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2013 (7) TMI 1229
Issues involved:
The petition involves the quashing of an order passed by the Trial Court allowing the respondent-accused to lead evidence in defense by submitting an affidavit, contrary to the provisions of Section 145 of the Negotiable Instruments Act.
Summary:
Issue 1: Quashing of order allowing respondent to lead evidence by affidavit
The petitioner, the original complainant in a Summary Criminal Case, sought to quash the Trial Court's order permitting the respondent-accused to lead evidence in defense by submitting an affidavit. The petitioner argued that as per Section 145 of the Negotiable Instruments Act and a relevant Supreme Court decision, the accused cannot lead evidence through an affidavit. The respondent's counsel did not dispute this position. The Court, after considering the submissions and legal provisions, concluded that the direction allowing the respondent to adduce evidence via affidavit was unwarranted and legally unsustainable. The Court quashed this part of the order and directed the respondent to adduce evidence in accordance with the law within a specified time frame to ensure expeditious disposal of the case.
Outcome:
The petition was allowed to the extent of quashing the part of the order permitting the respondent to adduce evidence by submitting an affidavit. The parties were directed to appear before the Trial Court on a specified date for the respondent to present evidence. The Trial Court was further directed to complete the case expeditiously, with a deadline set for finalization. The Court made the rule absolute in the aforementioned terms.
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2013 (7) TMI 1228
Issues involved:
1. Applicability of the Resolution dated 17th October, 1988 to the daily wage workers of the Forest and Environment Department.
2. Entitlement of daily wage workers for benefits under the said Resolution.
3. Legality of the rejection of the representation for regularization by the State authorities.
4. Binding nature of the High Court's judgment dated 29th October, 2010.
5. Applicability of the principles laid down in Uma Devi and A. Umarani cases.
Summary:
Issue 1: *Applicability of the Resolution dated 17th October, 1988 to the daily wage workers of the Forest and Environment Department*
The Supreme Court examined whether the Resolution dated 17th October, 1988, which provided certain benefits to daily wage workers, applied to those in the Forest and Environment Department. The Court noted that the Resolution was not limited to workers engaged in building maintenance and repairing work but extended to all daily wage workers in various departments, including the Forest and Environment Department. The Full Bench decision of the Gujarat High Court and the subsequent Resolution dated 22nd December, 1999, which restricted the applicability, were found unsustainable.
Issue 2: *Entitlement of daily wage workers for benefits under the said Resolution*
The Court held that daily wage workers of the Forest and Environment Department, who had been working for more than five years, were entitled to the benefits outlined in the Resolution dated 17th October, 1988. These benefits included fixed monthly salary, dearness allowance, medical allowance, provident fund, and other leave and holiday entitlements, depending on the duration of their service.
Issue 3: *Legality of the rejection of the representation for regularization by the State authorities*
The Supreme Court found that the rejection of the representation for regularization by the State authorities was not in consonance with the High Court's judgment dated 29th October, 2010. The High Court had directed the State to consider the cases for regularization afresh, keeping in mind the nature of work and the long duration of service of the daily wage workers.
Issue 4: *Binding nature of the High Court's judgment dated 29th October, 2010*
The judgment dated 29th October, 2010, by the Gujarat High Court, which directed the State to consider regularization of daily wage workers, had reached finality as it was not challenged by the State. Therefore, the State was bound to comply with the directions given in that judgment.
Issue 5: *Applicability of the principles laid down in Uma Devi and A. Umarani cases*
The Court distinguished the present case from the principles laid down in Uma Devi and A. Umarani, which dealt with regularization of employees appointed through backdoor methods. The Court noted that the initial entry of the daily wage workers in the Forest and Environment Department did not suffer from any illegality or irregularity and was in consonance with the Minimum Wages Act.
Conclusion:
The Supreme Court directed the State of Gujarat to grant the benefits of the Resolution dated 17th October, 1988, to all eligible daily wage workers of the Forest and Environment Department who had been working for more than five years. The benefits were to be provided within four months from the date of receipt of the order, with consequential benefits effective from 29th October, 2010. The appeals were disposed of with these directions, and no separate orders as to costs were made.
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2013 (7) TMI 1227
Issues involved: Application u/s 482 of CrPC for quashing proceedings of Case No. C/2012 of 1997 u/s 138/141 of Negotiable Instruments Act before Metropolitan Magistrate, Calcutta.
Summary:
1. The petitioner, a former director of the accused company, sought quashing of criminal proceedings u/s 138/141 of NI Act as he had resigned before the alleged cheque issuance. The petitioner argued that the complaint lacked specific averments against him to attract vicarious liability u/s 141.
2. The petitioner's counsel cited a Supreme Court case emphasizing that a director, after resignation duly notified to the Registrar of Companies, cannot be held liable for company actions post-resignation. The counsel argued that without specific averments, vicarious liability cannot be imposed on the petitioner.
3. The petitioner's counsel further contended that vague allegations in the complaint regarding the petitioner's role in the company's affairs were insufficient to establish vicarious liability u/s 141. Citing various case laws, it was argued that specific roles of the accused director must be mentioned for liability.
4. The de facto complainant raised doubts on the genuineness of the petitioner's resignation claim due to delayed assertion and discrepancies in Form-32 dates. The complainant highlighted the absconding of other accused causing trial delays.
5. The complainant suggested that the trial should determine if there was an offense u/s 141 NI Act against the petitioner.
6. The petitioner's counsel explained the delay in raising the resignation defense, citing past legal views and the absence of a time limit for seeking quashing u/s 482 CrPC. A case law was referenced to support the reasonableness of the delay.
7. The Court noted a shift in outlook since 2010, allowing consideration of documents proving resignation pre-cheque dishonor for quashing proceedings. The Form-32 certified the petitioner's resignation effective from 8th April 1996, despite other dates on the document.
8. Emphasizing the lack of specific averments on the petitioner's role in the complaint, the Court reiterated that vague allegations cannot establish vicarious liability u/s 141. Trial delays due to absconding co-accused were not attributed to the petitioner.
9. The Court concluded that continuing the criminal proceedings against the petitioner would be an abuse of the court's process.
10. The application was allowed, quashing the proceedings against the petitioner, releasing them from any bail bond, while allowing the case to proceed against other accused individuals.
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2013 (7) TMI 1226
Issues Involved:1. Denial of deduction u/s 80IA(4)(i) of the Income-tax Act, 1961 on the profit derived from business of developing new infrastructure facilities. 2. Determination of whether the assessee is a developer or merely a contractor. Summary:Issue 1: Denial of Deduction u/s 80IA(4)(i)The assessee, engaged in civil works and turnkey execution of effluent and sewerage treatment plants, claimed a deduction u/s 80IA for developing infrastructure facilities. The Assessing Officer (AO) required details of the projects and observed that the deduction u/s 80IA is available to an enterprise carrying on the business of developing, maintaining, and operating infrastructure facilities. The AO, referring to Circular No. 14/2001, noted conditions for availing the deduction, including agreements with government bodies and the newness of the infrastructure facility. The AO concluded that the assessee was merely a contractor and not entitled to the deduction, as the entities named against the projects were developing the projects, not the assessee. On appeal, the CIT(A) upheld the AO's decision, stating that the contract works allotted were specific types mentioned u/s 80IA, but the assessee was not a developer of the projects. The CIT(A) confirmed the disallowance of the deduction. The assessee appealed to the ITAT, arguing that it was engaged in developing infrastructure facilities and entitled to the deduction, citing various judgments supporting their claim. Issue 2: Determination of Developer vs. ContractorThe learned DR argued that to be eligible for the deduction, the assessee must engage in developing and maintaining infrastructure facilities, not merely as a developer. The DR referred to sub-section (2) of Sec. 80IA(4) and sub-clause (c) of Sec. 80IA(4)(i), emphasizing that the provision applies to enterprises maintaining and operating infrastructure facilities. The DR cited the Bombay High Court in CIT vs. ABG Heavy Industries Ltd., which highlighted the significance of the commencement of operations for eligibility. The DR further argued that the assessee's agreements did not provide autonomy in design and specification, indicating a works contract rather than development. The DR relied on judgments, including the Gujarat High Court in Katira Construction Ltd. v. Union of India, which upheld the validity of the explanation inserted below Sec. 80IA(13), clarifying that execution of works contracts does not qualify for the deduction. The ITAT, considering similar issues in previous cases, held that the assessee must demonstrate involvement in planning, designing, financing, and coordinating infrastructure development. The Tribunal remitted the matter back to the AO to examine the contracts and evidence to determine if the assessee developed the infrastructure facilities or merely executed works contracts. If the assessee establishes the development activities, it would be entitled to the deduction u/s 80IA(4). Conclusion:The ITAT set aside the CIT(A)'s order and directed the AO to re-examine the issue, considering the entire contract and supporting evidence. The appeals were allowed for statistical purposes, with the AO to provide a reasonable opportunity of being heard to the assessee.
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2013 (7) TMI 1225
Issues involved:
The judgment deals with the rejection of an application for approval under s. 10(23C)(vi) of the IT Act by the Chief CIT, Ghaziabad, on the grounds that the educational institution's memorandum stipulates other objects, the application was made by the society instead of the educational institution, and the institution was charging fees contrary to its objects.
Details of the Judgment:
1. Maintainability of the Application:
The petitioner society, registered under the Societies Registration Act, contended that the application for approval under s. 10(23C)(vi) could be filed by the society as a 'person' under s. 2(31) of the Act. The petitioner argued that the society's income from various sources could still qualify for exemption under s. 10. The Court referred to previous judgments, including the Aditanar case, to support the view that a society solely engaged in educational activities qualifies as an 'other educational institution' under s. 10(22) and s. 10(23C)(vi).
2. Objects of the Society:
The Department contended that the society's application was rightly rejected due to the presence of other aims and objects in its memorandum. However, the Court held that if the society is primarily engaged in educational activities, as evidenced by the application and material on record, it qualifies for approval under s. 10(23C)(vi). The Court emphasized the need to consider the actual activities being pursued by the society rather than the objects mentioned in its memorandum.
3. Decision and Remittance:
The Court quashed the impugned order and remitted the matter back to the prescribed authority for a fresh decision. It directed the authority to consider the society's educational activities and make a decision within three months. The Court refrained from delving into other issues, leaving them to be decided by the authority in accordance with the law.
Conclusion:
The judgment clarifies that a society primarily engaged in educational activities can apply for approval under s. 10(23C)(vi) of the IT Act, even if its memorandum contains other objects. The Court's decision emphasizes the importance of considering the actual activities being pursued by the society when determining eligibility for tax exemption.
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2013 (7) TMI 1224
Issues Involved:
1. Non-recovery of weapons and motorcycle
2. Non-examination of independent eyewitnesses
3. Plea of alibi by the appellant
4. Alleged discrepancies in FIR registration and dispatch
5. Applicability of Section 34 IPC
Summary:
Non-recovery of weapons and motorcycle:
The appellants contended that the non-recovery of the weapons and the motorcycle disproves the prosecution's case. The Court noted that the motorcycle was stealthily removed by the accused after the crime, and the evidence of P.W. 8 confirmed the sale of the vehicle to the deceased. The non-production of the vehicle was not considered a fault of the prosecution.
Non-examination of independent eyewitnesses:
The appellants argued that the non-examination of independent eyewitnesses whose statements were recorded u/s 161 of CrPC belies the prosecution's case. The Court held that the non-examination was due to the witnesses' fear of the accused, who were notorious criminals. The evidence of P.Ws. 1 and 3 was found sufficient and credible.
Plea of alibi by the appellant:
The appellant in Crl. A. No. 1020 of 2004 claimed he was attending a wedding at the time of the crime. The Court found the evidence of D.W. 1 insufficient and unreliable. The plea of alibi was rejected as the eyewitnesses specifically mentioned the appellant's presence and involvement in the crime.
Alleged discrepancies in FIR registration and dispatch:
The appellants contended that there were serious lacunae in the registration and dispatch of the FIR. The Court noted that the FIR was registered promptly and dispatched the next day. The medical evidence corroborated the timing of the incident. The Court found no reason to doubt the FIR's registration.
Applicability of Section 34 IPC:
The appellants argued that Section 34 IPC was not applicable as there was no specific overt act by the appellant in Crl. A. No. 1021 of 2004. The Court held that the evidence showed all accused acted with common intention. The invocation of Section 34 IPC was justified.
Conclusion:
The appeals were dismissed, and the appellants' bail bonds were canceled. They were ordered to be taken into custody to serve the remaining part of their sentence.
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2013 (7) TMI 1223
Issues involved: Appeal against CIT(A)'s order deleting additions made by AO for revenue recognition method.
Summary:
The ITAT Delhi heard appeals by the Revenue against CIT(A)'s order for AY 2008-09 and 2009-10. The Revenue challenged the deletion of additions made by the Assessing Officer for rejecting the accounting method of the assessee company and applying the percentage completion method. The CIT(A) allowed relief based on previous orders upheld by the ITAT for AY 2006-07 & 2007-08. The ITAT found no infirmity in the CIT(A)'s decision as the method of accounting followed by the assessee, i.e., recognizing revenue on project completion method, was consistent and had been upheld in previous years. The ITAT upheld the CIT(A)'s order, dismissing the Revenue's appeals.
The CIT(A) based the decision on the ITAT's previous rulings in the assessee's favor for AY 2006-07 and 2007-08, where the issue of revenue recognition method was similar. The ITAT had previously upheld the project completion method followed by the assessee, which was consistent with the current case. The CIT(A) concluded that the issue was settled in favor of the appellant based on judicial discipline and upheld the assessee's method of accounting.
The ITAT, after considering arguments from both sides, found no flaws in the CIT(A)'s decision. The dispute centered around the method of accounting for revenue recognition, with the assessee following project completion method while the AO preferred percentage completion method. Given that the ITAT had previously supported the project completion method in the assessee's case, the ITAT upheld the CIT(A)'s order, dismissing the Revenue's appeals. The decision was pronounced on July 31, 2013.
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2013 (7) TMI 1222
Issues Involved:
1. Different ages of superannuation for similarly situated employees.
2. Constitutionality of the Uttar Pradesh Jal Nigam (Retirement on attaining age of Superannuation) Regulations, 2005.
3. Entitlement to back wages and consequential benefits.
Summary:
Issue 1: Different ages of superannuation for similarly situated employees
The Supreme Court examined whether two different ages of superannuation (58 and 60 years) can be prescribed for employees similarly situated, including members of the same service, based solely on their source of entry into the service. It was held that differential treatment based on the source of recruitment is not permissible without an intelligible differentia. The Court found that the Uttar Pradesh Jal Nigam (Retirement on attaining age of Superannuation) Regulations, 2005, which prescribed different retirement ages for employees, were discriminatory and unconstitutional under Article 14 of the Constitution of India.
Issue 2: Constitutionality of the Uttar Pradesh Jal Nigam (Retirement on attaining age of Superannuation) Regulations, 2005
The High Court had declared the Regulations, 2005 unconstitutional as they created two classes of employees with different retirement ages. The Supreme Court upheld this decision, stating that as long as Regulation 31 of the Uttar Pradesh Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978, which aligns the retirement age with that of State Government employees, remains unamended, the age of superannuation for Jal Nigam employees should be 60 years. The Court emphasized that any amendment to the service conditions must be prospective and cannot be done through administrative decisions alone.
Issue 3: Entitlement to back wages and consequential benefits
The Court addressed the entitlement of employees to back wages and other benefits. It was held that employees who moved before a court of law, whether they received interim orders or not, are entitled to full salary up to the age of 60 years. Those who did not approach the court and retired at 58 years will not receive arrears of salary but will be deemed to have continued in service up to 60 years for the purpose of retirement benefits. The arrears of retirement benefits must be calculated and paid accordingly.
Conclusion:
The Supreme Court upheld the High Court's decision declaring the Uttar Pradesh Jal Nigam Employees (Retirement on attaining age of Superannuation) Regulations, 2005 unconstitutional, ensuring a uniform retirement age of 60 years for all employees. The Court also provided detailed directions on the payment of arrears and recalculation of retirement benefits for affected employees.
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2013 (7) TMI 1221
Issues involved:
The appeal filed by the Revenue against the order of CIT(A) regarding the admission of additional evidence u/r 46A and deletion of additions made on account of unexplained cash credit u/s 68 of Income Tax Act 1961.
Admission of additional evidence u/r 46A:
The assessee deposited cash amounting to Rs. 20,02,801 in a bank account, leading to an addition under section 68 as unexplained cash deposit. The assessee's explanations were deemed insufficient by the AO, resulting in the addition. However, in the appeal, the assessee presented new evidence related to the sale of land and gifts received, which was accepted by CIT(A) under Rule 46A. The CIT(A) considered the fresh evidence as relevant and restored it for further examination, granting relief to the assessee.
Deletion of additions u/s 68:
The Revenue contended that the deposits made by the assessee were structured to avoid detection, and the evidence provided was insufficient to support the assessee's claims. The assessing officer had given multiple opportunities to the assessee to explain the source of funds, but the explanations were found lacking. However, the CIT(A) accepted the explanations provided by the assessee, including confirmations from relevant parties, and granted relief based on the new evidence presented. The tribunal decided to restore the issue back to the Assessing Officer for a thorough examination in accordance with the law, emphasizing the need for a detailed investigation into the ownership of land, sale transactions, and fund retention reasons.
Conclusion:
The tribunal allowed the appeal of the Revenue for statistical purposes, directing a re-examination of the case by the Assessing Officer to ensure a fair and comprehensive assessment based on all relevant evidence and legal considerations.
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2013 (7) TMI 1220
Issues involved: Application for regular bail u/s 439 of CrPC after chargesheet in connection with FIR C.R.- I No. 027 of 2012 for offences u/s 406, 409, 420, 465, 467, 468, 471, 477(A) read with Section 120(B) of IPC.
Summary:
The application for regular bail was filed u/s 439 of the CrPC after the chargesheet was submitted in connection with FIR C.R.- I No. 027 of 2012. The offences alleged included sections 406, 409, 420, 465, 467, 468, 471, 477(A) read with Section 120(B) of the Indian Penal Code. The applicant, who was the Managing Director and Chief Executive Officer of the National Multi Commodity Exchange of India, Ahmedabad, along with his wife and son, was accused in the case along with six others. The total number of accused was nine, with five, including the wife and son, shown as absconding accused in the charge-sheet.
The Court considered various aspects, including the seriousness of the offences, the amount involved, and the likelihood of the applicant being available for trial. The applicant's son, who was also accused and shown as an absconding accused, was reported to have settled in the United States of America. The Court noted that the offence was grave in nature, involving public money of more than Rs. 28 crores, and that the Directorate of Enforcement had also registered a case under the Prevention of Money Laundering Act for investigation into the alleged fraud.
After considering all factors, the Court concluded that it would not be in the interest of justice to grant bail at that stage. The application for bail was rejected, and the rule was discharged. The applicant was granted liberty to move the Court again after three months, with any new application to be considered on its own merits at that time.
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2013 (7) TMI 1219
Issues involved: Appeals against CIT(A) orders, assessment u/s 153C, interconnected issues with founder's case, cooperation with AO, remand for reconsideration.
In this judgment by the Appellate Tribunal ITAT COCHIN, the appeals of three independent assessees were heard together as they involved a common issue arising from the respective orders of the CIT(A). The trusts in question were established by Dr. V N Radhakrishnan and his wife Smt. Remani Radhakrishnan, with assessments framed u/s 153C of the IT Act following a search at Dr. Radhakrishnan's residential premises. The assessee's counsel argued for remand to the AO, citing interconnection with the founder's case, which had been remitted back for reconsideration by the Tribunal previously. On the other hand, the Revenue contended that the assessee had failed to cooperate with the AO, leading to assessment u/s 144 of the IT Act.
Considering the submissions and material on record, the Tribunal noted that all assessments stemmed from the search at Dr. Radhakrishnan's premises. Referring to a previous case involving Dr. Radhakrishnan, where the AO's lack of fair opportunity was highlighted, the Tribunal decided to remand all three appeals back to the AO for reconsideration. The Tribunal emphasized the relevance of findings in Dr. Radhakrishnan's case for the present assesses, directing the AO to reevaluate the issue based on the material provided by the assessee and to decide accordingly, ensuring a fair opportunity for the assessee. Consequently, the CIT(A)'s order was set aside, and the issue was restored to the AO for fresh consideration. All appeals were allowed for statistical purposes, with the order pronounced in open court on July 10, 2013.
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2013 (7) TMI 1218
Issues Involved:
1. Whether the High Court was justified in directing the Appellate Authority to impose a specific penalty.
2. Whether the Respondents were entitled to the same treatment as other employees who received lesser punishment.
Summary:
Issue 1: High Court's Direction to Appellate Authority
The Supreme Court examined whether the High Court was justified in directing the Appellate Authority to impose a specific penalty. The Court reiterated that the quantum of punishment is within the exclusive domain of the disciplinary or appellate authority. Courts cannot assume this function and decide the nature of the penalty. Judicial review of the punishment is limited and only permissible if the penalty is shockingly disproportionate. Even in such cases, the matter should be remitted back to the disciplinary or appellate authority to decide the appropriate penalty. The High Court's direction to impose a specific penalty was deemed unsustainable and was set aside.
Issue 2: Entitlement to Same Treatment as Other Employees
The Supreme Court considered whether the Respondents were entitled to the same treatment as other employees who received lesser punishment. The Court noted that while the charges against both sets of employees were identical, the other employees had accepted the charges and tendered unconditional apologies during the enquiry, unlike the Respondents who denied the charges throughout the enquiry process. The Court highlighted that if there is complete parity in the nature of charges and subsequent conduct, different penalties would be discriminatory and violate Article 14 of the Constitution. However, in this case, the other employees had accepted the charges only after seeing the outcome of the Respondents' enquiry, which could be a mitigating circumstance for the Respondents. The matter was remitted back to the Appellate Authority to reconsider the penalty, taking into account these mitigating circumstances.
Conclusion:
The Supreme Court set aside the High Court's direction mandating a specific penalty and remitted the matter back to the Appellate Authority to decide the appropriate penalty for the Respondents, considering the mitigating circumstances and ensuring parity with the other employees. The Respondents were allowed to make a representation to the Appellate Authority within 15 days, and the Appellate Authority was directed to pass appropriate orders within two months. Appeals were allowed with no costs.
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2013 (7) TMI 1217
Issues involved: Determination of land value under the Land Acquisition Act, 1894.
Summary:
1. The appeals arose from a common judgment of the Delhi High Court regarding the value of land under the Land Acquisition Act, 1894. The lands in question were situated in different villages and notifications were issued under relevant sections of the Act. The appellants challenged the compensation fixed under the Awards and pursued the matter in LAC cases.
2. The reference Court determined the land value, which was further enhanced by the High Court. The appellants then appealed against this enhanced value. After considering submissions and relevant documents, the Supreme Court found that a marginal enhancement in favor of the appellants was justifiable.
3. The Supreme Court reviewed the evidence presented, including witness testimonies and documents. The High Court's decision to rely on previous judgments and enhance the land value was found to be justified. The Court noted the application of the rule of depreciated value and the comparison with similar cases.
4. The Court highlighted the importance of consistency in land value determination and modified the rate fixed by the High Court to Rs.50,000 per bigha instead of Rs.42,000 per bigha. The appeals were partly allowed with this modification, and the appellants were entitled to consequential benefits as per the law.
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2013 (7) TMI 1216
Issues involved: Appeal against Tribunal's judgment on exemption u/s 11 of Income Tax Act for micro finance activities.
Issue 1: Whether the Tribunal erred in granting exemption u/s 11 for micro finance activities deemed charitable.
The High Court reviewed the Tribunal's decision and considered the appellant's arguments challenging the characterization of the assessee's activities as charitable. The Tribunal had determined that the micro finance activities were indeed charitable in nature, citing similar precedents and the collaboration with financial organizations to further the charitable purpose. The High Court found no legal errors in the Tribunal's decision, upholding the exemption granted u/s 11 of the Income Tax Act.
Issue 2: Whether the Tribunal correctly granted exemption u/s 11 despite Revenue's contention of business nature and lack of proper registration.
The High Court addressed the Revenue's argument that the micro finance activities should be considered business rather than charitable, emphasizing the absence of proper registration as per Section 12A of the Income Tax Act. However, the Tribunal's decision to grant exemption u/s 11 was upheld by the High Court based on the finding that the activities were indeed charitable in nature, aligned with the purpose of providing micro financing to the underprivileged. The collaboration with financial institutions was seen as a means to further the charitable objective, justifying the exemption.
In conclusion, the High Court dismissed the appeal against the Tribunal's judgment, affirming the grant of exemption u/s 11 for the assessee's micro finance activities. No costs were awarded in this matter.
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2013 (7) TMI 1215
Issues involved: Application seeking leave to appeal challenging the Judgment and Order passed by Judicial Magistrate, Court No. 14, Pune in S.C.C. No. 17758/2009 dated 30/09/2010.
Comprehensive Details:
1. Alleged Loan Transaction:
The complainant alleged that the accused had taken a hand loan of Rs. 5,80,000/- and issued 7 cheques which were dishonored with the remark "Account closed." The complainant filed a complaint after the accused failed to pay despite a statutory notice. During the trial, the accused claimed that he had borrowed Rs. 50,000/- for his partnership firm and had refunded the amount, but the complainant presented the cheques for encashment.
2. Defense of Accused:
The accused contended that he was not liable to pay any legally enforceable debt to the complainant. A witness testified that the accused had refunded the borrowed amount and the complainant was not returning the cheques. The accused argued that the complainant had no evidence to prove the alleged loan transaction.
3. Evaluation of Evidence:
The Magistrate observed that the complainant did not provide documentary proof of selling a vehicle to give the loan amount. The complainant's bank account did not show any withdrawal of Rs. 5 lacs in February 2008. The complainant admitted that besides the disputed cheque, there was no other evidence of advancing the loan amount.
4. Legal Analysis:
Referring to a previous case, the Court held that unaccounted cash amount cannot be considered a legally recoverable debt under section 138 of the Negotiable Instruments Act. The Magistrate's reasons for not finding the cheques as issued towards a legally enforceable debt were deemed justifiable. The complainant failed to establish the loan transaction and the findings did not warrant interference.
Conclusion:
The application seeking leave to appeal was rejected based on the lack of proof of a legally enforceable debt in the alleged loan transaction.
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2013 (7) TMI 1214
Issues Involved:1. Whether the first and second items of the suit properties were joint family properties or the exclusive properties of the first Respondent. 2. Whether the High Court misread evidence, particularly Ex.A-17, and failed to consider the legal principles of gift regarding the first item of the suit property. Summary:Issue 1: Joint Family Properties vs. Exclusive PropertiesThe Plaintiffs filed a suit for partition claiming 4/5th shares in three items of properties. The Trial Court decreed in favor of the Plaintiffs, holding that all three items were joint family properties. However, the High Court modified this judgment, confirming the partition only for the third item and holding that the first and second items were the exclusive properties of the first Respondent. The first Respondent claimed the first item was gifted to him by his father and the second item was purchased using funds from his father-in-law and his wife's jewels. The Trial Court rejected these claims due to lack of evidence and contradictions in the first Respondent's statements. The High Court, however, relied on a release deed (Ex.A-3) and a partition deed (Ex.A-28) to conclude that the first and second items were the exclusive properties of the first Respondent. Issue 2: Misreading of Evidence and Legal Principles of GiftThe Supreme Court examined Ex.A-17, a letter written by the first Respondent, which the Trial Court used to conclude that all three properties were joint family properties. The Supreme Court emphasized that Ex.A-17 constituted a "tacit admission" under Section 17 of the Evidence Act, suggesting that the properties were not solely the first Respondent's. The High Court failed to consider this crucial piece of evidence, leading to a misreading of the evidence. Regarding the first item of the property, the Supreme Court noted that there was no evidence to support the claim of a valid gift under Section 122 of the Transfer of Property Act. The property was purchased in the name of the first Respondent while he was a student, and there was no documentation of a gift from his father. Conclusion:The Supreme Court found that the High Court had erred by not considering Ex.A-17 and the legal principles of gift. The judgment of the Division Bench was set aside, and the judgment and decree of the Trial Court were restored, affirming that all three items of the suit properties were joint family properties.
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2013 (7) TMI 1213
Issues involved:
The appeal filed by the State of U.P. against the judgment and order of the High Court of Allahabad reversing the conviction of the Respondents for offenses u/s 302 read with u/s 34 of the Indian Penal Code.
Details of the Judgment:
Facts and Circumstances:
The incident involved a scuffle between the parties over a drainage issue, leading to the murder of Jagan by the Accused Munshi, Gobardhan, Collector Singh, and Afsar Singh. The Accused were found beating Jagan with weapons and ultimately killing him with a gun.
Arguments by State:
The State argued that there was sufficient evidence to prove the guilt of the Respondents in committing the offense. The State emphasized the familial relations among the Accused and the injuries on Jagan's body supporting their involvement in the crime.
Arguments by Respondents:
The Respondents contended that the High Court rightly acquitted them, citing a pending cross case and the probability of a dispute between the parties. They claimed there was no motive to harm Jagan and that their defense was credible.
Medical Examination Findings:
Injuries on Jagan's body and the Accused Gobardhan were documented, indicating the violence that occurred during the incident.
High Court Findings:
The High Court identified various discrepancies in the prosecution's case, including issues with the FIR registration, witness statements, and the recovery of weapons. The lack of clarity on the actual events and contradictions in testimonies raised doubts about the prosecution's narrative.
Judgment by Supreme Court:
The Supreme Court upheld the High Court's decision to acquit the Respondents, citing the guidelines for interference in acquittal orders. The Court found no compelling reasons to overturn the acquittal, emphasizing the presumption of innocence and the need for strong grounds to challenge such decisions.
In conclusion, the Supreme Court dismissed the appeal, stating that no interference was warranted based on the evidence and the parameters for reviewing acquittal orders.
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2013 (7) TMI 1212
Issues Involved:
1. Welfare and well-being of the minor child.
2. Necessity of considering the facts of the case when there is an order passed by a foreign court.
3. Enforceability of the US court judgment in India under Section 13(c) and (d) of the Code of Civil Procedure, 1908.
Summary:
Issue A: Welfare and Well-being of the Minor Child
The Supreme Court addressed whether the High Court failed to consider the welfare and well-being of the minor child before issuing directions. The wife argued that the High Court did not consider the child's welfare, who had been living happily in India with his mother since July 2008. The Court noted that the child was born in the USA and was a US citizen. Despite the mother's claims of the father's alcohol dependency and employment issues, the Court emphasized that the child's removal from the USA was in defiance of court orders. The Court upheld the High Court's directions, emphasizing the need to respect the jurisdiction of the court where the child was born and had the most intimate contact.
Issue B: Necessity of Considering the Facts of the Case
The Supreme Court examined whether the High Court erred in holding that it was unnecessary to go into the facts of the case when there was an order by a foreign court. The Court referred to the principle of comity of courts, stating that the jurisdiction of the state with the most intimate contact with the issues should be preferred. The Court held that the High Court correctly exercised its jurisdiction summarily to return the child to the USA, as this was in the best interest of the child and in accordance with the principles of comity.
Issue C: Enforceability of the US Court Judgment in India
The Supreme Court considered whether the US court judgment was "not conclusive" and hence unenforceable in India under Section 13(c) and (d) of the Code of Civil Procedure, 1908. The Court noted that the wife had not pursued any legal proceedings in India for the custody of the child or for declaring the US court orders null and void. The Court upheld the High Court's decision, stating that the US court's orders should be respected and enforced, given the child's citizenship and the circumstances of the case.
Additional Observations:
The Supreme Court modified the High Court's directions to ensure the welfare of the mother and child upon their return to the USA. The Court directed the husband to make necessary arrangements for their stay and to withdraw the bailable warrants against the wife to enable her to attend custody proceedings in the US courts. The Court dismissed the wife's appeals and upheld the High Court's judgment.
Separate Judgement:
The Court noted that the husband's criminal appeal challenging the order dated 23rd December 2011 of the High Court of Andhra Pradesh, related to the criminal complaint filed by the wife, would be listed for arguments separately.
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2013 (7) TMI 1211
Issues Involved:
1. Application u/r 7 Rule 11 of CPC by Defendant No. 3.
2. Claim for recovery of Rs. 25 lacs from Defendant No. 1.
3. Claim for cancellation of Sale Deed.
4. Claim for perpetual injunction against the defendants.
Summary:
1. Application u/r 7 Rule 11 of CPC by Defendant No. 3:
The court addressed the application filed by Defendant No. 3 u/r 7 Rule 11 of the CPC, which argued that no cause of action against Defendant No. 3 was disclosed in the plaint, and no relief was claimed against Defendant No. 3. The court noted that mere making of averments without claiming any relief is insufficient. The plaintiffs failed to correct this even after the application was filed. Consequently, the court allowed the application and rejected the plaint against Defendant No. 3.
2. Claim for recovery of Rs. 25 lacs from Defendant No. 1:
The plaintiffs' claim for recovery of Rs. 25 lacs was based on the defendant receiving bayana of Rs. 4 lacs and Rs. 12 lacs for properties. However, only the bayana rasid of Rs. 4 lacs was produced, and the agreement-cum-bayana rasid for Rs. 12 lacs was not. The court found the claim for damages based on the bayana rasid of Rs. 4 lacs to be barred by time. Additionally, the claim for losses from betting in cricket was barred on the principle of in pari delicto, as betting is illegal, and the court will not enforce an illegal transaction.
3. Claim for cancellation of Sale Deed:
The plaintiffs sought cancellation of a registered Sale Deed, admitting their signatures on it. The court emphasized that entertaining such suits would undermine the sanctity of registered transactions. The consideration for the Sale Deed was linked to illegal betting, and the court refused to use its process to cancel the deed. Furthermore, the plaintiffs' simultaneous claim for compensation for losses, including those from the Sale Deed, negated their entitlement to cancellation.
4. Claim for perpetual injunction against the defendants:
The plaintiffs admitted that the properties related to the agreements-cum-bayana rasid had changed hands, and the subsequent purchasers were not impleaded. Thus, the claim for injunction was misconceived. Regarding the property under the Sale Deed, since the plaintiffs were not entitled to cancellation, they could not claim an injunction.
Conclusion:
The suit was dismissed against Defendants No. 1 & 2 as well, with no costs awarded. The decree sheet was ordered to be drawn up.
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2013 (7) TMI 1210
Issues involved: Rectification of Tribunal order based on a ground raised by the assessee regarding determination of market value.
Summary:
The Appellate Tribunal ITAT Hyderabad addressed Miscellaneous Applications seeking rectification in the Tribunal's order. The assessee had raised a ground related to determining market value based on records of the Registrar of Assurance. The Tribunal dismissed this ground, stating it did not emanate from the order of the CIT(A). The Tribunal's decision was challenged, citing a Supreme Court judgment and arguing for clear findings. The Tribunal, after hearing both parties, emphasized that it had already considered the issue and could not re-hear the case. It highlighted that statutory authority cannot review its order unless expressly conferred, and the scope of review does not extend to re-hearing on merit.
The Tribunal discussed the limited scope of rectification under section 254(2), emphasizing that recalling the entire order is not permissible. The power to rectify a mistake does not allow for recalling the entire order and passing a fresh decision. The Tribunal's order under section 254(1) is considered the effective order, and any amendment under section 254(2) gets merged with the original order. The Tribunal cannot reverse a decision on merits through a recall. The judgment referred to various legal precedents to support the interpretation of the Tribunal's powers under section 254(2).
In conclusion, the Tribunal found no merit in the argument for review and rectification of its order. It stated that the Tribunal cannot review its own order, and the remedy lies elsewhere. The Tribunal rejected the ground raised by the assessee's counsel, leading to the dismissal of all Miscellaneous Applications by different assessees.
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