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Case Laws
Showing 121 to 140 of 1441 Records
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2014 (2) TMI 1324
Non payment of the bills - contract with the Irrigation Department inter alia for the supply of bolders, ropes for labourers and sand bags - Held that: - It is true that there is no absolute bar in entertaining a petition in a contractual matter - The exercise of jurisdiction under Article 226 is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceeding, particularly having regard to the nature of the issues involved - petition dismissed.
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2014 (2) TMI 1323
Eligibility to deduction u/s. 80P(2)(a)(i) - According to the AO assessee was a co-operative bank and therefore the deduction u/s. 80P(2)(a)(i) cannot be allowed - Held that:- The issue raised by the revenue has already been considered and decided by this Tribunal in the case of ACIT, Circle 3(1), Bangalore v. M/s. Bangalore Commercial Transport Credit Co-operative Society Ltd. [2011 (4) TMI 1222 - ITAT BANGALORE] wherein this Tribunal held that section 80P(4) is applicable only to cooperative banks and not to credit cooperative societies. The intention of the legislature of bringing in cooperative banks into the taxation structure was mainly to bring in par with commercial banks. Since the assessee is a cooperative society and not a cooperative bank, the provisions of section 80P(4) will not have application in the assessee’s case and therefore, it is entitled to deduction u/s 80P(2)(a)(i) - Decided in favour of assessee.
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2014 (2) TMI 1322
Whether, having regard to the Plaintiff's case in the suit herein as noted below, the Defendant should be restrained by a temporary injunction (a) from prosecuting its Original Application pending in the DRT at the date of the present suit against the Plaintiff and (b) from taking any step under and/or relying upon the Deed of Indemnity and the Deed of Hypothecation, of which cancellation is sought by the Plaintiff in the present suit?
Held that: - In Nahar Industrial Enterprises case [2009 (7) TMI 1193 - SUPREME COURT], the Supreme Court, relying upon the decision in Indian Bank Vs. ABS Marine Products (P) Ltd. [2006 (4) TMI 472 - SUPREME COURT OF INDIA], held that Sections 17 and 18 of the RDDB Act bar the Civil Court's jurisdiction only in regard to applications by a bank or a financial institution for recovery of its debts. The jurisdiction of Civil Courts is not barred in regard to any suit filed by a borrower or any other person against a bank for any relief. No one has any independent right to approach the DRT without having to wait for the bank or financial institution to approach it first. Though such a person may approach the DRT with his claim by way of a defence of set off or a counter-claim upon being made a defendant in the Bank's OA, the continuance of his claim for set off or counterclaim, as the case may be, is entirely dependent on the application filed by the bank. At any rate, even in such a case the DRT cannot grant any declaratory relief to the claimant or even a decree of cancellation of any document. It is, therefore, clear that this Court has jurisdiction to entertain the Plaintiff's suit and the Plaintiff cannot be compelled to go to the DRT for redressal of its grievances.
The power to restrain a person from prosecuting a pending proceeding can only be exercised (i) for preventing multiplicity of proceedings and (ii) by a court superior to the court in which such proceeding is pending.
The Notice of Motion is, accordingly, dismissed with no order as to costs.
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2014 (2) TMI 1321
CENVAT credit - goods manufactured out of common inputs without payment of duty as well as on payment of duty - suppression of facts - Time limitation - Circular dated 30-4-1975 - Held that: - when the respondent-assessee had been furnishing regular returns on monthly basis disclosing therein about clearing goods manufactured out of common inputs without payment of duty as well as on payment of duty, then, there appears to be no suppression of facts with an intention to evade payment of duty - the CESTAT was correct in holding that the demands beyond the normal period of limitation are time-barred and therefore, correctly set aside the submission of the Revenue.
In so far as the subsequent period is concerned, in our view, the CESTAT, after accepting the contention of the respondent-assessee, accepted the offer of the respondent-assessee that they would reverse the entire credit on the common inputs - The assessee, having accepted before the Tribunal to reverse the Cenvat credit as recorded by the Tribunal as regards reversal of the amount involved under such a situation, the High Court held that when the matter has been remanded back to the Adjudicating Authority to redetermine the credit in accordance with law there was no substantial question of law and accordingly dismissed the appeal of the Revenue.
Appeal dismissed - decided against Revenue.
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2014 (2) TMI 1320
Commercial coaching or training center – u/s 65(27) – Notification No.33/2011-ST - the decision in the case of M/s Indian Institute of Aircraft Engineering Versus Union of India & Ors [2013 (5) TMI 592 - DELHI HIGH COURT] contested - Held that: - Delay condoned - notice issued.
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2014 (2) TMI 1319
Construction and interpretation of essentially two provisions of the Code - Section 372 - Section 378 - offence punishable under Section 138 of the Act of 1881 - victim - acquittal with leave under Section 378(4) Cr.P.C. as per Section 384 read with 385 Cr.P.C.
Held that: - It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the means or sentence legis of the legislature - The victim's right is thus no way controlled by Section 378(4) Cr.P.C. and there is nothing to infer any requirement of leave u/s. 378(4) Cr.P.C. to file appeal under Section 372 Cr.P.C. (against acquittal or conviction of accused for a lesser offence or for inadequate compensation), but for at best to say when against same acquittal two appeals filed one by other than victim under Section 378(4) and one by the victim under Section 372 Cr.P.C. the proper course is to withdraw and call for the matter before the Court of Session to the High Court to decide both at a time by it by common disposal or under Section 381 Cr.P.C. the High Court by special order transmit the appeal before it to the Court of session where other appeal is pending for common disposal, the power of the High Court under section 482 Cr.P.C. in this regard also enables to subserve the ends of Justice and to avoid conflicting findings; like, in case and counter case, and for no such provision even specifically provided like in Section 210 Cr.P.C. of police case and private complaint case.
Time limitation to file appeal for the offence under Section 138 of N.I.Act - Held that: - the period of limitation provided for conviction to appeal under Section 374 Cr.P.C. equally to apply to appeal against acquittal, in case of any confusion from Article 114 and 115 of the Indian Limitation Act regarding different periods of limitation for appeal against conviction and acquittal.
Coming to decide what is the procedure to be adopted for an appeal against acquittal before the Court of Session for not specifically provided for by any of the amended provisions of Cr.P.C., the proviso to Section 372 Cr.P.C. itself by a close reading clarifies to adopt the procedure for appeal against conviction under Section 374 Cr.P.C. before Court of Session as laid down in Sections 380-385, 387-389 Cr.P.C. - legislative silence conveys signals and thus it is the duty of the interpreter to interpret the meaning and for that the interpretation and construction have same effect by identifying the legislative intent as part of duty of the Court since the legislative authorities are functuous officio after the legislation is passed.
In interpreting an Act the proper course is the first instance to examine the language of the Statute and to ask what is the natural meaning influenced by the considerations derived from the previous state of the law and not to start with inquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered to see if the words of the enactment will bear an interpretation in conformity with the view.
The appeal is made over to the Metropolitan Sessions Judge, Visakhapatnam by this Special Order under Section 381(2) read with Section 482 Cr.P.C. either to decide or to made over to any of the Additional Metropolitan Sessions Judge of the Sessions Division to issue Bailable Warrant against the accused-respondent either directing the police or if they file any memo of non-availability of men from such non-availability - appeal disposed off.
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2014 (2) TMI 1318
Sanctioned Scheme for rehabilitation sanctioned by the BIFR - appeal of the Union of India, through the Railway Ministry, ("Railways") against an order of the Board for Industrial and Financial Reconstruction ("BIFR") concerning certain concessions to be provided by the Railways to Cimmco Birla Ltd. ("CBL") - Held that:- It is undisputed that the DRS was circulated to the Railways, for the purpose of obtaining consent and inviting suggestions/objections. No objections were filed by the Railways. It states today - for the first time since the scheme was sanctioned by the BIFR on 11.3.2010 - that the scheme was circulated to the Secretary, Ministry of Railways and then redirected to the Stores Directorate of the Ministry later (which is the concerned department, it is claimed), by which stage "hardly any time was left for filing of objection". The Railways raises this plea after almost three years of the presentation of the claim by CBL to the BIFR. No such stand was taken before, and in any event, no request for extension of time, let alone an objection taken at any stage of these proceedings before the BIRF, AAIFR, this Court or the Supreme Court in the various rounds of litigation witnessed in this matter. Thus, in terms of Section 19(2), deemed consent of the Railways to Clause 11.6 of the Sanctioned Scheme was taken, and it is accordingly binding on it.
The object and purpose of Section 19 is to enable and garner support - in the form of wide-ranging concessions - by entities with which the sick company conducts business, in this case the Railways, as CBL is a wagon producer and a captive industry that supplies exclusively to the Railways. The argument that Section 19, thus, does not allow for relaxation of tender requirements in incorrect, especially in a case such as the present one, where the concession is narrowly tailored to ensure that the past performance requirement is not prejudicial to CBL only for the period of its closure. Rather than putting CBL at an unfair advantage, Clause 11.6 only requires that the period of closure be excluded from consideration, and the bids be examined competitively in all other respects, for the time.
Given conclusions within the Railways‟ own ranks that Clause 11.6 does not vitiate the tender conditions, and no reasons have been provided to indicate that these concurring legal opinions are incorrect, the Court finds no reason to interfere with the application of Clause 11.6. In any case, Section 32 of the SICA prescribes that the SICA overrides any contrary provisions in any other law, except for the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976, let alone contractual tender conditions or policy guidelines prescribed by the Railways.
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2014 (2) TMI 1317
Arbitration and conciliation - winding up petition - Held that:- As in Supreme Court in Amalgamated Commercial Trades (P) Ltd Vs.Krishnaswami(A.C.K.) 1965 (1) TMI 16 - SUPREME COURT OF INDIA) wherein it was held that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company, opined that there is no overwhelming public interest to continue the winding up proceedings and deny the opportunity to the parties to settle their dispute through arbitration. The learned single Judge "under the facts and circumstances" referred the dispute to arbitration in view of Clause- 16 of arbitration agreement between the parties.
Interestingly, the learned single Judge has referred to the judgment in Haryana Telecom Ltd (1 supra), but did not explain as to how an order allowing the application under Section 8 of the Arbitration Act could be justified in the face of the dicta laid down by the Supreme Court in the said case.
It is one thing to dismiss the Company Petition on its own merits if the Court feels that there is a bona fide dispute, while it is quite another thing to refer the parties to arbitration on an application made under Section 8 of the Arbitration Act, merely because the debt is disputed.
In the face of the authoritative pronouncements of the Apex Court as referred above, the High Court while dealing with a Company Petition filed under the Companies Act cannot entertain an application under Section 8 of the Arbitration Act and compel the unwilling party to submit himself to the jurisdiction of the Arbitrator.
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2014 (2) TMI 1316
Stay granted in exercise of writ jurisdiction under Article 226 of the Constitution of India - fraud in NSEL - Commission has issued directions for forcing disinvestment of stakes of the Petitioners in MCX - Held that:- As elaborate enquiry has been made by the Commission. Findings of fact of serious nature have been recorded against the Petitioners. The fraud perpetrated is to the tune of ₹ 5,500 Crores. Criminal investigations are in progress. Considering the gravity of the allegations which have been found to be established against the Petitioners, this is not a fit case where prayer for stay can be granted in exercise of writ jurisdiction under Article 226 of the Constitution of India. Accordingly, prayer for interim relief is rejected. Hearing of the Petition is expedited.
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2014 (2) TMI 1315
Refund/rebate of duty - the decision in the case of Kanha International Versus Union of India [2013 (7) TMI 1089 - GUJARAT HIGH COURT] contested, where it was held that The petitioner cannot be permitted to re-agitate the question/issue which has been settled/adjudicated earlier, on making representations one after another - Held that: - the decision in the above case upheld - appeal dismissed.
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2014 (2) TMI 1314
Jurisdiction - action of issuing summons - petitioner is a foreign national residing in U.K. - the decision in the case of Bhupendra Madlani Versus Union of India [2013 (2) TMI 832 - BOMBAY HIGH COURT] contested, where it was held that there are no findings and no interference is called for in writ jurisdiction under Article 226 of the Constitution of India - Held that: - the decision in the above case upheld - SLP dismissed.
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2014 (2) TMI 1313
Penalty - Activity of pumping RMC - adjudicating authority considered that the disputed service was newly brought into tax net and there was confusion about the scope of the relevant entry and hence waiving of penalty was justified - Held that: - when the demand for tax itself is not sustainable, there cannot be a penalty imposed on the same matter - penalty set aside - appeal allowed - decided in favor of appellant.
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2014 (2) TMI 1312
Misleading information for IPO - Inadequacy of disclosures in the offer document - violation of provisions of SEBI (Disclosure and Investor Protection) Guidelines, 2000 - Held that:- In this case, there is no material before us to show that the appellant had taken any proactive step at all to find out the correct information or to independently verify the information available. No specific query in this respect was made from the right sources of such information namely the target company and the stock exchanges though it was known that information about the listing of the shares of the target company in each stock exchange was specifically required to be disclosed in the letter of offer. Instead, the appellant made a presumption that all shares were listed in the four stock exchanges of Chennai, Mumbai, Delhi and Ahmedabad and left it to others to point out if that was not the fact. This is certainly no way to exercise due diligence and we cannot but agree with the Whole Time Member of the Board that the appellant had violated regulation 24(4) of the Takeover Code and clauses 1, 2 and 7 of the code of conduct for merchant bankers.” From the foregoing, it is no doubt that Appellant had failed to exercise due diligence which resulted in lack in veracity and inadequacy of disclosures in the offer document, which did not provide investors with a reliable document did mis-lead investors to invest in shares of ESL and hence such non-disclosure had the potential to disturb securities market equilibrium and hence Respondent has rightly held Appellant to failed to comply with clauses 5.1 (5.1.1 and 5.1.2), 5.3.3.2(ii) under chapter V of SEBI (DIP) Guidelines, 2000 read with Regulation 111 of SEBI (ICDR) Regulations, 2009.
Regarding quantum of penalty provisions of section 15J of SEBI Act were applied by Respondents and are of the view that investigation report has not quantified profit/loss for the nature of violations committed by Appellant and no quantifiable figures are made available on record to assess the disproportionate gain or unfair advantage and amount of loss caused to an investor or group of investors, and hence penalty of ₹ 10,00,000/- has been imposed considering failure to comply with SEBI (DIP) Guidelines read with SEBI (ICDR) Regulations, 2009.
From the above paragraph, it is seen that loss caused to an investor or to a group of investors cannot be quantified but it is certain that investors, as a whole, incurred huge losses as a result of IPO, yet, though Appellant is not wholly responsible for the losses to investors, since there are others who played their role in causing loss to investors, the responsibility of Appellant was major, since he plays the coordinating role in bringing out IPO and is conceived to be the one who certifies veracity and adequacy of all disclosures and had the responsibility of bringing out all relevant fact and to ensure that no material information/fact is withheld is under obligation and has authority to call for all relevant information from company seeking IPO and is expected to carry out due diligence to bring our truth and adequacy of information in IPO at all stages. The penalty is, therefore, upheld and appeal against the impugned order is dismissed. No costs.
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2014 (2) TMI 1311
Penalty u/s 271(1)(b) - default of noncompliance during assessment proceedings - Held that:- Assessing Officer himself in the assessment proceedings has recorded the finding that Shri Kailash Jogani, CA and Shri Nitesh Aggarwal, CA, authorized representatives attended the assessment proceedings in compliance to notice issued under Section 142(1) and 143(2). He completed the assessment at the income returned by the assessee i.e. ₹ 1,80,290/-. In view of the above factual finding in the assessment order, we are of the opinion that the assessee cannot be said to have committed the default of noncompliance during assessment proceedings which may saddle with the liability of penalty under Section 271(1)(b). Accordingly, the penalty levied under Section 271(1)(b) for the all the years under consideration is cancelled. - Decided in favour of assessee.
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2014 (2) TMI 1310
CENVAT credit - air travel service - tour operator service - rent-a-cab service - Revenue has entertained a view that appellant should not have availed CENVAT credit since they were claiming abatement of 60% in respect of rent-a-cab service and 90% in respect of tour operator service - Held that: - the fact remains that the Commissioner has not verified the documents submitted even though he mentioned that he has taken note of the written additional submissions - instead of granting stay and postponing the final decision, it would appropriate to remand the matter to the Commissioner for the purpose of verifying whether the appellants have reversed the proportionate credit - appeal allowed by way of remand.
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2014 (2) TMI 1309
Set off of business loss against the addition u/s.68 disallowed - Held that:- The decision of the Hon’ble Gujarat High Court in the case of CIT Vs. Shilpa Dyeing & Printing Mills P. Ltd., (2015 (7) TMI 691 - GUJARAT HIGH COURT) is applicable to the facts of the case of the assessee. In this case, the decision of the Hon’ble Gujarat High Court in the case of Fakir Mohamed Haji Hasan (2000 (8) TMI 44 - GUJARAT High Court ) was also discussed. In this case it was held that once loss is determined, the same should be set off against the income determined under any other head of income including undisclosed income. Respectfully following the decision of the Hon’ble Gujarat High Court in the case of CIT Vs. Shilpa Dyeing & Printing Mills P. Ltd., (supra), the issue is decided in favour of the assessee
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2014 (2) TMI 1308
Dishonouring of cheques - Suit for recovery of a sum which comprises of principal amount and interest calculated at the rate of 12% p.a - Held that:- None of the defences raised by the Defendant to the Summons for Judgment appears to be either substantial or bona fide. The defences can only be termed as illusory and moonshine. However, with a view to give an opportunity to the Defendant to prove his case at the trial and at the same time to protect the Plaintiffs, the Defendant can be appropriately granted leave to defend the suit on a condition of its depositing in the Court the principal amount of ₹ 67 crores claimed in the suit.
15. In the premises, the following order is passed:
(i) The Defendant is granted leave to defend the suit on, and subject to, the condition of deposit of ₹ 67 crores in the Court within a period of eight weeks from today;
(ii) On such deposit being made, the suit to be transferred to the list of commercial causes;
(iii) Written Statement to be filed within a period of six weeks thereafter;
(iv) The amount deposited by the Defendant may be invested by the Prothonotory and Senior Master of this Court in a fixed deposit in a Nationalized Bank initially for a period of two years and thereafter to be renewed from time to time till the disposal of the present suit;
(v) Suit to appear on board before the learned Judge taking commercial causes after fourteen weeks, i.e. on 16 June 2014.
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2014 (2) TMI 1307
High Court's contempt jurisdiction to create supernumerary posts of Marine Assistant Radio Operators - treat the contract Radio Operators at par with the regular Marine Assistant Radio Operators - Held that:- Direction of the High Court for creation of supernumerary posts of Marine Assistant Radio Operator cannot be countenanced.
Not only the Courts must act with utmost restraint before compelling the executive to create additional posts, the impugned direction virtually amounts to supplementing the directions contained in the order of the High Court dated 02.8.2006.
The alterative direction i.e. to grant parity of pay could very well have been occasioned by the stand taken by the Corporation with regard to the necessity of keeping in existence the cadre itself in view of the operational needs of the Corporation. If despite the specific stand taken by the Corporation in this regard the High Court was of the view that the respondents should be absorbed as Marine Assistant Radio Operator nothing prevented the High Court from issuing a specific direction to create supernumerary posts of Marine Assistant Radio Operator. The same was not done. If that be so, the direction to create supernumerary posts at the stage of exercise of the contempt jurisdiction has to be understood to be an addition to the initial order passed in the Writ Petition.
The argument that such a direction is implicit in the order dated 02.08.2006 is self defeating. Neither, is such a course of action open to balance the equities, i.e. not to foreclose the promotional avenues of the petitioners, as vehemently urged by Shri Rao. The issue is one of jurisdiction and not of justification.
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2014 (2) TMI 1306
Income earned from non-Compete Agreement - nature of receipt of commission in addition to salary - Income from salary vs Income from business - Contract of Service or Contract for Service - Agreement was entered into in dual capacity - salary in capacity as an employee of UC and non-compete fees for not taking away business of the firm - Held that:- HC held that [2012 (12) TMI 168 - DELHI HIGH COURT] the commission amount clearly was part of salary answering the description under the inclusive definition u/s 17 of the Act
Leave granted. Hearing expedited.
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2014 (2) TMI 1305
Order of provisional attachment - Jurisdiction of judicating Authority, which has subordinate jurisdiction to that of a High Court confirming the order of provisional attachment, especially, when the petitions filed by the appellants-original petitioners were pending before this Court - alternative remedy
- Held that:- Section 35 of the PMLA Act provides the procedures and powers of Appellate Tribunal under the Act. It goes without saying that the Act, itself, is a self-contained Act, and therefore, even after a contention is raised by both learned Sr. Advocates, Mr. Thakore and Mr. Joshi, that the Tribunal shall have no jurisdiction, same does not find favour with us.
Also unable to persuade ourselves to accept the submission made by the learned Sr. Advocates that the Tribunal would not exercise jurisdiction, only because the concerned authority has relied upon a decision of the Andhra Pradesh High Court, which is a subject-matter of appeal before the Hon’ble Apex Court.
Be that as it may, the Act being a complete Code in itself and in view of the fact that we are inclined to dismiss the appeals only on the ground of jurisdiction, the other submissions made and the decisions cited by the learned Counsels for the appellants and the respondents are not delve upon in extenso by us, leaving it open for the parties to raise the same before the appropriate forum in appropriate proceedings. The reason for the same being, this Bench is of the opinion that the learned Single Judge has, after considering the provisions of the Act, has relegated the parties to the most efficacious alternative remedy available to them under the law and we do not think that we would like to interfere with same.
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