u/s 141.
  
  4. Consideration of Form 32 as evidence:
  The court held that certified copies of Form 32, being public documents, could be considered in proceedings u/s 482 of the Code of Criminal Procedure, especially when their authenticity is not disputed. The court referenced previous decisions, including "All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain and Anr." and "Minakshi Bala v. Sudhir Kumar," supporting the consideration of such documents at the initial stage.
  
  5. Continuation of trial against other accused persons:
  The court concluded that since the petitioners had resigned before the cheques were presented, they could not be held vicariously liable. The criminal complaints against the petitioners were quashed, subject to Sanjeev Gupta filing a certified copy of Form 32 within six weeks. The trial would continue against the other accused persons.

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• 2010 (1) TMI 1280
  
  Issues Involved:
  1. Exclusion of time from the Corporate Insolvency Resolution Process (CIRP) period due to unavailability of the admission order copy.
  2. Exclusion of time from the CIRP period due to multiple litigations impacting the process.
  
  Detailed Analysis:
  
  Issue 1: Exclusion of Time Due to Unavailability of Admission Order Copy
  The Resolution Professional (RP) requested that the period from April 23, 2019, to April 26, 2019, be excluded from the CIRP period since the copy of the admission order was not available, delaying the RP's control over the Corporate Debtor. The Tribunal acknowledged this delay and agreed to exclude the four days from the CIRP period.
  
  Issue 2: Exclusion of Time Due to Multiple Litigations Impacting the Process
  The RP sought exclusion of the period from July 25, 2019, to November 27, 2019, due to various litigations that negatively impacted the CIRP. The Tribunal examined the following key points:
  
  - Primary Business and Operational Challenges: The Corporate Debtor's primary business involves running an independent power plant dependent on natural gas supplied by GAIL (India) Limited. Due to non-payment by Southern Power Distribution Company of Andhra Pradesh Limited and Eastern Power Distribution Company of Andhra Pradesh Limited (DISCOMS), the Corporate Debtor could not pay GAIL, leading to the suspension of gas supply and halting operations from July 4, 2019, to October 4, 2019.
  
  - Litigations with DISCOMS: The RP filed multiple applications seeking payment of dues from DISCOMS. The application IA No. 637/2019 was disposed of on September 5, 2019, and IA No. 740/2019 was disposed of on November 27, 2019. The non-payment by DISCOMS led to operational standstill and adversely impacted the CIRP process.
  
  - Withdrawal of Power Purchase Agreement (PPA): Another application, IA No. 757/2019, was filed to challenge DISCOMS' withdrawal of the PPA before the Andhra Pradesh Electricity Regulatory Commission (APERC). This application was disposed of on November 27, 2019, favoring the Corporate Debtor and preventing DISCOMS from pursuing the withdrawal until the completion of the CIRP.
  
  - Impact on Expression of Interest (EoI) and Resolution Plans: The EoI was published on July 6, 2019, with extensions due to operational challenges. Despite receiving nine EoIs, only one Resolution Plan was submitted, which was rejected by the Committee of Creditors (CoC) due to its commercial unacceptability.
  
  - Legal Precedents and Justifications for Exclusion: The RP cited the NCLAT decision in Quinn Logistics India Pvt. Ltd. v. Mack Soft Tech Pvt. Ltd., which allows exclusion of time in justified circumstances. Additionally, the Supreme Court's decision in Essar Steel India Limited vs. Satish Kumar Gupta emphasized that the time taken in legal proceedings should not penalize the parties involved.
  
  - Potential for Resolution: Post-litigation, potential Resolution Applicants expressed interest, and the CoC sought to explore resolution possibilities, emphasizing the need for additional time to maximize the Corporate Debtor's value.
  
  Tribunal's Decision:
  The Tribunal recognized the adverse impact of the unforeseen circumstances on the CIRP process. It allowed the exclusion of the period from July 4, 2019, to October 4, 2019 (92 days), from the CIRP period. Consequently, the application IA No. 71/2020 was disposed of, granting the requested exclusions to facilitate the completion of the CIRP process effectively.

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• 2010 (1) TMI 1279
  
  Issues Involved:
  1. Legality and constitutional validity of the impugned Notifications.
  2. Whether the impugned Notifications violate international treaties, specifically GATT and SCM Agreement.
  3. Whether the impugned Notifications are discriminatory and violate Articles 14, 19(1)(g), and 253 of the Constitution of India.
  4. Whether the impugned Notifications are arbitrary and unreasonable.
  5. Whether the State of Maharashtra has the competence to issue the impugned Notifications.
  
  Detailed Analysis:
  
  1. Legality and Constitutional Validity of the Impugned Notifications:
  The petitioner challenged the legality and constitutional validity of several Notifications issued by the State of Maharashtra, arguing that they created hostile discrimination between locally produced wines and imported wines. The petitioner claimed these Notifications violated the Union of India's trade agreements and principles of GATT, 1947, particularly "National Treatment" and "Agreement On Subsidies And Countervailing Measures." The petitioner argued that these Notifications were ultra vires, unconstitutional, arbitrary, unreasonable, and unjust, violating Articles 253, 14, and 19(1)(g) of the Constitution.
  
  2. Violation of International Treaties:
  The petitioner contended that the impugned Notifications violated GATT, 1947, and SCM Agreement principles. The court examined whether the international treaties have the force of law in India. It cited the Supreme Court's judgment in Maganbhai Patel's case, stating that international treaties do not automatically become law unless Parliament enacts legislation under Article 253 of the Constitution. Since Parliament had not enacted any law to implement GATT, the court held that the stipulations in the treaties do not have a binding effect on Indian nationals.
  
  3. Discrimination and Violation of Constitutional Articles:
  The petitioner argued that the Notifications discriminated against imported wines by imposing additional fees and higher taxes, while locally produced wines were exempted or subjected to lower rates. The court noted that a taxing statute is subject to Article 14 of the Constitution and requires valid classification. The court held that the classification between imported and domestic wines was reasonable and founded on an intelligible differentia, with a rational relation to the object sought to be achieved by the statute. The court referred to judgments like East India Tobacco Co. and Avinder Singh, affirming that the State has wide discretion in taxation matters and that such discretion should not be interfered with unless there is clear evidence of hostile discrimination.
  
  4. Arbitrary and Unreasonable Nature of the Notifications:
  The petitioner claimed that the Notifications were arbitrary and unreasonable. The court examined whether the Notifications conformed to the statute under which they were made and whether they were contrary to any other statute. The court found that the Notifications were consistent with the legislative intent and objectives of the Bombay Prohibition Act, 1949, and did not suffer from arbitrariness or unreasonableness. The court also rejected the argument that the Notifications violated Article 51 of the Constitution, which is non-enforceable and only advisory in nature.
  
  5. Competence of the State of Maharashtra:
  The court examined the legislative competence of the State of Maharashtra to issue the impugned Notifications. It held that the State had the legislative competence under Entry 8 of List II of the Seventh Schedule (pertaining to intoxicating liquors) and Entry 51 (pertaining to excise duty). The court rejected the argument that the Notifications were subordinate legislation and, therefore, subject to international treaties. It reiterated that in the absence of an enabling law by Parliament under Article 253, the Notifications could not be struck down on the ground of being contrary to international treaties.
  
  Conclusion:
  The court dismissed the petition, holding that the impugned Notifications were valid, non-discriminatory, and within the legislative competence of the State of Maharashtra. The court emphasized the wide discretion granted to the State in taxation matters and the non-binding nature of international treaties without enabling legislation by Parliament. The petitioner's arguments on the violation of international treaties, constitutional articles, and arbitrariness were rejected.

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• 2010 (1) TMI 1278
  
  Issues Involved:
  1. Allowance of depreciation at the rate of 40% versus 25% on certain vehicles.
  2. Deletion of addition on account of bad debts amounting to Rs. 3,08,890/-.
  
  Summary:
  
  Issue 1: Allowance of Depreciation at 40% vs. 25% on Vehicles

  The first issue for consideration relates to allowance of depreciation at the rate of 40 per cent as against 25 per cent on dumpers, trucks/tippers, TATA 407, TATA 709, TATA Tankers, and other similar vehicles. The assessee company, engaged in the business of mining, loading, and transportation, claimed depreciation at 40% on these vehicles, arguing they were used for transportation of coal on hire. The AO treated these as machinery, allowing only 25% depreciation. The ld. CIT (Appeals) held that vehicles used by the assessee in the business of transportation were eligible for 40% depreciation, noting that most were registered as heavy vehicles under the Motor Vehicle Act. The ld. CIT (Appeals) differentiated between vehicles like dumpers, trucks, and tippers, which were eligible for higher depreciation, and machinery like excavators and bulldozers, which were not. The Tribunal upheld the CIT (Appeals)'s decision, citing precedents from Hon'ble Gujarat High Court and Hon'ble Madhya Pradesh High Court, confirming that the assessee was entitled to 40% depreciation on the specified vehicles used for transportation.

  Issue 2: Deletion of Addition on Account of Bad Debts

  The second issue for consideration relates to deleting the addition on account of bad debts amounting to Rs. 3,08,890/-. The AO disallowed the bad debt claim, stating the conditions u/s 36(1)(vii) read with section 36(2) were not met. The ld. CIT (Appeals) found that the amounts written off were either loans given in the ordinary course of money lending by merged entities or represented income in earlier years. The Tribunal agreed with the CIT (Appeals), noting that the conditions of section 36(2) were satisfied as the amounts were either previously included in income or given as loans in the ordinary course of business. Thus, the deletion of the addition was upheld.

  Conclusion:

  In the result, the appeal filed by the Revenue is dismissed.

  The order pronounced in the open court on: 29th January, 2010.

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• 2010 (1) TMI 1277
  
  Issues Involved:
  1. Disallowance of deduction u/s. 80HHC of the Income-tax Act, 1961.
  2. Addition of business expenditure of job-work charges.
  3. Charging of interest u/s. 234B of the Income-tax Act, 1961.
  4. Deletion of addition on account of disallowance of foreign buyer's agent commission.
  
  Issue-wise Detailed Analysis:
  
  1. Disallowance of Deduction u/s. 80HHC of the Income-tax Act, 1961:
  The assessee contested the disallowance of deduction u/s. 80HHC, arguing that the Commissioner of Income-tax (Appeals) [CIT(A)] misinterpreted the amendments made by the Taxation Laws (Amendment) Act, 2005. The Tribunal noted that this issue had been adjudicated by the Special Bench in the case of Topman Exports v. ITO, where it was held that only the profit element of the sale proceeds of the Duty Entitlement Pass Book (DEPB) is to be excluded for the purposes of computation of deduction u/s. 80HHC. Consequently, the Tribunal remitted the issue back to the Assessing Officer (AO) for re-examination in light of the Topman Exports case.
  
  2. Addition of Business Expenditure of Job-Work Charges:
  The AO disallowed job-work charges paid to three parties, concluding that the job charges bills issued were accommodative and not for actual job work. The CIT(A) upheld this disallowance. The assessee provided extensive documentary evidence, including job charges invoices, bank statements, TDS certificates, and confirmations from job parties. The Tribunal found that the job work was a common practice in the textile industry in Surat and that the assessee had discharged its onus by providing sufficient evidence. The Tribunal referred to a similar case involving a group concern of the assessee, where the addition was deleted. Consequently, the Tribunal allowed the assessee's claim, reversing the orders of the lower authorities.
  
  3. Charging of Interest u/s. 234B of the Income-tax Act, 1961:
  The charging of interest u/s. 234B was consequential to the disallowance of job work expenses. As the Tribunal allowed the assessee's claim regarding job work charges, it directed the AO to charge interest after giving effect to the Tribunal's order.
  
  4. Deletion of Addition on Account of Disallowance of Foreign Buyer's Agent Commission:
  The AO disallowed the foreign buyer's agent commission, treating the gross sales amount as the sales income of the assessee and the commission as an application of income. The CIT(A) admitted additional evidence in the form of confirmation letters from foreign agents and buyers, which confirmed that the commission was deducted from the sales invoices and the net amount was received by the assessee. The Tribunal upheld the CIT(A)'s decision to admit additional evidence and found that the commission payments were genuine and allowable as business expenditure. The Tribunal referred to several case laws, including a decision in the case of Shri Samir A. Batra, where similar additions were deleted. Consequently, the Tribunal dismissed the Revenue's appeal on this issue.
  
  Conclusion:
  The Tribunal allowed the assessee's appeals regarding the disallowance of deduction u/s. 80HHC and the addition of job-work charges, and directed the AO to reconsider the interest charged u/s. 234B. The Tribunal also dismissed the Revenue's appeals regarding the disallowance of foreign buyer's agent commission, upholding the CIT(A)'s decision.

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