|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1398 Records
-
2020 (10) TMI 1398
Denial of exemption claimed u/s 10(26BBB) - Tribunal [2019 (1) TMI 1267 - ITAT DELHI] for assessee’s claim for exemption u/s 10(26BBB) is rejected by the AO is confirmed - HELD THAT:- Appeal admitted on following substantial questions of law-
1. Whether the Ld. ITAT, committed a manifest error of fact and law in upholding the judgment and order dated 04.03.2015, passed by the Ld. CIT, Dehradun in so far as not appreciating that the twin tests of the order being of an erroneous nature and of its being prejudicial to the interests of Revenue were not satisfied?
2. Whether the Ld. ITAT, committed a manifest error of fact and law, in not appreciating that it was settled law that a Government Corporation, incorporated under the Companies Act, 1956 that if the words “by and under an Act” are proceeded by the word “established” u/s 10(26BBB) then the special categories of companies, including a Government company, would fall in the category of the word “establishment” and whether the said Government company would be eligible to the benefit of section 10(26BBB) or not?
So far as stay application is concerned, the plea of the assessee before the tribunal has been dismissed. Hence, there cannot be a stay of the said order.
-
2020 (10) TMI 1397
Seeking certain pre-arbitration interim reliefs - Section 9 of the Arbitration and Conciliation Act, 1996 - seeking a restraint, against the respondents creating any third party interest/right/title on the aircraft, or from selling, transferring or encumbering the aircraft in any manner - seeking a restraint, against the respondents, from taking the aircraft out of India - seeking a direction, to the respondents, to deposit US $ 530,000 (equivalent to Rs. 4,01,05,736/-) in an escrow account - territorial Jurisdiction of Delhi High Court to entertain present petition, given the arbitration seat is in Singapore - delivery of the aircraft, within the meaning of the Lease Deed - Liability to pay maintenance reserves.
Whether the Delhi High Court has the territorial jurisdiction to entertain the petition under Section 9 of the Arbitration and Conciliation Act, 1996, given the arbitration seat is in Singapore? - HELD THAT:- Section 9 has its own distinct indicia and, while it is fundamentally guided by the three considerations of existence of a prima facie case, balance of convenience and irreparable loss, which guide the exercise of discretion under Order XXXIX CPC, there is a fundamental difference between the two provisions.
Interim relief, under Order XXXIX, is in the nature of an interlocutory order pending disposal of a suit. Pre-arbitral interim relief under Section 9 of the 1996 Act, on the other hand, is primarily aimed at securing the corpus of the dispute so that arbitral proceedings are not rendered a futility before they commence. It is for this reason that, apart from the aforesaid three criteria, of prima facie case, balance of convenience and irreparable loss, a Section 9 petitioner is also required to demonstrate that, were urgent interim reliefs not granted, there is a chance of the arbitral proceedings being frustrated, even before they take off, and of the award, if any, which may come to be passed, being rendered futile. For this reason, the principles governing Order XXXVIII Rule 5 CPC have, for that reason, also been held to be applicable, while directing the furnishing of security, under Section 9(1)(ii)(b).
The sequitur is that the degree of satisfaction, of the Section 9 court, at the pre-arbitral stage, is not the same as the degree of satisfaction of the arbitrator, while exercising jurisdiction under Section 17 of the 1996 Act. The Section 9 court is essentially concerned with the issue of whether an arbitrable dispute, deserving of resolution by arbitral proceedings, exists, or not. If the case set up by the Section 9 petitioner is devoid of merit altogether, so that no dispute, worthy of arbitration, exists, the Section 9 court would be justified in declining relief. If, on the other hand, an arguable case is found to exist, which deserves resolution by arbitration, and the court finds that, were interim protection, under Section 9, not granted, there is a likelihood of frustration of the arbitral proceedings, the court would proceed to grant relief under Section 9.
A section 9 court is, therefore, concerned with protecting the corpus of the arbitral dispute, so that the arbitration can take off and fructify. Once a dispute, amenable to, and deserving of, resolution by arbitration, is found to exist, and the apprehension, of dissipation of the assets forming the corpus of the dispute, is found to be real and subsisting, or where the circumstances indicate that enforcement of the award, as and when delivered, would otherwise be hindered, a Section 9 can grant "interim measures of protection".
Contention of petitioner that no delivery of the aircraft, within the meaning of the Lease Deed, as taken place - HELD THAT:- The arbitral tribunal, if and when constituted, is not required to opine on the registration of the aircraft, or how such registration could be obtained. It would be required to examine whether there has, or has not, been a breach, by the respondent, of the covenants of the Lease Deed, as alleged by the petitioner. That, prima facie, has taken place.
Prima facie, therefore, there is merit in the submission that the plea of non-filing of the Bill of Entry has been advanced, by the respondent, only to cover up the default, on the part of the respondent, in providing the certificate of de-registration of the aircraft. In view thereof, it is not inclined to enter, for the purposes of the present order, into the factual dispute of whether the petitioner has, or has not, filed the Bill of Entry.
Alleged unilateral termination of the Lease Deed - HELD THAT:- The fact that the CDSS was required to be installed on the aircraft, in order for the aircraft to be registered with the DGCA in India, stands recognized and acknowledged by the respondent itself, in its email dated 16th February, 2020, to the petitioner. Clause 32.1 of the Lease Deed cannot wish away this acknowledgement, or reduce the effect thereof. Having accepted, in the email dated 16th February, 2020, that installation of the CDSS was mandatory for registration of the aircraft by the DGCA in India, it can hardly lie in the mouth of the respondent to contend, now, that the CDSS was not required to be installed on the aircraft.
Clause 6.3 starts with the words "subject to the generality of the foregoing". "The foregoing" would include Clause 6.2, which commences with a non-obstante clause, and required the respondent to deliver, to the petitioner, the aircraft in accordance with the terms and conditions of the Lease Deed. It was only thereafter that the petitioner was required, as lessee, to accept the aircraft by execution of the delivery acceptance certificate. The terms and conditions of the Lease Deed included Clause 4.1, which required the lessor to provide all necessary documentation, required by the lessee for registering the aircraft with the DGCA. Evidence of installation of the CDSS in the imported aircraft would also, therefore, be one of the requirements, in order for the aircraft to be registered with the DGCA in India. On this count, too, therefore, the submission that the respondent was in breach of the covenants of the Lease Deed, merits acceptance.
Liability to pay maintenance reserves - HELD THAT:- Clause 10.6 of the Lease Deed specifically obligated the lessee, to pay to the lessor, maintenance reserves on a monthly basis, "for every flight hour or flight cycle, as the case may be of usage". The Clause also stipulated that the maintenance reserves were to be paid in accordance with Schedule III to the Lease Deed, which specifically stipulated that maintenance reserves were payable "in respect of hours flown on the aircraft", and were "payable on the 10th day of each month in respect of hours flown in the previous calendar month". As the aircraft had never been flown, there could be no question of the petitioner being required to pay any maintenance reserves.
Whether, in order to secure the corpus of the arbitration, any interim measure of protection, under Section 9 of the 1996 Act, deserves to be granted? - HELD THAT:- Given the respondent's actions to dispose of the aircraft parts and the fact that the respondent is based outside India, it is found that interim relief was warranted to prevent frustration of the arbitral proceedings. It is directed that the amount deposited by the respondent with the Registry of the Court remain pending further orders.
Conclusion - i) The Delhi High Court has jurisdiction to entertain the petition under Section 9 of the 1996 Act, as there is no "agreement to the contrary" excluding its applicability. ii) The respondent breached the Lease Deed by failing to deliver the aircraft with all requisite documentation for registration in India. iii) The claim of unilateral termination by the petitioner is unfounded, as no such termination occurred as per the Lease Deed's terms. iv) The non-installation of the CDSS constitutes a breach of the Lease Deed, as it was necessary for regulatory compliance in India. v) The petitioner is not liable to pay Maintenance Reserves, as the aircraft was not delivered and flown. vi) Interim relief is justified to protect the corpus of the arbitral dispute, and the amount deposited by the respondent should remain with the Court pending further orders.
Petition allowed.
-
2020 (10) TMI 1396
TP Adjustment - determination of ALP of AMP expenses - addition based on Bright line test selecting four comparables whose average AMP/sales ratio was 0.83% whereas the ratio in the case of the assessee is 57.44 % - HELD THAT:- The coordinate bench in assessee’s own case for assessment year 2011-12 [2019 (4) TMI 413 - ITAT DELHI] has rejected the Bright line test applied by the learned transfer pricing officer and further held that AMP expenditure cannot be considered as an international transaction in the facts and circumstances of the case of the assessee.
DR could not show us any reason to deviate from such an order in assessee’s own case for earlier year. Even in this particular order of the learned transfer pricing officer for the impugned assessment year, we do not find that the learned transfer pricing officer has first established that there is an international transaction entered into by the assessee by incurring a higher AMP expenditure.
Unless first the international transaction is established by the learned transfer pricing officer, question of determination of its arm’s-length price does not arise.
Therefore respectfully following the decision of assessee’s own case we also hold that the approach of the learned transfer pricing officer of determining ALP of international transaction of incurring of higher AMP expenditure cannot be benchmarked either on Bright line test bases or on transactional net margin method unless first it is established that there existed an international transaction. Accordingly all the grounds of the appeal of the assessee relating to the transfer pricing adjustment from ground number 2-15 are allowed.
-
2020 (10) TMI 1395
Termination of the petitioner's services - Authority of the Chancellor to review its own decision after a significant lapse of time - review of own order by the Hon’ble Chancellor after a gap of more than 8 years - HELD THAT:- It is quite evident that the ground for termination of service of the petitioner is not in consonance with the law since the Provision under section 57(2) (C) of the University Act was complied along with considering the Advertisement as well as subsequent action of the Vinoba Bhave University by which the vacancy position of the Assistant Registrar was intimated to the Commission before appointments were made and taking into consideration the entire aspects of the matter, the petitioner was appointed in the year 2006. At this stage it is pertinent to mention here that in the Advertisement No. 2/2004, all the five posts of Assistant Registrar was indicated under the Ranchi University but at the same time; at Sl.No.1 of the Advertisement, necessary directions was stipulated that the post of Deputy Registrar, Assistant Registrar, Assistant Librarian can be changed (reduced or enhanced) and the persons appointed can be transferred/adjusted against any of the three Universities.
The Hon’ble Chancellor was having no fresh ground to review its own order directing the University to terminate the services of the petitioner. The grounds upon which the services of the petitioner has been terminated, was communicated by the Vice Chancellor, Vinoba Bhave University to the Hon’ble Chancellor showing his reluctance for towards the appointment of the petitioner. Thereafter, before the appointment of the petitioner the said issue was overcome and the direction was given by the Hon’ble Chancellor to appoint the petitioner - The ground which was already adjudicated cannot be taken into consideration for terminating the services of the petitioner that too after more than 7 years of appointment and hence the decision taken by the Hon’ble Chancellor is not in consonance with the law.
The suo-motu power of initiation of revisional proceeding has to be exercised within a reasonable period of time and what is a reasonable period of time would depend on the facts and circumstances of each case. In the instant case, the appointment was made vide letter no. 2029 dated 12.01.2006 that too after the objection raised by the respondent University before the Hon’ble Chancellor; who in turn directed to respondent University to appoint the petitioner - the order of review of own order by the Hon’ble Chancellor after a gap of more than 8 years is not in consonance with the law.
The impugned order as contained in Memo No. 1963/2014 dated 15.10.2014, whereby the service of the petitioner has been terminated with immediate effect is quashed and set aside. The Respondent authorities are directed to ensure that all consequential benefits pursuant to setting aside the impugned order be given to the petitioner within a period of 4 months from the date of receipt/production of copy of this order - the impugned order is fit to be quashed.
Application allowed.
-
2020 (10) TMI 1394
Exemption u/s. 11 - charitable activity u/s 2(15) - activities of the assessee is to organize meetings, seminars, workshops, conferences, brainstorming exhibitions in India and abroad and keep up with the latest developments in the field of oil, lubricants and fuel gas world over and charging fees from delegates - HELD THAT:- The undisputed fact is that the very issues were there in A.Y. 2009-10 to A.Y. 2012-13 - We further find that CIT (A) while deciding the appeal in favour of the assessee has followed the earlier years orders find that the activities of the assessee are in the nature of education and therefore Proviso to Sec. 2(15) shall not apply to it. The exemption u/s. 11 is therefore allowable. Appeals filed by the revenue are accordingly dismissed.
-
2020 (10) TMI 1393
Validity of assessment order u/s 143(3) r.w.s. 92(C)(A)(4) and Section 144-C -as submitted by Petitioner that in order to have an effectual adjudication in a comprehensive manner, the Petitioner may be permitted to withdraw the Writ Petition with liberty to file statutory Appeal before the concerned authority, so that all the contentions raised this Writ Petition could be canvassed in that forum.
HELD THAT:- Having regard to the aforesaid submissions made, this Writ Petition is dismissed as withdrawn granting such liberty. It is made clear for the purpose of reckoning limitation for availing the aforesaid remedy, the period from the date of filing of this Writ Petition, viz., 21.01.2014 till the date on which the certified copy of this order is made ready, shall be excluded.
-
2020 (10) TMI 1392
Expenditure incurred towards prepayment charges for substituting high cost debt for low cost debt - interest as defined u/s 2(28A) and not allowable as deduction u/s 37 - whether Tribunal was right in law in holding that the prepayment charges is in the nature of interest incurred during the construction period would form part of the capital asset to be capitalised as per proviso to Section 36(1)(ii)? - HELD THAT:- Tribunal, in our view, rightly held that the said decision instead of assisting the assessee's case, would assist the case of the Revenue.
Tribunal held that the Reset Fee is only in the nature of interest defined under Section 2(28A) of the Act to include any service fee or charge in respect of monies borrowed or debt incurred.
Tribunal also took note of the provision of Section 36(1)(iii) of the Act as noted by the Assessing Officer and held that the same would stand to be a part of the core cost of the capital asset towards acquiring which the borrowing stands applied, the interest being incurred during the construction period.
Tribunal had applied the decision of Core Health Care Limited [2008 (2) TMI 8 - SUPREME COURT] - We find that the reasons assigned by the Tribunal are perfectly valid on facts. The Assessing Officer, CIT(A) as well as the Tribunal considered the nature of transaction and rejected the plea of the assessee that Reset Fee should be treated as a Revenue expenditure. Thus, We find no grounds to interfere with the orders passed by the Tribunal - Decided against assessee.
-
2020 (10) TMI 1391
Tax liability on Amount from lapsed Demand Drafts, Gift Cheques etc., credited to P & L account - cessation of liability of the assessee to pay the amount in question or not? - HELD THAT:- In the instant case, in the light of statutory instructions issued by Reserve Bank of India, the amounts in question were kept by the assessee in general reserve account though routed through profit and loss account. The assessee is under an obligation to meet the future claims out of general reserve so created. The amounts in question cannot be used by the assessee in the form of distribution of dividends and therefore, the income does not par take the character of the income in the hands of the assessee and cannot be subjected to tax. Thus, it is evident that in the instant case, there is no cessation of liability of the assessee to pay the amount in question. Therefore, the same cannot be treated to the income of the assessee.
Substantial questions of law framed by this court are answered against the revenue and in favour of the assessee.
-
2020 (10) TMI 1390
Assessment u/s 153A - addition u/s 68 treating certain balances, as available in the books of accounts, as unexplained - CIT (A) allowed assessee appeal and deleted addition on the ground that since no incriminating material was found during the search conducted, the re-assessment could not be sustained as relied on the earlier decision of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] also confirmed by Meeta Gutgutia [2018 (7) TMI 569 - SC ORDER] - HELD THAT:- Since, the decision of the ld. CIT (A) is based on the judgments of the Hon’ble Jurisdictional High Court and the Hon’ble Apex Courts, we hereby decline to interfere with the order of the ld. CIT (A). In the result, the appeal of the department is liable to be dismissed.
-
2020 (10) TMI 1389
Lifting of order of attachment made under Section 226 of the Income Tax Act, 1961 by the Respondent in respect of the Bank Accounts of the Corporate Debtor - HELD THAT:- In view of the fact that the Respondent as an Operational Creditor has filed the claims before the RP and the said claims were also admitted by the RP, these attachment orders issued by the Respondent prior to the order of CIRP does not have any illustrative stand. The Counsel for the RP relies on certain judgments to buttress his point that as the Respondent's claims as an Operational Creditor has been admitted, the attachment has to be lifted.
In view of the fact that Section 238 of the IBC overrides other statutes including the Income Tax Act under which this attachment order has been passed, the provisions of the Code will prevail. Hence the attachment deserves to be lifted for smooth liquidation of the Corporate Debtor.
The Respondent is directed to lift the orders of attachment passed by them in respect of the above-mentioned Bank accounts of the Corporate Debtor - Application allowed.
-
2020 (10) TMI 1388
Disallowance u/s 14A r.w.r. 8D - no exempt income has been actually earned - HELD THAT:- Hon’ble Calcutta High Court in the case of M/s. Ashika Global Securities Limited [2018 (7) TMI 1425 - CALCUTTA HIGH COURT] wherein it was held that no disallowance u/s 14A is warranted when no exempt income has been actually earned by the assessee during the relevant year. Since no exempt income was actually earned by the assessee in the present case during the year under consideration, we respectfully follow the said decision of the Hon’ble Jurisdictional High Court and uphold the impugned order of the CIT(Appeals) deleting the disallowance made by the Assessing Officer under section 14A read with Rule 8D.
Depreciation on software - HELD THAT:- As rightly submitted in assessee in this regard, when the depreciation was allowed by the AO himself on software in question for the immediately preceding year, i.e. A.Y. 2013- 14, the said software had entered into the concerned “Block of Assets” and the utilization of said software for the purpose of assessee’s business had become irrelevant for the purpose of allowing depreciation. Moreover as noted by the CIT(Appeals) in his impugned order, there was nothing brought on record by the AO to show that the said software was not used by the assessee-company for the purpose of its business. We, therefore, find no infirmity in the impugned order of the ld. CIT(Appeals) deleting the disallowance made by the Assessing Officer on account of depreciation on certain software in question and upholding the same, we dismiss Ground No. 2 of the Revenue’s appeal.
Treating the share trading loss and commodity derivative trading loss as speculative in nature - HELD THAT:- As regards the issue relating to the claim of the assessee regarding the loss in commodity transactions being the normal business loss, it is observed that the same is squarely covered in favour of the assessee by the decision of Asian Financial Services Limited [2016 (3) TMI 685 - CALCUTTA HIGH COURT] wherein it was held that Explanation to Section 73 will not be applicable to the commodity trading loss.
As regards the share trading loss is concerned, it is observed that Explanation to Section 73 is held to be not applicable by the ld. CIT(Appeals) after having found that the income of the assessee from other sources was much more than its income from business. At the time of hearing before us, nothing has been brought on record on behalf of the Revenue to rebut or controvert this finding recorded by the ld. CIT(Appeals). We, therefore, find no justifiable reason to interfere with the impugned order of the ld. CIT(Appeals) treating the loss from transaction in commodities and shares as normal business loss not being covered by Explanation to Section 73 and upholding the same, we dismiss Ground No. 3 of the Revenue’s appeal.
-
2020 (10) TMI 1387
Condonation of delay in filing SLP - incompetence of legal department - HELD THAT:- Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, we impose cost on the petitioner/State of Rs.35,000/- to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time.
SLP dismissed.
-
2020 (10) TMI 1386
Money Laundering - Territorial Jurisdiction - not only the Impugned Notice has been issued from Delhi, but even the property which has been attached is situated within the jurisdiction of this Court - HELD THAT:- It was put to the learned senior counsel for the petitioners that as the proceedings are pending and are to be adjudicated by the Adjudicating Authority, if the petitioner was ready and willing to deposit the attached amount, that is, Rs. 70,25,716.40, by way of a fixed deposit, in lieu of the property, with this Court, with such fixed deposit abiding by the final order passed by the Adjudicating Authority.
While leaving the question of territorial jurisdiction open to be adjudicated is an appropriate case, as the attached amount even as per the complaint is only Rs. 70,25,716.40, it is directed that subject to the petitioner making the deposit of said amount by way of a Fixed Deposit with the Registrar General of this Court within a period of six weeks from today, the immovable property, that is, Flat No. T-22-06-01, CWG Village, Near Akshardham Temple at Noida crossing, located off NH-24, Delhi-110092 shall stand released from the attachment. The amount so deposited with the Registrar General of this Court shall abide by the outcome of the proceedings before the Adjudicating Authority and shall be released in accordance with the directions passed therein.
The petition is disposed off.
-
2020 (10) TMI 1385
Seeking withdrawal of Look Out Circular (LOC) issued - whether any lawful or reasonable grounds exist for adoption of the said procedure of opening LOC, in the instant case? - HELD THAT:- A perusal of the Madras High Court judgment in E.V. Perumal Samy Reddy [2013 (10) TMI 1429 - MADRAS HIGH COURT] reveals that the instructions issued for opening of LOC lay down the types of persons in respect of whom an LOC can be opened. Inter alia, these persons are those required by Courts in criminal/civil cases and who are absconding and absconding offenders wanted by various investigating agencies. There are other types of persons also mentioned but those are not relevant for the purposes of this case. The petitioner does not fall in either category.
There can be no doubt that according to the prevailing instructions, an LOC can be opened against an accused person who is (a) deliberately evading arrest, (b) not appearing in the trial Court despite non-bailable warrants and other coercive measures. Coupled with either of these conditions should be a likelihood of the accused leaving the country to evade trial/arrest. Neither of these conditions exist in the instant case. The petitioner is not evading arrest. In fact, he has appeared before the investigating agency whenever required to do so and the investigating agency has not thought it proper to arrest him. Since the investigation is still pending and challan has not been presented, there is no question of any trial Court issuing/adopting coercive steps to ensure the presence of the petitioner.
In view of the above, it is evident that the conditions which must pre-exist before a request can be made for opening of an LOC, do not exist in the present case. Thus, the continuation of an LOC for more than 3 years against the petitioner is a violation of his fundamental right to life and personal liberty. It is, thus, liable to be withdrawn.
The respondent is directed to withdraw the LOC. However, the petitioner shall furnish an undertaking before the concerned investigating officer that he shall present himself whenever required by the investigating agency - the writ petition is allowed.
-
2020 (10) TMI 1384
Seeking grant of anticipatory bail - rape - proclaimed offender - HELD THAT:- Section 82 of CrPC neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by the proclaimed offenders. Even in LAVESH VERSUS STATE (NCT OF DELHI) [2012 (8) TMI 1190 - SUPREME COURT], while laying down the law on anticipatory bails to absconders, Hon’ble Supreme Court structured the pronouncement by the words, “Normally.” An analysis of entire allegations creates a possibility of the accused smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013.
Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail - The conduct of the victim of accompanying the accused to her bedroom without any resistance, and subsequently without any reasons running away to the forest from the safe custody of her maternal uncle, and staying alone in a cave for three days, at least makes out a case for bail to the petitioner. An analysis of the evidence does not justify further incarceration of the accused, nor is it going to achieve any significant purpose, making out a case for bail.
In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition - This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.
Petition allowed.
-
2020 (10) TMI 1383
Denial to supply some crucial documents as prayed/required in the application under Section 207 Cr.P.C. - proper recording of statement under section 161 Cr.P.C. or not - whether statement of witness V.K. Jain recorded on 21.02.2018 but not signed by IO of the case, is to be considered as a statement recorded under section 161 Cr.P.C.? - If yes, further question arises whether relied upon judgments by the respondents are applicable in the facts and circumstances of the present case?
HELD THAT:- Undisputedly, in the remand order of co-accused namely Prakash Jarwal and Amanatullah Khan, Learned Metropolitan Magistrate, Tis Hazari Courts, Delhi, has recorded the date of statement of V.K. Jain as 21.02.2018. However, in reply to above facts, it is stated that above date of 21.02.2018 is a typographical error, in fact both statements under section 161 Cr.P.C. and 164 Cr.P.C. of witness V.K. Jain were got recorded on 22.02.2018. Moreover, the fact of recording of statement dated 21.02.2018 in order of learned MM dated 23.02.2018 is the submission made by the defence counsel, not by the prosecution.
It is pertinent to mention here that in para 28 of impugned order dated 24.07.2019, learned ASJ has recorded that on perusal of ‗Case Diary’ it shows that witness V.K. Jain was examined in Police Station on 21.02.2020 in depth and a report was prepared. The case diary further shows that after examination, V.K. Jain was relieved from the investigation after giving him necessary instructions. Learned Judge further observed that since it is a record of oral examination of V.K. Jain by the IO and is noted in the 'Case Diary', the said examination does not take place of statement under section 161 Cr.P.C. and is thereby not to be given to the accused. However, the same may be used during the trial.
This Court in Ashutosh Verma vs. CBI [2014 (12) TMI 1405 - DELHI HIGH COURT] has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused.
A conjoint reading of section 173(5), 173(6) and first proviso attached to section 207 of Cr.P.C. leaves no scope of doubt that it is bounden duty of the police officer to forward all the statements to the Magistrate, mentioned in sub-section (5) (b) of Section 173 Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under section 207 of Cr.P.C. by furnishing copies of such documents to the accused.
Regarding limitation, although delay is duly explained in the petition, however, there is no applicability of Limitation Act on Section 482 Cr.P.C. being the inherent powers of this Court. The said section is starting itself with a non-obstante clause (Notwithstanding) therefore, this Court has power to exercise inherent powers where there is miscarriage of justice and abuse of process of law. Non-applicability of Limitation Act and non-providing of limitation period in Cr.P.C. with regard to Section 482 Cr.P.C., the intention of the legislature was not to restrict this Court to use these powers in appropriate cases. Thus, raising the issue of limitation period about Section 482 Cr.P.C. is itself contrary to the intention of legislature and the very section itself.
There are merits in the present petition. Consequently, the impugned order is hereby set-aside - the present petition is allowed.
-
2020 (10) TMI 1382
Seeking directions for the anticipatory bail application of the Petitioners to be heard by the Patna High Court which is stated to be still pending - disclosure of false information by the Petitioner in his nomination papers submitted for General Nagar Palika elections, 2007 - HELD THAT:- The SEC in exercise of power as enunciated Under Section 18(2) of the Act declared the elections void. Action was directed to be taken against the Petitioners and in pursuance to the same, FIR was lodged against them Under Section 447 of the said Act read with Section 420/34, Indian Penal Code.
The submission of the learned Counsel for the Petitioners is that the Petitioners are willing to join the investigation and there is no need for custodial interrogation of the Petitioners - the contention of the learned Counsel for the Petitioners cannot be agreed upon in view of the conduct of the Petitioners and the greater the office held, the greater the responsibility of the person as in the case of the Petitioners. It cannot be said that the Petitioners held a high office, they are ipso facto entitled to anticipatory bail.
The prayer for anticipatory bail rejected - petition dismissed.
-
2020 (10) TMI 1381
Disallowance u/s 14A - expenditure incurred by the assessee in relation to tax exempt income - HELD THAT:- As relying on Joint Investments Pvt. Ltd [2015 (3) TMI 155 - DELHI HIGH COURT] and Daga Global Chemicals Pvt. Ltd. [2015 (1) TMI 1204 - ITAT MUMBAI] window for disallowance is indicated in Section 14A of the Act and is only to the extent of disallowing expenditure incurred by the assessee in relation to tax exempt income. Therefore, this proportion or portion of the tax exempt income surely cannot swallow the entire amount as has happened in this case.
We are of the view that the disallowance made U/s 14A of the Act cannot exceed the exempt income, hence, we direct the A.O. to restrict the disallowance U/s 14A of the Act to the extent of exempt income earned by the assessee. With this direction, we partly allow this ground of appeal.
-
2020 (10) TMI 1380
Disallowance u/s 14A r.w.r. 8D - expenditure incurred on earning exempt income - As argued since the assessee has not incurred any expenditure to earn the exempt income and Addition to be restricted to the exempt income received for the relevant assessment years - HELD THAT:- In the light of the order of M/s.Century Real Estate Holdings Pvt. Ltd [2020 (6) TMI 780 - ITAT BANGALORE] we hold that the disallowance u/s 14A of the I.T.Act cannot exceed the exempt income earned during the relevant assessment years. Accordingly, we restrict the disallowance for assessment years 2010-2011 and 2013-2014 to the exempt income earned for the assessment years. Appeals filed by the assessee are partly allowed.
-
2020 (10) TMI 1379
Right to residence in shared household being the matrimonial home - Interpretation and working of the Protection of Women from Domestic Violence Act, 2005 - decreeing the suit filed by the Plaintiff for mandatory and permanent injunction - Order XI Rule 13 Code of Civil Procedure.
Whether definition of shared household Under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share? - Whether judgment of this Court in SR. BATRA & ANR. VERSUS TARUNA BATRA [2006 (12) TMI 487 - SUPREME COURT] has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law? - HELD THAT:- There being specific pleading on behalf of the Respondent that the house, which is in the name of the Appellant is the matrimonial home of the Respondent where she was residing in first floor since her marriage. The fact that Respondent is residing in first floor of the premises is not matter of dispute. Even if the house is in the name of the Appellant and that even if we accept the case of the Appellant that Appellant's son Raveen has no share in the house belonging to Appellant, with whom the Respondent was living in the domestic relationship, whether the Respondent is entitled to reside in the premises in question as shared household is the question to be answered. In the impugned judgment, Delhi High Court has refrained from deciding the point as to whether suit property is a shared household on the ground that the application filed Under Section 12 of Act, 2005 by the Respondent is pending. In the suit filed by the Appellant where Respondent has pleaded and claimed that it is shared household and she has right to live and it was on that ground she was resisting the suit for mandatory injunction, the question that whether the suit property is a shared household or not becomes relevant and necessary and the said issue cannot be skipped on the ground that application under D.V. Act is pending.
The right to residence Under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application Under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties.
The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share - The judgment of this Court in SR. BATRA & ANR. VERSUS TARUNA BATRA [2006 (12) TMI 487 - SUPREME COURT] has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law.
Whether the High Court has rightly come to the conclusion that suit filed by the Appellant could not have been decreed Under Order XII Rule 6 Code of Civil Procedure? - Whether, when the Defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the Plaintiff without deciding such claim of Defendant which was permissible to be decided as per Section 26 of the Act, 2005? - HELD THAT:- What is required to be considered is what constitutes the admission warranting the judgment on admission in exercise of powers Under Order XII Rule 6, Code of Civil Procedure. This Court had occasion to consider above in decisions, Himani Alloys Limited v. Tata Steel Limited, [2011 (7) TMI 1344 - SUPREME COURT] and S.M. Asif v. Virender Kumar Bajaj, [2015 (8) TMI 1563 - SUPREME COURT].
In Himani Alloys Limited, this Court had an occasion to consider the scope and ambit of judgment on admission in exercise of powers Under Order XII Rule 6, Code of Civil Procedure. It is observed and held in paragraph 11 that being an enabling provision, it is neither mandatory nor preemptory but discretionary for the Court to pass judgment on admission in exercise of powers Under Order XII Rule 6 Code of Civil Procedure. It is observed that the Court, on examination of the facts and circumstances, has to exercise its judicial discretion keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant by way of an appeal on merits.
A similar view was expressed by this Court in the case of S.M. Asif. It is observed and held in paragraph 8 that expression "may" in Order XII Rule 6 Code of Civil Procedure suggests that it is discretionary and cannot be claimed as of right. It is further observed that where Defendants raised objections which go to root of the case, it would not be appropriate to exercise discretion Under Order XII Rule 6 Code of Civil Procedure.
The power Under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the Trial Court ought not to have given judgment Under Order XII Rule 6 on the admission of the Defendant as contained in her application filed Under Section 12 of the D.V. Act. Thus, there are more than one reason for not approving the course of action adopted by Trial Court in passing the judgment Under Order XII Rule 6. We, thus, concur with the view of the High Court that the judgment and decree of the Trial Court given Under Order XII Rule 6 is unsustainable.
Whether the Plaintiff in the suit giving rise to this appeal can be said to be the Respondent as per definition of Section 2(q) of Act, 2005? - HELD THAT:- One of the conditions to treat a person as a Respondent is that "against whom the aggrieved person has sought any relief under the Act". The Defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of domestic violence by the Respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005. It is, further, relevant to notice that although learned Magistrate passed an interim order in the application filed by the Defendant Under Section 12 on 26.11.2016 but said order was interim order which was passed on the satisfaction of the Magistrate that "the application prima facie disclosed that the Respondent is committing or has committed an act of domestic violence". For granting any relief by the Civil Court Under Section 19 it has to be proved that the Respondent is committing or has committed an act of domestic violence on the aggrieved person. To treat a person as the "Respondent" for purposes of Section 2(q) it has to be proved that person arrayed as Respondent has committed an act of domestic violence on the aggrieved person.
For the purposes of determination of right of Defendant Under Sections 17 and 19 read with Section 26 in the suit in question the Plaintiff can be treated as "Respondent", but for the grant of any relief to the Defendant or for successful resisting the suit of the Plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the Defendant, only then the relief can be granted by the Civil Court to the Defendant.
What is the meaning and extent of the expression "save in accordance with the procedure established by law" as occurring in Section 17(2) of Act, 2005? - HELD THAT:- The expression "save in accordance with the procedure established by law", in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further notice that in Sub-section (2) the injunction is "shall not be evicted or excluded from the shared household save in accordance with procedure established by law". Thus, the provision itself contemplates adopting of any procedure established by law by the Respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household - The High Court in the impugned judgment has also expressed opinion that suit filed by the Plaintiff cannot be held to be non-maintainable with which conclusion we are in agreement.
In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/allotment/license is in the name of husband, father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo Under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the "Respondent", i.e., one who is Respondent within the meaning of Section 2(q) of Act, 2005.
Whether the husband of aggrieved party (Defendant) is necessary party in the suit filed by the Plaintiff against the Defendant? - HELD THAT:- When the matter is remanded back to the Trial Court, Trial Court's discretion ought not to have been fettered by issuing such a general direction as noted above. The general direction issued in paragraph 56(i) is capable of being misinterpreted. Whether the husband of an aggrieved person in a particular case needs to be added as Plaintiff or Defendant in the suit is a matter, which need to be considered by the Court taking into consideration all aspects of the matter - direction in paragraph 56(i) be not treated as a general direction to the Courts to implead in all cases the husband of an aggrieved person and it is the Trial Court which is to exercise the jurisdiction Under Order I Rule 10. The direction in paragraph 56(i) are, thus, need to be read in the manner as indicated above.
In the present case, although husband of the Defendant was not a necessary party but in view of the pleadings in the written statement, the husband was a proper party.
What is the effect of orders passed Under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction? - HELD THAT:- On conjoint reading of Sections 12(2), 17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, it can safely be said that the proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings Under Section 125 of the Code of Criminal Procedure for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/family court for the reliefs under the Hindu Adoption and Maintenance Act. However, as observed hereinabove, the findings/orders passed by the one forum has to be considered by another forum - The order passed under D.V. Act whether interim or final shall be relevant and have to be given weight as one of evidence in the civil suit but the evidentiary value of such evidence is limited. The findings arrived therein by the magistrate are although not binding on the Civil Court but the order having passed under the Act, 2005, which is an special Act has to be given its due weight.
Thus, following conclusions have been arrived:
(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act Under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
(ii) The judgment or order of criminal court granting an interim or final relief Under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the Appellant as well as by the Defendant claiming a right Under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.
The High Court has rightly set aside the decree of the Trial Court and remanded the matter for fresh adjudication - appeal dismissed.
........
|
9911796707
