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2002 (3) TMI 919
Issues Involved:
1. Legality of the acquisition proceedings under the Bangalore Development Authority Act, 1976.
2. Applicability of Section 11-A of the Land Acquisition Act, 1894 to the BDA Act.
3. Alleged inordinate delay in passing the award.
Summary:
1. Legality of the Acquisition Proceedings:
The appellant challenged the acquisition proceedings pertaining to Survey No. 81/6 in Agrahara Dasarahalli village, Bangalore, seeking a writ of certiorari to quash the entire acquisition process and the award passed by the Special Land Acquisition Officer on 22-2-1995. The Karnataka High Court dismissed the writ petition, referencing an earlier Division Bench judgment in Khoday Distilleries Ltd. v. State of Karnataka (ILR 1997 Kant 1419).
2. Applicability of Section 11-A of the Land Acquisition Act, 1894:
The appellant argued that the award passed beyond the stipulated period under Section 11-A of the Land Acquisition Act, 1894, was illegal, and the acquisition proceedings should be considered lapsed. The Supreme Court, however, upheld the High Court's decision, which excluded the applicability of Sections 6 and 11-A of the Land Acquisition Act to the BDA Act. The Court affirmed that the BDA Act is a special and self-contained code, and the provisions of the Land Acquisition Act, 1894, as amended in 1984, do not apply to acquisitions under the BDA Act.
3. Alleged Inordinate Delay in Passing the Award:
The appellant also contended that there was an inordinate delay in passing the award. The Supreme Court dismissed this argument, noting that the appellant himself contributed to the delay through litigation and prohibitory orders, which impeded the expeditious implementation of the scheme.
Conclusion:
The Supreme Court dismissed the appeal, affirming the Karnataka High Court's decision and holding that the provisions of Sections 6 and 11-A of the Land Acquisition Act, 1894, do not apply to the BDA Act. The Court found no merit in the appellant's claims regarding the legality of the acquisition proceedings and the alleged delay in passing the award. The appeal was dismissed with no costs.
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2002 (3) TMI 918
Issues Involved:
1. Acquittal by the trial court and subsequent conviction by the High Court.
2. Right of private defense u/s 100 IPC.
3. Powers of the High Court in an appeal against an order of acquittal u/s 378 CrPC.
4. Common object u/s 149 IPC.
5. Reliability of witness testimonies and FIR details.
Summary:
1. Acquittal by the trial court and subsequent conviction by the High Court:
The appellants were initially acquitted by the trial court of charges u/s 148, 302, 336, 337, 427 read with Section 149 IPC. The State's appeal led to the High Court convicting the appellants u/s 302/149 IPC, sentencing them to life imprisonment and a fine of Rs. 5,000 each, with an additional one-year rigorous imprisonment for default. They were also sentenced to one-year rigorous imprisonment for the offence u/s 148 IPC.
2. Right of private defense u/s 100 IPC:
The trial court acquitted the accused, finding that they acted in self-defense u/s 100 IPC. The court noted that the accused had received injuries and acted to protect their lives, thus their actions were not punishable u/s 96 IPC. However, the High Court found this reasoning flawed, determining that the accused were the aggressors and not acting in self-defense.
3. Powers of the High Court in an appeal against an order of acquittal u/s 378 CrPC:
The High Court has full powers to review evidence in an appeal against an acquittal. It can interfere if the trial court's view is improper or ignores admissible evidence. The High Court found the trial court's acquittal based on erroneous views and extraneous considerations, thus justifying its interference and conviction of the accused.
4. Common object u/s 149 IPC:
The High Court held that the accused shared a common object as contemplated by Section 149 IPC. The concerted attack with deadly weapons and the enmity between the parties over a dispute indicated a common object. The High Court found that the accused had a common object to attack the complainant party, leading to the death of three individuals.
5. Reliability of witness testimonies and FIR details:
The High Court found the testimonies of witnesses Kiran (PW7), Mukesh (PW12), and Jagdish (PW22) reliable and corroborated by the FIR and medical evidence. The High Court dismissed the appellants' argument that the FIR did not name all accused, noting that the FIR and witness statements consistently mentioned the accused. The court also found no merit in the argument against the credibility of Kiran (PW7), despite her name not being in the FIR, as her testimony was consistent and she had no reason to falsely implicate the accused.
Conclusion:
The appeal was dismissed, upholding the High Court's conviction of the appellants. The High Court's findings on the right of private defense, common object, and reliability of witness testimonies were affirmed.
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2002 (3) TMI 917
Issues Involved:
1. Immunity under Article 105 of the Constitution of India
2. Definition of 'Public Servant' under Prevention of Corruption Act, 1988
3. Validity of Approver's Testimony
4. Reliability and Corroboration of Evidence
5. Parameters for Revisional Jurisdiction against Acquittal
Analysis of Judgment:
1. Immunity under Article 105 of the Constitution of India:
The Constitution Bench of the Supreme Court held that members of parliament who voted on the no-confidence motion were entitled to immunity under Article 105(2). This immunity extended to alleged bribe-takers who voted, but not to those who did not vote, such as Ajit Singh, nor to the alleged bribe-givers. As a result, charges against several accused were dropped, but the trial proceeded against others, including P.V. Narasimha Rao and Buta Singh.
2. Definition of 'Public Servant' under Prevention of Corruption Act, 1988:
The Supreme Court clarified that members of parliament are considered public servants under the Prevention of Corruption Act, 1988. This interpretation allowed the trial to proceed against those who were public servants at the time of the alleged offenses.
3. Validity of Approver's Testimony:
The trial court granted pardon to Shailender Mahto, making him an approver. The defense contended that Mahto, protected by Article 105(2), could not be an approver. The court held that the pardon was validly granted under Section 5(2) of the Prevention of Corruption Act, which allows any person involved in the offense to be granted pardon. The court emphasized that the grant of pardon is a pact between the state and the individual for full and true disclosure.
4. Reliability and Corroboration of Evidence:
The court found Shailender Mahto's testimony unreliable due to material contradictions, improvements, and omissions in his statements. The court noted that his statements lacked independent corroboration, which is essential for the testimony of an accomplice. The court highlighted that corroboration must come from an independent source and not from the accomplice's own statements. The court also noted that the prosecution failed to corroborate the crucial "close door meeting" between the Prime Minister, Buta Singh, and Suraj Mandal with independent evidence.
5. Parameters for Revisional Jurisdiction against Acquittal:
The court reiterated the principles laid down by the Supreme Court for exercising revisional jurisdiction against acquittal. It emphasized that interference is justified only in exceptional cases where there is a glaring defect in procedure or a manifest error of law leading to a miscarriage of justice. The court found no such exceptional circumstances in the present case. The court held that the trial court had appreciated the evidence correctly and there was no illegality or perversity in its findings.
Conclusion:
The court allowed the appeals of P.V. Narasimha Rao and Buta Singh, setting aside their conviction and sentence, and acquitted them of all charges. The court also dismissed the criminal revision petition challenging the acquittal of other accused, reaffirming the trial court's decision.
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2002 (3) TMI 916
Issues Involved:
1. Unexplained Cash Credits u/s 68
2. Disallowance of Interest on Loans
3. Compliance with CIT(A) Directions
4. Fresh Evidence Admissibility
Summary:
1. Unexplained Cash Credits u/s 68:
The assessee, a resident un-registered firm, filed a return declaring a net loss of Rs. 3,60,269. The Assessing Officer (AO) treated loans amounting to Rs. 3,76,000 and interest of Rs. 43,632 as unexplained cash credits u/s 68, totaling Rs. 4,19,632. The AO observed that the confirmations submitted by the assessee were unsigned, and there was no response to letters and summons issued to the creditors. The CIT(A) directed a full enquiry, including the possibility of deputing an Inspector, but the AO did not comply. The Tribunal found that the AO failed to conduct the mandatory enquiry, thus the addition of Rs. 3,60,000 was unsustainable. The assessee's paper book, containing confirmations and affidavits from brokers, was accepted as evidence, leading to the acceptance of the assessee's ground regarding cash credits.
2. Disallowance of Interest on Loans:
The AO disallowed Rs. 2,19,019 debited as interest on loans, which were treated as unexplained cash credits in earlier years. The CIT(A) directed the AO to verify and restrict the disallowance to interest on loans added in earlier years. The Tribunal found this direction legal and did not interfere, rejecting the assessee's ground on this issue.
3. Compliance with CIT(A) Directions:
The CIT(A) had directed a thorough enquiry into the genuineness of the creditors, which the AO failed to conduct. The Tribunal emphasized that the CIT(A)'s direction was mandatory and not optional. The AO's failure to comply with this direction rendered the addition of unexplained cash credits invalid.
4. Fresh Evidence Admissibility:
The Departmental Representative objected to the fresh evidence presented by the assessee, claiming it was not produced before lower authorities. The Tribunal dismissed this objection, noting that the assessee had provided all possible evidence earlier and the fresh evidence was to substantiate the genuineness of the cash credits. The Tribunal scrutinized the documents and accepted the assessee's contention.
Conclusion:
The Tribunal partly allowed the appeal, accepting the assessee's grounds regarding unexplained cash credits and disallowance of interest on these credits, while rejecting the ground related to disallowance of loans of earlier years.
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2002 (3) TMI 915
Issues:
1. Whether the appellant's name can be included in the certificate proceeding for corporate liability.
2. Whether the appellant should exhaust the statutory remedy of revision under section 62 of the Bihar Public Demands Recovery Act before filing a writ petition.
3. Whether the liability of the company can be enforced against its officers, including the Director or Managing Director.
Detailed Analysis:
1. The appellant argued that his inclusion in the certificate proceeding for corporate liability was unwarranted and illegal. The Certificate Officer initially deleted the appellant's name from the proceedings, but the Board later sought to include it again. The appellant contended that he cannot be held personally liable for the company's dues. Legal precedents were cited to support the argument that individual officers of a company cannot be held liable for corporate debts. The High Court agreed with the appellant's submissions, stating that the liability of the company cannot be enforced against its officers. The Court referenced previous judgments to emphasize that debts of an incorporated company can only be realized by seizing the company's assets, not by holding individuals personally liable.
2. The Electricity Board argued that the appellant should exhaust the statutory remedy of revision under section 62 of the Act before approaching the High Court with a writ petition. However, the appellant contended that forcing him to deposit a significant amount for revision when he is not personally liable for the dues would be unjust. The High Court acknowledged that the existence of an alternative remedy does not always bar the High Court from entertaining a writ petition under Article 226 of the Constitution. The Court cited a case where the deposit requirement for revision was not considered onerous, but in this case, asking the appellant to deposit a substantial sum when he is not liable for the dues would be unfair. Therefore, the High Court decided to examine the case on its merits rather than compelling the appellant to exhaust the revisional remedy.
3. The High Court concluded that the appellant could not be held personally liable for the company's dues and that his name should not have been included in the certificate proceeding. The Court modified the Collector's order to clarify that the appellant would not be personally liable for the certificate dues, even if his name was included for descriptive purposes. The writ petition and the appeal were disposed of based on these clarifications and modifications made by the High Court.
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2002 (3) TMI 914
Issues involved:
The judgment deals with the effect of statutory presumption as per Section 16 of the Hindu Adoption and Maintenance Act, 1956, in a case involving a dispute over adoption and inheritance rights.
Effect of Statutory Presumption (u/s 16 of the Act):
The statutory provision under Section 16 of the Act establishes a presumption regarding adoption when a registered document is presented, unless disproved. The use of the term "shall" indicates the mandatory nature of the presumption, but the inclusion of "unless and until it is disproved" allows for flexibility based on the evidence. This creates a rebuttable presumption, as confirmed in Modan Singh vs. Mst.Sham Kaur & Ors. The case involved a registered Deed of Adoption dated 1.6.1973, which was crucial in the dispute over inheritance rights.
Interpretation of Section 16 and Burden of Proof:
The judgment discusses the interpretation of Section 16 and the burden of proof in cases of adoption and inheritance disputes. The argument raised regarding the four requirements under the Act of 1956 was examined, emphasizing the need for proper scrutiny of evidence in exceptional cases. The court highlighted the importance of evidence and the heavy burden of proof in matters of adoption and succession.
High Court's Emphasis on Evidence and Conduct:
The High Court's emphasis on the conduct of the adopted son and the availability of evidence to rebut the presumption of adoption were crucial in the case. The court considered various pieces of evidence, including voter lists, tax receipts, mutation proceedings, and Jamabandi records, to assess the validity of the adoption claim. The court concluded that the evidence presented effectively rebutted the presumption of adoption, leading to the dismissal of the appeals.
Rebuttal of Presumption and Adoption Deed Analysis:
The judgment delves into the analysis of the Deed of Adoption presented in the case, highlighting key provisions and discrepancies. The document recorded the adoption of Jai Singh by Sunda Ram but lacked specific details or ceremonies related to the adoption process. The court considered the language used in the Deed, especially regarding the rights of the adopted son and inheritance, to determine the validity of the adoption claim. The respondent's argument, supported by Section 11(vi) of the Act, emphasized the necessity of proper give and take in adoption, further reinforcing the rebuttal of the presumption.
Conclusion and Dismissal of Appeal:
Based on the evidence, interpretation of statutory provisions, and analysis of the adoption documents, the court dismissed the appeal. The judgment affirmed the High Court's decision, stating that the presumption under Section 16 is rebuttable and that the available evidence justified the rejection of the adoption claim. The court found no grounds for interference, emphasizing the limited scope of review under Article 136 and the absence of perversity in the lower courts' orders.
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2002 (3) TMI 913
The Supreme Court dismissed the civil appeals as it involved a pure determination of fact by the Tribunal. No interference by the Court was deemed necessary. No order was given regarding costs.
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2002 (3) TMI 912
Issues Involved:
1. Interpretation of sub-section (7) of Section 6 of the Press Council Act, 1978.
2. Eligibility for nomination after serving two terms as a member of the Press Council.
Summary:
Issue 1: Interpretation of sub-section (7) of Section 6 of the Press Council Act, 1978
The controversy centers around the interpretation of sub-section (7) of Section 6 of the Press Council Act, 1978, specifically regarding the number of terms a member can be nominated. The appellant, Harbhajan Singh, had served two terms (1982-1985 and 1985-1988) and was nominated again for the Seventh Council in 1998. The Press Council of India, however, rejected his nomination based on the interpretation that Section 6(7) bars a person from holding office for more than two terms in his lifetime.
Issue 2: Eligibility for nomination after serving two terms as a member of the Press Council
The learned Single Judge of the High Court quashed the Press Council's decision, interpreting that the disqualification in sub-section (7) of Section 6 applies only to a member 'retiring' in the present and seeking 're-nomination', not to someone who had served two terms in the past and is now being nominated afresh. The Division Bench, however, reversed this decision, interpreting the legislative intent as barring any person from holding office for more than two terms in their lifetime.
The Supreme Court granted special leave and examined the language of sub-section (7) of Section 6, emphasizing the plain and ordinary meaning of the words. The Court noted that the provision is cast in the present tense, indicating that a 'retiring member' is ineligible for 're-nomination' for more than one term. The Court found no basis to read 'retiring' as 'retired' or 're-nomination' as a nomination for an independent term detached from previous terms.
The Supreme Court held that the provision does not disqualify a person from holding office for more than two terms in their lifetime. The interpretation that a member is disqualified for a third consecutive term, having held office for more than two terms just preceding, was upheld. The Court restored the judgment of the learned Single Judge, allowing the appeal and setting aside the Division Bench's judgment. No order as to costs was made.
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2002 (3) TMI 911
Issues:
Claim of contract labourers for direct employment with principal employer, interpretation of notification under Section 10 of the Contract Labour Act, applicability of Steel Authority of India Ltd. case judgment, disputed questions of fact regarding service conditions, appropriate forum for resolution.
Analysis:
The Supreme Court addressed a case where contract labourers sought direct employment with the principal employer, ONGC Limited, following the prohibition of contract labour in certain posts by a government notification under Section 10 of the Contract Labour Act. The High Court initially ruled in favor of the contract labourers, deeming them to be performing duties directly under ONGC Limited and entitled to the same terms of service as other employees. However, the Division Bench raised concerns about disputed facts and directed the matter to be resolved through an investigation by the Industrial Tribunal, suggesting conciliation proceedings and subsequent referral to the Tribunal under the Industrial Dispute Act.
In its analysis, the Supreme Court referred to the Steel Authority of India Ltd. case, emphasizing the distinction between genuine and sham contracts and the implications for the status of contract labourers. The Court highlighted the need for the Industrial Tribunal to consider the specific circumstances of the case, including allegations of changes in contractors and varying employment terms. The Court reiterated the principles outlined in the Steel Authority of India Ltd. case regarding the absorption of contract labourers and the prospective application of its decision.
The Court concluded that the directions given by the High Court should be upheld, subject to the observations made and in compliance with the principles established in the Steel Authority of India Ltd. case. The appeal was disposed of accordingly, emphasizing the need for the Industrial Tribunal to address the disputed facts and provide appropriate directions based on the specific circumstances of the case.
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2002 (3) TMI 910
Issues Involved:
1. Vesting of rights and interests in leased lands under The West Bengal Estates Acquisition Act, 1953.
2. Entitlement of intermediaries to retain land under Section 6 of the Act.
3. Legality of reopening the preparation of record of rights after 38 years.
4. Applicability of Section 6(1)(b) versus Section 6(1)(g) of the Act.
5. Validity of proceedings under the Urban Land (Ceiling & Regulations) Act, 1976 (ULC Act).
Detailed Analysis:
1. Vesting of Rights and Interests in Leased Lands:
The appellants argued that under The West Bengal Estates Acquisition Act, 1953, all rights of intermediaries vested in the State free from all encumbrances except lands under acquisition proceedings before vesting. The High Court disagreed, holding that the respondents were entitled to retain the land in question under Section 6(1)(b) of the Act.
2. Entitlement of Intermediaries to Retain Land:
The High Court concluded that Section 6(1)(b) was applicable, allowing the respondents to retain land comprised in or appertaining to buildings and structures owned by the intermediary. The appellants contested this, arguing that the land being tenanted, the respondents were not entitled to retain it under Section 6(1)(b) and that Section 6(1)(g) should apply as the land was comprised in a mill.
3. Legality of Reopening the Record of Rights:
The appellants reopened the record of rights after 38 years, citing defects and anomalies in the original records. The High Court found this action unjustified, noting the absence of allegations of fraud or misrepresentation in the original preparation of records. The Court emphasized that inherent powers under Section 151 CPC cannot be used to reopen settled matters, especially after such a long period.
4. Applicability of Section 6(1)(b) versus Section 6(1)(g):
The High Court held that Section 6(1)(b) applied, allowing retention of land appertaining to buildings and structures owned by the intermediary, even if tenanted. The appellants argued for the application of Section 6(1)(g), which pertains to land comprised in mills, factories, or workshops. The Court found no evidence that a mill stood on the land at the date of vesting and emphasized that Section 6(1)(b) does not require the intermediary to be in khas possession, unlike other clauses in Section 6(1).
5. Validity of Proceedings under the ULC Act:
The appellants challenged the proceedings under the ULC Act, claiming they were ultra vires and without jurisdiction. The High Court rejected this, noting that the appellants had previously contended that the proceedings under the ULC Act were not genuine, a stand that was rejected by the competent authority and the High Court. The High Court emphasized that the appellants' attempt to reopen the matter was not bona fide and aimed at overreaching the Court.
Conclusion:
The appeal was dismissed, with the High Court's judgment upheld. The Court found no merit in the appellants' contentions and emphasized the improper and delayed attempt to reopen settled matters. The respondents were entitled to retain the land under Section 6(1)(b), and the appellants' actions were deemed far from bona fide.
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2002 (3) TMI 909
Can the decision of this Court dated 6th February, 1986, upholding the constitutional validity of the Amendment Act of 1971 reversing the judgment of Andhra Pradesh High Court in C.A. Nos. 398 and 1385 of 1972 (State of Andhra Pradesh vs. Venkatagiri and batch), and further indicating that the period during which interim payments are payable under the Act ends with the date of the original determination made by the Director under Section 39(1) of the Act, be held to be a law declared by the Supreme Court under Article 141 of the Constitution, or it can be said to be per incurium, as contended by Mr. Rao, learned counsel appearing for the respondents?
The judgment of the Andhra Pradesh High Court in favour of the respondents passed in Writ Petition Nos. 3293 and 3294 of 1975 not being challenged by way of appeal to the Supreme Court even though it merely followed the earlier decision of the High Court in Venkatgiri's case, whether has conferred an indefeasible right on the respondents notwithstanding the reversal of the judgment of the High Court in Venkatgiri.s case by the Supreme Court?
Whether the High Court would be justified in issuing a mandamus in the changed circumstances, namely, Supreme Court reversing the judgment of the High Court in Venkatgiri's case inasmuch as for issuance of a mandamus one of the condition precedent, which is required to be established is that the right subsisted on the date of the petition?
Whether the judgment of this Court in Shenoy's case [1985 (4) TMI 66 - SUPREME Court] requires any re-consideration?
Held that:- Our answer to the first question is that the decision of this Court dated 6.2.1986 must be held to be a 'law declared' within the ambit of Article 141 of the Constitution and the constitutional validity of the Amendment Act 1971 is not open to be re-agitated and that the judgment of Andhra Pradesh High Court holding the Amendment Act to be constitutionally invalid had been set aside by this Court.
No indefeasible right on the respondents could be said to have accrued on account of the earlier Judgment in their favour notwithstanding the reversal of the Judgment of the High court in Venkatagiri's case.
No hesitation to come to the conclusion that the High Court committed serious error in issuing the mandamus in question for enforcement of the so-called right which never subsisted on the date, the Court issued the mandamus in view of the decision of this Court in Venkatagiri's case. In our view, therefore, the said conclusion of the High Court must be held to be erroneous.
We do not think that a case has been made out for referring the Shenoy's case to a larger Bench for reconsideration. On the other hand, we respectfully agree with the conclusion arrived at by the three Judge Bench of this Court in Shenoy's case. In Shenoy the Court was considering the applicability of Article 141 of the Constitution and its effect on cases, against which no appeals had been filed. A law of the land would govern everybody, and the non-consideration of the principle of res judicata will not be a ground to reconsider the said judgment
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2002 (3) TMI 908
Issues:
1. Challenge to the retrospective application of tax rate for imported sugar declared as goods of special importance.
2. Validity of the omission of serial No. 70A from Schedule IV and its impact on the levy of tax on sugar.
3. Allegation of discriminatory and violative levy of tax on foreign-made sugar.
4. Legality of the assessment orders dated December 30, 1999, and December 10, 2001.
5. Jurisdiction of the Tribunal to entertain the application at the current stage.
Analysis:
1. The petitioner challenged the retrospective fixation of tax rate for imported sugar declared as goods of special importance. The High Court previously held that retrospective operation from May 1, 1995 was beyond the State Legislature's competence. The subsequent omission of serial No. 70A from Schedule IV by the West Bengal Finance Act, 2001, left imported sugar unspecified in any schedule, leading to ambiguity in the levy of tax. The petitioner argued that such retrospective omission was arbitrary and violated Article 14 of the Constitution. The Tribunal noted that the assessment for the period until March 31, 1999 was erroneous due to the ambiguity caused by the retrospective omission.
2. The validity of the omission of serial No. 70A from Schedule IV and its impact on the levy of tax on sugar was a crucial issue. The Tribunal acknowledged the legal complexities arising from the omission and the subsequent insertion of serial No. 137. However, it opined that the law was clear regarding the impugned assessment order for the period until March 31, 2000. The Tribunal suggested that any controversy should be addressed through lower forums and appellate channels as per the provisions of the Act.
3. The allegation of discriminatory and violative levy of tax on foreign-made sugar was raised, contending a violation of Article 304(a) of the Constitution. The Tribunal evaluated the submissions and relevant provisions of law, emphasizing that the matter could be addressed through lower forums and appellate avenues. It deemed the current stage premature for direct recourse to the Tribunal against the assessment orders.
4. The legality of the assessment orders dated December 30, 1999, and December 10, 2001, was scrutinized. The Tribunal considered the orders in light of the High Court's judgment and the subsequent directions for fresh assessments. It concluded that the orders did not suffer from legal infirmity and were in compliance with the law, dismissing the petitioner's contentions.
5. The Tribunal assessed its jurisdiction to entertain the application at the current stage. It highlighted the technical defect of joining two causes of action in a single application, contrary to the provisions of the West Bengal Taxation Tribunal Act. The Tribunal deemed the application not entertainable at that stage, emphasizing the need for proper adjudication through lower and appellate authorities before approaching the Tribunal.
In conclusion, the Tribunal dismissed the application without costs, granting liberty to the petitioner to pursue the matter before the Tribunal at the appropriate stage after exhausting remedies before appellate and revisional authorities. The decision was made without prejudice to the merits of the disputes, leaving all points open for future adjudication.
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2002 (3) TMI 907
The Karnataka High Court directed the authorities not to take coercive steps for tax recovery until the disposal of the appeal, provided the petitioner makes specified deposits. The second appellate authority was also instructed to expedite the appeal process within four months. The Government Pleader was given four weeks to file a memo of appearance.
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2002 (3) TMI 906
Issues:
1. Appealability of assessment under section 7(7A) of the Kerala General Sales Tax Act, 1963.
2. Entitlement to concessional rate under S.R.O. No. 1728 of 1993 for SSI units with turnover below rupees fifty lakhs.
3. Revision of order demanding penal interest based on court decisions.
Issue 1: Appealability of assessment under section 7(7A):
The petitioner argued that an assessment under section 7(7A) is a regular assessment under section 17(3) and hence appealable under section 34 of the Kerala General Sales Tax Act. The court acknowledged this argument but noted the Appellate Assistant Commissioner's finding of inordinate delay in the appeal. The court decided not to refer the matter to the appellate authority due to the petitioner's lack of entitlement to the claimed concessional rate of tax under S.R.O. No. 1728 of 1993.
Issue 2: Entitlement to concessional rate under S.R.O. No. 1728 of 1993:
For an SSI unit to avail the concessional rate under S.R.O. No. 1728 of 1993, the turnover must be below rupees fifty lakhs on goods manufactured by the unit. The court emphasized that the concessional rate cannot be applied unless the taxable turnover on products manufactured by the unit is identified and fixed by the assessing officer. In the case of payment of tax at a compounded rate under section 7(7A), the turnover dissection does not occur, making the benefit of S.R.O. No. 1728 of 1993 unavailable. The petitioner's choice of the compounded rate precludes claiming any other concessional rate.
Issue 3: Revision of order demanding penal interest:
The court vacated the order of the revisional authority declining to entertain the revision petition against penal interest, citing a previous court decision that such orders are revisable. The court directed the Deputy Commissioner to hear the petitioner on the liability of penal interest for specific years. The Commissioner was instructed to dispose of the revision petitions within two months. The petitioner was required to remit an additional sum towards tax, with a stay on the balance pending the revision outcome.
In conclusion, the original petition was disposed of accordingly, with the order on a related matter dismissed. The petitioner's obligations and the process for revising the decisions were outlined for compliance within specified timelines.
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2002 (3) TMI 905
Issues Involved:
1. Legality of Government Orders G.O. Ms. Nos. 18 and 31.
2. Retrospective effect of notifications.
3. Compliance with the BIFR scheme.
4. Bona fides of the petitioner company.
Detailed Analysis:
1. Legality of Government Orders G.O. Ms. Nos. 18 and 31:
The petitioner challenged the Government Orders G.O. Ms. Nos. 18 and 31, arguing that they imposed a ceiling on tax deferral which was not present in the original BIFR scheme. The court noted that the BIFR had initially fixed the ceiling of the tax deferral at Rs. 623 lakhs for six months, which was later extended to one year with a ceiling of Rs. 1,246 lakhs. The court found that the subsequent Government Orders were consistent with the BIFR scheme and did not introduce any new limitations but merely clarified the existing ones. The court concluded that the Government Orders were within the powers of the government and not vitiated by illegality.
2. Retrospective Effect of Notifications:
The petitioner argued that the notifications had an impermissible retrospective effect, which was not allowed under the Tamil Nadu General Sales Tax Act. The court distinguished between Section 17 and Section 17A of the Act, noting that Section 17A allowed for the deferral of tax payments and did not wipe out the tax liability. The court held that the clarifications made by the Government Orders were not retrospective modifications but necessary clarifications of the existing scheme. Therefore, the argument that the notifications were impermissible retrospectively was rejected.
3. Compliance with the BIFR Scheme:
The petitioner claimed that the Government Orders were inconsistent with the BIFR scheme. The court examined the BIFR orders and found that the BIFR had indeed amended the scheme to include the ceiling of Rs. 1,246 lakhs for the tax deferral. The court noted that the petitioner had initially sought this amount and that the BIFR had approved it. Therefore, the Government Orders were in compliance with the BIFR scheme and not contrary to it.
4. Bona Fides of the Petitioner Company:
The court scrutinized the actions of the petitioner company and found a lack of bona fides. It noted that the petitioner had initially agreed to the ceiling of Rs. 1,246 lakhs and had later tried to take advantage of the omission of this figure in the Government Orders. The court highlighted the inconsistent and misleading letters sent by the petitioner, which demonstrated an attempt to avoid tax liabilities. The court concluded that the petitioner's actions were not bona fide and that the writ petitions lacked merit.
Conclusion:
The court dismissed the writ petitions, holding that the Government Orders G.O. Ms. Nos. 18 and 31 were legal, did not have an impermissible retrospective effect, were in compliance with the BIFR scheme, and that the petitioner company lacked bona fides. The petitions were dismissed without any orders as to costs.
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2002 (3) TMI 904
Issues Involved:
1. Eligibility certificate issuance date under the Dispersal of Industries Packaging Scheme of Incentive, 1993.
2. Applicability of the amendment to the 1993 scheme to the petitioner's case.
3. Delay in processing the eligibility certificate by the sales tax authorities.
4. Entitlement to benefits under the eligibility certificate from the date of commercial production.
Issue-wise Detailed Analysis:
1. Eligibility Certificate Issuance Date:
The primary issue was whether a manufacturer could receive an eligibility certificate from a date other than the date of commercial production under the 1993 scheme. The scheme stipulated that the eligibility certificate would be issued after the commencement of commercial production, based on documentary evidence. The implementing agency's decision would be final and binding, and the Commissioner of Sales Tax would endorse the certificate, specifying the date of effect for sales tax incentives.
2. Applicability of the Amendment to the 1993 Scheme:
The Government of Maharashtra amended the 1993 scheme on March 23, 2000, stating that the effective date of the eligibility certificate should be from the date of commercial production. The petitioners argued that their case should be considered under the amended scheme since their application was pending when the amendment was made. The respondents contended that the amendment applied only to pipeline cases and not to the petitioner's case, as SICOM had processed their application before the amendment.
3. Delay in Processing the Eligibility Certificate:
The petitioners complied with all formalities and submitted their application on September 3, 1998, after starting commercial production on July 5, 1998. Despite SICOM forwarding the case to the sales tax authorities on December 16, 1999, the eligibility certificate was delayed. The sales tax authorities insisted on the payment of sales tax up to November 30, 1999, before issuing the certificate. The court found no justification for the delay and criticized the sales tax authorities for withholding the application without reason.
4. Entitlement to Benefits from the Date of Commercial Production:
The court noted that under the 1993 scheme, there was no bar on making an application after the commencement of commercial production. The petitioners were entitled to the eligibility certificate from the date of commercial production, as similar cases decided by the Sales Tax Tribunal had established this precedent. The court held that the petitioners' application should be treated as a pipeline case under the amended scheme, entitling them to benefits from the date of commercial production.
Conclusion:
The court ruled in favor of the petitioners, directing the respondents to issue the eligibility certificate effective from September 3, 1998, the date of the application. The court emphasized that the issue of granting eligibility certificates prior to the application date under the 1993 scheme remained open. The petition was allowed, and the respondents were ordered to grant all consequential reliefs and entitlements under the 1993 scheme without any costs.
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2002 (3) TMI 903
Issues Involved:
1. Imposition of sales tax on Indian-made foreign liquor (IMFL) in Haryana.
2. Validity of tax demand on existing stock as of June 25, 2001.
3. Interpretation of the amended Haryana General Sales Tax Act, 1973.
Issue-wise Detailed Analysis:
1. Imposition of Sales Tax on Indian-made Foreign Liquor (IMFL) in Haryana:
The petitioners, engaged in the wholesale and retail sale of IMFL and country liquor, contested the imposition of sales tax following a notification issued by the State of Haryana on June 26, 2001. This notification amended the Haryana General Sales Tax Act, 1973, by omitting Entry 24A from Schedule "B" (which listed items exempted from sales tax) and introducing a corresponding entry in Schedule "C". The petitioners argued that the imposition of sales tax was against the terms of the contract made during the auction, where it was announced that "there would be no sales tax on the Indian-made foreign liquor".
2. Validity of Tax Demand on Existing Stock as of June 25, 2001:
The core issue was whether the petitioners were liable to pay sales tax on the stock of IMFL and beer that existed as of the midnight of June 25, 2001. The petitioners received notices demanding tax on their opening stock on June 26, 2001, and subsequent receipts of IMFL and beer until June 30, 2001. The petitioners contended that the demand for tax on these stocks was without legal authority and contradicted the terms of the contract.
3. Interpretation of the Amended Haryana General Sales Tax Act, 1973:
The court examined the relevant provisions of the Act, particularly Section 6, which outlines the incidence of tax. The first proviso to Section 6 exempts dealers dealing exclusively in goods specified in Schedule "B". Entry 24A in Schedule "B" exempted the sale of IMFL from sales tax until June 25, 2001. The amendment on June 26, 2001, omitted Entry 24A and introduced new entries in Schedule "C" specifying the stages at which sales tax would be levied on IMFL.
Analysis and Judgment:
1. Exemption and Amendment:
The court noted that the sale of IMFL was exempted from sales tax under Entry 24A in Schedule "B" until the midnight of June 25, 2001. The amendment on June 26, 2001, removed this exemption and specified new taxable stages in Schedule "C". The court emphasized that a taxing statute must be strictly construed, and the tax is leviable on the first sale in the State of Haryana, not on the first sale made after the amendment.
2. Taxable Event and Existing Stock:
The court clarified that the taxable event is the sale made for the first time in the State of Haryana by an excise licensee. Sales made before June 26, 2001, were exempt due to Entry 24A. Thus, any sale of existing stock on June 26, 2001, or thereafter would not be the first sale and would not attract sales tax. The court held that sales tax is not leviable on the stock purchased by the petitioners until the midnight of June 25, 2001, as these sales were not the first sale in the State of Haryana.
3. Reconsideration of Tax Demand:
The court directed the authority to reconsider the tax demand based on the hypothesis that sales tax is not leviable on the sale of stocks purchased by the petitioners until the midnight of June 25, 2001. The competent authority was instructed to pass the order of assessment accordingly, and the petitioners were granted the right to seek their remedy in accordance with the law.
Conclusion:
The writ petition was disposed of, with the court ruling that the demand for sales tax on the petitioners' existing stock as of June 25, 2001, could not be sustained. The authority was directed to reassess the tax demand, considering that sales tax is not applicable to the stock purchased before June 26, 2001. No costs were awarded.
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2002 (3) TMI 902
The High Court of Punjab and Haryana allowed the appeal subject to a payment of Rs. 1 lac within one month for hearing on merits. The petitioner was engaged in manufacturing vanaspati ghee and faced labor trouble, resulting in the factory closure. The stock inside the factory had become rotten. No costs were awarded in the judgment.
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2002 (3) TMI 901
Issues Involved:1. Legality of the seizure of goods from the petitioner's godown. 2. Application of sections 68, 69, and 70 of the West Bengal Sales Tax Act, 1994. 3. Interpretation and applicability of rule 212 of the West Bengal Sales Tax Rules, 1995. 4. Jurisdiction of the respondent to seize goods on grounds of under-invoicing. Detailed Analysis:1. Legality of the Seizure of Goods from the Petitioner's Godown:The petitioner challenged the seizure of goods from his godown on the grounds that the seizure was illegal and beyond the jurisdiction of the respondent. The petitioner argued that the goods were legally brought and stored, supported by genuine documents, and that there was no case of under-invoicing. The Tribunal, however, found that the seizure was valid and in accordance with the law. 2. Application of Sections 68, 69, and 70 of the West Bengal Sales Tax Act, 1994:The petitioner argued that sections 68 and 69 of the West Bengal Sales Tax Act, 1994, read with sub-rule (10) of rule 212 of the West Bengal Sales Tax Rules, 1995, did not authorize the respondent to seize goods stored in a godown on the grounds of under-invoicing. The Tribunal, however, held that there was due compliance with the provisions of sections 69 and 70 of the Act in the matter of search and seizure of the goods. Section 69(b) specifically empowers the Commissioner or authorized officers to search any warehouse or place where goods transported in contravention of section 68 have been stored. 3. Interpretation and Applicability of Rule 212 of the West Bengal Sales Tax Rules, 1995:The petitioner contended that sub-rules (9) and (10) of rule 212 applied only to goods being transported on a vehicle and not to goods stored in a godown. The Tribunal, however, interpreted that the words "to proceed under section 69 outside the check-post" in sub-rule (9) were wide enough to include warehouses or godowns. Sub-rule (9) allows verification of the correctness of way bills and other documents relating to the consignment of goods being transported, which includes goods stored in a godown if they were transported in contravention of the Act. 4. Jurisdiction of the Respondent to Seize Goods on Grounds of Under-Invoicing:The petitioner argued that the respondent acted beyond his jurisdiction in seizing the goods under section 70(2) of the Act. The Tribunal, however, held that the respondent had the right to verify the correctness of the description, weight, value, etc., of the goods with reference to the way bills. The Tribunal concluded that the action taken by the respondent was warranted under the law and that there was no merit in the petitioner's application. Conclusion:The Tribunal dismissed the application, holding that the seizure of goods was valid and in accordance with the law. The Tribunal found that the relevant provisions of the West Bengal Sales Tax Act, 1994, and the West Bengal Sales Tax Rules, 1995, were duly complied with in the matter of search and seizure of the goods. The Tribunal rejected the petitioner's arguments and upheld the respondent's actions as legally justified. Post-Judgment:The petitioner's request for a stay of the order was also rejected by the Tribunal.
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2002 (3) TMI 900
Issues Involved:
1. Legislative competence of Section 27 of the Assam General Sales Tax Act, 1993.
2. Violation of Articles 265, 286, and 300A of the Constitution of India.
3. Confiscatory nature of Section 27.
4. Ultra vires nature of Sections 8(1)(c) and 8(3)(iv) of the Act.
5. Applicability of judicial precedents concerning works contract and tax deduction at source.
Detailed Analysis:
1. Legislative Competence of Section 27 of the Assam General Sales Tax Act, 1993:
The petitioners challenged Section 27 on grounds that it includes turnovers outside the purview of entry 54 of List II, thereby exceeding the legislative competence of the State Legislature. The court referenced the apex court's decisions in State of Madras v. Gannon Dunkerley & Co. and Builders Association of India v. Union of India, which clarified that the State can levy sales tax on the value of goods involved in a works contract, but it must adhere to the restrictions and conditions of Article 286 of the Constitution. The court concluded that Section 27, being a machinery provision for tax collection, does not exceed the State's legislative competence.
2. Violation of Articles 265, 286, and 300A of the Constitution of India:
The petitioners argued that tax deduction at source under Section 27 violates Articles 265 (taxation only by authority of law), 286 (restrictions on imposition of tax on the sale or purchase of goods), and 300A (right to property). The court held that the provisions of Section 27, read together with Sections 7 and 8, conform to constitutional requirements. The court emphasized that the deductions at source are a form of advance tax collection, which is permissible under the law, provided the final assessment allows for all permissible deductions.
3. Confiscatory Nature of Section 27:
The petitioners contended that Section 27 is confiscatory as it purports to realize tax on turnovers not taxable under the Act. The court noted that Section 27 must be read in conjunction with Sections 7 and 8, which provide for deductions and exemptions, ensuring that only taxable turnover is subject to tax deduction at source. The court found no merit in the argument that Section 27 is confiscatory, as it is primarily a machinery provision for tax collection.
4. Ultra Vires Nature of Sections 8(1)(c) and 8(3)(iv) of the Act:
Some petitioners challenged Sections 8(1)(c) and 8(3)(iv) as ultra vires and violative of Article 286, arguing that these sections do not provide for deduction of the value of goods used in inter-State trade or commerce. The court referenced the decision in Gannon Dunkerley & Co. v. State of Rajasthan, which held that the State Legislature could not impose tax on inter-State sales or sales outside the State. The court concluded that Sections 8(1)(c) and 8(3)(iv) must be read in light of the Central Sales Tax Act, ensuring that inter-State transactions are exempt from tax under the Assam Act.
5. Applicability of Judicial Precedents Concerning Works Contract and Tax Deduction at Source:
The court discussed the precedents set by the apex court in Builders Association of India and Gannon Dunkerley & Co., which established the legal framework for taxing works contracts. The court also referenced the decisions in Steel Authority of India Ltd. v. State of Orissa and Nathpa Jhakri Jt. Venture v. State of Himachal Pradesh, which quashed provisions for tax deduction at source due to lack of exemptions for inter-State sales. The court distinguished these cases from the present case, noting that the Assam Act includes provisions for permissible deductions and exemptions, aligning with constitutional and legal requirements.
Conclusion:
The court upheld the validity of Section 27 and the related provisions of the Assam General Sales Tax Act, 1993, by reading them down to ensure compliance with constitutional mandates and judicial precedents. The court emphasized that tax deduction at source is a machinery provision for advance tax collection, subject to final assessment and permissible deductions. The writ petitions were disposed of accordingly, with no costs.
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