|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1514 Records
-
2016 (1) TMI 1525
Addition in respect unutilized grant in aid which was received by the council from Govt. of India with specific direction for Development of Infrastructure i.e. for the maintenance/development of Building and other facilities - reply of the assessee was not found satisfactory by AO on the ground that mixed method of accounting adopted by the assessee was not permissible as per the provisions of section 145(1) and since the assessee institution was not registered u/s 12AA of the Act for the year under consideration.
HELD THAT:- No material is produced before us to show that assessee satisfied the requirements of Section 10(23C)(iiiab) of the Income Tax Act. Therefore, this claim of assessee was correctly rejected by the authorities below. Since the assessee has received voluntary contribution, therefore, provisions of Section 2(24)(iia) of the Income Tax Act would squarely apply and the amount received by the assessee from Government of India would be the income of the assessee which assessee has failed to show in the computation of income.
During the course of arguments, assessee was not able to show as to under which provisions of law, the income of the assessee would be exempt. Therefore, assessee miserably failed to rebut the findings of authorities below.
Finding of fact recorded by the authorities below has also not been rebutted by the assessee in any manner. It is, therefore, clear that assessee earned income during the year under consideration despite it has received grant from the Government of India for upgradation/strengthening of nursing services. In the absence of any plausible explanation and in the absence of any explanation as to under which provision of law, income of the assessee would be exempt, we do not find any justification to interfere with the orders of authorities below. The assessee has made a claim of exemption before authorities below under section 11/12AA of the Income Tax Act and Section 10(23C) of the Act which are clearly not applicable to the facts and circumstances of the case. Thus, assessee failed to prove any case of exemption of income under any provisions of Income Tax Act.
-
2016 (1) TMI 1524
Validity of registration affected by the 2nd respondent - sale deed speaks only about the registered power deed, which did not authorise the 5th respondent to act as an executant on behalf of respondent Nos. 3 and 4, being the alleged Principal - locus standi of petitioner to challenge the registration of the sale deed executed by respondent No. 5 in favor of respondent No. 6 - Maintainability of the Writ Petition - Indian Evidence Act - Power of Attorney - Registration Act - Standing Order No. 533.
Locus standi of petitioner to challenge the registration of the sale deed executed by respondent No. 5 in favor of respondent No. 6 - HELD THAT:- In the case on hand, the petitioner merely stepped into the shoes of M/s. Indian Bank. Similarly, the fact that there was a suit filed by the mortgagors/borrowers cannot be a ground to non-suit the petitioner from seeking the relief before this Court.
Maintainability of the Writ Petition - HELD THAT:- There is no necessity for the petitioner to file a civil suit. Similarly, the issue involved before the Apex Court in S.L.P.(Crl) No. 838 of 2015 dated 27.2.2015 is totally different. The Law is quite settled that an issue, which is not consciously considered and decided, would not partake the character of a binding decision. The mere fact an application for impleadment has been filed in a suit by a third party, also for the aforesaid reasons, would not dis-entitle the petitioner from filing the writ petition, more so, when the official respondents herein are not parties in the said proceedings, In any case, these issues cannot be raised by the petitioner in the said suit, being at best, it only becomes a party defendant. Furthermore, even as per the submissions of the learned counsel for respondents, the application filed for impleadment has been returned.
Indian Evidence Act - HELD THAT:- When once the record of the 2nd respondent pertaining to a document registered becomes a public document coupled with the presumption attached to it, then in a given case, the writ petition would be maintainable, especially, when only legal issues are to be determined by this Court. After all, the object of registration as held by the Privy Council in Jambu Parshad v. Mohd. Aftab Ali Khan [1914 (11) TMI 1 - THE PRIVY COUNCIL] is to prevent commission of frauds. Such a challenge to an official action is certainly maintainable before this Court without warranting any finding on the inter se dispute between the private parties. Therefore, this Court is unable to countenance the submissions made by the learned counsels for the respondents in this regard.
Power of Attorney - HELD THAT:- A valid power is a fundamental requisite to execute the document. In the case on hand, even according to respondent No. 5, there was some mistake in the earlier power deed. As narrated earlier, though it is alleged in the counter affidavit filed that there was a subsequent unregistered deed, there is no explanation for mentioning only earlier power deed dated 23.8.2006 in the sale deed dated 5.7.2007, which admittedly did not authorise a sale by the agent. What is to be seen in this case is that before respondent No. 2 only the power deed dated 23.8.2006 must have been available. It was the only document mentioned in the sale deed. Even as per the counter affidavit filed by respondent No. 2, it was not verified. This would certainly go to the root of the matter - this Court holds that there is no power deed at all in the eye of law for the purpose of executing the sale on behalf of respondents No. 3 and 4 by respondent No. 5 in favour of respondent No. 6 and hence non-verification of the power deed would vitiate official act of respondent No. 2.
Registration Act - HELD THAT:- Sections 32, 33 and 34 of the Registration Act, 1908 are to be read in consonance with each other. The enquiry in such a case need not be exhaustive but only in the realm of a verification or check up. In other words, what the registering authority is required to do so is, to verify the power deed that authorises an executant to sign the sale deed on behalf of the principal. What is required is only a cursory glance or look on the relevant documents. That is the object of the appearance of the parties before the Registering Officer. If one see Section 35 of the Act, it provides for a procedure for admission or denial of execution. The Registering Officer has to satisfy that the persons are personally known to him and they are the persons they represent themselves to be, apart from admitting the execution of document.
When the presentation on the face of it is unauthorised, it can never be any registration giving an iota of recognition through the official act. Rule 22 of the Registration Rules under Chapter VII deals with presentation and examination of documents - The source, being a power deed, such an examination would not be construed as one of title. It is only to check as to whether the document, which forms the basis of execution of the sale deed, empowers the executant to do so or not. After all, there is no dispute since the title and execution are not denied as the executant seeks registration based upon that document alone. When there is no valid execution, the deed becomes void as there is no executant. Thus, registration of such a deed also would become void.
Standing Order No. 533 - HELD THAT:- Much reliance has been made in the counter affidavit filed by respondent No. 2 on the Standing Order No. 533 of the Tamil Nadu Registration Manual. It is the stand of the said respondent that there is no need to verify the power deed prior to the Circular dated 29.10.2009 issued by the 1st respondent. Such a stand can never be accepted in the eye of law. A Circular is only a clarification. Standing Order No. 533 has to be seen with respect to the power deed as prescribed under Section 33 of the Registration Act. As the said Section is meant for authorisation for presentation alone and not for executing a sale deed, no reliance can be placed upon the same. Even on a perusal of the said Standing Order No. 533, it is clear that it deals with the power deed as prescribed under Section 33 of the Act.
Conclusion - i) The petitioner had the locus standi to challenge the registration of the sale deed, as it had acquired rights through an assignment deed. ii) The writ petition was deemed maintainable, as it addressed the legal validity of the registration process rather than factual disputes. iii) The power of attorney executed by respondents No. 3 and 4 was found to be invalid for authorizing the sale, and the registration process conducted by respondent No. 2 was flawed due to a lack of proper verification.
Petition allowed.
-
2016 (1) TMI 1523
Computation of exemption u/s. 10B - eligibility of miscellaneous income and compensation for deduction - assessee submitted that misc. income and compensation was received in ordinary course of export business. The misc. income and compensation is related to export turnover only. Both the units are export oriented Units (EOUs) eligible for deduction u/s. 10B and total sales are made as export sales
HELD THAT:- The compensation received is clear from ledger account submitted that it has been received from his employees either as unpaid salary or leave with wages payable, which has been surrendered by the employees. As far as the Misc. income received as a result of sale of scrap paper, we find that the issue regarding Misc. income derived from sale of scrap stood decided in favour of the assessee in the identical facts of the case in the case of Universal Precision Screws [2015 (10) TMI 951 - DELHI HIGH COURT] after following the decision of Punjab Stainless Steel Industries [2014 (5) TMI 238 - SUPREME COURT] Besides, the scrap paper is an integral part of production which stood exported by the EOUs of assessee.
Therefore, we direct the AO to treat the Misc. income received from the sale of scrap as eligible for deduction u/s. 10B of the Act. However, the Misc. income received by EOUs out of sale of wooden furniture or waste coolers, to our mind, being not integrally connected with the export business, shall not be eligible for deduction u/s. 10B of the Act.
Similar is not position with respect to compensation alleged to have been received as a result of unpaid salary or leave with wages, surrendered by the employees, as such receipts could not be established to have any relation with the export business of the assessee undertaking. We, therefore, confirm the order of the ld. CIT (A) on this count. The AO is, therefore, directed to work out the deduction u/s. 10B - Appeal of the assessee is partly allowed.
-
2016 (1) TMI 1522
Principles of natural justice - Prayer to set aside the exparte order - prayer to pass an order of interim stay of all further proceedings - HELD THAT:- Admittedly, on 17.08.2015, no notice was issued in C.P.No.363 of 2015. But C.A.No.888 of 2015 has been filed, for appointment of the Official Liquidator, High Court, Madras, as the Provisional Liquidator of the Company, with all powers, to take charge of the assets, properties, stock in trade and books of account of the Company, pending disposal of the Company Petition. The other application in C.A.No.887 of 2015, has been filed for an injunction, restraining M/s. Spicejet Ltd., Chennai, its directors, officers, servants, agents or anyone acting through or under them from in any manner alienating, encumbering, dealing with, disposing or creating any third party rights, interests or charge in or over the assets of the Company, sought to be wound up, pending disposal of the Company Petition.
Vakalat ought to have been filed. Admittedly, it was not filed before or on the hearing date. But it is the contention of M/s. Spicejet Ltd., Chennai, that on 14.10.2015, when a Junior Counsel, attached to the Office of the learned counsel on record, was instructed to appear before this Court and when the matter was called for, he did not do so. It is also the contention of M/s. Spicejet Ltd., Chennai that they have a valid case to oppose the Company Petition and that they would be put to great loss and hardship, if the ex parte order, dated 14.10.2015, is not set aside. Averments of the deponent is supported by an affidavit of Mr. Syed Thaga, Advocate.
Conclusion - The ex parte order set aside and an interim stay of proceedings granted, with conditions to prevent asset alienation by M/s. Spicejet Ltd.
Application disposed off.
-
2016 (1) TMI 1521
Issues Involved:
1. Setting off carried forward and unabsorbed depreciation against profits of the undertaking under section 10B.
2. Inclusion of deemed exports in export turnover for the purpose of deduction under section 10B.
3. Inclusion of traded goods in export turnover for the purpose of deduction under section 10B.
4. Exclusion of freight charges, shipping freight, and insurance charges from export turnover without reducing the same from total turnover.
5. Treatment of interest on fixed deposits as income from other sources versus business income.
Detailed Analysis:
1. Setting off carried forward and unabsorbed depreciation against profits of the undertaking under section 10B:
The assessee contended that brought forward unabsorbed depreciation should be allowed without factoring the same for the calculation of deductible export profit under section 10B, citing the decision in CIT v. Yokogawa India Ltd. The AO disallowed the set-off, stating no brought forward unabsorbed depreciation was available as per the records. The CIT(A) upheld this, noting the position was similar in previous years. The Tribunal agreed, dismissing the appeal as purely academic and not maintainable.
2. Inclusion of deemed exports in export turnover for the purpose of deduction under section 10B:
The assessee argued that deemed exports should be included in the export turnover, supported by earlier ITAT decisions in its favor. The AO disallowed this, referencing decisions in Granite Mart Ltd. and Tata Elxsi Ltd., stating section 10B does not cover deemed exports. The CIT(A) and Tribunal upheld the AO's decision, emphasizing that deemed exports are not eligible for deduction under section 10B as per prevailing judicial interpretations and legislative intent.
3. Inclusion of traded goods in export turnover for the purpose of deduction under section 10B:
The assessee claimed that traded goods should be included in the export turnover, citing decisions in T. Two International (P) Ltd. and Maral Overseas Ltd. The AO disallowed this due to the lack of a revised Form 56G and the CIT(A) upheld the disallowance, emphasizing that section 10B applies only to goods manufactured by the assessee. However, the Tribunal, following its decision in the assessee's own case for AY 2007-08, remitted the issue back to the AO for fresh consideration, allowing the inclusion of traded goods in the export turnover.
4. Exclusion of freight charges, shipping freight, and insurance charges from export turnover without reducing the same from total turnover:
The AO excluded these expenses from export turnover but not from total turnover. The CIT(A), following the Karnataka High Court decision in CIT v. Tata Elxsi Ltd., held that such exclusions should apply to both export turnover and total turnover. The Tribunal upheld the CIT(A)'s decision, noting the binding nature of the jurisdictional High Court's ruling despite pending appeals.
5. Treatment of interest on fixed deposits as income from other sources versus business income:
The AO treated interest on fixed deposits as income from other sources. The CIT(A) upheld this, citing lack of direct connection to the business. The Tribunal, referencing Universal Precision Screws and other decisions, remitted the issue back to the AO to reconsider the interest as business income if it was for margin money for credit facilities, thus potentially qualifying for section 10B benefits.
Conclusion:
The Tribunal's decisions reflect adherence to judicial precedents and legislative interpretations, emphasizing the specific provisions and intent of section 10B. The rulings on deemed exports and traded goods highlight the nuanced understanding of what constitutes eligible export turnover, while the treatment of interest income underscores the importance of the nature and purpose of such income in determining its tax treatment.
-
2016 (1) TMI 1520
Issues:
1. Sanctioning of the Scheme of Amalgamation of two companies.
2. Dispensing with the convening and holding of meetings of Equity Shareholders and Creditors.
3. Compliance with relevant provisions of Companies Act, 2013 and Income Tax Act.
4. Official Liquidator's report and compliance with statutory liabilities.
5. Approval and sanctioning of the Scheme.
Analysis:
1. The petitions were filed by two Petitioner Companies for the sanctioning of the Scheme of Amalgamation. The Court dispensed with the meetings of Equity Shareholders and Creditors based on consent affidavits received from all Equity Shareholders. The Court also admitted the Company Petitions and directed the issuance of notices to relevant authorities.
2. The Regional Director raised concerns regarding compliance with the Companies Act, 2013, payment of registration fees, and filing relevant e-forms. The Petitioner Companies assured compliance with necessary forms and fees as required by law. The Court found the observations of the Regional Director regarding compliance satisfied.
3. The Petitioner Companies stated that the Scheme is in compliance with the provisions of the Income Tax Act, 1961. The Court acknowledged this compliance and found the Scheme genuine and in the interest of shareholders and creditors.
4. The Official Liquidator submitted a report stating that the affairs of one of the Petitioner Companies had not been conducted in a prejudicial manner. The company assured compliance with the observations made by the Official Liquidator. The Court emphasized that the company shall ensure compliance with all applicable terms and statutory liabilities post the Scheme's sanctioning.
5. After considering the facts, the Court approved and sanctioned the Scheme of Amalgamation. The prayers made in the Company Petitions were granted, and the Scheme was deemed genuine and in the interest of shareholders and creditors. The Court ordered the payment of fees to relevant parties and directed all authorities to act on the authenticated copy of the order along with the Scheme.
In conclusion, the Court allowed the petitions, approved the Scheme, and sanctioned the amalgamation, ensuring compliance with all legal requirements and statutory liabilities.
-
2016 (1) TMI 1515
Declination to continue the interim order granted - abuse of dominant position - contravention of Section 3 and 4 of the Competition Act, 2002 - scope of present appeal - main petition is still pending - whether it is necessary to continue the interim order dated 09.04.2015 as modified on 21.05.2015 till the disposal of the writ petition? - HELD THAT:- It is not required to enter into the merits of the case and express any opinion regarding the validity of the order of CCI dated 13.01.2015 which is impugned in the writ petition. Since it is an issue which needs adjudication in the writ petition, it is confined only to the issue whether the order of the learned Single Judge warrants interference in an intra court appeal.
The law is well settled that the appeals before the Division Bench under Letters Patent are against the exercise of discretion by the Single Bench and therefore it is impermissible to reassess the material and seek to reach a conclusion from the one reached by the Single Bench except where the exercise of discretion by the Single Bench has been shown to have been exercised arbitrarily or perversely or where the settled principles of law regulating grant or refusal of interim protection have been ignored.
In the present case, the respondents No.2 to 4 were supplying software for electronic payment solutions (BASE-24) to several banks in India which enables the said banks to process transactions at ATMs or at the point of sale terminals of different stores since the software facilitates communication of transactions with the relevant bank’s core banking network.
It is no doubt true that the said order was in operation till a final order came to be passed by CCI on 13.01.2015. However, a clear finding has been recorded by the majority members of CCI in the order dated 13.01.2015 that the alleged dominance of the respondents No.2 to 4 in the relevant market has not been established and consequently the issue of abuse of dominant position does not arise. While arriving at the said conclusion, CCI has taken into consideration the entire factual matrix of the case and assigned detailed reasons. CCI has also recorded a clear finding that the contravention of Section 3(4) read with Section 3(1) of the Act as alleged by the informant/appellant herein has not been established.
Conclusion - The learned Single Judge thought it fit that the interim order which enables the banks to take customization and integration services from the appellant qua the software owned by the respondents No.2 to 4 herein cannot be continued any longer and accordingly the order under appeal came to be passed - The mere fact that the interim relief has ensured continuous business operations for the appellant is not a valid ground for continuing the interim order. We are also unable to agree with the plea of the appellant that irreparable damage would be caused in the absence of the interim order. In the facts and circumstances of the case, the balance of convenience is not in favour of the appellant and therefore the discretion exercised by the learned Single Judge in discontinuing the interim relief cannot be held to be illegal or erroneous.
Appeal disposed off.
-
2016 (1) TMI 1514
Addition made on account of estimated on money received on sale of flats - AO estimating the undisclosed income in respect of 37 flats even in the absence of specific evidence and only on the basis of evidence found in respect of other 39 flats during search and which has been accepted by the respondent assessee - HELD THAT:- We are of the view that the decision of Esufali, H.M. Abdulali [1973 (4) TMI 49 - SUPREME COURT] would have no application to the present facts. It was a case of the regular books i.e. bills etc. being disowned by the assessee and the Authority resorting to best judgment assessment. This is not a case of not a best judgment assessment and wherever documents indicate that there was some additional consideration received by the respondent assessee, the same was offered to tax. However, in the absence of any evidence merely on the basis of suspicion, it is not open to add any amount as income.
Revenue, was unable to explain the basis on which only the consideration received in respect of 37 flats was added to the extent of Rs. 500/- per sq.ft. and not in respect of certain other flats when there was no evidence in both the above class of cases. No explanation is forthcoming nor found in the orders. Decided in favour of assessee.
-
2016 (1) TMI 1513
TP Adjustment - arm’s length price of the ‘international transaction” of “payment of corporate charges” under the cost allocation agreement entered into between the assessee and its AE (Aricent Inc.) - HELD THAT:- A coordinate bench of the Tribunal in the case of sister concern of the assessee in the case of Hughes Systique India (P) Ltd. vs. ACIT [2021 (4) TMI 1023 - ITAT DELHI] held that the aspect of applicability of CUP method has not been properly dealt with by DRP and TPO also did not consider CUP method for bench marking of international transaction. As the facts emerge, the order of DRP does not throw effective light to reject the assessee’s CUP method. The plea of the assessee is that the documents have been subsequently procured and are necessary for proper ascertainment of T.P. adjustment. Under these circumstances, we are of the view that assessee’s application for admission of additional evidence deserves to be admitted. The assessee was prevented by sufficient cause as these documents could not be procured before the assessment proceedings.
Accordingly we set aside the issue in respect of TP adjustment to the file of TPO for denovo adjudication. Needless to say, the assessee will be allowed a reasonable opportunity of being heard in such proceedings. Thus grounds raised are therefore allowed for statistical purposes.
Nature of expenses - disallowance of project expenses by holding the same to be capital expenditure - HELD THAT:- We also take note that in the case of assessee for Assessment year 2003-04 the AO allowed the project expenses as revenue expenditure. However CIT u/s 263 held the same to be erroneous, which order was cancelled by Tribunal by an order [2009 (1) TMI 535 - ITAT DELHI] and appeal filed before Hon’ble High Court by revenue also stands dismissed in order .Further, SLP filed by revenue before Apex Court stands dismissed. Decided in favour of assessee.
Disallowance of deduction u/s 10B - HELD THAT:- We take note that in the case of appellant for assessment year 2006-07 wherein held set aside the orders of the authorities below on this point and restore the matter back to the file of the AO with a direction to allow exemption under s. 10A in both the years in case the assessee is found to have satisfied all other requisites envisaged in the scheme of s. 10A of the Act. In case the exemption under s. 10A cannot be allowed for the reasons of not satisfying the requisites, the claim of deduction under s. 80HHE shall be allowed after providing opportunity to meet the requisites - Grounds allowed for statistical purposes.
-
2016 (1) TMI 1512
Appointment of arbitrator/arbitrators - application is filed by the defendant under Section 8 of the Arbitration and Conciliation Act, 1996 to refer the disputes as stated in the present plaint to arbitration - basic contention of the plaintiff is that there is no subsisting dispute between the parties in view of the admissions made by the defendant and also in view of the No Objection Certificate from the sales tax authorities now produced by the plaintiff - HELD THAT:- The case of CAPTAIN AMAR BHATIA VERSUS THE KINGFISHER AIRLINES LIMITED [2014 (4) TMI 1312 - DELHI HIGH COURT] pertained to a case where a former employee of the defendant had filed for recovery of the dues. A plea of Section 8 of the Arbitration Act was raised in the leave to defend application claiming that this is sufficient to refer the parties to arbitration. In that background, this court held 'There is thus really no dispute for adjudication by arbitration. I see no reason to deny to the plaintiff in this suit the relief of recovery of money which admittedly is due to the plaintiff and the chances of recovery whereof, even if a decree were to be passed in favour of the plaintiff, are remote and to compel the plaintiff to spend more monies in invoking the arbitration clause when there is really nothing for arbitration. Without thus intending this to be precedent, in the facts and circumstances of the present case, I reject said argument also of the defendant.'
Similarly, in Maruti Udyog Ltd. vs. Mahalaxmi Motors Ltd. and Anr., [2001 (12) TMI 907 - DELHI HIGH COURT], the learned Single Judge of this Court on an application under Section 8 of the Arbitration Act held that where a liability is admitted, there are no disputes or differences with regard to the admitted liability. In the absence of any dispute or differences, the application under Section 8 of the Arbitration Act cannot be allowed.
In the light of the pronouncements of the Hon'ble Supreme Court and of this High Court, it is clear that when no disputes exist between the parties, namely, what is claimed by the plaintiff is admitted by the defendant or impliedly admitted by the defendant, the same cannot be a subject matter of arbitration proceedings. The reasons for this are quite obvious. Courts would normally frown upon frivolous and meaningless litigation between the parties when the facts on the face of it shows that there is no scope for any adjudication left.
On mere technicalities and technical objections, it would be futile to let the present dispute between the parties continue.
The defendant which is a public sector undertaking under the control of Union of India cannot be permitted to continue to prolong the agony of the plaintiff on highly technical grounds. The purchase order and work order are of 08.05.2002. Final acceptance certificate has been issued on 23.10.2007. 8 years have thereafter gone by and final instalment payable to the plaintiff is being withheld on meaningless technical issues. There are now no pending disputes between the parties. No dispute exists to refer the parties to Arbitration.
The present application of the defendant is dismissed.
-
2016 (1) TMI 1511
Challenge to order of the High Court upholding the acquisition under the provisions of the Land Acquisition Act, 1894 - applicability of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - whether in view of the fact that the possession had not been taken over despite the award being passed five years prior to 1st January, 2014 the land acquisition proceedings have lapsed? - HELD THAT:- The legal effect of the absence of any specific exclusion of the period covered by an interim order in Section 24(2) of the 2013 Act requires serious reconsideration having regard to the fact that it is an established principle of law that the act of the court cannot be understood to cause prejudice to any of the contesting parties in a litigation which is expressed in the maxim “actus curiae neminem gravabit”.
The following two questions of law, would specifically require an authoritative pronouncement for an appropriate adjudication on the factual controversy arising in the present case and in a large number of connected cases:
(i) Whether the conscious omission referred to in paragraph 11 of the judgment in Sree Balaji Nagar Residential Association (supra) makes any substantial difference to the legal position with regard to the exclusion or inclusion of the period covered by an interim order of the Court for the purpose of determination of the applicability of Section 24(2) of the 2013 Act?
(ii) Whether the principle of “actus curiae neminem gravabit”, namely act of the court should not prejudice any parties would be applicable in the present case to exclude the period covered by an interim order for the purpose of determining the question with regard to taking of possession as contemplated in Section 24(2) of the 2013 Act?
The Registry of this Court is directed to place the papers before the Hon'ble the Chief Justice of India for appropriate orders.
-
2016 (1) TMI 1510
Manipulative, fraudulent and unfair trade practices - Trading in certain scrips GIL pursuant to the detection of a huge rise in the traded volumes and/or price of the shares of these companies - certain entities had indulged in creating artificial volume by trading among themselves, in a synchronized manner and also carrying out off-market transfers among themselves for the purpose of meeting settlement obligations of another, thus contributing also to the price rise in these scrips - SEBI passed an interim order restraining 39 persons/entities from accessing the securities market and further prohibited them from buying, selling or dealing in securities in any manner whatsoever, till further directions.
HELD THAT:- Large scale trading amongst the PP group entities, which included the Noticees, all of which were synchronized and did not result in change in ownership created an artificial demand in the scrip of GIL and led to a price rise which was misleading and disadvantageous to the genuine investors in the securities market.
We find that the Noticees in the present proceedings were related / connected to each other and connived amongst themselves for execution of synchronized and self trades, creation of artificial volume and price manipulation which not only distorted market equilibrium but were also found to be fraudulent in nature. The Noticees have therefore violated the provisions of regulations 3 (a),(b),(c),(d), 4(1), 4(2) (a),(b) (e) and (g) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003.
Noticees have submitted that based on the same set of facts and transactions as in the instant case monetary penalties were imposed against the Noticees by the adjudicating officer vide his separate order(s) and the Noticees have challenged the said order(s) before SAT. However, we are satisfied that the contraventions as found in this case are grave and have the potential to disturb the market integrity and disturb the fair, equitable and efficient functioning of the securities market.
In the instant case, the proceedings u/s 11 and 11B of the SEBI Act have been initiated against the Noticees in addition to the adjudication proceedings against them as the charges against the entities are grave and have larger implications on the safety and integrity of the securities market. For the serious contraventions as found in the instant case, monetary penalty alone would not be sufficient to safeguard the market integrity.
Considering the repetitive nature of the default by the Noticees, I, in order to protect the interest of investors and the integrity of the securities market, in exercise of the powers conferred upon me under section 19 of the Securities and Exchange Board of India Act, 1992 read with sections 11 and 11B thereof and regulation 11 of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 hereby restrain the 17 mentioned entities from accessing the securities market and further prohibit them from buying, selling or otherwise dealing in securities, directly or indirectly, or being associated with the securities market in any manner, whatsoever.
The period of prohibition already undergone by the Noticees who were debarred/restrained pursuant to the interim order dated February 02, 2011, shall be taken into account for the purpose of computing the period of prohibition imposed in this order. Further, it is clarified that the restraint/prohibition imposed on the Noticees hereinabove shall run concurrently with the restraint/prohibition imposed by SEBI vide order dated May 13, 2015, June 29, 2015 and January 4, 2016 in the matters of dealings in the shares of Goldstone Technologies Limited, LGS Global Limited and Well Pack Papers and Containers Limited respectively.
-
2016 (1) TMI 1509
Homicide - Confirmation of the capital punishment imposed - accused pleaded "Not Guilty" - accused was questioned under Section 313 Cr.P.C. about the incriminating circumstances and he denied the same - HELD THAT:- All forms of homicide is abhorring because it stifles the life span of an individual artificially against the law of nature. In this case, fortunately for the State and unfortunately for the accused the entire occurrence has been captured by the CCTV cameras installed in the shop and recorded in the DVR (MO-2) on account of which we were able to view it. Normally a scene of crime is re-created in the Court by the oral account of witnesses and the Court draws necessary inferences by a process of deduction from proved facts. Very rarely the Courts get the opportunity to view the actual commission of an offence as in this case.
The sentence should not be decided based on the impact the video recordings had on us. Sans the video recordings, we are afraid we would have treated this case as another case of murder for gain, not warranting death penalty.
In Sangeeth v. State of Haryana, [2012 (11) TMI 1335 - SUPREME COURT], the Supreme Court has discussed the cases in which death penalty was confirmed/reversed and has held that sentencing should be based on the crime and the criminal. In this case, the manner in which the crime was committed may shake conscience. But there is no material produced by the prosecution to show that the criminal is a menace to the Society.
There are sufficient force in the submission of the learned Public Prosecutor that the offence has been committed in a cool, calculated and gruesome manner. The accused could have easily bolted the vault room from outside when Gunaram was inside and taken away as much as he could. There was no necessity to take away the life of Gunaram, if robbery had been the motive. Keeping in mind the macabre nature of the crime, the sentences imposed on the accused should run consecutively and not concurrently.
The conviction of the appellant/accused under Section 404 IPC and the sentence imposed thereon are set aside - The conviction of the appellant/accused under Sections 449, 392 and 302 IPC is confirmed - The sentence imposed for the offences under Sections 449 and 392 IPC are also confirmed - The death sentence imposed for the offence under Section 302 IPC is set aside. Instead, the appellant/accused is sentenced to life imprisonment. We direct that the accused should serve a minimum period of 25 years in prison during which period he will not be entitled to any statutory remission or commutation.
Application disposed off.
-
2016 (1) TMI 1508
Revisional jurisdiction exercised by the High Court in rent matters - Eviction of premises - willful default in paying the monthly rent - scope of inquiry to examine the title of the landlord of the suit premises in eviction matters - necessary parties in the eviction petition filed under the Rent Laws - power of attorney executed by principal in favour of his agent.
Revisional jurisdiction exercised by the High Court in rent matters - HELD THAT:- The issue remains no more res integra and stands settled by the Constitution Bench of this Court in HINDUSTAN PETROLEUM CORPORATION LTD. VERSUS DILBAHAR SINGH [2015 (12) TMI 521 - SUPREME COURT]. Justice R.M. Lodha, the learned Chief Justice speaking for the Bench held 'The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.'
Scope of inquiry to examine the title of the landlord of the suit premises in eviction matters - HELD THAT:- The issue remains no more res integra and stands settled in the case of Sheela and Ors. v. Firm Prahlad Rai Prem Prakash [2002 (3) TMI 960 - SUPREME COURT]. Justice R.C. Lahoti (as His Lordship then was) speaking for the Bench held that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit.
Whether all the co-owners/co-landlords of suit premises are necessary parties in the eviction petition filed under the Rent Laws? - HELD THAT:- In the light of law laid down in the case of Dhannalal [2002 (7) TMI 755 - SUPREME COURT], it was not necessary for the Appellants to implead the Tmt. R. Kanjana-the daughter of late A. Radhakrishnan in the eviction petition. Even otherwise, as rightly argued by learned Counsel for the Appellants, the High Court should not have allowed Respondent No. 1 to raise such objection for the first time in the revision because it was not raised in the courts below. Be that as it may, the daughter having been later impleaded in the proceedings, this objection was not even available to Respondent No. 1 - the finding of the High Court not concurred upon and while reversing the finding hold that the eviction petition can not be dismissed on the ground of non-joinder of Tmt. R. Kanjana-the daughter of late A. Radhakrishnan and is held maintainable.
Power of attorney executed by principal in favour of his agent - HELD THAT:- The law relating to power of attorney is governed by the provisions of the Power of Attorney Act, 1982. It is well settled therein that an agent acting under a power of attorney always acts, as a general rule, in the name of his principal. Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself. An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal. Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself. An agent, therefore, never gets any personal benefit of any nature.
The High Court was not right in holding that the tenancy in relation to suit premises was with Dhanapal. We cannot thus concur with the finding of the High Court and accordingly reverse the finding and hold that the Appellants were able to prove that the tenancy in relation to the suit premises was between A. Radhakrishnan and Respondent No. 1 and on the death of A. Radhakrishnan, it was created between the Appellants and Respondent No. 1 by operation of law which entitled the Appellants to maintain the eviction petition against Respondent No. 1 seeking his eviction on the grounds available to them under the Act.
The impugned judgment is set aside - Appeal allowed.
-
2016 (1) TMI 1507
Dismissal of application to impound the unregistered sale deed, dated 05.09.1994 executed by Srinivasa Pillai in favour of the revision petitioner, for the purpose of paying stamp duty penalty - HELD THAT:- The sale deed in question has to be properly stamped and registered before the competent authority and if the sale deed is not duly stamped, the defect cannot be cured under Section 35 of the Indian Stamp Act and it is also not admissible in evidence, since it conveys title of the property to the transferee. Therefore, the argument of the learned counsel for the revision petitioner/D2 that the above sale deed has to be impounded for paying stamp duty and penalty and to be registered and marked, is not sustainable.
There is no illegality or infirmity in the impugned order of the trial Court - The Civil Revision is liable to be dismissed.
-
2016 (1) TMI 1506
Dishonour of Cheque - non-service of notice - name of the applicant was added as an accused in the complaint filed for the offence under Section 138 of Negotiable Instruments Act - cognizance in the case under the provisions of Section 319 of Cr.P.C. - HELD THAT:- Looking to the facts and circumstances of the case, an accused can be added in a case when the trial Court has taken cognizance in the case under the provisions of Section 319 of Cr.P.C. However, it is a case of 138 of Negotiable Instruments Act and the complaint can be filed against an accused if a valid demand notice has been given to that accused and payment was not made by him. In the present case, M/s Excel Telecom may be a proprietary firm or a partnership firm, no notice has been given to the applicant either in his personal capacity or being proprietor of the aforesaid firm and when no demand notice was given within the time fixed under Section 138 of Negotiable Instruments Act then no complaint can be prosecuted against the applicant.
In the light of the provision of Section 138 of Negotiable Instruments Act when the complaint could not be prosecuted against the applicant then he could not be added as an accused in the complaint by moving a simple amendment application. The trial Court has no power to pass such order as the inherent powers are vested in High Court under Section 482 of Cr.P.C.
The impugned order passed by the trial Court appears to be perverse and when the complaint was not maintainable against the applicant for the offence under Section 138 of Negotiable Instruments Act, he could not be made an accused in the case. It is a good case in which the inherent power of this Court conferred under Section 482 of Cr.P.C. can be invoked in favour of petitioner.
The petition under Section 482 of Cr.P.C. filed by the applicant Sandeep Sabu is hereby disposed off with the direction that the order dated 21-02- 2013 shall have no effect in the matter and the respondent cannot prosecute the applicant for the complaint filed under Section 138 of Negotiable Instruments Act without issuance of notice of demand within the limitation as prescribed under Section 138 of Negotiable Instruments Act.
-
2016 (1) TMI 1505
Accrual of income - real income - Amalgamation reserve treated as income u/s. 28(iv) r.w.s. 2(24)(vd) - HELD THAT:- We find that this is a simple case of accounting reserve which is created in the books of the amalgamated company to give accounting effect to the amalgamation. According to us, this is nothing but an entry passed in the Balance Sheet with a sole object to balance the accounts which are maintained on double entry system of accounting. This view of ours is supported by the decision of Bharat Development P. Ltd. [1980 (8) TMI 18 - DELHI HIGH COURT] wherein held an accounting reserve which is created in the books of the amalgamated company to give accounting effect to the amalgamation is nothing but an entry passed with the sole object to balance the books of account which are maintained on the principle of double entry system of book keeping.
As such, when the exchange of shares was based on fair valuation basis, there was no question of any benefit or perquisite being earned by the assessee or by the amalgamating companies. In our view section 28(iv) of the Act therefore had no application in the assessee’s case.
AO was not justified in assessing this amount as income of the assessee u/s 28(iv) of the Act because such reserve did not represent real income and secondly it did not constitute any benefit or perquisite arising from the business activity of the assessee. Hence we confirm the order of CIT(A) and this issue of revenue’s appeal is dismissed.
-
2016 (1) TMI 1504
Impleadment of subsequent purchaser as party to the proceeding - suit for bare injunction in respect of 4 items of the suit property - application filed under Order 9 Rule 9 CPC to set aside the ex-parte dismissal of the suit and to restore the same - HELD THAT:- One Parijathammal as plaintiff has filed the suit for permanent injunction in respect of 4 items of property against 3 defendants. Admittedly, the said Parijathammal died on 09.07.2006 and the suit was dismissed for default on 14.07.2006. Thereafter, the respondent herein who is none other than the sister of the deceased plaintiff as well as the deceased first defendant/first revision petitioner filed application under Order 9 Rule 9 CPC to set aside the ex-parte dismissal of the suit and to restore the same and also an application under Order 1 Rule 10 r/w Order 22 Rule 5 CPC to implead herself as party to the proceeding. On perusal of the plaint it is seen that the cause of action has been mentioned as "The cause of action for the suit arose on 27.01.1967 when the suit property was purchased and on 17.05.2004, 20.03.2005 the defendants made an attempt to trespass into the suit property". But according to the respondent/proposed party, she has purchased the property only on 26.04.2006 and so, as on the date of filing of the suit, there is no cause of action and she was not the person in possession.
But in the instant case, the suit is only for bare injunction and the respondent/proposed party has purchased the 1st item of the suit scheduled property only after the filing of the suit. So, the contention raised by the learned counsel for the revision petitioner that there is no cause of action involved for the proposed party to adjudicate the suit is acceptable one.
The respondent/proposed party has no locus standi to file an application to restore the suit because the respondent herein has purchased only the 1st item of the suit property. Further, since the suit is for bare injunction, there arose no cause of action for the proposed party because she has purchased the property only after the filing of the suit. The Trial Court without considering these aspects in proper perspective has allowed the application filed by the respondent. Hence, the order of the Trial Court is perverse and the same is liable to the set aside and accordingly set aside and the Civil Revision Petition stands allowed.
These Civil Revision Petitions are allowed.
-
2016 (1) TMI 1503
Seeking quashing of proceedings arising out of the FIR in question - dispute between the parties has been amicably resolved - offences under Sections 365,364A, 328,174A IPC are non-compoundable offences - HELD THAT:- It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquillity and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not.
In the case of B.S. JOSHI & ORS. VERSUS STATE OF HARYANA & ANR. [2003 (3) TMI 721 - SUPREME COURT] the Hon'ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon'ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon'ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable.
This Court is of the view that notwithstanding the fact the offences under Sections 365,364A, 328,174A IPC are non-compoundable offences, there should be no impediment in quashing the FIR under these sections, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.
In the facts and circumstances of this case and in view of statement made by the respondent No. 2, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed - Petition allowed.
-
2016 (1) TMI 1502
Legality of will - main contention of the applicants is that the Will dated 11.12.1996 is not genuine one and it has been forged by the petitioners 1 and 2, viz., the sons of the deceased testator - Time Limitation - HELD THAT:- It is quite apparent that all that is required in the eventuality of the Letters of Administration being applied for after a lapse of three years from the date of death of the deceased, is that there should be an explanation forthcoming for the delay in presentation of the application and not that it would be a bar to institution of such proceedings - such a requirement is so stipulated on account of there being a continuous right, and long delays would throw suspicion on the Will. However, if this delay is explained and the Will proved in accordance with law, there would be no impediment to the grant of Letters of Administration in respect of the Will.
In the instant case, a perusal of the materials would show that even after the legal notice for partition was issued in 2003, no steps were taken. Nor after the suit was filed in 2007, steps could have been taken to apply for issuance of letters of administration. Therefore, it is clear that the petitioners deliberately waited for the suit to be over and only when the judgment was reserved in the suit in the year 2011, they have preferred the petition for grant of letters of administration.
It cannot be stated that Letters Patent and Rules made thereunder by the High Court for regulating the procedure on the original side, are subordinate legislation and, therefore, only Limitation Act which is a superior legislation will prevail - the finding of the learned single Judge holding that Article 137 of the Limitation Act is not applicable to probate proceedings and dismissal of the Original Applications, in our considered opinion, require no interference.
Appeal dismissed.
........
|
9911796707
