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2007 (11) TMI 712
Issues involved: Impugned order of High Court disposed of without hearing the appellant, conversion of application under Section 482 Cr.P.C. to one under Section 438 Cr.P.C., granting of interim protection without notice to the appellant.
Summary:
Issue 1: Impugned order disposed of without hearing the appellant The Supreme Court found that the High Court's order could not be maintained as it was passed without hearing the appellant, despite issuing notice. The appellant filed a subsequent application upon learning about the proceedings, which led to the High Court directing the accused to implead the appellant. The Court noted the lack of service of notice on the appellant, and the conversion of the application under Section 482 Cr.P.C. to one under Section 438 Cr.P.C. without the appellant's knowledge. The High Court's actions were deemed improper, leading to the setting aside of the impugned order and remanding the matter for fresh consideration.
Issue 2: Conversion of application under Section 482 Cr.P.C. to one under Section 438 Cr.P.C. The Court disapproved of the practice of converting applications under Section 482 Cr.P.C. to bail applications under Section 438 or 439 Cr.P.C. It was highlighted that direction for notice and service on the appellant was not followed by the accused. The fact that a charge sheet had been filed or bail granted to the accused was considered irrelevant due to the relief granted in the regular bail application based on the interim protection provided by the High Court.
Conclusion: The Supreme Court allowed the appeal to the extent of setting aside the impugned order and remanding the matter for fresh consideration without expressing any opinion on the case's merits. The parties were directed to appear before the learned Single Judge on a specified date to avoid unnecessary delays, with the Chief Justice of the High Court requested to list the matter accordingly.
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2007 (11) TMI 711
Issues Involved:1. Quashing of criminal complaint u/s 482 CrPC. 2. Liability of Directors u/s 138 and 141 of the Negotiable Instruments Act. Summary:Issue 1: Quashing of criminal complaint u/s 482 CrPCThe petitioners sought to quash criminal complaint No. 1962/01 pending before the Metropolitan Magistrate, arguing that there was no material on record to connect them with the alleged offence u/s 138 read with Section 141 of the Negotiable Instruments Act. They contended that the complaint lacked averments that the petitioners were in charge of and responsible for the day-to-day affairs of the accused company. The petitioners also argued that they were not the authorized signatories of the company and were merely sleeping Directors. Issue 2: Liability of Directors u/s 138 and 141 of the Negotiable Instruments ActThe court referred to several judgments, including *N.K. Wahi v. Shekhar Singh and Ors.*, which clarified that u/s 141 of the Act, only those persons who were in charge of and responsible for the conduct of the business of the company at the time the offence was committed could be held liable. The court emphasized that merely being a Director is not sufficient to attract liability u/s 141. There must be specific allegations in the complaint detailing the role of the Directors in the transaction. The complaint in the present case contained specific averments that the petitioners were in charge of and responsible for the conduct of the business of the accused company and that the offence u/s 138 was committed with their knowledge, consent, and connivance. The court noted that these averments were sufficient to proceed with the trial and that the question of whether the petitioners were actually in charge of the affairs of the company could only be determined during the trial. In light of the decision in *N. Rangachari v. Bharat Sanchar Nigam Limited*, the court concluded that the petitioners' arguments could only be addressed after the trial. Therefore, the petition to quash the complaint was dismissed with a cost of Rs. 5,000/- to be deposited with the trial court within one month, failing which the trial court would recover the same in accordance with the law.
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2007 (11) TMI 710
Issues Involved: 1. Right to be heard for 'parcha holders' in proceedings u/s 45-B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. 2. Validity of re-opening of concluded cases without notice to affected parties. 3. Compliance with principles of natural justice in re-opened proceedings.
Summary:
1. Right to be heard for 'parcha holders': The primary issue was whether 'parcha holders', who are in possession of the land, have any right to be heard in proceedings arising u/s 45-B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. The appellants, who were 'parcha holders', contended that they were entitled to notice and an opportunity of being heard in such proceedings. The Supreme Court held that the appellants, being in lawful possession of the land, must be given notice and an opportunity to be heard before any final decision is taken.
2. Validity of re-opening of concluded cases: The case involved the re-opening of a concluded proceeding where the land was initially declared surplus and distributed to 'parcha holders'. The re-opening was done without issuing notice to the appellants. The Supreme Court emphasized that u/s 45-B, the power to re-open a case must be exercised sparingly and for adequate reasons. The re-opening should not be done merely for verification and must comply with the principles of natural justice.
3. Compliance with principles of natural justice: The Court noted that the appellants were not issued notice or given an opportunity to be heard when the case was re-opened and the earlier decision was reversed. The Court held that the rules of natural justice require that before re-opening a concluded issue, notice must be issued to all affected parties, including those in possession of the land. The lack of notice rendered the re-opening order legally infirm and liable to be quashed.
Conclusion: The Supreme Court set aside the orders of the High Court and the re-opening order due to the failure to provide notice and an opportunity to be heard to the appellants. However, it allowed the State Government to pass a fresh order u/s 45-B of the Act after affording an opportunity to all parties, including the appellants. The civil appeal was allowed to this extent with no costs.
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2007 (11) TMI 709
Issues involved: Remand of matter back to Tribunal for fresh decision.
Summary: The Supreme Court, in a judgment delivered by Mr. Ashok Bhan and Mr. D.K. Jain, JJ., condoned the delay and issued notice limited to the question of remanding the matter back to the Tribunal. The appellant argued that the Department was not given an opportunity to prove that the product in question was being 'manufactured' as per the Central Excise Act. The respondents contended that the issue was covered by a previous judgment but the Court, noting a distinction, decided in the interest of justice to remit the case to the Tribunal for a fresh decision. The impugned order was set aside, all contentions were left open, and the appeal was allowed with no order as to costs. The Court clarified that the order should not be construed as an expression of opinion.
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2007 (11) TMI 708
... ... ... ... ..... pective tenderer has a right to insist for a process in harmony therewith. 106. In the above premise, the pronouncement of the Apex Court in Directorate of Settlement, A.P and Ors. (Supra), enjoining the edict of existence of a legal right of the person aggrieved as a prerequisite to seek a writ of mandamus for the enforcement thereof, is of no avail to the respondents. 107. For the reasons mentioned hereinabove with respect, I am unable to subscribe to the view expressed by the Calcutta High Court in Shimnit Utsch India Ltd. and Anr. (Supra) vis-a-vis the decision rendered in Association of Registration Plates (Supra). In the result, I find sufficient force in the petition, which therefore, is allowed. The impugned tender process in the form as it stands today, being opposed to the letter and spirit of the pronouncement of the Apex Court in Association of Registration Plates (Supra), is hereby adjudged illegal, unconstitutional, null and void and is non est in law. No costs.
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2007 (11) TMI 707
Issues Involved: 1. Jurisdiction of the Court. 2. Appointment and performance of the contractor. 3. Entitlement to enhanced rates for stevedoring and transportation. 4. Quantum meruit applicability. 5. Interest on the claimed amount.
Summary:
Jurisdiction of the Court: The learned Civil Judge (Court No. 14), Ahmedabad, determined that the Court had jurisdiction to entertain the suit.
Appointment and Performance of the Contractor: The plaintiff was appointed as a contractor for stevedoring, clearance, and transportation at Kandla Port pursuant to the tender. The plaintiff carried out the work of transport and handling cargo as per the terms and conditions of the tender. The plaintiff was unloading more than the stipulated quantity in the tender.
Entitlement to Enhanced Rates for Stevedoring and Transportation: The trial court found that the plaintiff was entitled to the contractual rate of Rs. 108/- per M.T. and not the claimed enhanced rate of Rs. 215/- per M.T. The claim for enhanced transportation charges was also denied. The High Court, however, reversed the trial court's judgment, holding that the plaintiff was entitled to extra remuneration for extra work performed, applying the principle of quantum meruit. The High Court decreed the suit for Rs. 68,02,973/- with interest at 6% per annum.
Quantum Meruit Applicability: The High Court applied the principle of quantum meruit, stating that since no negotiation took place despite the plaintiff's written requests, the plaintiff was entitled to compensation for the extra work performed. The Supreme Court, however, directed that the plaintiff be paid at the rate of Rs. 108 per M.T. for up to 750 M.T. and Rs. 215 per M.T. for quantities beyond that. The claim for enhanced transportation charges at Rs. 45 per M.T. was not substantiated and thus denied.
Interest on the Claimed Amount: The interest rate was fixed at 6% per annum as determined by the High Court.
Final Decision: The Supreme Court allowed Civil Appeal No. 7440 of 2000 to the extent of modifying the payment rates and dismissed Civil Appeal No. 2540 of 2002 filed by the respondent. No order as to costs in both appeals.
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2007 (11) TMI 706
Issues involved: The petitioner seeks cancellation of bail granted to the respondent by a Special Judge in a case involving offences under the Prevention of Corruption Act, 1988 and various sections of the Indian Penal Code.
Details of the Judgment:
Issue 1: Grounds for seeking cancellation of bail The petitioner alleges that the respondent influenced witnesses and fabricated evidence to mislead the investigation agency. The respondent disclosed involvement in forgery of documents and laundering corrupt earnings. The petitioner contends that the bail order is arbitrary and should be set aside.
Issue 2: Respondent's defense The respondent cooperated during the investigation, submitting affidavits and complying with court directives. The High Court of Allahabad directed consideration of the petitioner's explanation and restrained arrest without proper justification. The respondent's arrest occurred more than two years after the FIR, and he cooperated during police custody and interrogation.
Issue 3: Judicial review of bail order The Special Judge's bail order was challenged by the petitioner as being based on extraneous factors. The respondent's defense argued that the bail order demonstrated a judicious application of mind to the facts and was not perverse. The respondent denied influencing witnesses or fabricating evidence.
Issue 4: Legal considerations for bail The court considered factors such as the nature of the offense, character of evidence, accused's conduct, witness tampering risk, public interest, and other relevant aspects while granting bail. The bail order imposed specific conditions on the respondent.
Issue 5: Criteria for cancellation of bail Cancellation of bail requires substantial reasons, such as interference with justice administration or evidence tampering. A bail order should not be canceled mechanically but based on supervening circumstances affecting a fair trial. The petitioner must demonstrate serious infirmities in the bail order for cancellation.
Conclusion: The court found no evidence of post-bail tampering with evidence or witness influence by the respondent. The bail order was upheld, with a warning that any future misconduct could lead to bail cancellation. The petition for bail cancellation was dismissed, and the stay on the trial court's order was lifted, with directions to send a copy of the judgment to the trial court.
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2007 (11) TMI 705
Issues involved: The issue involves the delay in filing a complaint under Section 138 of the Negotiable Instruments Act, the absence of a petition to condone the delay, and the legality of the cognizance taken by the learned Magistrate without following the proper procedure.
Summary: The petitioner filed a Criminal Original Petition to quash the proceedings in C.C No. 1295 of 2006, as the complaint was filed after a delay of 10 days without a petition to condone the delay. The learned Magistrate had taken cognizance of the case without following the necessary procedure. The petitioner argued that the cognizance taken by the Magistrate should be quashed as it did not involve condoning the delay through a proper petition and hearing.
The learned Counsel for the petitioner contended that the complainant should have filed a petition supported by an affidavit to condone the delay, and the Magistrate should have given an opportunity for hearing before taking cognizance. The petitioner also argued against granting liberty to the respondent to file a petition to condone the delay, as it might lead to a second cause of action.
In a referenced case, it was highlighted that the complainant should be given an opportunity to file an application to condone the delay in filing the complaint. The Court noted that the Magistrate did not follow the proper procedure in this case, affecting the petitioner's rights. The Court decided to set aside the order of the Magistrate and remit the matter back for the complainant to file a petition to condone the delay, followed by a proper hearing and decision by the Magistrate.
The Court rejected the petitioner's argument against allowing the respondent to file a petition to condone the delay, stating that there was no second cause of action involved. The Criminal Original Petition was disposed of with the mentioned directions, and the connected Miscellaneous Petition was closed.
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2007 (11) TMI 704
... ... ... ... ..... uestions of law as formulated in paragraph 2 of the appeal memo.
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2007 (11) TMI 703
Issues Involved: 1. Conflict between two coordinate Benches of the Court. 2. Period of limitation for rectification u/s 22 of the U.P. Sales Tax Act, 1948. 3. Interpretation of Sub-section (1) of Section 22 of the Act. 4. Applicability of case laws and precedents.
Summary:
1. Conflict between two coordinate Benches of the Court: The learned Single Judge identified conflicting opinions between two coordinate Benches in "Commissioner of Sales Tax v. India Steel Supply Co." and "Karam Chand Thapar v. Commissioner of Sales Tax." The matter was referred to the Hon'ble Chief Justice, who directed it to be listed before a Division Bench.
2. Period of limitation for rectification u/s 22 of the U.P. Sales Tax Act, 1948: The opposite party, a registered dealer, disclosed taxable sales for the assessment year 1979-80. The Sales Tax Officer initially imposed a tax at 6% but later sought to rectify this to 8%, resulting in a short levy. Proceedings u/s 22 were initiated, but the rectification was made after the three-year limitation period. The Tribunal held that the rectification order was barred by limitation as it was passed beyond three years from the original assessment order.
3. Interpretation of Sub-section (1) of Section 22 of the Act: The main part of Sub-section (1) of Section 22 allows rectification of any mistake apparent on the record within three years from the date of the order. The first proviso permits rectification beyond three years if an application is made within the three-year period. However, this does not apply to suo motu rectification, which must be done within three years. The second proviso ensures natural justice by requiring a reasonable opportunity to be heard before enhancing assessment, penalty, fees, or other dues.
4. Applicability of case laws and precedents: - Karam Chand Thapar (supra): Held that suo motu rectification must be done within three years, and the proviso applies only to applications made within the three-year period. - India Steel Supply Co. (supra): Suggested that issuing a notice within three years allows rectification beyond the period, but this view was not followed. - K.C. Thapar & Bros. (supra): Supported the view that issuing a notice within three years allows rectification beyond the period. - Sudarasam Iyengar & Sons (supra): Interpreted similar provisions in another context but was found not applicable due to different statutory language. - Sha Vajeshankar Vasudeva and Co. (supra): Followed the Apex Court's decision but was not agreed upon due to different statutory language. - Kodaikanal Motor Union (P) Ltd. (supra): Emphasized the purpose and object of the section in interpretation. - Aditya Kumar Gulab Shanker (supra): Consistently held that rectification must be done within three years unless an application is made within that period.
Conclusion: The Court concluded that the decision in "India Steel Company" was incorrectly decided, while "Karam Chand Thapar" laid down the correct law. The Tribunal's decision that the rectification order was barred by limitation was upheld, and the revision was dismissed. The parties were left to bear their own costs.
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2007 (11) TMI 702
... ... ... ... ..... per son had acted in concert with the acquirer-PSPL when they acquired the shares of KJEL in earlier financial years. It is, therefore, clear from the above discussion that even the fourth pre-condition attracting Regulation 11(1), as laid down by the Supreme Court in Swedish Match AB's case (supra), is also not satisfied in this case. 16. The order of the adjudicating officer holding that the appellants violated Regulation 11(1) on the acquisition of 16,000 shares of KJEL on 12-12-2002 cannot be sustained as the pre-conditions for attracting Regulation 11, as laid down by the Supreme Court, are not satisfied in this case. The adjudicating officer has erred in this regard. Consequently, the impugned order levying the penalty of ₹ 84,54,595 is set aside. For the view that we have taken above, it is not necessary to deal with the other contentions raised by the appellants. In the result, the appeal is allowed and the impugned order set aside with no order as to costs.
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2007 (11) TMI 701
Issues Involved: 1. Whether the demand raised by Allahabad Jal Sansthan for water and sewerage charges is sustainable. 2. Whether Article 285 of the Constitution exempts the Railway Administration from paying these charges. 3. Distinction between a tax and a fee for services rendered.
Summary:
1. Demand Raised by Allahabad Jal Sansthan: The appellants challenged the recovery proceedings initiated by Jal Sansthan, Allahabad, for water and sewer charges on Railway properties for the period from October 1994 to March 1999. The Division Bench of the Allahabad High Court dismissed the writ petition and upheld the recovery proceedings.
2. Article 285 Exemption: The appellants argued that under Article 285 of the Constitution, the property of the Union is exempt from state taxation, and thus, the charges for water and sewer services should not be payable. The High Court, however, concluded that these charges are not in the nature of a tax but a fee for services rendered by Jal Sansthan. The court referred to previous decisions, including Union of India v. Purna Municipal Council and Union of India v. Ranchi Municipal Corporation, to support its conclusion that the charges are fees and not taxes.
3. Distinction Between Tax and Fee: The court emphasized the distinction between a tax and a fee, stating that a tax is imposed for general revenue purposes, while a fee is a charge for specific services rendered. The Jal Sansthan provides water supply and maintains the sewerage system, incurring expenses for these services, which justifies the levy of charges. The court noted that the exemption under Article 285 applies to taxes on Union property, not to fees for services rendered.
Conclusion: The Supreme Court upheld the High Court's decision, stating that the charges levied by Jal Sansthan are fees for services rendered and not taxes on the property of the Union. Therefore, these charges are not exempt under Article 285 of the Constitution. The appeal was dismissed, affirming the liability of the appellants to pay the service charges.
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2007 (11) TMI 700
Issues Involved: 1. Conviction and Sentence u/s 138 of the Negotiable Instruments Act. 2. Execution and Validity of the Cheque. 3. Presumption u/s 118(a) and 139 of the N.I. Act. 4. Acquittal by the Lower Appellate Court.
Summary:
1. Conviction and Sentence u/s 138 of the Negotiable Instruments Act: The appellant, the complainant in C.C. No. 297 of 1996, alleged that the accused borrowed Rs. 2 lakhs and issued a cheque (Ext. P1) which was dishonored due to insufficient funds. The trial court convicted the accused u/s 138 of the N.I. Act, sentencing him to six months of simple imprisonment. The accused appealed, and the Additional Sessions Judge, North Paravur, set aside the conviction and sentence, leading to the present appeal by the complainant.
2. Execution and Validity of the Cheque: The trial court found that the cheque was issued in discharge of debt but was dishonored due to insufficient funds. However, the lower Appellate Court found that the complainant failed to prove the passing of consideration and the execution of the cheque. The accused admitted his signature but claimed the cheque was blank when handed over. The lower Appellate Court concluded that the complainant did not prove the execution of the cheque, thus denying the presumption u/s 118(a) and 139 of the N.I. Act.
3. Presumption u/s 118(a) and 139 of the N.I. Act: The appellant argued that the statutory presumption u/s 118(a) and 139 favored the complainant and was not rebutted by the accused. However, the lower Appellate Court held that the presumption regarding consideration could only be drawn if the execution was proved. The complainant failed to establish the execution of the cheque and the passing of consideration, thus the presumption was not available.
4. Acquittal by the Lower Appellate Court: The lower Appellate Court found that the complainant did not satisfy the conditions of being a 'holder' of the cheque as per Section 8 of the N.I. Act. It also noted that the dishonor of the cheque, issuance of notice, and non-payment did not assume importance due to the failure to prove execution and consideration. The court concluded that no offence u/s 138 was established, leading to the acquittal of the accused. The High Court upheld this decision, noting that the complainant failed to prove the execution of the cheque and the existence of a legally enforceable debt or liability.
Conclusion: The High Court dismissed the appeal, affirming the lower Appellate Court's decision to acquit the accused, as the complainant failed to prove the execution of the cheque and the existence of a legally enforceable debt or liability.
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2007 (11) TMI 699
Issues involved: The issues involved in the judgment include the classification of the appellant Corporation as a 'local authority' under Section 10(20) of the Income Tax Act, 1961, the entitlement to exemption under Section 11(1)(a) as a charitable institution, and the requirement of registration under Section 12A of the Act for claiming tax benefits.
Classification as 'local authority' under Section 10(20): The U.P. Forest Corporation was initially considered a local authority by the High Court for the assessment year 1976-77, based on Section 10(20) of the Act. However, subsequent decisions by the Supreme Court clarified that the Corporation being regarded as a local authority under the U.P. Forest Corporation Act did not automatically qualify it as a local authority for the purposes of Section 10(20) of the Income Tax Act. The Corporation's status as a charitable institution under Section 11(1)(a) was also examined.
Requirement of registration under Section 12A for tax exemption: The Supreme Court emphasized that registration under Section 12A is a prerequisite for availing benefits under Sections 11 and 12 of the Act. The Court held that since the appellant Corporation had not obtained registration under Section 12A, it was not entitled to claim exemption from tax under Sections 11(1)(a) and 12 of the Act. Consequently, the Court dismissed the appeals filed by the Corporation without delving into the merits of the dispute.
Decision and directions: The Court dismissed the appeals filed by the Corporation and the Revenue, directing the Tribunal to prioritize and expedite the decision on the Corporation's application for registration under Section 12A. It was clarified that if the matter is decided in favor of the Corporation, the appeals can be revived for a decision on merits. The order of the High Court remanding the main assessment was to remain on hold until the Tribunal's final decision on registration. No costs were awarded in the case.
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2007 (11) TMI 698
Issues involved: The judgment involves issues related to criminal breach of trust, forgery, falsification of accounts, criminal conspiracy, and misappropriation of funds.
Criminal Breach of Trust and Other Offences: Accused Nos. 1 to 10 were charged with various offences including criminal breach of trust, forgery, and misappropriation of funds. The accused were alleged to have encashed T.A. Bills for a significant amount and misappropriated funds meant for a project. The High Court convicted some of the accused under the Prevention of Corruption Act but acquitted them of other charges under the Indian Penal Code.
Conviction and Appeal: The High Court convicted Accused Nos. 4 to 7 under the Prevention of Corruption Act but acquitted them of charges under the Indian Penal Code. The State filed appeals against the acquittal of the accused, arguing that they were also guilty of criminal conspiracy and other offences under the IPC.
Conspiracy Allegations: The State contended that the accused were involved in a criminal conspiracy, despite the lack of direct evidence. The prosecution argued that the accused had forged documents and misappropriated funds in conspiracy with others, leading to their guilt under various sections of the IPC.
Evaluation of Evidence: After examining the documents, evidence, and arguments presented, the Court found that the prosecution failed to establish the essential elements of conspiracy against Accused Nos. 4 to 7. The Court noted discrepancies in the evidence and lack of proof regarding the alleged conspiracy and misappropriation.
Acquittal and Discharge: Due to the lack of evidence supporting the charges, the Appeals filed by Accused Nos. 4 to 7 were allowed, leading to their acquittal. The convictions and sentences imposed on them were set aside, and they were discharged from their bonds and sureties. The Appeals filed by the State were dismissed, and the notice against Accused Nos. 4 to 7 was discharged.
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2007 (11) TMI 697
Issues Involved: The issues involved in this case are: 1) Jurisdiction of Assessing Officer for passing assessment in block period 1986-87 to 1996-97. 2) Failure of Tribunal to consider transactions with M/s Benani for assessment years 1994-95 and 1996-97.
Jurisdiction of Assessing Officer: The appellant, the revenue, challenged the Tribunal's decision regarding the Assessing Officer's jurisdiction to pass assessment for the block period 1986-87 to 1996-97. The materials were seized during a search at M/s. Esanda Finance Limited's premises, and a subsequent survey was conducted under section 133A of the Act. The Managing Director of the assessee admitted to engaging in fictitious lease transactions to earn commission income. The Tribunal held that the Assessing Officer had no jurisdiction to pass the assessment, which led to the revenue's appeal.
Failure to Consider Transactions: The Tribunal failed to take into account that transactions with M/s Benani were dated 4-4-1994 and were not offered in the return of income for the assessment year 1994-95. These transactions were only included in the regular returns for the assessment year 1996-97 to circumvent the search and seizure conducted by the Department. This failure to consider the timing of transactions was a key point raised in the appeal by the revenue.
Court's Decision: The Court noted that the Tribunal had passed the order before the Finance Act, 2002 came into force, which amended the provisions of Section 158B and 158BB of the Income Tax Act. The Court was requested to remand the matter to the Tribunal for re-examination based on the amended provisions. Considering that the appeal was a continuous process of the original proceedings, the Court decided to allow the appeal without delving into the questions of law and remanded the matter to the Tribunal for fresh consideration in accordance with the amended provision of Section 158BB of the Income Tax Act. Consequently, the appeal was allowed.
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2007 (11) TMI 696
Issues involved: Dispute over land tax payment, ownership of property, issuance of possession certificate, appropriateness of writ remedy.
The petitioner requested the court to direct respondents 2 to 4 to accept the land tax paid for the property and change the Thandaper in his favor, along with seeking a possession certificate for the property. The respondents, in their counter affidavit, claimed that the State Government is the owner of the property due to a revenue sale. The learned Single Judge, noting the dispute over property title, ruled that a writ is not the appropriate remedy and directed the petitioner to establish his rights in a civil forum. The petitioner appealed this decision, arguing that he should not be required to prove his title in a civil suit.
The appellant contended that the learned Judge erred in directing him to establish his property rights through a civil suit. The court, while rejecting the appeal, modified the order to allow the petitioner to establish his rights in an appropriate forum through proper proceedings. This modification was made to safeguard the petitioner's interests without causing prejudice to the other party.
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2007 (11) TMI 695
Petition u/s 482 of the Code of Criminal Procedure - Compounding after the confirmation of the conviction passed by the Magistrate Court - Dishonor of Cheque u/s 138 of the Negotiable Instrument Act (Act) - "insufficiency of funds" - Can the High Court reverse, alter or modify the conviction which became final by its own order passed in a revision petition, by using power u/s 482 of the Cr.P.C., which ultimately may amount to cancellation of conviction and sentence taking note of subsequent events like compounding of the case? - HELD THAT:- We hold that order passed in the revision which has become final cannot be altered by invoking Section 482 even if the matter is subsequently compromised between the parties or complainant wants to withdraw the complaint. By using inherent powers, court cannot violate the written provisions of the Code. If the offence is compounded, virtue of Section 320(8) will amount to acquittal and in view of Section 326, conviction confirmed by the High Court in revision cannot be modified by a proceedings u/s 482.
Once the compounding is accepted by the court, court cannot impose any sentence. Imposition of fine and ordering imprisonment in default of payment of fine, after acquitting the accused is foreign to criminal law. After acquitting a person he cannot be sentenced either with imprisonment or fine. That is not possible. Inherent jurisdiction cannot be used for sentencing a person by imposing a fine even after acquitting him, bye passing the statutory provisions. Justice can be administered only according to law. Imposition of fine is different from imposition of cost or compensation. We are of the opinion that, once the compounding is permitted, it will have the effect of an acquittal and not further imposition of fine or any type of sentence can be passed in view of Section 320(8).
We are of the view that even if relief u/s 482 is a discretionary, judicial discretion cannot be exercised to discriminate between person to person. It must be applicable to all similarly situated persons. Mere delay or inconvenience in approaching Supreme Court is not a ground for invoking jurisdiction u/s 482. Thus, we overrule the decision of Sabu George's case to long as it holds that Section 482 can be invoked for accepting compounding of the offence under N.I. Act after the conviction is confirmed in a revision by the High Court.
In K. Kandasamy and Anr. v. K.P.M.V.P. Chandrasekharan Supreme Court in a pending matter accepted compounding of the offence after confirmation of the same by revisional court. In Sailesh Shyam Parsekar v. Baban Alias Vishwanath S. Godge and Anr. [2005 (3) TMI 814 - SUPREME COURT]. Apex Court allowed the compounding of offence u/s 138 of the N.I. Act when first application was filed in the appeal and conviction and sentence passed by the revisional court was set aside. This order will not prevent the petitioners to approach the Supreme Court in appropriate proceedings if the offence is compounded, if so advised.
As found in Abdul Latheef's case (supra) the direction in the revisional order is to pay the compensation and not to deposit the compensation. Therefore if the amount is paid to the complainant there is no question of the petitioner undergoing default sentence. In this case as seen from joint petition entire amount ordered as compensation is paid. The remaining part is only the appearance of the petitioner before the Magistrate Court, and undergo imprisonment till the rising of the court.
Since there was the stay of execution of judgment, petitioner is allowed to appear before the Magistrate Court to receive the remaining part of the sentence if he chooses to do so. Hence this Criminal M.C. is dismissed.
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2007 (11) TMI 694
Issues involved: Applicability of Article 136 of the Limitation Act, 1963 in execution proceedings.
Summary: The appeal questioned the applicability of Article 136 of the Limitation Act in a case arising from a judgment and order passed by the Bombay High Court, Nagpur Bench, affirming a decision of the Civil Judge, Junior Division.
Background: The suit filed by the predecessor-in-interest of the respondents was initially dismissed, but a second appeal led to a decree for possession of land. A review petition was filed and dismissed, leading to further legal proceedings.
Key Points: - The appellant contended that the execution of the decree was barred by limitation due to lack of a stay order from the Court. - The High Court upheld the execution proceedings, stating that the decree was enforceable immediately upon passing. - The Supreme Court clarified that the decree for possession became enforceable upon pronouncement, and an execution petition was required within 12 years. - The Court emphasized that the stay order from 1988 did not impact the execution of the decree, as it was meaningless after the review petition dismissal. - The direction for computation of mesne profit did not hinder the execution of the possession decree.
Decision: The Supreme Court held that both the Executing Court and the High Court erred in ruling that the Execution Petition was not time-barred. The appeal was allowed, and the impugned judgment was set aside with costs awarded.
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2007 (11) TMI 693
Issues involved: Challenge to notices for production of books of accounts for 1994-95 and 1995-96 on the ground of limitation.
Summary: The petitioners challenged the notices (Exts. P7 to P9) to produce books of accounts for 1994-95 and 1995-96, arguing that the proceedings were time-barred. The petitioners relied on Rule 32(21) of the KGST Rules, which specifies the period for preservation of accounts by dealers. The rule mandates that accounts must be preserved for two years from the date of completion of final assessment or from the date of disposal of any appeal or revision related to the assessment. The petitioners contended that since there were no pending appeals or revisions, and the assessments had become final, the notices were issued beyond the prescribed time limit for book preservation. Consequently, the court disposed of the petition, directing the first respondent not to compel the petitioners to produce the books of accounts for the mentioned years. The penalty proposal contained in the notices was also quashed. However, the court clarified that the department could still collect information, compare it with the filed returns, and revise assessments if they find discrepancies, after issuing a notice to the petitioners. The respondents were permitted to disregard the limitation period for initiating proceedings from the date of filing the original petition until the judgment was produced.
In conclusion, the court ruled in favor of the petitioners, holding that the notices for production of books of accounts for 1994-95 and 1995-96 were time-barred as per the provisions of Rule 32(21) of the KGST Rules.
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