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2008 (8) TMI 1009
Issues involved:
The issues involved in the judgment are related to tax appeals filed under Section 260A of the Income Tax Act, 1961 for the assessment year 1998-99. The substantial questions of law for determination and consideration by the Court are as follows:
Question [A]:
The first issue pertains to whether the Appellate Tribunal was right in allowing deduction to the extent of actual payment to ONGC, despite the whole contractual liability being in dispute before the Hon'ble Supreme Court.
The Court admitted the Tax Appeal in terms of Question [A] only, as a similar question in Tax Appeal No. 391 of 2008 had already been dismissed.
Question [B]:
The second issue concerns whether the Appellate Tribunal was correct in allowing an inflated claim of depreciation on revalued assets without appreciating that such revaluation was made arbitrarily, as a colorable device to reduce book profit for the purpose of Section 115JA(2) and was not in conformity with the provisions of the Companies Act.
The Court dismissed Tax Appeal No. 391 of 2008, which involved a similar question to Question [B].
The Court directed for notice to be served to the other side and for any additional Paper-Book to be filed within three months from the date of the order. The case was scheduled to be heard along with other Tax Appeals.
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2008 (8) TMI 1008
Issues involved:
The issues involved in the judgment are the quashing of a notice regarding entry tax assessment for a specific year, the refund of entry tax paid by a petitioner-company, the challenge to the division bench judgment declaring entry tax provisions as ultra vires, and the effect of the pendency of Special Leave Petitions on the operation of the impugned judgment.
Entry Tax Assessment Quashing and Refund:
The petitioner sought to quash notice No. 383 dated 6.2.2007 for entry tax assessment for the year 2005-06 and requested a refund of the entry tax paid. The petitioner's counsel argued that despite a division bench declaring entry tax provisions as ultra vires, the respondents were issuing assessment notices. Referring to a similar case, the counsel highlighted that the division bench directed a refund in such circumstances.
Challenge to Ultra Vires Declaration:
The State, represented by Mr. P. Modi, contended that the division bench judgment declaring entry tax provisions as ultra vires had been challenged and was pending before the Supreme Court in a Special Leave Petition. The State's counsel argued that due to the pending petition, no direction for refund could be issued.
Effect of Special Leave Petitions on Judgment:
The Court deliberated on whether the pendency of Special Leave Petitions would stay the operation of the impugned judgment. Citing a Supreme Court decision, the Court explained the distinction between granting special leave to appeal and hearing the appeal. The Court emphasized that the mere pendency of Special Leave Petitions would not automatically stay the operation of the judgment. However, the respondents were given another opportunity to seek interim relief from the Supreme Court, failing which the Court would pass an appropriate order.
Conclusion:
In conclusion, the Court allowed time for the State to obtain an order from the Supreme Court regarding the pending Special Leave Petitions. The case was adjourned for four weeks, with a warning that if the State failed to secure an appropriate order, the Court would proceed to pass an order in accordance with the law.
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2008 (8) TMI 1007
Issues Involved:
1. Liability for damages and interest under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (PF Act).
2. Applicability of Section 17B of the PF Act.
3. Authority of the Employees Provident Fund Organization to demand dues from an auction purchaser.
4. Maintainability of the petition challenging the order of the PF Tribunal.
Issue-wise Detailed Analysis:
1. Liability for Damages and Interest under the PF Act:
The core issue was whether the present respondent, as an auction purchaser of the assets of M/s. Santogen Spinning Mills Ltd., could be held liable for damages and interest under Sections 14(B) and 7Q of the PF Act, which were initially imposed on the erstwhile establishment for delayed payment of PF contributions. The PF Tribunal found that the Assistant Provident Fund Commissioner did not consider the submissions of the respondent and failed to establish that the delay was deliberate or mala fide. The Tribunal also noted that the demand pertained to a period before the respondent's purchase of the assets, and thus, the respondent could not be held liable for the erstwhile establishment's defaults.
2. Applicability of Section 17B of the PF Act:
The petitioner argued that under Section 17B of the PF Act, both the transferor and transferee of an establishment are jointly and severally liable for dues. However, the court highlighted that Section 17B applies to voluntary transfers by the employer and not to enforced or auction sales. The court concluded that the auction sale conducted by ARCIL did not fall within the ambit of Section 17B, as it was not a transfer by the employer but an enforced sale under the SARFAESI Act.
3. Authority of the Employees Provident Fund Organization to Demand Dues from an Auction Purchaser:
The court examined whether the PF Organization could demand dues from an auction purchaser like the respondent. It was determined that the PF Act's provisions for recovering damages and interest specifically target the employer who defaults on contributions. The court found no provision in the PF Act that authorized the recovery of such dues from an auction purchaser. The court emphasized that the PF Organization's action was arbitrary and lacked legal backing, especially since the parent company, Sonu Synthetics Ltd., was not pursued for the dues.
4. Maintainability of the Petition Challenging the Order of the PF Tribunal:
The respondent raised an objection to the maintainability of the petition, citing a previous court order that the PF Organization should not challenge the PF Tribunal's decisions via writ petitions. The court acknowledged this objection but decided to address the merits of the case without delving into the maintainability issue, given the pending appeal on this matter.
Conclusion:
The court upheld the PF Tribunal's decision, finding no error in its reasoning or conclusions. The Tribunal had rightly set aside the Assistant Provident Fund Commissioner's order, which lacked consideration of the respondent's submissions and failed to address key issues such as the intent behind the delay in PF contributions. The court also rejected the petitioner's reliance on Section 17B of the PF Act, clarifying that it did not apply to auction sales. Consequently, the petition was dismissed, and the PF Tribunal's order was affirmed.
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2008 (8) TMI 1006
Issues involved: Challenge to notice u/s 146 of M.P. Land Revenue Code regarding attachment and sealing of property purchased from M.P. Financial Corporation.
Judgment Summary:
Challenge to Attachment by Commercial Tax Department:
The petitioner, a proprietorship concern, challenged a notice dated January 30, 2002, issued under section 146 of the M.P. Land Revenue Code, attaching and sealing the property purchased from M.P. Financial Corporation. The borrower-company, M/s Prominent Cement Limited, defaulted on a loan obtained from M.P. Financial Corporation, leading to the Corporation taking over the industrial unit and selling it to the petitioner. The Commercial Tax Department claimed a first charge on the property for tax dues, but the Corporation argued that the attachment was without legal authority and the petitioner acquired the property free from encumbrances u/s 29 of the State Financial Corporation Act.
Legal Standoff:
The Commercial Tax Department contended that the tax recovery was a first charge on the defaulter's property, while the Corporation maintained that the petitioner's rights were protected u/s 29 of the Act. The Court noted that the borrower-company's property was under prior mortgage to the Corporation, and the attachment by the Tax Department was invalid due to the pending BIFR proceedings and the Corporation's superior rights.
Precedence of Mortgage Liability:
The Court emphasized that the mortgage liability to the Corporation took precedence over tax recovery, citing section 46B of the Act, which overrides other laws. Referring to a Supreme Court judgment, it clarified that government debt does not have precedence over a prior secured debt, affirming the petitioner's protection from the attachment.
Judgment and Relief:
The Court allowed the petition, quashing the notice and seizure memo issued by the Commercial Tax Department, as the attachment of the petitioner's property was deemed unjustified and lacking in legal basis.
This judgment highlights the importance of legal precedence in property attachments and upholds the rights of a purchaser protected u/s 29 of the Act against tax recovery claims.
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2008 (8) TMI 1005
Issues involved: Condonation of delay, nature of purchase of shares (investment or trading), application of Section 5 of the Limitation Act, assessment order modification u/s 263, error in tribunal's order, legality of tribunal's order, substantial question of law.
Condonation of delay: The Court, after hearing the Advocate for the appellant and perusing the application for condonation of delay, was satisfied with the grounds stated in the petition. Accordingly, the delay was condoned, and the application under Section 5 of the Limitation Act was allowed. G.A.No.1271 of 2008 was disposed of.
Nature of purchase of shares: The Tribunal extensively dealt with whether the purchase of shares was for investment or trading purposes. It was noted that if shares were accepted as investment in one year and the facts remained the same in subsequent years without any change in the assessee's operations, the shares could not be treated as stock in trade. The Tribunal found that the shares were investments based on various factors, including dematerialization, source of funds, and receipt of substantial dividends. The Court held that the Tribunal's decision was reasonable and not erroneous, citing the principle that every loss of revenue due to an order of the Assessing Officer cannot be considered prejudicial to the interests of the Revenue unless the order is unsustainable in law.
Assessment order modification u/s 263: The Court determined that the Assessing Officer's view in accepting the shares as investments was a reasonably possible view and not erroneous. Therefore, the assessment order could not be modified u/s 263. The Court referenced a decision of the Hon'ble Apex Court to support this conclusion.
Substantial question of law: After reviewing the Tribunal's order and considering the Supreme Court decision, the Court found no substantial question of law involved in the appeal. Consequently, the appeal was dismissed, and all parties were directed to act on a xerox signed copy of the order. Urgent xerox certified copies of the order could be supplied to the parties upon compliance with formalities.
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2008 (8) TMI 1004
Issues Involved:
1. Entitlement to claim relief under Section 35(2(a)) of the Income Tax Act.
2. Validity of disallowance of 100% exemption claimed by the assessee.
3. Adequacy of documentary evidence provided by the assessee.
4. Correctness of the findings of the Appellate Authorities.
5. Compliance with Karnataka Sales Tax Act provisions.
Issue-wise Detailed Analysis:
1. Entitlement to Claim Relief Under Section 35(2(a)) of the Income Tax Act:
The core issue is whether the assessee was entitled to claim relief under Section 35(2(a)) of the Income Tax Act for the purchase of machinery for research and development. The assessee claimed a 100% exemption for expenditures incurred on machinery purchases during the assessment year 2001-2002. The Assessing Officer disallowed this claim due to insufficient documentary evidence, which was later set aside by the First Appellate Authority, granting the exemption. The Tribunal affirmed the Appellate Authority's decision, but the High Court ultimately found that the claim was unsupported by adequate proof.
2. Validity of Disallowance of 100% Exemption Claimed by the Assessee:
The Assessing Officer disallowed the exemption due to the absence of confirmation from the suppliers and lack of sufficient documentary evidence. Despite multiple opportunities, the assessee failed to provide necessary details such as sales tax numbers, delivery dates, and other specific information about the machinery. The First Appellate Authority and the Tribunal found the disallowance unwarranted, but the High Court concluded that the disallowance was justified due to the lack of credible evidence.
3. Adequacy of Documentary Evidence Provided by the Assessee:
The High Court scrutinized the documentary evidence provided by the assessee, which included invoices, payment details, and letters from suppliers. The Assessing Officer had attempted to verify these documents by contacting the suppliers, but the letters were returned unserved, indicating incomplete or incorrect addresses. The High Court noted that essential documents such as transportation records, sales tax entries, and confirmation of payments were missing, leading to the conclusion that the assessee did not adequately prove the purchase of machinery.
4. Correctness of the Findings of the Appellate Authorities:
The First Appellate Authority and the Tribunal found in favor of the assessee, stating that the Assessing Officer had ignored material evidence. However, the High Court found that these authorities had erred in their judgment by not considering the lack of substantial evidence and the procedural lapses in verifying the purchases. The High Court restored the Assessing Officer's order, emphasizing the need for concrete proof to substantiate the claim.
5. Compliance with Karnataka Sales Tax Act Provisions:
The High Court examined the compliance with the Karnataka Sales Tax Act, particularly sections 28A, 28AA, and 28B, which mandate the maintenance of specific documents for the transportation of goods. The assessee failed to produce these documents, such as transit passes and registration details of the transporter, which are crucial for validating the interstate purchase and transportation of machinery. The absence of these documents further weakened the assessee's claim.
Conclusion:
The High Court allowed the appeal, setting aside the orders of the Appellate Authorities and restoring the Assessing Officer's order. The Court held that the assessee failed to provide sufficient documentary evidence to justify the claim for 100% exemption under Section 35(2(a)) of the Income Tax Act. The substantial question of law was answered in favor of the Revenue, emphasizing the necessity of concrete and verifiable documentation to support such claims.
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2008 (8) TMI 1003
Issues Involved:
1. Legality of the detention order u/s 3(1) of the Tamil Nadu Act 14 of 1982.
2. Distinction between "law and order" and "public order".
3. Validity of the detention order when the detenu was already in jail and had no pending bail application.
Summary:
1. Legality of the Detention Order u/s 3(1) of the Tamil Nadu Act 14 of 1982:
The detenu challenged the detention order passed under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities Act, 1982, citing involvement in land grabbing cases registered under various sections of the IPC. The detaining authority concluded that releasing the detenu on bail would lead to similar offenses, thus necessitating detention for public welfare.
2. Distinction between "Law and Order" and "Public Order":
The detenu argued that the grounds for detention were based on law and order issues, not public order. The Supreme Court reiterated the distinction, emphasizing that "public order" involves disturbances affecting the community or public at large, while "law and order" pertains to individual acts. The Court cited several precedents, including Brij Bhushan v. State of Delhi, Romesh Thappar v. State of Madras, and Dr. Ram Manohar Lohia v. State of Bihar, to illustrate that not all breaches of law amount to disturbances of public order.
3. Validity of the Detention Order When the Detenu Was Already in Jail and Had No Pending Bail Application:
The detenu's counsel argued that since the detenu was in jail with no pending bail application, the apprehension of his release was unfounded and merely the detaining authority's ipse dixit. The Court agreed, referencing cases like Ramesh Yadav v. District Magistrate, Etah, and Binod Singh v. District Magistrate, Dhanbad, which held that preventive detention should not be used if there is no imminent possibility of release.
Conclusion:
The Supreme Court found that the detenu's activities did not disturb public order and could be addressed under ordinary criminal law. The detention order was deemed illegal and unsustainable, leading to its quashing. The detenu was ordered to be released forthwith if not required in any other case. The appeal was allowed and disposed of accordingly.
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2008 (8) TMI 1002
Issues involved: Interpretation of Clause 21-A of the Terms and Conditions of Supply u/s 49 read with Section 79J of the Electricity (Supply) Act, 1948, validity of the stay order granted by the High Court, requirement of payment of arrears of electricity dues by Respondent No. 1.
The Supreme Court heard arguments regarding the impugned order issued by the High Court of Punjab and Haryana, which unconditionally stayed the demand of arrears of electricity dues and directed the release of electricity connection to Respondent No. 1 challenging Clause 21-A of the Terms and Conditions of Supply u/s 49 read with Section 79J of the Electricity (Supply) Act, 1948. The Appellant contended that the High Court's grant of unconditional stay was unjustified, citing a previous judgment. Respondent No. 1 argued against being burdened with dues not stipulated in the auction notice, claiming the previous judgment was not applicable to the present case due to the challenge to the validity of Clause 21-A. The Court considered these arguments and noted an undertaking by Respondent No. 1 to deposit a sum of Rupees ten lakhs, leading to the restoration of electricity connection.
The Court refrained from expressing an opinion on the merits of the case pending before the High Court but found the impugned order legally unsustainable. Referring to a previous case, the Court directed Respondent No. 1 to deposit a further sum of Rupees twenty-five lakhs with a specific payment schedule. Failure to comply with the payment schedule would result in the automatic vacation of the stay order, allowing the Appellant-Nigam to disconnect the electricity supply. Additionally, Respondent No. 1 was instructed to pay the current electricity charges within the specified time frame, failing which the Nigam could disconnect the supply.
In conclusion, the Supreme Court partially allowed the appeal, modifying the impugned order to require specific payments by Respondent No. 1 to maintain the stay granted by the High Court, with consequences for non-compliance outlined to ensure timely payment of dues and electricity charges.
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2008 (8) TMI 1001
Issues involved: Constitution of Tribunal u/s 60 of the Act, validity of impugned award, mandatory vs. directory nature of provisions
Constitution of Tribunal u/s 60 of the Act:
The judgment addressed the issue of the constitution of the Tribunal under Section 60 of the Act. It was argued that the impugned award was not valid as the Tribunal was not properly constituted, citing a precedent from the Apex Court. The judgment clarified that under the Act, the Tribunal is considered a Court, with each member entitled to have their own opinion. The composition of the Tribunal, including the mandatory quorum of three members, was emphasized. The Tribunal's decision must be unanimous or based on the majority view, with the President not having sole authority. The judgment distinguished a Privy Council's ruling on the directory nature of statutes, affirming that the Tribunal's functions are quasi-judicial and imperative.
Validity of impugned award:
The judgment found that the impugned award needed to be set aside due to the Tribunal's coram non-judice, as the provisions of Section 60 of the Act were deemed mandatory. Unlike a previous Privy Council judgment, the Tribunal's three-member composition for determining compensation was considered essential, making any disregard of this requirement render the adjudication void and inoperative.
Mandatory vs. directory nature of provisions:
The judgment highlighted the difference in views between the Privy Council and the Apex Court regarding the mandatory nature of statutory provisions. It emphasized that the Tribunal's functions, including determining compensation, are quasi-judicial and cannot be considered merely directory. Despite potential inconvenience or delay, adherence to the mandatory provisions was deemed necessary to uphold the purpose of the Act.
In conclusion, the impugned award was set aside, and the cases were remitted for fresh consideration by a properly constituted Tribunal as per Section 60 of the Act. The State Government was directed to establish such a Tribunal within two months, with a mandate to resolve all matters within four months thereafter.
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2008 (8) TMI 1000
Issues involved: Assessment based on valuation report, reopening of assessment u/s 147, validity of departmental valuer's report as information for reassessment.
Assessment based on valuation report:
The case involved a Private Limited Company engaged in letting out godowns, which filed a return showing a loss but was assessed on a higher income based on a valuation report of the Warehouse construction cost. The difference in investment amounts led to an addition in the total income by the Assessing Officer.
Reopening of assessment u/s 147:
The original assessment was reopened based on the valuation report of the departmental valuer, questioning the cost of construction declared by the assessee for the Warehouse. The Commissioner of Income Tax (Appeals) modified the undisclosed investment amount based on the valuation report, reducing it from the initial addition.
Validity of departmental valuer's report as information for reassessment:
The main issue revolved around whether the departmental valuer's report constituted valid information for reopening a completed assessment u/s 147. The Tribunal referred questions regarding the reliance on the valuation report for reassessment, with the assessee and the revenue presenting opposing arguments.
Judgment:
The High Court held that the departmental valuer's report alone cannot be considered sufficient information for reopening an assessment. The Court emphasized that the valuation report is merely an opinion and does not meet the criteria of providing new taxable income information to justify reassessment. Relying on various precedents, the Court concluded that the valuation report does not fulfill the requirements under Section 147(b) of the Act for reassessment.
Conclusion:
The Court ruled in favor of the assessee, stating that the valuation officer's report does not constitute valid information for reopening a completed assessment. Consequently, the questions referred by both the revenue and the assessee were deemed academic, and the tax cases were disposed of accordingly.
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2008 (8) TMI 999
Issues involved: Challenge to the order of issue of process for an offence u/s 138 of the Negotiable Instrument Act based on complaint by power of attorney holder.
1. Power of Attorney Holder Presenting Complaint:
The petitioner challenges the process issued based on a complaint presented by a power of attorney holder who also gave a sworn statement. The court refers to a previous ruling stating that a power of attorney holder can present a complaint.
2. Prosecution by Power of Attorney Holder:
The petitioner questions whether a power of attorney holder can prosecute criminal proceedings without permission u/s 302 of the Code of Criminal Procedure. Citing a Supreme Court judgment, it is highlighted that legal representatives must seek permission themselves to continue prosecution or authorize the power of attorney holder.
3. Permission to Prosecute by Power of Attorney Holder:
The court discusses a case where legal representatives authorized a power of attorney holder to prosecute proceedings without seeking permission u/s 302. It is emphasized that the legal representatives themselves must apply for permission to prosecute the case through a power of attorney holder.
4. Arguments and Counterarguments:
The respondent argues that once permission is granted to legal representatives to prosecute through a power of attorney, no further permission is needed. However, the petitioner's counsel cites a judgment stating that a power of attorney holder may lack personal knowledge of the case.
5. Conclusion and Order:
The court clarifies that while a power of attorney holder can present a complaint, prosecution should proceed only after obtaining permission u/s 302. In this case, as the power of attorney holder presented the complaint and process was issued, the court sets aside the order of process issuance and quashes the proceedings.
Separate Judgement:
The court appreciates the assistance of the appointed Amicus Curiae and fixes his fee to be paid by the Government.
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2008 (8) TMI 998
Issues Involved:
1. Postponement of the commencement of the Patents (Amendment) Act, 2005.
2. Confusion regarding pending FAO No. 293/06 filed under Section 116 of the Indian Patents Act, 1970.
3. Dichotomy between "pre-grant opposition" and "post-grant opposition."
4. Maintainability of appeals under the amended Sections 116 and 117A.
5. Transfer of pending proceedings to the Appellate Board.
Detailed Analysis:
1. Postponement of the commencement of the Patents (Amendment) Act, 2005:
The judgment highlights the confusion caused by the postponement of the in-part commencement of the Patents (Amendment) Act, 2005. The Act's commencement was delayed to a future date or such date as the Appropriate Government may appoint, resulting in confusion regarding pending appeals under the amended Act.
2. Confusion regarding pending FAO No. 293/06 filed under Section 116 of the Indian Patents Act, 1970:
The case revolves around the pending FAO No. 293/06 filed by respondent No. 3 in the High Court under Section 116 of the Indian Patents Act, 1970, as amended by the Patents (Amendment) Act, 1999. The appellant filed an application for a patent on 14.06.2000, which was opposed by respondent No. 3. The Patents (Amendment) Act, 1999 amended Section 25, dealing with opposition to a patent, and Section 116(2), providing for appeals to the High Court.
3. Dichotomy between "pre-grant opposition" and "post-grant opposition":
The Patents (Amendment) Act, 2005 introduced a dichotomy between "pre-grant opposition" and "post-grant opposition." This structural change allowed for opposition to a patent both before and after its grant. Section 25(1) dealt with pre-grant opposition, while Section 25(2) dealt with post-grant opposition. However, the amended Sections 116 and 117A, which provided for appeals to the Appellate Board, were not brought into force until 02.04.2007.
4. Maintainability of appeals under the amended Sections 116 and 117A:
The appellant argued that with the restructuring of Section 25 by the Patents (Amendment) Act, 2005, only one statutory appeal was allowed against post-grant opposition orders to the Appellate Board. However, respondent No. 3 filed its appeal in the High Court under the unamended Section 116 on 19.10.2006, when the old law prevailed, allowing appeals to the High Court. The Court noted that the legislative intent was defeated during the interregnum period when the amended Sections 116 and 117A were not in force.
5. Transfer of pending proceedings to the Appellate Board:
Section 117G, substituted by the Patents (Amendment) Act, 2005, provided for the transfer of pending appeals to the Appellate Board. However, this section was also brought into force only on 03.04.2007. The Court decided that the pending appeals, FAO No. 292/06 and FAO No. 293/06, filed by respondent No. 3, should remain in the High Court and be heard and disposed of under Section 116 of the Patents Act, 1970, as it stood on 19.10.2006. The Court emphasized that the Appellate Board could only hear appeals arising from post-grant opposition orders passed by the Controller under Section 25(4).
Conclusion:
The Supreme Court concluded that the appeals filed by respondent No. 3 in the High Court should be heard and decided under the old law, as they were filed before the amended Sections 116 and 117A were brought into force. The two civil appeals filed by the appellant were disposed of with no order as to costs. The High Court was directed to hear and decide the appeals in accordance with the law as it stood on 19.10.2006.
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2008 (8) TMI 997
The Bombay High Court rejected the appeal as the CA certificate did not show that the benefit had been transferred to customers through credit notes and cheques. The appellate authority's finding of fact was upheld.
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2008 (8) TMI 996
Issues involved:
1. Whether the refunded sum constitutes salary for taxation?
2. Whether notional interest on interest-free deposit can be included in rent for taxation?
Issue 1 - Refunded sum as salary for taxation:
The appeal concerned the assessment year 1998-99 and disputed the Tribunal's decision regarding the refund of Rs. 10,17,112 by the assessee, contending it did not constitute salary for taxation. The original return declared an income of Rs. 26,81,110, which was later revised to Rs. 16,64,000 after the refund. The Revenue argued that the refund should not be treated as excess salary paid as it had already accrued to the assessee. However, the CIT(A) reversed this finding, stating the refund was made due to legal requirements under the Companies Act, 1956, and was not voluntary. The Tribunal upheld the CIT(A)'s decision, emphasizing that the refund was statutory and not assessable as income under Section 15 of the IT Act, 1961.
Issue 2 - Notional interest on interest-free deposit:
Regarding the inclusion of notional interest on interest-free deposit in rent for taxation, it was noted that this question was already settled in favor of the assessee by a previous decision of the Court. Therefore, no legal issue remained concerning this matter.
In conclusion, the High Court upheld the Tribunal's decision, affirming that the refund made by the assessee was in compliance with statutory provisions of the Companies Act, 1956, and was not voluntary. The Court found no merit in the Revenue's argument and dismissed the appeal, stating that no substantial question of law arose for consideration.
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2008 (8) TMI 995
The High Court of Bombay rejected the appeal regarding the interpretation of the term "industrial undertaking" in Section 35D of the Income Tax Act. The court found that the Tribunal correctly considered the common parlance meaning of the term and no question of law arose. The appeal was rejected. (2008 (8) TMI 995 - BOMBAY HIGH COURT)
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2008 (8) TMI 994
Issues Involved:
1. Reimbursement of Orissa Sales Tax levied on works contract.
2. Validity of the circulars dated 7.11.2001 and 19.6.2002 issued by the Financial Adviser-cum-Additional Secretary to Government, Department of Water Resources.
3. Interpretation of Clause 45.2 of the National Competitive Bidding Contract.
4. Applicability of Section 5(2)(AA) of the Orissa Sales Tax Act, 1947.
Summary:
1. Reimbursement of Orissa Sales Tax levied on works contract:
The petitioner, M/s. B. Engineers & Builders Ltd., sought reimbursement of Orissa Sales Tax levied on works contract for the assessment years 1998-1999, 1999-2000, and 2000-2001. The petitioner argued that Clause 45.2 of the National Competitive Bidding Contract specifies that any Central or State Sales Tax and other taxes on completed items of work of this contract, excluding penalties, shall be reimbursed by the employer to the contractor on proof of payment.
2. Validity of the circulars dated 7.11.2001 and 19.6.2002:
The petitioner challenged the circulars issued by the Department of Water Resources, which stated that completed items of works for which the contractor has entered into an agreement are not exigible to sales tax, and therefore, reimbursement does not arise. The petitioner argued that these circulars are against the statutory provisions contained in Section 5(2)(AA) of the Orissa Sales Tax Act, 1947.
3. Interpretation of Clause 45.2 of the National Competitive Bidding Contract:
The court noted that Clause 45.2 of the General Conditions of Contract indicates that any central or state sales tax and other taxes on completed items of work of this contract, excluding penalties, shall be reimbursed by the employer to the contractor on proof of payment. The court observed that the O.Ps. had effected reimbursement under this clause during the assessment years from 1995-1996 till 1997-1998.
4. Applicability of Section 5(2)(AA) of the Orissa Sales Tax Act, 1947:
The court referred to Section 5(2)(AA) of the Orissa Sales Tax Act, which defines 'taxable turnover' in respect of 'works contract' as the gross value received or receivable by a dealer for carrying out such contract, less the amount of labour charges and service charges incurred for the execution of this contract. The court found that the orders of assessment indicated that after deducting the labour charges, service charges, and amount of tax paid, the balance was put to tax by the Sales Tax Authority.
Conclusion:
The court concluded that the sales tax had been levied in the orders of assessment in respect of the amount received pertaining to items of work completed during the financial year. The clarification in Annexure-1, which unilaterally takes away the claim of the petitioner for reimbursement, was found to be contrary to Clause-45.2 of the General Conditions of Contract and Section 5(2)(AA) of the Orissa Sales Tax Act, as well as the decision of the apex Court in Gannon Dunkerly. Accordingly, the clarification letter dated 7.11.2001 (Annexure-1) was quashed, and the O.Ps. were directed to grant appropriate reimbursement in terms of Clause-45.2 of the General Conditions of Contract, as claimed by the petitioner.
Separate Judgment:
R.N. Biswal, J. concurred with the judgment.
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2008 (8) TMI 993
The High Court of Bombay rejected the appeal as the issue was already decided in a previous case, Suvidhe Limited v. Union of India [1996 (82) E.L.T. 177 (Bom.)].
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2008 (8) TMI 992
The High Court of Rajasthan allowed the appeal and sent the case back to the Tribunal for a fresh decision based on a previous judgment. The citation is 2008 (8) TMI 992.
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2008 (8) TMI 991
Issues Involved:
1. Validity of the notification u/s 4(1) of the Tamil Nadu Land Acquisition for Harijan Welfare Schemes Act, 31 of 1978.
2. Interpretation of "Harijan Welfare Scheme" u/s 3(g) of the Act.
3. Applicability of the principle of ejusdem generis.
Summary:
1. Validity of the Notification u/s 4(1):
The appeals challenge the common order of the learned single Judge dated 17.2.2003, which quashed the notification issued by the appellant and published in the Tiruchirappalli District Gazette No.6 dated 8.3.2000 u/s 4(1) of the Tamil Nadu Land Acquisition for Harijan Welfare Schemes Act, 31 of 1978. The notification aimed to acquire land for constructing an additional building for the Adi Dravidar Welfare Middle School, Devimangalam village. The writ petitions contended that the public purpose did not fall within the definition of "Harijan welfare scheme" u/s 3(g) of the Act.
2. Interpretation of "Harijan Welfare Scheme" u/s 3(g):
The writ Court accepted the respondents' contention that the phrase "for providing any other amenity to the benefit of Harijans" should be read in ejusdem generis to the other purposes stated in the definition clause. Consequently, the Court held that the construction of an additional building for the Adi-Dravidar middle school did not qualify as a "Harijan welfare scheme" and set aside the notification.
3. Applicability of the Principle of Ejusdem Generis:
The High Court disagreed with the writ Court's reasoning, emphasizing that the principle of statutory interpretation requires understanding the legislature's intent. The Court noted that the definition of "Harijan Welfare Scheme" includes various purposes such as provision of house sites, constructing or improving dwelling houses, providing burial or burning grounds, pathways, and "any other amenity for the benefit of Harijans." The Court held that the phrase "any other amenity" should be interpreted broadly to include education, as it aligns with the legislative intent and the constitutional mandate under Article 46 to promote the educational and economic interests of Scheduled Castes and Scheduled Tribes.
The Court further clarified that the ejusdem generis rule applies only when specific words constitute a class or category, which is not the case here. The definition clause does not enumerate a specific category but includes independent purposes, and thus, the principle of ejusdem generis is inapplicable.
Conclusion:
The High Court set aside the order of the learned single Judge, upheld the notification u/s 4(1), and allowed the writ appeals, dismissing the writ petitions. The Court concluded that the construction of an additional building for the Adi Dravidar Welfare Middle School falls within the scope of "Harijan welfare scheme" as it provides an essential amenity for the benefit of Harijans.
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2008 (8) TMI 990
Issues Involved:
1. Legality and propriety of the circular issued by the Director General of Civil Aviation (DGCA) on 29-5-2008.
2. Challenge to the interim order issued by the DGCA on 2-6-2008.
3. Whether the principles of natural justice were followed.
4. Competence and jurisdiction of the DGCA to issue the circular and interim order.
5. Revival of AIC 28 of 1992 after suspension of CAR dated 27-7-2007.
6. Impact on public safety and interests of pilots.
Issue-wise Detailed Analysis:
1. Legality and Propriety of the Circular Issued by DGCA on 29-5-2008:
The petitioners challenged the circular dated 29-5-2008 issued by the DGCA, which kept the Civil Aviation Requirements (CAR) dated 27-7-2007 in abeyance. The circular was claimed to be issued in violation of the guidelines for issuing Civil Aviation Requirements and revisions thereof. The petitioners argued that the circular was neither displayed on the DGCA website nor circulated to the affected persons, and no objections or suggestions were obtained, making it illegal and unauthorized. The court found that the DGCA, as a statutory authority under Article 12 of the Constitution of India, had the power to issue such circulars under Rule 133A of the Aircraft Rules, 1937. The court held that the circular was issued as an interim measure pending the examination and report by a committee appointed by the government, and it was not illegal or unauthorized.
2. Challenge to the Interim Order Issued by DGCA on 2-6-2008:
The petitioners contended that the letter dated 2-6-2008, which clarified that the earlier instructions/guidelines on crew Flight Duty Time Limitations (FDTL) as contained in AIC 28 of 1992 would be effective, was not challenged in the petition. The court held that the petitioners consciously chose not to challenge the letter dated 2-6-2008, as evident from the grounds of challenge in the petition. The court found that the letter dated 2-6-2008 was issued to address the void created by the suspension of CAR dated 27-7-2007 and was within the powers of the DGCA under Rule 133A of the Aircraft Rules. The court held that the petitioners could not challenge the letter dated 2-6-2008 merely by oral arguments without laying proper foundation and raising specific grounds in the petition.
3. Whether the Principles of Natural Justice Were Followed:
The petitioners argued that the principles of natural justice were not followed in issuing the circular dated 29-5-2008 and the letter dated 2-6-2008. The court held that the principles of natural justice did not apply to the interim measures taken by the DGCA. The court noted that the suspension of CAR dated 27-7-2007 created a void, and the DGCA had to take appropriate decisions to avoid confusion and chaos. The court found that the interim measures were taken in public interest and did not violate the principles of natural justice.
4. Competence and Jurisdiction of the DGCA to Issue the Circular and Interim Order:
The petitioners contended that the DGCA had no jurisdiction to issue the circular dated 29-5-2008 and the letter dated 2-6-2008. The court held that the DGCA, as a statutory authority under the Aircraft Act, 1934, had the power to issue such circulars and orders under Rule 133A of the Aircraft Rules, 1937. The court found that the circular and the letter were issued by the competent authority and were within the jurisdiction of the DGCA.
5. Revival of AIC 28 of 1992 After Suspension of CAR Dated 27-7-2007:
The petitioners argued that the suspension of CAR dated 27-7-2007 did not automatically revive AIC 28 of 1992. The court held that the letter dated 2-6-2008 specifically revived AIC 28 of 1992, and it was not a case of automatic revival. The court found that the DGCA had the power to revive AIC 28 of 1992 under Rule 133A of the Aircraft Rules, 1937, and the revival was done to address the void created by the suspension of CAR dated 27-7-2007.
6. Impact on Public Safety and Interests of Pilots:
The petitioners contended that the circular dated 29-5-2008 and the letter dated 2-6-2008 were issued under pressure from airline operators to cut down expenses and maximize profits, compromising air safety and exploiting the crew. The court found that the DGCA and the Ministry of Civil Aviation took the decision to suspend CAR dated 27-7-2007 and revive AIC 28 of 1992 after considering various factors, including public safety, interests of pilots, and operational concerns of airlines. The court held that the decision was taken in public interest and did not compromise air safety.
Conclusion:
The court dismissed the petition, finding no merit in the challenges raised by the petitioners. The court held that the DGCA had the authority and jurisdiction to issue the circular dated 29-5-2008 and the letter dated 2-6-2008, and the interim measures were taken in public interest without violating the principles of natural justice. The court found that the revival of AIC 28 of 1992 was done through a specific order and was within the powers of the DGCA. The petition was dismissed with costs.
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