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Showing 41 to 60 of 1967 Records
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2014 (1) TMI 1930
Rummy - game of skill or not - Sections 7 & 8 of Kerala Gaming Act, 1960 - HELD THAT:- There are loss to find any allegation that the accused were found engaged in gaming as defined under the Act in a common gaming house run for profit or gain of the person owing as defined in Section 2(a) of the Act. Section 7 would reveal that the penalty is for opening, keeping etc. and to be used any common gaming house. In the absence of any allegation that the place of alleged gaming was a common gaming house, this section cannot be said to be attracted. Section 8 of the Act is all about the penalty for being found gaming in a common gaming house. Here also the offence is not attracted in the absence of an allegation even in the FIR or in the final report.
The petitioners are legally entitled to contend that the charge against them is unsustainable in the law. Therefore, this Court is persuaded to invoke jurisdiction under Section 482 CrPC to terminate a prosecution, which cannot stand the scrutiny of law.
Petition allowed.
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2014 (1) TMI 1929
Difference in collections of movie - income from film distribution - As argued assessee had received only Rs.1.40 crores as per Memorandum of Understanding and over & above collections of Rs.1.40 crores belongs to the distributors and therefore the Assessing Officer is not justified to make the entire collection in the hands of the assessee - HELD THAT:- The claim of the assessee is that the share of the assessee was at Rs. 1.40 crores and others is relating to the share of Vaishnavi Academy of Rs.4,42,75,200/- and also there was an expenditure in the nature of commission, advertisement. But, however, there is no evidence furnished regarding these facts. In our opinion, it is appropriate to examine the entire issue by AO and decide the issue in accordance with law. We make it clear that the agreement produced by the assessee is self-serving document and it cannot be acted upon as the assessee categorically stated before the AO that there was no agreement. Accordingly, this issue is remitted back to AO for fresh consideration.
Disallowance made towards expenditure not met by the assessee - contention of the assessee is that the amount of Rs.38 lakhs is incurred by two other parties namely Sri Venkateswara Films Rs. 5 lakhs and SS Communications Rs. 33 lakhs which was paid to Prasad Laboratories on behalf of assessee and according to the assessee the same to be allowed - HELD THAT:- If these payments are not claimed as expenditure in the hands of these two parties, then it is natural to allow the claim of the assessee. Being so, it is appropriate to examine the issue in detail accordingly.
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2014 (1) TMI 1928
Reopening of wealth tax assessment - Determining the taxable wealth - Wealth Tax assessment passed u/s 16(3) read with section 17 of the Wealth Tax Act - rational nexus between the “reasons” and the “belief” - Whether entire reopening of assessment beyond four years from the end of the assessment year in question was bad in law as there was no omission on the part of the appellant to disclose all material facts and in furnishing necessary information for completion of the assessment? - HELD THAT:- As seen from the order of AO even though the assessment was reopened to examine the transaction between M/s Satyam computers and assessee, no such exercise was undertaken and no findings were given on that issue. The additions made are on revaluation of property which was already revalued in original assessment and denial of exemption claimed on the reason that details were not filed. There is no nexus between the reasons recorded and additions made in the guise of escapement of wealth. We rely upon the decision of case of Ganga Saran & Sons P. Ltd. [1981 (4) TMI 5 - SUPREME COURT] for the proposition that if there is no rational nexus between the “reasons” and the “belief”, so that on such reasons the A.O. cannot have reason to believe that any part of the income of the assessee has escaped assessment and such escapement was by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts, the notice issued by the A.O. is to be struck as invalid.
We find that recording of reasons before the issue of notice under section 17 has absolutely no nexus with the assessment made. AO had no tangible material to come to the conclusion that there was escapement of income from the original assessment. The assessment made under sec. 16(3) has been wrongly reopened under sec. 17 beyond period of 4 years, as there is no failure on the part of the assessee to disclose fully and truly all the material facts in the original assessment itself. The reopening was on wrong foundation of reasoning of the financial implication between the assessee-company and M/s. Satyam Computer Services Limited, which was not established in the reassessment to justify the reopening.
There being no nexus or live-link with the reasons recorded and the ‘formation of belief’ to come to a conclusion that there was escapement of income and also since the assessment has been reopened beyond the period of 4 years when there is no failure on the part of the assessee to fully and truly disclose all material facts in the original assessment itself, and there being ‘no tangible material’ for the reopening of the assessment, the CWT(A) erred in confirming the order of the Assessing Officer. We, therefore, hold that the reopening of the jurisdiction under section 17 is bad in law and is to be quashed. - Decided in favour of assessee.
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2014 (1) TMI 1927
Deduction u/s 80P - whether co-operative society providing credit facilities to its members covered in sub-section (4) of section 80P or not? - assessee is in the business of providing credit facility to its member and accepting the deposits from the member - HELD THAT:- As decided in M/S. JAFARI MOMIN VIKAS CO-OP CREDIT SOCIETY LTD. [2014 (1) TMI 481 - ITAT AHMEDABAD] it is clear that the income of the assessee is eligible for deduction under Section 80P(2)(a)(i) since the only activity of the assessee is to provide credit facility to the members and therefore the interest earned from short term deposits is business income and is eligible for deduction under Section 80P(2)(a)(i) and no portion thereof can be taxed under Section 56 as income from other sources - Decided against revenue.
Addition made on account of building fund in the income of the assessee but deduction u/s. 80P was not allowed by considering the Supreme Court in the case of Vijaya Bank [2010 (4) TMI 46 - SUPREME COURT] but in that case disallowance was made on account of doubtful debt and to that extent assessee-bank income increased. But in all cases the additions were made on account of building funds had been debited in the assessee’s income generated from providing credit facility to its members. Therefore it is equally eligible for deduction u/s. 80P thus were allowed the appeal of the assessee.
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2014 (1) TMI 1926
Dishonor of Cheque - whether the cheques were given for the purpose of security? - status of applicant to lent such a huge amount required to be proved - HELD THAT:- If a person claims that a huge amount is lent to another person then to show his case, he has to prove that he had the status to lent a huge amount to anyone. It is for the applicant to produce the documents or file an affidavit that he never filed any income tax return in income tax department or he never kept any account books of his transaction, still he is liable to file the copy of bank accounts of last two years as required by the accused.
For acceptance of a revision, it is to be shown by the applicant that any illegality or perversity is done by the trial Court in passing the impugned order. The learned counsel for the applicant could not show that any illegality or perversity was done by the trial Court in passing such order and therefore, on factual position only, the revisions filed by the applicants cannot be accepted.
The revisions filed by the applicants are hereby dismissed.
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2014 (1) TMI 1925
Rejection of books of accounts - estimation of profit - HELD THAT:- AO computed the suppressed turnover, which is not disputed by the assessee. This is also an undisputed fact that the assessee has not filed any return u/s 139(1) in each of the assessment years, neither any return was filed in response to notice issued u/s 153A.
Assessee even did not produce the books of accounts before the AO. Under these provisions, the AO, in our opinion, does not have any alternative except to reject the books u/s 145(3) and compute the income in the manner laid down u/s 144.
AO has estimated the net profit, after deducting all the expenditure including the depreciation and estimated the profit on the basis of the profit for the assessment year 2009-10 and 2010-11 at 35%. We also find force in the submissions of the ld. AR that in the initial year, the percentage of the profit cannot be higher and there cannot be any thumb rule that a particular enterprise will earn the profit at a particular rate - assessee might have earned more profit but in the initial year, there are number of teething problems. The assessee takes time to establish and with a name in the market.
Therefore profit has to be estimated. In view of this fact, in our opinion, this will meet the canons of justice to both the parties, if profit for the assessment year is estimated @10%, for the assessment year 2005-06 @12.5%, for the assessment year 2006-07 @15%, for the assessment year 2007-08 @20% and for the assessment year 2008-09 @25%.
Addition of the other income - As we noted that since the AO has estimated the profit on the basis of the profit percentage and based on the assessment year 2009-10 and 2010-11. While working out the percentage of the profit during the assessment year 2009-10 and 2010-11, we noted that the AO has included the miscellaneous income in the profit earned. In view of this, in our opinion, no separate addition is required in respect of other income. Thus, ground no.1 in each of the assessment year is partly allowed while ground no.2 in each of the assessment year is fully allowed.
Depreciation on fixed assets as deduction from estimated profit - HELD THAT:- As noted that since the AO has estimated the profit on the basis of the profit percentage and based on the assessment year 2009-10 and 2010-11. While working out the percentage of the profit during the assessment year 2009-10 and 2010-11, we noted that the AO has included the miscellaneous income in the profit earned. Therefore, in view of this, in our opinion, no separate addition is required in respect of other income.
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2014 (1) TMI 1924
Bogus sundry creditors - sundry creditors are outstanding and these sundry creditors are on account of supply of materials i.e. iron and steel - HELD THAT:- We find that the CIT(A) has not gone through the details properly. He just simply influenced by the assessment order. First of all it is a fact that these sundry creditors are outstanding as on 31.03.2006 and these sundry creditors are on account of supply of materials i.e. iron and steel. Assessee has also filed confirmations, details of sundry creditors, details of purchases made from FY 2005-06 relating to this AY 2006-07.
Even now before us assessee has filed complete details of sundry creditors which are outstanding as on date. Admittedly, these sundry creditors are outstanding out of the purchases made. Assessee submitted the transaction with those sundry creditors were made in the FY 2003-04 and thereafter there was no further business with those parties and those sundry creditors were outstanding due to disputes.
Once it is a fact that these sundry creditors are outstanding and assessee has not written off those creditors, these cannot be assessed as income of the assessee. All the parties have confirmed these sundry creditors u/s. 133(6) of the Act as notices were issued by the AO as replied by these sundry creditors. Once this is the position, the sundry creditors cannot be considered as bogus or cannot be assessed as income of the assessee. Hence, we delete the addition and allow this issue of assessee’s appeal.
Addition being interest on loan to sister concern as well as business transaction on account of sundry debtor - HELD THAT:- We find that the assessee company has not charged interest on this loan for the reason that during the relevant previous year there was a business transaction taken between the assessee company and this loan debtor M/s. Ganesh Commercial Co. a sister concern, and on that basis the assessee has not charged interest. Once there is commercial expediency, the assessee is not supposed to charge interest on loan debtor. See case of S. A. Builder [2006 (12) TMI 82 - SUPREME COURT] - we allow the claim of assessee. This issue of assessee’s appeal is allowed.
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2014 (1) TMI 1923
Waste/scrap - breakage of bottles, in the normal course of trade or not - HELD THAT:- Learned Counsel explains that breakage of bottles in the course of normal trade is within the breakage limit prescribed by the Board - Such aspect was considered by the Tribunal and resolved the dispute in favour of assessee. That was confirmed by the Hon’ble High Court of Calcutta in the case of PEPSICO INDIA HOLDINGS PVT. LTD. VERSUS COMMR. OF C. EX., KOLKATA-III [2008 (9) TMI 827 - CESTAT, KOLKATA].
There are nothing contrary on record to appreciate that the breakage claim was unreasonable - appeal allowed.
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2014 (1) TMI 1922
Exemption u/s 54 - Denial of exemption as assessee failed to invest LTCG for purchase of residential flat within a period of one year from the date of transfer of such flat and had also failed to deposit the amount of capital gain in the capital gain account before the due date of furnishing of return of income u/s 139(1) as per provisions of section 54(2) - HELD THAT:- As relying on MR. KISHORE H. GALAIYA [2012 (9) TMI 40 - ITAT, MUMBAI], FATHIMA BAI [2008 (10) TMI 563 - KARNATAKA HIGH COURT], RAJESH KUMAR JALAN. [2006 (8) TMI 126 - GAUHATI HIGH COURT] and MS. JAGRITI AGGARWAL [2011 (10) TMI 279 - PUNJAB AND HARYANA HIGH COURT] if the assessee had utilized the amount which was more than capital gain earned towards construction of new residential house within the extended period u/s 139(4) of the Act, there was no default in not depositing the amount into the Capital Account Gain Scheme and the claim of the assessee cannot be denied. That the assessee is entitled to exemption u/s 54 of the Act. Appeal of revenue dismissed.
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2014 (1) TMI 1921
Depreciation relating to Intangible Assets - depreciation on trademarks and licences - HELD THAT:- The issue involved in this appeal is whether the depreciation claimed by the assessee is eligible or not. The very same issue in assessee’s own case for the assessment year 2008-09 [2013 (2) TMI 716 - ITAT CHENNAI] came before the Tribunal and the Tribunal has decided the issue in favour of the assessee.
Service charges paid to UBL and IIL were revenue in nature and capitalization of service charges - service charges paid to UBL and IIL is eligible or not? - HELD THAT:- The Tribunal in assessee’s own case has considered this issue and decided in favour of the assessee as concluded that verification of a transaction with the group company is at arm’s length and is not a statutory requirement u/s 40A(2) of the Act. It was argued that as per the provisions of section 40A(2) what is required of the Assessing Officer is to form an opinion that an expenditure is not excessive or unreasonable. The discretion to decide this issue is vested with the Assessing Officer and he has exercised the same in favour of the assessee. Thus, it cannot be said that an error has crept into the assessment order causing prejudice to the Revenue.
Disallowance of payment towards fees and technical advisory and management fees - Whether technical advisory and management fees paid to UBL is for the purpose of business or not ? - HELD THAT:- Respectfully following the decision of the Coordinate Bench in assessee’s own case for the assessment year 2008-09 [2013 (2) TMI 716 - ITAT CHENNAI] held it be allowable, since expenditure incurred was for making the business which continued after closure of an unit, viable. In our opinion, this case will only support the case of the assessee hereand in the Revenue could not file any higher Court’s decision to take a different view, we find no reason to interfere with the order passed by the ld. CIT(Appeals) and the grounds raised by the Revenue are dismissed.
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2014 (1) TMI 1920
Validity of notice u/s 143(2) - Notice served on the first available working day - sufficient compliance of section 143(2) - HC held that notice has been issued within the prescribed period as mentioned in the first proviso to section 143(2) - HELD THAT:- Delay condoned. Appeal Dismissed.
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2014 (1) TMI 1919
Moving of extraordinary original Habeas Corpus jurisdiction of this Court to direct the two life sentences imposed upon him - smaller sentences were directed to run concurrently with life imprisonment in terms of section 31 Cr.P.C. - HELD THAT:- Section 427(2) Cr.P.C. is a direction to the prison authorities to treat two life imprisonments as concurrent and there is no scope for Court's charity here, because it is a legislative guarantee. The Courts cannot take away this right nor the jail authorities deny the prisoner this right. It is manifestly clear that the prisoner need not have to invoke any jurisdiction, be it under Section 482 Cr.P.C. or under Article 226 of the Constitution of India, and cringe for mercy to have two life sentences run concurrently. Unfortunately in this case, the prisoner filed application in M.P. No. 170/2009 in Crl. A. No. 142/1996 without understanding the scope of Section 427[2] Cr.P.C., and obtained negative order from this Court on 15.03.2010. One can understand that the detenu may not be conversant with the nuances of law. Ignorantia juris non excusat [Ignorance of law is not an excuse] applies rigorously to the learned than to the lay. Even the prison authorities, who would have otherwise given the benefits of Section 427(2) Cr.P.C. automatically, will now remain hands tied and will be wondering as to when and where the prisoner will be undergoing the second life sentence after completing the first stint.
The maxim Actus Curiae Neminem Gravabit [An act of the Court shall prejudice no man] will surely come to our rescue in this case. Section 362 Cr.P.C. will not hinder us, because we are not in any way altering the substantive portion of the trial Court judgment or the appellate Court judgment that imposed the second life sentence on the prisoner. Sitting in the HCP jurisdiction, we have as our hand tool Article 226 of the Constitution of India with which we propose to do justice to the prisoner by simply saying that he will be entitled to the benefits of Section 427(2) Cr.P.C.
This Habeas Corpus Petition is disposed of accordingly.
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2014 (1) TMI 1918
Effect of amendment to Section 28A(4) of the Karnataka Co-operative Societies Act, 1959 which came into effect from 11-2-2013 - retrospective effect or not - term of office of the members of the committee shall be 5 co-operative years or not - whether the amendment is by way of substitution? - HELD THAT:- It is well-settled that this substituted provision would be deemed to be in the statute book on the day the legislation was passed. Therefore, it is retrospective in operation. In that view of the matter, it was contended that the attempt on the part of the authorities to give effect to the said provision as being prospective in nature is illegal and, therefore, they want the entire election process to be quashed. However, the said contention did not find favour with the learned Single Judge. He has held that the amendment is prospective in nature and it will not enure to the benefit of the petitioners-appellants and, therefore, he dismissed the writ petitions. Aggrieved by the said order, the present writ appeals are filed.
When the Legislature amends the existing provision in a statute by way of substitution, the effect is the substituted provision stands repealed and the amended provision is substituted in the place of the earlier provision in the Act as if the substituted provision is there in the Act from the inception. By express provision or by necessary implication if it is not made clear that the said amendment is prospective in nature, the amended provision comes into effect from the date of the Act. But, it is not an invariable rule. If such an interpretation is given, it leads to repugnancy, inconsistency or absurdity, then the said general rule is not followed. In certain situation, the Court having regard to the purport and object sought to be achieved by the Legislature may construe the word "substitution" as an amendment having a prospective effect. If the amendment Act expressly states that the substituted provision shall come into force from the date of the amendment coming into force, the said provision is prospective in nature. Then, there is no scope for interpretation whether the said amendment is prospective or retrospective.
The power to hold the post does not flow from the statutory provision. It flows from the ballot. The ballot is to be respected. Now, that the law has been changed, rules of the game has been changed, that has to be necessarily prospective in nature. The Legislature consciously did not expressly state that the amendment is retrospective, because they were aware that the term of office of an elected body cannot be extended retrospectively. Otherwise, it would have effected the vires of the amendment. It is also contrary to the democratic principles and would have gone against the wishes of the voter. What the Legislature did not do as it was improper, there is no obligation on the part of the Courts to do by interpretative process of the provision, the very thing which the Legislature did not want to do. Therefore, when the ballot was exercised, the tenure of the members was definite and the tenure had to come to an end on 31-3-2014. The person who gave them the mandate wanted him to continue in office till 31-3-2004. It is to be respected. Therefore, they should go before the voter and seek for a mandate for five years from the day they are elected. This in substance is the object behind the Act. As the law stood then, these appellants knew when, their term would come to an end. Therefore, they cannot take advantage of the amendment, and seek extension.
Appeal dismissed.
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2014 (1) TMI 1917
Exemption u/s 11 - cancellation of the registration granted to the assessee u/s 12A by passing this order u/s 12AA(3) - Whether activities of the trust are not genuine or the same are not being carried in accordance with the objects of the trust? - HELD THAT:- CIT as satisfied that the activities of such trust or institution are not genuine or are not being carried out in accordance with the objects of the trust or institution, as the case may be, the CIT shall pass an order in writing cancelling the registration of such trust or institution. Hence, in our considered opinion, for invoking the provisions of this sub section, it is essential that one of these two conditions must be satisfied that either the activities of such trust are not genuine or the activities are not being carried out in accordance with the objects of the trust.
In the present case, it is not the case of the CIT that any of these conditions are being satisfied and hence, we find force in the submissions of the assessee that this aspect may be examined while deciding the allowability of exemption to the assessee u/s 11 in course of assessment proceedings but the registration granted to the assessee u/s 12A cannot be cancelled on this basis. We hold accordingly.
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2014 (1) TMI 1916
Benefit of tonnage tax - HELD THAT:- We find that in assessment year 2009-10 [2013 (9) TMI 1287 - ITAT CHENNAI] the ‘tribunal’ has decided the very issue in favour of the assessee. The Revenue submits as per ground since the ship was not operated by the assessee itself but by West Asia Maritime Limited, so, it cannot be taken as entitled for the aforesaid benefit of tonnage tax.
This argument, in our view, does not merit acceptance. After going through the relevant provision, it nowhere comes out that in case of a jointly owned ship by two or more companies, the same has to be operated specifically by each of the co-owners/ assessee. Therefore, this ground also fails. Needless to say, in assessment year 2009-10 the issue has been decided in assessee’s favour. For the impugned assessment year as well, no justifiable ground is there to adopt a different view.
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2014 (1) TMI 1915
Addition u/s 69A - unexplained money - sale proceeds from the transaction of shares amounts to LTCG and STCG - Substantial question of law - HELD THAT:- The substantial questions of law arise are :
(i) Whether the additions made by the AO u/s 69A to the taxable income of assessee, is just and proper ?
(ii) Whether the sale proceeds from the transaction of shares amounts to LTCG and STCG when the assessee himself had voluntarily admitted to pay the taxes on the additional income ?
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2014 (1) TMI 1914
Money Laundering - matter involving huge amount of money - Offence u/s 120-B, 467, 471, besides Section 420 I.P.C. - HELD THAT:- The Court feels that the Directorate should supply at least the copy of the complaint, which has been made the basis for ongoing investigation against Shri Vijay Kumar Kushwaha. So, this Court directs the concerned officer i.e. the respondent no.2 to supply the copy as afore-stated. It needs not to mention that the learned counsel for the petitioner has not pressed the application for interim relief bearing no.599 of 2014, so the Court has restrained to pass any order thereon.
List up this matter after six weeks.
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2014 (1) TMI 1913
Jurisdiction - power of Board requiring industrial units to furnish bank guarantee - invocation of the bank guarantee by the State Board on the alleged breach is penal and thus impermissible under the provisions of the Air Act and the Water Act or not - whether the order of the appellate authority suffers from the infirmity of taking into consideration irrelevant matters and grounds - invocation of the bank guarantee is or not in terms of the bank guarantee - HELD THAT:- It is clear that the Board has preventive, punitive and curative powers. While reading the object and reasons in conjunction with Sections 16 to 18 and Section 31A of the Air Act, it is clear that the powers of the Board to issue directions are to be exercised with the primary object of prevention, control and abatement of air pollution. The most fundamental aspect of environmental law is prevention and control of pollution and to provide clean and healthy environment and wholesome water to the society at large. As already noticed, the provisions of Section 17(1)(a) casts upon the Board an obligation to do things and perform such acts as may be necessary for the proper discharge of its functions and generally for the purpose of carrying out the purposes of the Air Act. Upon analysis of the language of these provisions, it is evident that besides performing the specific acts and functions, the Board is entitled to do things or perform acts which may be in aid thereto and for carrying out effectively the purposes of the Air Act. Once it prepares a comprehensive programme for prevention, control and abatement of air pollution, and emission standards are prescribed, the Board then is required to issue the order of consent to various applicant-units to establish and operate their activities.
Keeping in view the legislative scheme and the object of the Air Act, it is evident that the Board is not incapacitated to issue a direction which may not be prohibitory or of closure in substance and application, but may be regulatory with an object to ensure that anti-pollution devices and anti-pollution measures are adopted to prevent and control pollution. For this purpose, the Board may require an industry to furnish a bank guarantee which would serve dual purposes - the intention of the Legislature to ensure implementation of these facets is further elucidated by the language of Section 31A of the Air Act where the Board can issue directions as afore-mentioned in exercise of its powers and performance of its functions under the Act. Thus, there has to be a direct nexus between the directions contemplated under Section 31A of the Air Act and the powers and functions of the Board as contemplated under Sections 16, 17 and other relevant provisions of the Air Act. Once these Sections are read co-jointly, then it becomes clear that a direction which would ensure compliance of the conditions of the consent order and further the cause of prevention and control of pollution would be a direction permissible under law.
Asking for the bank guarantee, as an interim measure, during which the industrial unit is called upon to comply with the conditions of the consent order, does not fall outside the ambit of statutory powers vested in the Board.
Condition requiring a unit to furnish a Bank Guarantee - is it penal? - HELD THAT:- It is clear that a fine but unambiguous distinction between penalty and compensation has been accepted by courts and tribunals. Distinct and definite consequences flow from these actions. Their distinctions are procedural as well as consequential. A penal action cannot be permitted to take in its orbit, by process of overlapping, an action which is patently compensatory in nature. Striking a balance between environmental interest and sustainable development would require the expert bodies like the Boards to follow a path which would permit industrial growth and still protect the environment without allowing any irretrievable injury to the environment - In the case in hand, the regulatory regime under the Air Act permits taking of harsher steps in the nature of closure and prohibitory directions. Therefore, permitting a unit to operate for a limited period upon furnishing a Bank Guarantee for compliance of the conditions/directions imposed in the consent order, being an order of lesser gravity and consequences, would be permissible. It is in the interest of sustainable development and is even beneficial to the industry itself. The Bank Guarantee asked for is for compliance, compensation for environmental restoration, if required, and is not punitive in nature.
There are no hesitation in holding that the invocation of the bank guarantee by the Board, in its satisfaction, is justifiable and is in accordance with law - appeal allowed in part.
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2014 (1) TMI 1912
Validity of reference made by the State Government vide Government Order dated 21.5.2008, suo moto, to the Industrial Tribunal relating to the issue of propriety and legality of the lay off declared on 15.4.2007 and its consequences - Chapter VIII Rule 5 of the Rules of the High Court - validity and effect of the settlement arrived at during the course of conciliation proceedings - HELD THAT:- Though learned Single Judge has committed an error in law in holding that the settlement or agreement to be binding must be registered under Section 6-B of the Industrial Disputes Act and has ignored the ratio of the judgment in Herbertsons Limited vs. The Workmen of Herbertsons Limited [1976 (11) TMI 198 - SUPREME COURT] as well as the judgment of Supreme Court in National Engineering Industries Ltd vs. State of Rajasthan [1999 (12) TMI 887 - SUPREME COURT], in respect of the validity and effect of the settlement arrived at during the course of conciliation proceedings, he did not commit any mistake on the other count namely that in the circumstances of the case the settlement is not binding on all the workmen of the petitioner-company.
The question, whether the agreement is valid, fair and reasonable and whether at such a distance of time, the open ended provisions in the settlement giving the option to the management-employer to take some of the employees at its discretion leaving the remaining employees with only 50% of lay off compensation and which has also not been paid in full or even in part awaiting finalisation of draft resettlement plan before BIFR, is a question, which requires to be considered by the Industrial Tribunal.
The reference made by the State Government, as to whether the lay off was legal and valid and if it is held to be illegal and invalid, the benefits to which the laid off workmen are entitled, is a question, which will also require adjudication of the validity of the settlement - the argument, that the settlement is binding upon all the workmen, does not meet the question raised by Ms. Bushra Maryam that the settlement is not valid in law inasmuch as it is unfair, unconscionable and thus against public policy. In the circumstances, even if the settlement, which did not resolve the dispute with all or even majority of workmen and was not conclusive as it provided for only part payment of lay off compensation, when it was entered into on 13.4.2007, treated to be binding on all the workmen, the question whether the circumstances existing today, after seven years still justify its terms to be binding on more than 2500 workmen, which is about 80% of the total number of workmen which were employed on the date of lock-out requires to be examined by the Industrial Tribunal.
Even if the settlement dated 13.4.2007 for arguments sake was valid and binding on all the workmen, its effect and consequence on all the workmen cannot be considered to be valid for all times to come and that at this distance of time, when the settlement has not worked out to benefit all the workmen inasmuch majority of workmen being more than 80% of the employees at the time of lock out have not been paid the full laid off compensation and are still waiting for the settlement of such lay off compensation, it cannot be said that there is no bonafide or genuine industrial dispute, which requires to be decided by the Industrial Tribunal.
There are no good ground to interfere with the judgement of learned Single Judge by which he has dismissed the writ petition against the reference - Special Appeal is dismissed.
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2014 (1) TMI 1911
Disallowance of expenses - assessee has produced only hand-made vouchers for verification - HELD THAT:- We find that there was no material or cogent reason before the A.O. to make the impugned disallowance. The mere fact that some of the vouchers were self-made cannot be a reason enough to disallow the expenses on ad hoc basis. It was open to the A.O. to disallow expenses to the extent he is not satisfied with vouchers. But even in such a case he is to set out the cogent reason for doing so. We have also noted that in the immediately preceding year this very Bench of the Tribunal has deleted the similar disallowance in assessee's own case - Decided in favour of assessee.
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9911796707
