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Showing 21 to 40 of 1633 Records
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2022 (3) TMI 1615
Seeking to quash the Demand-cum-Show Cause Notice by asserting that the same is barred by limitation - HELD THAT:- As per Section 73, unless payment is made in terms of sub-sections (3) and (4) there of, the proceedings for assessment would commence by issue of the show cause notice under sub-section (1) of Section 73 of the Finance Act. This is the procedure prescribed by the statute for recovery of service tax in cases of non- levy, non-payment, short levy, short payment and erroneous refund - Section 83 Chapter V of the Finance Act, 1994 empowers the Authority to invoke Section 14 of the Central Excise Act, 1944 which empowers the Officer to issue summons to any person to give evidence and produce documents. The summons can be issued to any person whose attendance the officer considers necessary. The power can be exercised to collect evidence or a document or any other thing in any inquiry which the officer is making for any purposes under the Act.
In the present writ petition, the Petitioner has challenged Demand-cum-Show Cause Notice whereby the Adjudicating Authority has asked the assessee to produce evidence which may be relevant to rely in support of its defense. The said Authority also in order to afford opportunity called for explanation/objection and has disclosed proposed actions by specifying components of tax, interest and penalty. Such a Show Cause Notice having clearly spelt out reasons, no prejudice possibly be caused to the Petitioner in the event it is relegated to avail such opportunity by placing relevant material fact including its stance of limitation and the period and transactions covered under the SVLDRS, 2019.
At this stage where Demand-cum-show cause notice has been issued to the Petitioner-Nagen Caterer, various aspects are found mentioned in the impugned Show Cause Notice as to why the Adjudicating Authority has sought to invoke the extended period of limitation in terms of proviso to sub-section (1) of Section 73 of the Finance Act which essentially relates to the facts and circumstances of the case. Of course, the Petitioner has the fullest opportunity to counter the same during the course of proceeding. It is possible for the Petitioner to seek for further time, if according to him the time given by the authority for filing the reply was required to be extended in order to enable him to collect some record. It cannot therefore be said that if detailed reasons for issuance of notice being absent in the Show Cause Notice, the same would be rendered invalid.
The present case seems neither to be a case of lack of jurisdiction nor is there any allegation of violation of principles of natural justice. Even though point of limitation is raised as a matter of jurisdictional fact, the same being mixed question of fact and law, the Petitioner has ample opportunity to agitate such an issue before the Adjudicating Authority. Therefore, this Court feels entertainment of the writ petition at the stage of notice would be premature.
The writ petition is dismissed, but the Petitioner is allowed a further period of four weeks from availability of the instant order to file reply/objection to the Show Cause Notice dated 22.04.2021 and also to participate in the proceeding.
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2022 (3) TMI 1614
Declination to restrain Secured Creditors, from enforcing, security interest in the suit property - Order 43 Rule 1(r) read with 104 of the Civil Procedure Code, 1908 - whether, evidence on record, prima-facie, establishes ‘the fraud’ practiced by the defendant nos.1 and 2 and Bank on plaintiffs to extinguish their title over the Suit Property? - HELD THAT:- The termination of MOU by the defendant nos.1 and 2 was not dishonest commission or omission of act, as alleged by the plaintiffs. Likewise, since, plaintiffs also neglected the Bank’s offer of settlement, one cannot allege that the bank adopted the measures to enforce the security interest, in secret understanding with defendant nos.1 and 2 with an intention, to extinguish plaintiffs’ title over the Suit Property. In fact, the bank was not aware of the MOU executed between the plaintiffs and defendant no.1. As a consequence, for want of knowledge of the MOU, it is inconceivable, and improbable, to accept the plaintiffs’ case that the defendant nos.1 and 2 colluded with the bank officers and managed to purchase the suit property at undervalued price. Although in the plaint, plaintiffs alleged secret understanding between the officers of the bank and the defendant nos.1 and 2, the allegations require no consideration for two simple reasons; first, is that, bank was not aware of the MOU and second, the officers against whom allegations of collusion, have been made, are not parties to the suit. Additionally, the allegations of the ‘fraud’ are vague and no better particulars have been pleaded.
The plaintiffs have not made out prima-facie case that defendant no.1, in secret understanding with the bank officers bye- passed plaintiff’s interest and purchased the suit property with an intention to extinguish their title over suit property.
The material on record shows, that the defendant nos.1 and 2 have invoked the alternative dispute resolution mechanism and called upon the plaintiffs to accept the nomination of either persons to act as sole arbitrator. As such, if at all plaintiffs had suffered any losses for the alleged breach of MOU by the defendant nos.1 and 2, they may claim the appropriate relief before the arbitrator. In the circumstances, the fact remains, the security measures adopted by the bank under Section 13 of the SARFAESI Act cannot be faulted with nor it was open to plaintiffs to challenge in Civil Suit. The reason being, there is no material at all, on record even to, remotely suggest that the bank and its officers in secret understanding with the defendant no.1, sold the property at the undervalued price to overreach title of plaintiffs in the Suit Property. In fact, affidavit-in-reply of the State Bank of India signify, that the measures to enforce the security interest were taken by complying with the provisions of the Act.
The impugned order requires no interference. It is dismissed - it is not a fit case to continue the interim relief. The request is rejected.
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2022 (3) TMI 1613
Failure of the liquidator to reply to the intimation for assessment - petitioner company is under liquidation and that there is no dispute that no notice was issued to the petitioner by the respondent after there was a transfer to liquidator under Section 127 - as submitted petitioner company is under liquidation and eventually wound up and there is no threat of any recovery proceedings - HELD THAT:- All through the period during the course of assessment even prior to the above order passed on 15.3.2021 by the National Company Law Tribunal for liquidating the petitioner, the petitioner was represented by the liquidator in the capacity of an IRP and later as an RP. The petitioner company is located in Union Territory of Puducherry whereas the liquidator is operating from Chennai.
Though it would have been ideal on the part of the liquidator to give a suitable intimation to the respondent Income Tax Department even prior to order of the liquidation that the petitioner company was represented by the liquidator in the capacity of an IRP and later as an RP, the fact remains that there was some failure on the part of the liquidator.
The liquidator has given only postfacto intimated after the assessment order dated 25.6.2021 came to be passed by the respondent. Since the assets of the petitioner company is to be distributed among the creditors in terms of the provisions of the Companies Act, 2013, it would be unfair to deny legitimate dues that may be payable to the secured and unsecured creditors, if indeed, tax due from the petitioner was much lesser.
Therefore, to meet the ends of justice, we quash the impugned order and remit the case back to the respondent to pass a fresh assessment order preferably with in a period of 90 days from the date of receipt of a copy of this order. The petitioner represented by its liquidator shall file necessary reply to the notices and intimations in a period of 30 days. The impugned order stands quashed by this order and it shall be treated as a corrigendum to the show cause notice, if any, issued earlier to the petitioner. All issues on merits are left to be canvassed before the respondent.
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2022 (3) TMI 1612
Benami transaction - Real owner - payment of kist by the plaintiff’s father Jayarama Reddy and the plaintiff - case made for declaration of title based on the so called Benami transaction or not? - plaintiff is claiming title on the ground that Chinnamma Reddy was only a Benamidar and the actual owner of the property is his father Jayarama Reddy.
As submitted that the appellant was putting forward two mutually destructive grounds viz. title based on Benami and adverse possession
HELD THAT:- Law always presumes that the name of the person which is found in the document is taken to be the owner of the property that is dealt with under the document. The plea of benami is an exception to this rule and hence heavy burden lies on the person who pleads that the recorded owner is a benami-holder. The Court cannot assume a benami transaction through mere conjectures or surmises and it can never be a substitute for the proof which rests on the shoulder of the person who asserts that the transaction is a benami transaction. The essence of a benami transaction is the intention of the parties concerned at the time of entering into the transaction. Such an intention cannot be spoken to by any other person who is not a party to the transaction.
In the present case, the sale had taken place on 26.6.1930. The so called ostensible owner viz. Jayarama Reddy during his lifetime never claimed or asserted that the sale was a benami transaction and that Chinnamma Reddy was only a benami holder, in any proceedings before any authority or Court. He died in the year 1964. For the first time, the plaintiff who is the son of Jayarama Reddy asserted that Chinnamma Reddy was a benami holder when the suit was filed in the year 1982. At the time when the plaintiff deposed as a witness in the year 2002, his age is recorded as 70 years. If this age is taken into consideration, the plaintiff would not even have born at the time when the transaction took place. This plea was taken in the suit for the first time, after 52 years from the date of execution of the sale deed and after 18 years after the death of Jayarama Reddy. Even Chinnamma Reddy in whose name the sale deed was executed in the year 1930 was not alive. Therefore, the persons who could have been the best evidence to speak about the transaction that took place in the year 1930, were not available when the evidence was taken in the suit. It is under these circumstances, the plaintiff who is the son of Jayarama Reddy has come forward with the plea of benami transaction. Therefore, there is a very heavy burden on the plaintiff to prove that the sale deed Ex.A1 was executed in the name of Chinnamma Reddy who was only a benami holder and that the actual owner is his father Jayarama Reddy.
Lower Appellate Court took into consideration all the facts and circumstances cumulatively and found that Ex.A1 sale deed dated 26.6.1930 is not a benami transaction and such a plea taken by the plaintiff has not been proved. While rendering the findings, the Lower Appellate Court had taken into consideration the six circumstances which was given as a guide by the Hon’ble Supreme Court. The Lower Appellate Court has properly analysed the oral and documentary evidence and had rendered its findings and this Court does not find any perversity in those findings. Even assuming that another view is possible on re-appreciation of the same evidence, that cannot be a ground to interfere with the finding of the Lower Appellate Court in exercise of the power and jurisdiction conferred under Section 100 of C.P.C. The 1st and 2nd substantial questions of law are answered accordingly.
On a cumulative reading of the facts and circumstances of this case, it is clear that the plaintiff was brought up by his in-laws and was provided with education when he was staying with them and was given an opportunity to become an advocate to practice law. He was also permitted to represent the defendants in various proceedings. The plaintiff decided to make use of the situation and the availability of the original sale deed Ex. A1. The plaintiff has successfully dragged the defendants for a litigation which is pending for the last 40 years. Hopefully, the agony faced by the defendants will come to an end with the final judgment passed in this Second Appeal.
This Court does not find any merits in this Second Appeal.
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2022 (3) TMI 1611
Benami Transactions - absolute owner of the suit premises - cross-examination conducted by R-2 - assertion made by the Appellant in his Evidence-on-Affidavit that the purchase of the land was made benami by him and the building constructed by him which also included the property sold to the R-1
HELD THAT:- Appellant has not drawn the attention of the Learned Courts below or this Court to any document relied on by him to reveal a paper trail of his income and the subsequent transactions. In the absence of any documentary evidence, the mere statement of the Appellant that he was the purchaser of the property cannot be treated as gospel truth neither can the property be said to be benami in view of the nonfulfilment of the afore-extracted provisions of law.
What emanates from the entire discussions above is that the non-filing of a Written Statement by the R-2 (Defendant No.1) to the Counter-Claim filed by the Appellant (Defendant No.2) may be said to constitute an admission but she is permitted to demolish the case of the Appellant by way of cross-examination by pointing out the weaknesses or falsity of the Appellant's case and to that extent to defend her case as held in Modula India supra and which R-2 has done to her advantage herein. The substantial question of law is determined accordingly.
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2022 (3) TMI 1610
Seeking grant of regular bail - grounds of parity claimed - petitioner submits that on similar set of allegations, four FIRs were registered against the petitioner and it is already noticed in the aforesaid order that he has already been granted regular bail in two cases as well as in FIR No.259 - HELD THAT:- This petition is allowed and the petitioner is directed to be released on regular bail subject to furnishing his bail/surety bonds to the satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate, concerned.
Petition is disposed of.
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2022 (3) TMI 1609
Violation of principles of natural justoce - ex-parte order - Challenge to appellate order - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This is for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences.
Petition disposed off.
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2022 (3) TMI 1608
Appointment of respondent No.4 as a Vice Chancellor of respondent No.2 – Sardar Patel University - prayer for a writ of quo warranto by challenging the appointment of respondent No.4 herein as Vice Chancellor of the SP University – respondent No.2 herein - HELD THAT:- In the case of B. SRINIVASA REDDY VERSUS KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD EMPLOYEES' ASSOCIATION AND ORS. [2006 (8) TMI 653 - SUPREME COURT], it has been observed by this Court that strict rules of locus standi are relaxed to some extent in a quo warranto proceedings. It is further observed in the said decision that broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by a judicial order.
As per the law laid down in a catena of decisions, the jurisdiction of the High Court to issue a writ of quo warranto is a limited one, which can only be issued when a person is holding the public office does not fulfil the eligibility criteria prescribed to be appointed to such an office or when the appointment is contrary to the statutory rules. Keeping in mind the law laid down by this Court in the aforesaid decisions on the jurisdiction of the Court while issuing a writ of quo warranto, the factual and legal controversy in the present petition is required to be considered.
Respondent No.4 is holding the post of Vice Chancellor. The post of Vice Chancellor in a University can be said to be a public office. There cannot be any dispute about the same. It is nobody’s case that holding the post of Vice Chancellor cannot be said to be holding a post of public office.
Whether, the appointment of respondent No.4 as a Vice Chancellor of the SP University – respondent No.2 herein can be said to be contrary to any statutory provisions and whether, can it be said that respondent No.4 fulfils the eligibility criteria for the post of Vice Chancellor? - HELD THAT:- As per Section 9 of the SPU Act, 1955, H.E. – Governor of Gujarat is the Chancellor of the University and he shall, by virtue of his office, be the head of the University and the President of the Senate. Therefore, even as the head of the University, his advice was/is binding upon the University and therefore, the State ought to have taken the necessary steps at the Government level as requested in the communication dated 30.08.2014. Even the request made by the H.E. – Governor of Gujarat, who is also the Chancellor of the University, ought not to have taken very lightly. The State ought to have taken the corrective measures by suitably amending the State legislation on par with the UGC Regulations.
This Court did not opine anything on the merits of the judgment and order passed by the High Court. This Court refused to entertain the Special Leave Petition solely on the ground that by the time the same was taken up for hearing the tenure of respondent No.4 herein as a Vice Chancellor was coming to an end. Even while dismissing the same on the aforesaid ground alone, this Court specifically observed that all the questions of law are left open.
The appointment of respondent No.4 is contrary to the UGC Regulations, 2018. Also, respondent No.4 has been appointed by a search committee, not constituted as per the UGC Regulations, 2018. Moreover, respondent No.4 does not fulfil the eligibility criteria as per the UGC Regulations, 2018, namely, having ten years of teaching work experience as a professor in the university system - when the appointment of respondent No.4 is found to be contrary to the UGC Regulations, 2018 and the UGC Regulations are having the statutory force, it is opined that this is a fit case to issue a writ of quo warranto and to quash and set aside the appointment of respondent No.4 as the Vice Chancellor of the SP University.
The appointment of respondent No.4 as a Vice Chancellor of the SP University – respondent No.2 herein, is contrary to the UGC provisions, namely, UGC Regulations, 2018 - A writ of quo warranto quashing and setting aside the appointment of respondent No.4 as the Vice Chancellor of SP University issued - petition allowed.
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2022 (3) TMI 1607
LTCG included in taxable income - HELD THAT:- Paragraph no.6 of the order [2017 (1) TMI 1765 - ITAT PUNE] reads as under -“6. The assessee has requested vide the above mentioned submissions that the amount of Rs. 9,90,20,875/- may now be included in his taxable income for the A.Y. 2014-15. In view of these facts and as per the directions of the ITAT discussed above, the amount being balance consideration on account of sale of land at Wagholi is being taxed in the hands of the assessee in the A.Y. 2014-15 as Long Term Capital Gains.”
In view of paragraph no.6 above, appeals do not survive. Appeals disposed.
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2022 (3) TMI 1606
Violation of principles of natural justice - vague SCN - Cancellation of GST registration of petitioner - HELD THAT:- The show cause notice is bereft on any material particulars or information. In the absence of any material particulars and the details, it is difficult for any individual to respond to such a vague show cause notice. Probably what the Authority is trying to convey is that the registration had been obtained by means of fraud, willful misstatement or suppression of facts. If such are the allegations, it is expected of the Authority to furnish some details in this regard.
The impugned show cause notice has to be quashed and set aside and the same is accordingly quashed and set aside. If the Assistant Commissioner, Ghatak – 21 (Ahmedabad), Range – 6, Division – 2, Gujarat, is of the view that the writ applicant herein had obtained the GST registration by means of fraud, it shall be open for him to issue a fresh show cause notice in a physical form and such fresh show cause shall contain all necessary information and details for the purpose of effectively responding to the same.
Application disposed off.
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2022 (3) TMI 1605
Nature of receipts - proceeds of maturity of insurance policy - whether life insurance policy is a capital asset? - whether proceeds of a maturity of a single/double premium life insurance policy are to be assessed as “Long-term capital gain” (LTCG) or under the head “Income from other sources”? - HELD THAT:- As per section 2(24) of the Act, capital asset means property of any kind held by an assessee, including any unit linked insurance policy to which exemption under clause (10D) of section 10 does not apply on account of the applicability of the fourth and fifth provisos thereof except stock in trade, personal effects etc., the agricultural land and gold bonds and special bearer bonds as mentioned therein.
The Parliament while substituting section 10(10D) and inserting section (2A) to section 88 has denied the benefit of exemption and deduction in respect of policies, which are similar to deposits/investments and also has treated the premium paid over and above of 20% of the sum assured towards investment and not towards insurance or hedging of life risk.
The amount of premium paid by the assessee, which was more than 20% of the sum assured was, in fact, investment made by the assessee. However, it is pertinent to note here that as per section 10(10D)(d), entire maturity amount received including sum assured has been excluded of the policies in respect of premium payable for any of the years exceeds 20% of the sum assured.
Meaning thereby, the exclusion is not for any amount received over and above the sum assured, rather the entire amount received under the policy has been excluded. Therefore, the entire maturity value/gains at the time of extinguishment of the rights of the assessee in the said policy i.e. on the date of maturity are liable to be treated as capital gains.
While computing the capital gains, the cost of acquisition will be taken the amount paid towards premium minus 20% of the sum assured, which amount shall be treated as not part of the investment rather towards the cost of hedging of risk under the insurance policy, for which a deduction is already available to that extent under sub section (2A) to section 88 and thereafter, indexation is to be allowed accordingly.
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2022 (3) TMI 1604
TP Adjustment - adjustment of interest on receivables - HELD THAT:- The issue of interest on receivables stands adjudicated by the orders of the Co-ordinate Bench of ITAT in assessee’s own case [2021 (11) TMI 1090 - ITAT DELHI] and [2020 (6) TMI 712 - ITAT DELHI] as folliwing case KUSUM HEALTH CARE PVT. LTD. [2017 (4) TMI 1254 - DELHI HIGH COURT] find no merit in making any adjustment on account of interest due on receivable from its AE.
In the absence of any material change in the factual matrix and the legal proposition, we direct that the addition made of “adjustment on interest due receivables” be deleted. Decided in favour of assessee.
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2022 (3) TMI 1603
Classification of goods - Nestle Milkybar Eclairs - white chocolate or not - benefit of concessional duty under sl.No.19 of the N/N.12/2012-CE dt. 17/03/2012 - HELD THAT:- The issue has been finally decided by this Tribunal in CAMPCO CHOCOLATE FACTORY VERSUS COMMISSIONER OF CENTRAL EXCISE [2020 (7) TMI 554 - CESTAT BANGALORE] where it was held that 'The impugned goods i.e. Nestle Milky bar and Nestle Milky bar Eclairs are not excluded for the purpose of exemption contained in the Notifications.'.
From the above judgment, it can be seen that identical issue has been decided by this Tribunal whereby it was held that the appellant’s product viz. Nestle Milkybar Eclairs is not a white chocolate and accordingly eligible for exemption Notification No.12/2012-CE. Therefore, the issue is no longer res integra.
The impugned order set aside - appeal allowed.
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2022 (3) TMI 1602
Substantial question of law - Admissibility of additional ground without raising the issue of jurisdiction before the AO and CIT (A) - ACIT jurisdiction - HELD THAT:- The appeal is admitted on the substantial questions of law which reads as under :
I. Whether on the facts and in the circumstances of the case, the Tribunal was justified in admitting the additional ground when the assessee had not raised issue of jurisdiction of the Assessing officer before the Assessing officer and CIT (A) ?
II. Whether on the facts and in the circumstances of the case, the Tribunal was justified in coming to the conclusion that the Additional Commissioner of Income Tax, Range 2(3), Mumbai, had no jurisdiction to pass the assessment order ?
Respondent waives service. This appeal to come up in due course.
Registrar (Judicial) / Registrar, High Court, Original Side, Bombay to ensure that the original record in relation to this Appeal is summoned from the tribunal and offered for inspection of the parties. This paper book is treated sufficient for the purpose of admission of this Appeal. However, the Registry must further ensure preparation of complete paper book in accordance with the Rules.
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2022 (3) TMI 1601
Money Laundering - attachment of property - HELD THAT:- The actual attachment is not disturbed - However, the Enforcement Directorate will not demand vacant possession of the two properties in question nor take coercive steps for possession of the two properties until further orders of this Court or the Appellate Authority under the provisions of the Prevention of Money Laundering Act, 2002.
It is noted that appointments to the post/s of the Appellate Authority are yet to be made. If that appointment is made, a liberty to the parties to apply to that authority.
The petition is disposed off.
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2022 (3) TMI 1600
Concept of forum conveniens - appropriate forum - Money Laundering - provisional attachment order - petition has been filed by an entity which is based in Bhopal - HELD THAT:- The provisional attachment order is also passed in Indore and the properties are situated in Bhopal / Madhya Pradesh.
Reliance placed in the case of AASMA MOHAMMED FAROOQ AND ANR. VERSUS UNION OF INDIA AND ORS. [2018 (12) TMI 443 - DELHI HIGH COURT] where it was held that 'in the case in hand, if an order is passed by the Appellate Authority it shall be the Bombay High Court, which shall have the jurisdiction for both, i.e. the person aggrieved and the Central Government against the order is passed by the Appellate Authority. Therefore, it shall be the Bombay High Court and accordingly this Court is of the view that it should not entertain the present writ petition.'
The present petition and application are closed, granting liberty to the petitioner to approach a Court which is forum conveniens.
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2022 (3) TMI 1599
Money Laundering - Seeking mandamus against respondents to take legal action against financial institutions for favoring illegal group of companies - action against officials involved in fraudulent transactions related to loan advancement by a financial institution - HELD THAT:- It is not appreciated as to how the petitioner can raise any grievance in relation to the said sale transaction, which has been undertaken through a public sale. The petitioner’s submission that the property was sold at a price lower than the market price, cannot be accepted since the sale was a public sale through a public auction. In any event, that is a matter which does not concern the petitioner, and the borrowers have already challenged and lost the said challenge. Moreover, we are informed that the sale has already been confirmed.
This petition is nothing but a motivated exercise undertaken by the petitioner at the behest of the borrowers after they have failed to obstruct the sale of the property. It appears that the petitioner has now been set up by them - Petition dismissed.
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2022 (3) TMI 1598
Validity of Reopening of assessment - petitioner has challenged the impugned notice u/s 148 as it did comply with the formalities under the newly introduced amended Section 148A - violation of principles of natural justice - Preliminary jurisdictional objection rejected and order passed - HELD THAT:- Since the issue involved, prima facie, has been settled by this Court and different High Courts in favour of the Assessee/petitioner, find petitioner has been able to make out a case for entertaining this writ petition and prima facie for an interim order.
Considering the facts and circumstances as appears from record, the impugned assessment order is stayed for a period of 12 weeks from date or until further order whichever is earlier.
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2022 (3) TMI 1597
Constitutionality of Tamil Nadu Special Reservation of seats in Educational Institutions including Private Educational Institutions and of appointments or posts in the services under the State - HELD THAT:- There is no bar on the legislative competence of the State to enact the 2021 Act and on the different grounds urged with respect to this issue, it is held that:
(i) The 105th Amendment Act being prospective in operation, it is the 102nd Amendment Act which held the field at the time of enactment of the 2021 Act.
(ii) As the 2021 Act dealt with sub-classification and apportionment of certain percentage of reservation for the purpose of determining the extent of reservation of communities within the MBCs and DNCs, it is a permissible exercise of power by the State Government Under Article 342-A of the Constitution in terms of the judgment of this Court in Dr. Jaishri Laxmanrao Patil (supra). Prior to the 105th Amendment Act, what was prohibited for the State to carry out Under Article 342-A is the identification of SEBCs, by inclusion or exclusion of communities in the Presidential list of SEBCs. It is clear that the exercise of identification of MBCs and DNCs had been completed by the State pursuant to the 1994 Act.
(iii) There is no bar to the sub-classification amongst backward classes, which has been expressly approved in Indra Sawhney (supra). Even considering the judgment in E.V. Chinnaiah (supra), which dealt with the sub-classification of Scheduled Castes identified in the Presidential list Under Article 341 and held that any sub-division of Scheduled Castes by the State would amount to tinkering with the Presidential list, the State's competence in the present case to enact the 2021 Act is not taken away on this ground as, admittedly, the Presidential list of SEBCs is yet to be published, making the question of tinkering with such list redundant.
(iv) Placing of the 1994 Act under the Ninth Schedule cannot operate as a hurdle for the State to enact legislations on matters ancillary to the 1994 Act. Legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and Article 31-B does not stipulate any such express prohibition on the legislative powers of the State.
(v) Detailing the extent of reservation for communities already identified as MBCs and DNCs, which is the thrust of the 2021 Act, cannot be said to be in conflict with the 1994 Act, as determination of extent of reservation for various communities was not the subject matter of the 1994 Act.
(vi) The 1994 Act, having received the assent of the President Under Article 31-C, does not prohibit the State Legislature from enacting a legislation with the approval of the Governor on matters ancillary to the 1994 Act, as Article 31-C does not place any fetter on the legislative powers of the State. The State cannot be compelled to seek the assent of the President for a legislation granting internal reservation, when it is empowered to provide reservation and other special measures for backward classes, by way of legislation as well as executive orders, Under Articles 15(4) and 16(4) of the Constitution.
There is no substantial basis for classifying the Vanniakula Kshatriyas into one group to be treated differentially from the remaining 115 communities within the MBCs and DNCs, and therefore, the 2021 Act is in violation of Articles 14, 15 and 16.
Appeal disposed off.
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2022 (3) TMI 1596
Seeking grant of anticipatory bail - no reason given to justify the non-compliance of the statement made on behalf of the petitioner at the time of passing of the order - violation of principles of natural justice - HELD THAT:- This Court is of the view that there is a stark difference between filing of subsequent/successive regular bail applications or for suspension of sentence and filing of subsequent/successive anticipatory bail applications. In the case of regular bail applications, where a person is already in custody, any subsequent regular bail application filed, even after the first has been withdrawn, would normally be considered, since, the factum of “further custody” would normally be a changed circumstance. It is always open for an accused who is in custody to show that his further incarceration for some months/years is a changed circumstance, entitling him to regular bail. To exemplify, in case, a person is accused of an offence for which the maximum sentence is 10 years and his first bail application, which was filed after undergoing two years of custody, has been rejected, it would be open for that person to come after a year or after a substantial period of further custody has been undergone by him and the Courts could well grant the concession of bail to the accused on the ground of “period of custody undergone”.
It becomes apparent that the petitioner is the main accused, who had initially pressurized and harassed the complainant and after the preparation of the forged affidavit, had submitted the same to the police and thus, does not deserve the grant of concession of anticipatory bail and hence, his custodial interrogation is necessary in order to complete the chain of events comprising the commission of the alleged offences. Thus, even on merits, the present second petition for anticipatory bail deserves to be rejected.
The first anticipatory bail petition of the present petitioner came up for hearing on 21.01.2022 and on the said date, the said interim order dated 20.12.2021 had already been passed in favour of the co-accused Roshan Lal and the same was in the knowledge of the counsel for the petitioner, appearing in the first anticipatory bail petition filed by the present petitioner, as he was the same counsel who had also filed the petition on behalf of co-accused Roshan Lal and it was after considering all the said facts, that counsel for the petitioner, after seeing that this Court was not inclined to grant relief in the matter at hand, sought permission to withdraw the said petition and made a statement that the petitioner was ready to surrender before the police within a period of 10 days. The petitioner has back tracked from the said undertaking/statement and has chosen to file present second petition under Section 438 Cr.P.C., which is complete abuse of the process of the Court.
The present second petition for anticipatory bail is dismissed with costs of Rs.50,000/-.
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