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Showing 21 to 40 of 655 Records
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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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2007 (11) TMI 692
Issues involved: Petitioner's entitlement to exemption, pending appeals (Ext.P2 and Ext.P7), Revenue Recovery proceedings (Ext.P8).
Entitlement to exemption: The petitioner claims entitlement to exemption and states that Ext.P2 appeal on this issue is pending consideration of the first respondent. The appeal is directed to be considered as per Ext.P4 judgment in W.A.1411/2007. The petitioner submits that the appeal will be considered at the State Level Committee to be convened by the first respondent within two months.
Assessment and appeals: For the assessment in the year 2002-03, Ext.P3 assessment notice was issued, and assessment was completed as per Ext.P6, rejecting the petitioner's claim for total exemption based on Ext.P1 notification. Subsequently, the petitioner filed Ext.P7 appeal and stay petition, which are pending consideration of the third respondent. While orders are not passed in the stay petition, Revenue Recovery proceedings have been initiated by Ext.P8, leading to the filing of the writ petition.
Conditional stay of recovery action: The judgment notes that the fate of Ext.P7 appeal depends on the outcome of Ext.P2 appeal. Considering this, the court decides to grant a conditional stay of Ext.P8. It is directed that further proceedings pursuant to Ext.P8 shall be deferred if the petitioner remits a sum of Rs. 4,00,000/- (Four Lakhs) within one month from the date of the judgment.
Conclusion: The writ petition is disposed of with the directive for the conditional stay of recovery proceedings upon the petitioner's compliance with the specified payment within the given timeframe.
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2007 (11) TMI 691
Issues Involved:
1. Illegal/Fraudulent Transfer of Petitioner's Shareholding
2. Illegal/Fraudulent Removal of Petitioner as Director
3. Illegal/Fraudulent Adjustment of Unsecured Loan
Summary:
1. Illegal/Fraudulent Transfer of Petitioner's Shareholding:
The petitioner alleged that his shareholding was transferred to Respondent No. 7 without his consent, and the original share certificates were still in his possession. The respondents argued that the petitioner had signed the transfer deeds and received full consideration. However, the petitioner produced the original share certificates during the hearing, and the respondents failed to produce the original certificates to prove the transfer. The court found that the transfer was done illegally and fraudulently, violating Section 108 of the Companies Act, 1956, and declared the transfer null and void, directing the company to rectify the register of members accordingly.
2. Illegal/Fraudulent Removal of Petitioner as Director:
The petitioner claimed that his removal as a director was illegal and based on a blank resignation letter handed over to the respondents. The respondents contended that the petitioner had resigned voluntarily and used the resignation letter to get his collateral security released from the bank. The court noted that directorial complaints are generally not grounds for a petition u/s 397/398 unless in the case of family companies or companies in the nature of partnership. The court found that the petitioner had resigned on his own and did not grant relief on this ground.
3. Illegal/Fraudulent Adjustment of Unsecured Loan:
The petitioner argued that his unsecured loan of Rs. 14,77,124/- was adjusted fraudulently in the company's books based on a non-existent 'Written Settlement Agreement.' The respondents failed to produce the agreement despite repeated opportunities. The court noted the continuous oppression due to the illegal adjustment and found the respondents' actions objectionable.
Conclusion:
The court dismissed the preliminary objections raised by the respondents regarding the petitioner's qualification u/s 399 of the Act and the maintainability of the petition. The court set aside the illegal transfer of the petitioner's shareholding and directed the company to rectify the register of members. The petitioner's removal as a director was not considered a valid ground for relief in this petition. The petition was disposed of with the above directions, and all interim orders were vacated.
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2007 (11) TMI 690
Issues involved:
The issues involved in this case include diversion of furnace oil, duty demands on imported furnace oil, duty demand on short receipt of furnace oil, demand on clandestinely removed yarn, duty demand on clearance of waste, confiscation of furnace oil, imposition of penalties, and personal penalties on individuals.
Duty demands on imported furnace oil:
The appellants procured fuel for electricity generation under EOU scheme. The demands were made for duty evasion on furnace oil allegedly diverted to another EOU unit. The Tribunal found no intention to evade duty as the oil was used within the EOU framework. The demands were set aside due to procedural errors and lack of malafide intent.
Duty demand on short receipt of furnace oil:
A demand was made based on short receipt of furnace oil, but it was found to be based on presumption and not corroborated by evidence. The demands were not upheld as there was no concrete proof of short deliveries.
Confiscation of furnace oil:
Confiscation of furnace oil was ordered by the Commissioner, but the Tribunal found no evasion of duty on the transferred oil. As the oil was not available for confiscation, the redemption fine was set aside.
Demand on clandestinely removed yarn:
Demands were raised on clandestinely removed yarn, but the Tribunal directed a reworking of the duty applicable based on previous Tribunal decisions regarding duty payments by EOUs.
Duty demand on clearance of waste:
The demand on clearance of waste was challenged as documents were not furnished to determine the classification of waste. The Commissioner was directed to re-determine the duty demand after providing necessary documents and hearing the appellants.
Imposition of penalties:
Penalties were imposed on the appellants and individuals under various rules. The determination of penalties was deferred pending quantification of demands. The appeals were partially allowed and partially remanded for further proceedings.
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2007 (11) TMI 689
The Delhi High Court dismissed the appeal by the Revenue against an order passed by the Income Tax Appellate Tribunal for the Assessment Year 2001-02. The Court held that no substantial question of law arose based on a previous decision.
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2007 (11) TMI 688
Issues involved:
The issue involves challenging the order passed by a learned Single Judge of the Madhya Pradesh High Court dismissing the criminal revision petition filed by the appellant. The main contention is regarding the application of Section 302 of the Indian Penal Code (IPC) to the facts of the case, specifically in relation to a fatal accident involving a bus and a train near an unmanned railway crossing.
Background Facts:
The incident occurred when a bus, driven by the appellant, was hit by a train at a railway crossing, resulting in injuries to several passengers and the death of two individuals. Charges were framed under Section 302 and alternatively under Section 304, 325, and 323 of the IPC. The appellant contested the framing of charges under Section 302, arguing that it was an error of judgment and that Section 304A IPC would be more applicable.
Appellant's Argument:
The appellant's counsel contended that the accident near the unmanned railway crossing, where the train hit the rear portion of the bus, indicated no apparent negligence on the part of the appellant. It was argued that Section 302 did not apply, and the more appropriate charge would be under Section 304A IPC.
Respondent's Argument:
In response, the respondent's counsel argued that the passengers' warnings to the appellant not to cross the railway line indicated negligence on the part of the appellant, who was allegedly acting rashly and negligently without proper care and caution.
Analysis of Section 304A IPC:
Section 304A of the IPC pertains to cases where death is caused by a rash or negligent act, without the intention to cause death or the knowledge that the act would likely result in death. It focuses on acts that are rash and negligent, directly leading to another person's death, with negligence and rashness being essential elements under this section.
Legal Interpretations:
Various legal sources were cited to explain negligence, recklessness, and the standard of care required under the law. The definitions and distinctions between negligence, recklessness, and intent were discussed, emphasizing the high degree of negligence required for criminal liability.
Judgment:
The Supreme Court allowed the appeal, altering the charges from Section 302 IPC to Section 304A IPC, along with additional sections under the IPC related to rash and negligent acts. The court found that prima facie, Section 302 IPC did not apply to the circumstances of the case, leading to the alteration of charges based on the analysis presented during the appeal.
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2007 (11) TMI 687
The Supreme Court dismissed the special leave petition, condoning the delay and stating that the Trial Court's findings were factual and did not require interference.
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2007 (11) TMI 686
Issues Involved:
1. Nullity of the foreign judgment and decree.
2. Territorial jurisdiction of the court.
3. Maintainability of the suit.
4. Applicability of Section 13 CPC to challenge the foreign judgment and decree.
5. Limitation period for filing the suit.
Summary:
Issue 1: Nullity of the Foreign Judgment and Decree
The plaintiff challenged the foreign judgment and decree of the High Court of Justice, Queen's Division Bench, England, claiming it was obtained fraudulently and without proper service of summons. The court examined whether the foreign judgment was conclusive u/s 13 of the Code of Civil Procedure (CPC). The court found that the judgment was given ex parte due to the plaintiff's non-appearance and did not address the merits of the case, thus failing to meet the requirements of Section 13(b) CPC, which mandates that a foreign judgment must be given on the merits to be conclusive.
Issue 2: Territorial Jurisdiction
The court held that it had territorial jurisdiction to try the suit as the defendants sought to enforce the decree within its jurisdiction, and the plaintiff resided and worked in Delhi. Therefore, the legality and validity of the enforcement of the decree had to be examined within the jurisdiction of this court.
Issue 3: Maintainability of the Suit
The defendants argued that the suit was not maintainable. However, the court noted that both the objections to the execution and the suit had to be examined together. The court concluded that the plaintiff was not devoid of a remedy to object to the execution of the decree.
Issue 4: Applicability of Section 13 CPC
The court reiterated that the foreign judgment did not meet the parameters of Section 13(b) CPC as it was not given on the merits of the case. The judgment was based solely on the plaintiff's failure to appear, and there was no evidence that the merits of the controversy were examined by the foreign court.
Issue 5: Limitation Period
The defendants raised the plea of limitation, but no positive evidence was led in that regard. The court found that the plaintiff's objections to the execution and the suit for declaration and injunction were not barred by limitation. This aspect was not seriously contested by the defendants.
Relief
The court decreed in favor of the plaintiff, declaring that the foreign judgment and decree were not conclusive and granted a permanent injunction restraining the defendants from enforcing the said decree. The objections to the execution were upheld, and the execution petition was dismissed. Each party was ordered to bear its own costs.
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2007 (11) TMI 685
Issues Involved:
1. Professional misconduct u/s 11(4) and 11B of the Securities and Exchange Board of India Act, 1992.
2. Violation of Regulations 4(a), 4(b), 4(c), 4(d), and 5 of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 1995.
3. Violation of Regulation 3 of the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992.
Summary:
Issue 1: Professional Misconduct
The Tribunal did not concern itself with the charge of professional misconduct against Arora in this appeal.
Issue 2: Violation of FUTP Regulations
The Board alleged that Arora compromised the interests of Indian unit holders to benefit ACM by manipulating trades in mid-cap companies with low floating stock. The Tribunal found that the evidence did not support the charge of entering into transactions with the intention of artificially affecting prices or creating a false or misleading appearance of trading. The Tribunal concluded that there was nothing artificial or non-genuine in the transactions cited, and there was a transfer of beneficial ownership in each transaction.
Issue 3: Violation of Insider Trading Regulations
Arora was accused of insider trading by selling DGL shares while in possession of unpublished price-sensitive information. The Tribunal found that the information Arora allegedly accessed did not turn out to be correct, as the merger was not announced on the expected date. The Tribunal held that the sale of securities was based on Arora's analysis of publicly available information, and there was no independent evidence to support the charge of insider trading.
Vicarious Liability of Appellants
The appellants were held vicariously liable for Arora's acts. However, since Arora was absolved of all charges by the Tribunal, the appellants could not be held vicariously liable. The Tribunal emphasized that a master can only be held liable if the servant is liable. As Arora was exonerated, the appellants were also not liable.
Judicial Discipline
The Tribunal stressed the importance of judicial discipline, stating that a coordinate Bench should not take a contrary view from an earlier judgment on the same set of facts. The Tribunal referred to the Supreme Court's observations in Sub-Inspector Rooplal v. Lt. Governor, emphasizing consistency in the interpretation of law to maintain public confidence in the judicial system.
Conclusion
The appeal was allowed, and the impugned order was set aside. The Tribunal did not find it necessary to decide on the quantification of the penalty. There was no order as to costs.
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2007 (11) TMI 684
Issues Involved:
1. Sanction of the scheme of arrangement between Bharti Airtel Ltd. and Bharti Infratel Ltd.
2. Objections raised by the Regional Director, Northern Region, Ministry of Company Affairs.
3. Approval by equity shareholders, secured and unsecured creditors.
4. Transfer and vesting of assets and liabilities.
5. Legal proceedings and contracts.
6. Employee transfer and benefits.
7. Tax credits and incentives.
8. Costs and expenses.
Detailed Analysis:
1. Sanction of the Scheme of Arrangement:
The court considered the petition for the sanction of the scheme of arrangement between Bharti Airtel Ltd. (transferor company) and Bharti Infratel Ltd. (transferee company). The scheme aimed to reorganize the telecom infrastructure operations of Bharti Airtel Ltd. by transferring them to its wholly-owned subsidiary, Bharti Infratel Ltd., for more efficient management.
2. Objections Raised by the Regional Director:
The Regional Director, Northern Region, Ministry of Company Affairs, raised two main objections:
- Lack of Detailed Assets and Liabilities: The scheme did not specify the individual assets and liabilities of the telecom infrastructure undertaking. The petitioners responded by providing provisional details as of 30.9.2007, which satisfied the court.
- Voting by Unsecured Creditors: One unsecured creditor entitled to Rs. 2,26,298 voted against the scheme. The petitioners clarified that the scheme was approved by a majority in number representing 99.73% of the value of unsecured creditors present and voting, satisfying the requirement under Section 391(2) of the Companies Act.
3. Approval by Equity Shareholders, Secured and Unsecured Creditors:
The scheme was approved unanimously without any modification by the equity shareholders, secured, and unsecured creditors of the transferor company. The meetings were convened as per the court's order, and the approval was documented through affidavits and reports submitted to the court.
4. Transfer and Vesting of Assets and Liabilities:
The court ordered that all property, rights, powers, liabilities, and duties of the telecom infrastructure undertaking of the transferor company be transferred to the transferee company without further act or deed, pursuant to Section 394(2) of the Companies Act, 1956. This includes:
- Movable and immovable assets.
- Current assets and liabilities.
- Permits, licenses, and approvals.
- Contracts and agreements.
5. Legal Proceedings and Contracts:
All legal proceedings by or against the telecom infrastructure undertaking of the transferor company will continue by or against the transferee company. The transferee company is authorized to execute necessary documents to give formal effect to the transfer of contracts and agreements.
6. Employee Transfer and Benefits:
All employees related to the telecom infrastructure undertaking will become employees of the transferee company on terms not less favorable than their current terms. The existing provident fund, gratuity fund, and other benefits will be transferred to the transferee company.
7. Tax Credits and Incentives:
The transferee company will succeed the transferor company in terms of tax credits and incentives. Unutilized credits for excise duties and service tax will be retained by the transferor company for its liabilities. Benefits under incentive schemes will be transferred to the transferee company.
8. Costs and Expenses:
The court ordered that the petitioners pay Rs. 20,000 to the official liquidator, which will be deposited in the common pool fund. All costs, charges, and expenses arising from the scheme will be borne by the transferee company.
Conclusion:
The court sanctioned the scheme of arrangement, declaring it binding on all shareholders and creditors of both companies. The scheme will be effective from the appointed date, i.e., the date on which a certified copy of the court order is filed with the Registrar of Companies, Delhi and Haryana. The court also provided directions for the transfer of assets, liabilities, and other procedural requirements to ensure the smooth implementation of the scheme.
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2007 (11) TMI 683
Issues involved: Whether the assessee is eligible to pay tax at the compounded rate u/s 7(7) of the Kerala General Sales Tax Act for the assessment year 2001-2002.
Summary:
The petitioner, a civil contractor, sought permission to pay tax at the compounded rate after receiving contract amounts, but the assessing authority rejected the request. The First Appellate Authority allowed the appeal, but the Sales Tax Appellate Tribunal reversed the decision. The assessee filed a Tax Revision Case challenging the Tribunal's decision.
Question of Law:
1. Whether the assessee can be denied the benefit of Section 7(7) of the KGST Act for the period prior to registration in the same financial year.
2. Whether the benefit of Section 7(7) is available only to registered dealers.
3. Whether the Tribunal was justified in canceling the first appellate order.
4. Whether the Assessing Authority was justified in completing the assessment without giving the assessee an opportunity to respond.
Court's Analysis:
The Rules mandate filing an application before receiving contract amounts to pay tax at the compounded rate. The contractor must make a bilateral agreement with the assessing authority for this purpose. In this case, the assessee applied for this benefit after receiving the contract amount, which was rightly rejected by the assessing authority. The court held that the assessee was not entitled to pay tax at the compounded rate due to non-compliance with Rule 30A(2).
Conclusion:
The court affirmed the decisions of the assessing authority and the Tribunal, rejecting the Tax Revision Case. The assessee's application for payment of tax at the compounded rate was dismissed.
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2007 (11) TMI 682
Issues involved:
Consideration for shares not paid, maintainability of petition u/s 399 of Companies Act, 1956, allegations of oppression and mismanagement.
Summary:
Consideration for shares not paid:
The petitioner had subscribed to 2,000 shares at the time of incorporation but they were not issued to him. The respondents argued that since the petitioner had not paid the consideration for the shares as agreed in the memorandum, he cannot be considered a member for the purposes of Section 399 of the Act. The petitioner contended that he was willing to pay for the shares but the respondents refused to accept the payment, which he considered as an act of oppression against him.
Maintainability of petition u/s 399:
To maintain a petition under Section 397/398 of the Act, the requirements of Section 399 need to be fulfilled. Section 399 specifies that only a member who has paid all calls and other sums due on their shares can apply under Section 397 or 398. In this case, the petitioner had subscribed to the memorandum, his name was entered in the register of members, and he was allotted 10,000 shares. However, he had not paid the consideration for the 2,000 shares he agreed to subscribe, which became due immediately on incorporation. The petitioner's offer to pay was conditional on the respondents also contributing, which they did not agree to. As a result, the petitioner failed to fulfill the requirements of Section 399, and the petition was dismissed as not maintainable.
Allegations of oppression and mismanagement:
The petitioner alleged oppression and mismanagement by the respondents for not accepting his payment towards the shares and for claiming that he cannot maintain the petition due to non-payment of consideration. The petitioner argued that the respondents' refusal to accept his payment was oppressive, and he was willing to contribute if the company agreed. However, the Board found that the petitioner had not paid the consideration due on the shares, making the petition not maintainable under Section 399 of the Act.
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2007 (11) TMI 681
Issues Involved:
1. Legality of the transfer of shares.
2. Compliance with Section 108 of the Companies Act, 1956.
3. Maintainability of the petition under Sections 397 and 398 of the Companies Act, 1956.
4. Delay and laches in filing the petition.
5. Allegations of fraud and destruction of company records.
6. Petitioner's qualification under Section 399 of the Companies Act, 1956.
7. Alternative remedy under Section 111 of the Companies Act, 1956.
Detailed Analysis:
1. Legality of the Transfer of Shares:
The petitioner alleged that the transfer of his 5,001 shares (50% shareholding) in the company to respondent No. 2 was illegal, as there was no legally valid instrument of transfer or transfer deed executed by him. Consequently, the further transfer of 2,500 shares by respondent No. 2 to respondent No. 3 was also deemed illegal. The petitioner sought a declaration that the transfer was null and void and requested the restoration of his shares and rectification of the company's register of members.
2. Compliance with Section 108 of the Companies Act, 1956:
The petitioner argued that, according to Section 108 and the articles of association, the transfer of shares must be accompanied by a valid and legally executed instrument of transfer, which was not produced by the respondents. The absence of such a document rendered the registration of the transfer void ab initio. The petitioner cited precedents to support this argument, emphasizing that without a legally valid instrument, the transfer could not be registered.
3. Maintainability of the Petition under Sections 397 and 398 of the Companies Act, 1956:
The respondents raised a preliminary objection, arguing that the petitioner was not a member of the company as per the register of members and therefore, did not have the right to file a petition under Sections 397 and 398. The petitioner had to establish his right to apply under Section 399 of the Companies Act, 1956, which he failed to do. The court referred to the case of Ved Prakash v. Iron Traders P. Ltd., which held that only members listed in the register could maintain a petition under these sections.
4. Delay and Laches in Filing the Petition:
The respondents argued that the petitioner had delayed filing the petition, as the alleged illegal transfer occurred in 2003, but the petition was filed in 2007. The petitioner claimed he discovered the illegal transfer in February 2007, but the respondents highlighted that no explanation was provided for the delay from 2003 to 2007. The court cited precedents emphasizing that a slothful party is not entitled to discretionary relief due to unexplained delays.
5. Allegations of Fraud and Destruction of Company Records:
The petitioner alleged that the respondents had destroyed statutory records and documents to cover up the illegal transfer of shares. During an inspection ordered by the Company Law Board, the respondents failed to produce the required documents, indicating possible destruction of evidence. The petitioner argued that these actions constituted continuous acts of oppression and mismanagement.
6. Petitioner's Qualification under Section 399 of the Companies Act, 1956:
The petitioner did not meet the necessary qualifications under Section 399 to file a petition under Sections 397 and 398, as he was not listed as a member in the company's register. The court emphasized that the petition under these sections must be accompanied by documentary evidence proving the petitioner's eligibility and status as a member with the requisite voting power.
7. Alternative Remedy under Section 111 of the Companies Act, 1956:
The court noted that the petitioner's case could be remedied under Section 111 of the Companies Act, 1956, which deals with the rectification of the register of members. Since the petition was not maintainable due to non-qualification under Section 399, the petitioner was advised to pursue this alternative remedy.
Conclusion:
The petition was dismissed on the grounds of non-qualification under Section 399 of the Companies Act, 1956. The court did not address other preliminary objections regarding delay, laches, and the petitioner's conduct, nor did it delve into the merits of the case. All interim orders were vacated, and no order as to costs was made.
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2007 (11) TMI 680
The Delhi High Court dismissed the Revenue's appeal against the Income Tax Appellate Tribunal's order dated 10th March, 2006 for the Financial Year 1997-1998 as no substantial question of law arose due to a previous decision regarding the same assessee. (Citation: 2007 (11) TMI 680 - DELHI HIGH COURT)
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2007 (11) TMI 679
Issues involved:
The legal right of the respondent for appointment against the post of three security guards advertised by the appellant institute.
Summary:
The Supreme Court considered whether the respondent had a legal right to be appointed as a security guard. An advertisement was issued for three permanent security guard posts, and the respondent's name appeared on the select list. However, he was not offered an appointment while others were. The appellant later decided to contract out some services, including security guards. A Single Judge of the High Court dismissed the respondent's writ petition, stating that the decision to abolish a post is a management decision and not arbitrary unless malice is proven. On appeal, the Division Bench held that the decision to contract out services did not abolish the vacancy, and the next person on the list should be considered for appointment.
The appellant argued that the High Court erred in finding a temporary vacancy existed. Precedents were cited to show that inclusion in a select list does not guarantee appointment, and the State is not obligated to fill all vacancies. The respondent contended that no policy decision was made to contract out security services in his department, so he had a legitimate expectation of appointment. The Court emphasized that each case must be considered on its own merit.
Citing various legal precedents, the Court reiterated that being on a select list does not confer an indefeasible right to appointment. The judgment of the High Court was upheld, noting that the respondent, an ex-serviceman, should have been offered the appointment when vacancies existed. The policy decision to abolish posts was made after the respondent filed the writ petition, and thus, the Court declined to interfere with the High Court's decision. The appeal was dismissed.
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2007 (11) TMI 678
Issues involved: Appeal against order imposing penalty u/s 8(3) and 9(1)(a) of FERA for contravention, contention of forged documents acquisition, reliance on confessional statement, evidence of remittance abroad, retraction of statement, burden of proof.
Summary:
The appellant appealed against the order imposing a penalty u/s 8(3) and 9(1)(a) of FERA for contravention. The Adjudicating Officer had imposed a penalty for failure to utilize foreign exchange as released and for remitting the same outside India without permission. The appellant contended that Section 8(3) was not attracted and the confessional statement was retracted, lacking corroboration. On the other hand, revenue argued that foreign exchange was acquired based on forged documents, fully proving offenses u/s 8(3) and 9(1)(a) of FERA.
The tribunal found that the foreign exchange was acquired on forged documents and transferred abroad, rejecting the appellant's contentions. It held that the confessional statement, though retracted, was admissible as there was no evidence of coercion. Relying on precedent, the tribunal found documentary and circumstantial evidence supporting the charges against the appellant, noting the appellant's unique knowledge of clandestine dealings. The tribunal also held that the appellant failed to discharge the burden of proof.
Upon review, the court agreed with the tribunal's findings, stating that the mere allegation of coercion in the confessional statement was insufficient without evidence. It upheld the reliance on the confessional statement and found no reason to dispute the findings regarding forged documents acquisition and remittance abroad. The court deemed these findings as factual and not perverse, leading to the dismissal of the appeal.
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2007 (11) TMI 677
Issues involved: Appeal u/s 260-A of the Income Tax Act, 1961 against ITAT order dismissing revenue's appeal for assessment years 1992-93 to 1994-95 due to low tax effect and allowing deduction u/s 80IA to the assessee.
Issue 1: Appeal against ITAT order
The appeal was filed by the revenue against the ITAT order dismissing the appeal for assessment years 1992-93 to 1994-95. The ITAT had disposed of the appeals against the CIT (A) Nagpur order, where appeals for 1992-93 and 1994-95 were dismissed due to tax effect not exceeding Rs. 1 lac, contrary to CBDT directions. The ITAT relied on previous decisions and dismissed the appeal for AY 1994-95 as well, as deduction u/s 80IA was allowed in the initial year and should not be denied in subsequent years.
Issue 2: Claim of deduction u/s 80IA
The revenue contended that the assessee's activities in the dairy division did not qualify as manufacturing activities, questioning the allowance of deduction u/s 80IA by CIT and ITAT. The revenue did not challenge the deduction granted for the initial assessment year 1992-93 due to low tax effect. On the other hand, the respondent argued that the ITAT's decision was justified, citing the principle that once a deduction is permitted in a year, it cannot be disallowed in subsequent years.
The High Court found no merit in the revenue's appeal, upholding the ITAT's decision based on the precedent set in CIT vs. Paul Brothers. The Court emphasized that if a deduction is allowed in a particular year, it cannot be denied in later years. The Court criticized the revenue for not challenging the deduction granted in the initial year, stating that they should have been aware of the legal principle. As a result, the appeal was dismissed, and no substantial question of law was found. The Court did not delve into the debate on whether the activities in the dairy division constituted manufacturing activities, as it was unnecessary given the circumstances.
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2007 (11) TMI 676
Disallowed deduction u/s 80AI - Activities carried out in dairy division constitute manufacturing activities ? - HELD THAT:- The revenue ought to have been aware that in case deduction was allowed in a particular year same could not have been denied during subsequent assessment years. The revenue ought to have, therefore, challenged the order passed by the assessing officer in the assessment year 1992-93. The revenue having not done so we are of the considered opinion that no fault can be found with the order passed by the Tribunal which is impugned in the present appeal.
Since we are dismissing the appeal by placing reliance upon the Judgment in CIT vs. Paul Brothers [1992 (10) TMI 5 - BOMBAY HIGH COURT] we do not deem it necessary to go into the issue as to whether the activities carried out by the assessee in dairy division constitute manufacturing activities or not. We do not deem it necessary to refer to several authorities relied upon by Mr. Parchure in support of the submission that the activities carried out by the assessee are not manufacturing activities.
Interest on cash credit - HELD THAT:- We find that the Tribunal was justified in relying upon its own order by which addition made by the assessing officer was held to be unwarranted. We are, therefore, of the considered opinion that there is no illegality or perversity in the order passed by the Tribunal warranting interference in appeal under Section 260A of the Act. We also find that no substantial question of law is involved in the present appeal. Hence the appeal is dismissed.
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2007 (11) TMI 675
Issues involved:
The judgment involves issues related to the dismissal of a Company Petition filed under Sections 433, 434, and 439 of the Companies Act, alleging non-payment of a due amount by the respondent company, and the dispute regarding the limitation period for the claim.
Dismissal of Company Petition:
The appellant filed a petition seeking winding up of the respondent company due to an alleged debt of Rs. 18,75,000. The Company Judge dismissed the petition citing limitation and disputed facts, stating that the claim was beyond the limitation period and involved factual disputes not suitable for summary proceedings under the Companies Act.
Validity of Claim and Limitation:
The appellant argued that the claim was not time-barred as per the agreement terms, which allowed payment till the expiry of the contract or 24 months, whichever is later. However, the respondent contended that the claim was restricted to the non-payment of the first part of the commission, as per the notice issued under Section 434 of the Companies Act.
Notice and Payment Details:
The records showed that Rs. 75 lacs were payable as commission, with Rs. 37,50,000 due on advance payment receipt. An invoice for this amount was raised, and Rs. 18,75,000 was paid by the respondent. The appellant issued a notice for non-payment of the remaining 50%, but the claim was limited to the balance due on advance payment, not the total commission amount.
Barred by Limitation:
The Court found that the claim for Rs. 18,75,000 was time-barred as it was filed beyond three years from the due date specified in the agreement. The respondent's reply disputed the claim based on unsatisfactory performance by the appellant, indicating a valid ground for dispute that could not be resolved summarily under Section 434 of the Companies Act.
Conclusion:
The appeal challenging the dismissal of the Company Petition was rejected, as the Court upheld the Single Judge's decision that the claim was barred by limitation and involved disputed facts beyond the scope of summary proceedings.
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2007 (11) TMI 674
Issues Involved:
1. Whether the order of the CLB is sustainable in law as it disregards documentary evidence demonstrating acts of oppression.
2. Whether the finding of the CLB that the appellant should exit from the JV Company due to a management stalemate is perverse in law.
3. Whether the CLB was justified in directing the appellants, as minority shareholders, to sell their shareholding to the second respondent at a fair value determined by an independent firm of Chartered Accountants.
Detailed Analysis:
1. Acts of Oppression and Documentary Evidence:
The appellants argued that the CLB disregarded voluminous documentary evidence demonstrating acts of oppression by the respondents, which were part of a concerted conspiracy to make the appellants "shrivel and die." The appellants contended that the CLB's order was unsustainable as it ignored this evidence. However, the High Court noted that the appellants did not seek any reliefs of declaration or injunction in their appeal, focusing instead on the direction to sell their shares. Therefore, the High Court did not delve into the correctness of the CLB's findings regarding oppression but focused on the propriety of the direction to sell shares.
2. Management Stalemate and Exit Order:
The CLB found that due to the strained relationship between the parties, the JV Company could not be jointly managed, leading to a deadlock situation. This warranted a permanent solution, as held in the case of Caparo India Limited v. Caparo Maruti Limited. The CLB concluded that the only way to ensure the smooth functioning of the JV Company was for the parties to part ways. The High Court upheld this finding, agreeing that the deadlock justified one party exiting the company to ensure its smooth and healthy functioning.
3. Direction to Sell Shares and Competitive Pricing:
The CLB directed the appellants, as minority shareholders, to sell their shares to the second respondent at a fair value determined by an independent firm of Chartered Accountants. The High Court examined whether this direction was justified. The court noted that both parties had accepted the appointment of an independent valuer for determining the fair value of the shares. However, the High Court found that the CLB's direction for the appellants to sell their shares at a price determined by the valuer did not adequately compensate the outgoing group. Instead, the High Court proposed a competitive pricing mechanism, where both groups would quote a price higher than the one determined by the valuer, and the group quoting the higher price would have the first option to buy the shares of the other group. This approach aimed to ensure adequate compensation for the outgoing group and was deemed more equitable.
Conclusion:
The High Court allowed the appeal in part, modifying the CLB's order. The modified direction required both groups to quote a competitive price for the shares, with the group quoting the higher price getting the first option to buy the shares of the other group. This modification aimed to ensure fair compensation and a smooth transition of management in the JV Company. The court also noted that the second respondent could seek further directions from the CLB if necessary.
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