|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1843 Records
-
2019 (11) TMI 1846
Clandestine removal - removal of excisable goods without payment of Excise Duty - statements and documents presented by the prosecution, is substantive evidence against the accused under the Central Excises and Salt Act, 1944 (CESA) or not - invocation of Section 9-D(1)(a) of the CESA - HELD THAT:- From Section 9-D of the CESA it can be inferred that a Statement of a person recorded by any Central Excise Officer of a Gazetted rank can be treated as a substantive piece of evidence, without he being examined in the Court, provided the Department is able to establish the existence of the conditions set out in sub-section (a). The conditions set out in sub-section (a) are in pari materia with the ones set out in the first clause of Section 33 of the Evidence Act.
Ex hypothesis the Department should first adduce evidence before the Court that the deponent is dead or cannot be found or is incapable of giving evidence, etc. as a condition precedent for treating his Statement recorded under Section 9-D(1) of the CESA as a substantive piece of evidence. Section 9-D(2) of the CESA is a little different. In that, if the deponent turns hostile, the Court can rely upon his previous statement in the interests of justice. In this case, the Department has failed to prove the ingredients of Section 9-D(1)(a) of the CESA. An endorsement by the Public Prosecutor or the Complainant that he is giving up the examination of the Witness on the ground that they are not able to trace him is not enough. An Officer should testify in the Court about the conditions set out in Section 9-D(1)(a) of the CESA and subject himself to the cross-examination of the defence. Otherwise, merely admitting such Statements as substantive evidence on the ipse dixit of an endorsement made by the Prosecutor or the Officer in the Memorandum of evidence would lead to undue prejudice to the Accused.
The provisions of Section 9-D(1)(a) of the CESA being in pari materia with Section 33 of the Evidence Act, the principles governing the invocation of Section 33, ibid., will apply to a case under Section 9-D(1)(a) of the CESA as well.
It is an Exculpatory Statement and not an Inculpatory Statement to qualify as a confession. Though all these documents including the Statements of Witnesses can be used in the Adjudication proceedings as substantive evidence, the same cannot be put to use in a criminal trial, unless they pass the relevancy and admissibility tests laid down by the Evidence Act, read with the special rules of evidence under the CESA. Adjudication Order under the CESA and the payment of penalty therein, cannot ipso facto prove the commission of the offence by the Accused in a Criminal prosecution. In the words of late lamented Professor Dr. V. Nageswara Rao, the celebrated author of the book "Indian Evidence Act - A Critical Commentary", 'absence of evidence of guilt is not evidence of absence of guilt'. Thus, the Accused are acquitted only on the ground of "absence of evidence" and it is made clear that their acquittal will not, in any way, have bearing on the Adjudication proceedings under the CESA.
Conclusion - i) The statements and documents can only be treated as substantive evidence under the CESA if the specific conditions set out in Sections 9-D and 36-A are strictly met. ii) There is a necessity for the prosecution to prove the conditions for admissibility of evidence under Section 9-D(1)(a), which were not satisfied in this case. iii) The presumption under Section 36-A of the CESA requires the documents to be produced or seized from the accused, which was not the case here.
Appeal allowed.
-
2019 (11) TMI 1845
Addition u/s 68 - bogus LTCG - As per AO LTCG claimed was an accommodation entry - HELD THAT:- We note that learned CIT(A) has given a finding that there is no economic or financial basis as to how the shares of a little known company jumping manifold in no time giving the assessee a windfall of capital gain. The finding of CIT(A) and his reasoning are fully in conformity with the discussion in the case of Sanjay Bimalchand Jain [2017 (5) TMI 983 - BOMBAY HIGH COURT] Assessee’s appeal stands dismissed.
-
2019 (11) TMI 1844
Enforcement of an international/foreign arbitral award - violation of court order - main contention of the petitioner was that despite the respondents violating the undertakings time and again restraint orders were not being passed - HELD THAT:- Interestingly, the main promoters of RHC and OIL i.e. MMS and SMS were the biggest unit holders in RHT when it was initially incorporated. The statistics of unit holding as on 20.06.2017 of RHT Trust, Singapore shows that SMS, MMS, their family members, FHHPL, FHL and RHC virtually owned the RHT trust. That situation has now changed and now the situation is such that the companies/associations of which MMS and SMS are partners are no longer visibly present and there are other persons who are there. When and how the holdings in RHT trust were transferred by various people is a matter which is required to be gone into.
The transactions were made by MMS, SMS, RHC, OIL and FHL to defeat the rights of the petitioner despite making undertakings to the High Court of Delhi that no action would be taken to prejudice petitioner’s rights. These transactions are in wilful disobedience of the order of this Court dated 14.12.2018 read in conjunction with the earlier orders. Suo moto notice of contempt issued and the Registry directed to register a fresh contempt petition with regard to the violation of the order dated 14.12.2018 in which RHC, OIL, MMS, SMS and FHL shall be arrayed as contemnors. FHL is directed to disclose the list of directors/officials actively involved in the running of the company for the period 01.01.2018 to 31.01.2019.
Sameer Gehlaut, Director of Indiabulls Housing Finance Limited and Director of Indiabulls Ventures Limited (Contemnor Nos.1 & 5), Gagan Banga, Director of Indiabulls Housing Finance Limited and Director of Indiabulls Ventures Limited (Contemnor Nos.2 & 6), Ashwini Kumar Hooda, Director of Indiabulls Housing Finance Limited (Contemnor No.3), Sachin Chaudhary, Director of Indiabulls Housing Finance Limited (Contemnor No.4), Divyesh Bharat Kumar Shah, Director of Indiabulls Ventures Limited (Contemnor No.7) and Pinank Jayant Shah, Director of Indiabulls Ventures Limited (Contemnor No.8), who are active directors of IHFL and IVL of knowingly and wilfully disobeying the orders of this Court dated 11.08.2017, 31.08.2017 and 15.02.2018 as continued on 23.02.2018 and find them guilty of committing contempt of this Court.
Malvinder Mohan Singh, Director of Oscar Investments Limited and Director of RHC Holding Private Limited (Contemnor Nos.9 and 12) and Shivinder Mohan Singh, Director of Oscar Investments Limited and Director of RHC Holding Private Limited (Contemnor Nos.10 and 13) have knowingly and wilfully violated the orders of this Court dated 11.08.2017, 31.08.2017 and 15.02.2018 as continued on 23.02.2018 - both of them are held guilty of committing Contempt of this Court. We give one chance to them to purge themselves of the contempt.
List the present contempt petition on 03.02.2020 when all the contemnors named hereinabove shall remain present in the Court.
-
2019 (11) TMI 1843
Weighted deduction u/s 35(1)(ii) - as alleged assessee to have made bogus donations - HELD THAT:- Tribunal in the case of Narbheram Vishram [2018 (11) TMI 1314 - ITAT KOLKATA] whereby the issue of donation u/s 35(1)(ii) of the Act has been discussed and adjudicated in favour of the assessee.
-
2019 (11) TMI 1842
Export of Service or not - Business Auxiliary Service - consideration of the marketing / sales promotion services provided in India - payment of commission to the assessee in freely convertible foreign currency - As decided by CESTAT [2019 (1) TMI 975 - CESTAT BANGALORE] assessee is not liable to pay service tax as the service rendered by them fall under the definition of export of service.
HELD THAT:- Issue notice.
Mr. Pawan Shree Agrawal, learned counsel accepts notice on behalf of respondent No. 1. Counter Affidavit, if any, be filed within six weeks. Tag with [2015 (10) TMI 2860 - SC ORDER]
-
2019 (11) TMI 1841
Conviction of Accused for offences Under Section 354 and Section 511 read with Section 376 Indian Penal Code - attempt to rape - HELD THAT:- In the present case, the statement rendered by the complainant-victim (P.W. 1) is corroborated by the daughter of the complainant-victim (P.W. 2) who is an eye-witness to the said incident, husband of the complainant-victim (P.W. 3) and independent witness Sohan Lal (P.W. 4). The courts below have observed that although these witnesses were subjected to lengthy cross-examination, they have remained persistent in their statements and there was no material contradiction so as to raise any doubt regarding their credibility.
In the case at hand, prior to the commission of the offence, the Accused-Appellant had attempted to molest the complainant-victim on the same day itself. Later that night, the Accused-Appellant forcibly entered the house of the complainant-victim in a drunken state, being aware about the absence of her husband. Thereafter, the Accused-Appellant, exerting criminal force, pounced upon the complainant-victim and forcibly lifted her petticoat. Although, the complainant-victim pleaded the Accused to stop considering the fact that she was his aunt; he responded stating, it does not matter to him. The aforesaid action of the Accused-Appellant is sufficient to prove his culpability.
Herein, although the complainant-victim and her daughter were pleading with the Accused to let the complainant-victim go, the Accused-Appellant did not show any reluctance that he was going to stop from committing the aforesaid offence. Therefore, had there been no intervention, the Accused-Appellant would have succeeded in executing his criminal design. The conduct of the Accused in the present case is indicative of his definite intention to commit the said offence.
Further, the plea of the Accused-Appellant regarding the delay in registering the FIR has been duly considered by both the courts below. It has been duly noted that the husband of the complainant-victim (P.W. 3) was staying in Nandprayag while the incident occurred in the remote village of Salna. Subsequent to the incident, the complainant-victim first travelled to meet her husband (P.W. 3). After narrating the said incident to him, she further travelled to register a complaint before Chief Judicial Magistrate, Chamoli, which is again far off from the place of occurrence. Considering the aforesaid factual scenario, the delay in registering the FIR does not affect the case of the prosecution adversely.
Considering the facts and circumstances, the guilt of the Accused-Appellant has been established beyond doubt. In our opinion, therefore, the courts below have rightly convicted and sentenced the Accused - Appeal dismissed.
-
2019 (11) TMI 1840
Exemption u/s 11 - Assessment of trust - acceptance of foreign contribution by an association having definite cultural, economic, educational religion or social programme - as submitted entire account of the Trust is being regularly audited and the same is being approved by the Income Tax Authorities for Tax exemption considering the status of the Trust as a public religious Trust -Trust's registration u/s 12AA of the Income Tax Act was relevant to the FCRA application or not? - HELD THAT:-
HELD THAT:- Appellant Trust has desperately failed to carry out the real object, for which the Trust has been created. Under these circumstances, the appellants' contention that they have filed the application for the purpose of obtaining the Foreign Contribution to carry out the welfare activities of the public, is only with a view to get the money under the umbrella of welfare activities.
Therefore, this court is of the view that the contention of the appellant Trust that the respondent has mechanically rejected their application has no merits. The respondent has considered the aims and services rendered by the appellant Trust and also the welfare activities and thereafter, passed the order rejecting the application of the appellant.
As stated by this Court above, the appellant Trust has been spending very meagre amount to the welfare activities, when the main intention for the constitution of the Trust is only for welfare activities and on perusal of the balance sheet, it clearly appears that they are not on the welfare activities, on the other hand it shows that there are lot of income out of the rental income and through other modes, which appears that they are more involved in commercial activities than the welfare activities. The revenue of the appellant Trust for the year ending of 31.03.2019 is more than Rs. 8 Crores.
When the revenue was Rs. 8 Crores and the Trust was created for the purpose of welfare activities, not only for the particular religion, but also for all the religion, here towards the welfare activities, the amount spent by the appellant Trust was very meagre, which clearly shows the intention of the Management, not much on the welfare activities, but on the other activities including in the commercial activities.
Even on the mere perusal of the balance sheet, it appears that the involvement of the appellant association in the welfare activities is very very meagre even less than 1%. But on the other hand, on perusal of Trust deed it appears that the appellant association going to involve completely in the welfare activities. Therefore, the acts performed by the appellant association so far, is not in accordance with the Constitution of the Trust and hence, this Court is of the view that the rejection of the application of the appellant Trust by the respondent is genuine and with the proper reason.
This Court would like to observe that as stated above, the object of the Trust and the welfare activities of the Trust is very meagre, which is less than 1% and therefore, this Court is of the opinion that the exemption granted by the Income Tax authorities also requires to be reviewed, apart from taking appropriate action for failure on the part of the appellant association to carry out the object of the creation of the Trust, through the appropriate authorities, who granted permission for Trust.
-
2019 (11) TMI 1839
Rectification petition u/s. 154 - rectification to be undertaken by allowing the expenditure incurred to earn income which was rejected by the AO - In the present case, though the assessee does not enjoy exemption u/s. 12AA of the Act, he filed return in ITR 7, he offered to tax net income earned from running of school. AO treated gross receipts as taxable income and levied tax at maximum marginal rate of tax.
HELD THAT:- As in the present case, when the AO considered the gross receipts as income, he should also have considered the expenditure claimed to be incurred in connection with earning of gross receipts. In the event, he feels that it requires verification whether or not, the expenditure was incurred for earning gross receipts then the only option available to the AO is to convert the case into scrutiny assessment.
AO cannot ignore the information contained in other part of return of income which is against him. The taxing authorities exercise quasi-judicial powers and in doing so they must act in a fair and not a partisan manner. Although it is part of their duty to ensure that no tax which is legitimately due from the assessee should remain unrecovered, they must also at the same time not act in a manner as might indicate that scales are weighted against the assessee.
It is impossible to subscribe to the view that unless those authorities exercise the power in a manner most beneficial to the revenue and consequently most adverse to the assessee, they should be deemed to have exercised it in a proper and judicious manner. In any event the AO should have acted fairly in disposing the petition filed u/s. 154 which he failed to do so and we highly deprecate the practice adopted by the AO and the CIT(A) had also not applied his mind and upheld the order of the AO. We reverse the orders of the lower authorities and allow the appeal of the assessee.
Appeal filed by the assessee stands allowed.
-
2019 (11) TMI 1838
Lifting of attachment on properties for liquidation through auction - HELD THAT:- Liquidator has informed that there is a Financial Creditor i.e. Bank of Baroda having financial debt of Rs. 14 crores. Since the Liquidation Order has already been passed therefore the properties are to be liquidated and the amount of the liquidated properties are to be disbursed among all Operational Creditors and Financial Creditor as per law prescribed under Insolvency Code.
The Liquidator is directed to accord the consent from the Authorities of the Sale Department. It is hereby directed to lift the attachment so that the properties can be liquidated through process of auction as per law and directed to serve this copy to the concerned officer.
Application allowed.
-
2019 (11) TMI 1837
Disallowance u/s 14A - investments which yielded exempt income during the year under consideration - By following the decision in the case of Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] CIT(A) directed the AO to recompute the disallowance only on the investments which yielded exempt income during the year under consideration are to be included for the purpose of average value of investments.
HELD THAT:- We have perused the said case law, wherein, the Special Bench of the Delhi Tribunal has observed that only those investments are to be considered for computing average value of investment which yielded exempt income during the year. If an investment has yielded exempt income in a particular year then, it will enter the computation of average value of investments for the purposes of Rule 8D(2)(iii). Accordingly, by following the above decision, the ld. CIT(A) directed the Assessing Officer to recomputed the disallowance in line with the directions of the Special Bench of the Tribunal. Thus, we find no infirmity in the order passed by the ld. CIT(A) and therefore, the ground raised by the Revenue stands dismissed.
Disallowance u/s 14A while computing book profit under section 115JB - In the case of ACIT v. Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] Delhi Special Bench of the Tribunal has also given a categorical findings that the computation under clause (f) of Explanation 1 to section 115JB(2) of the Act is to be made without resorting to computation as contemplated under section 14A read with rule 8D. Thus, this issue needs to be remitted back to the file of the Assessing Officer for fresh adjudication and the Assessing Officer is directed to compute disallowance of expenses relatable to earning of exempt income for computation of book profit under clause (f) of Explanation 1 to section 115JB(2).
Appeal filed by the Revenue is partly allowed for statistical purposes.
-
2019 (11) TMI 1836
Conviction for offence u/s 489-B and 489-C of the Indian Penal Code read with Section 34 of the IPC - possession of FICN - Trafficking or not - quantum of sentences imposed - HELD THAT:- he raid, interception and recovery were on the basis of secret information, the reception of which, and the modality of the raid and recovery have been noticed by us. 500 pieces of 100 rupees denomination FICN, 7 pieces of 1000 rupees denomination FTCN and 9 pieces of 500 rupees denomination FICN wrapped in a newspaper and kept in a polly bag were recovered from Mokaram Mondal (one of the accused). Sunil Pramanick (one of the appellants) was also searched and 27 pieces of 500 rupees denomination FICN were recovered. Jubeda Chitrakar (one of the appellants) whose house was also raided led to recovery of 20 pieces of 500 rupees denomination FICN and 5 pieces of 1000 rupees denomination FICN. Thereupon, Jubeda was arrested. Again search and seizure was conducted leading to recovery of FICN from different other accused persons who are not amongst the appellants. They were also convicted. The appellants did not offer any explanation when questioned under Section 313 Cr.P.C. regarding the possession of FICN. Nor was any evidence adduced in defense to explain the possession of FICN.
The possession of FICN of such quantity is trafficking, and, therefore, falling under the incriminating activity which made the accused/appellants offenders punishable under Section 489-B as well, apart from the liability for committing offences punishable under Section 489-C. For the afore-said reasons the conviction of the appellants under Sections 489-B as well as 489-C stands - the finding of guilt and the conviction of the appellants by the court below affirmed.
Sentence imposed - court below has imposed rigorous imprisonment of eight years and fine of Rs. 8,000/- in default rigorous imprisonment for three months under Section 489-B of the IPC and rigorous imprisonment of six years with a fine of Rs. 5,000/- in default rigorous imprisonment for two months under Section 489-C of the IPC - HELD THAT:- The offences which are described and punishment prescribed in the sections which are grouped under the Heading "Of Currency-Notes and Bank Notes" in Chapter XVIII of IPC are those, the commission of which would impact the authority of the State or Sovereign Power as well as the economic well being of the society. It is the solemn duty of the court to strike a proper balance while awarding sentence because awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers. Imposition of sentence must be commensurate with the gravity of the offence. The court must keep in view rights and needs of the society at large while considering the imposition of appropriate punishment - having regard to the quantity of FICN which has been recovered upon it being found to have been concealed and trafficked, there are no legal infirmity in the sentence imposed by the court below - Taking into consideration the totality of the facts and circumstances, it is satisfied that different sentences of imprisonment and fine as well as default sentences imposed on the appellants do not call for interference.
The conviction and sentence imposed on the appellants under the different counts are confirmed and the appeals are dismissed.
-
2019 (11) TMI 1835
CENVAT Credit - denial of credit on the premise as per N/N. 02/14-CE (N.T.) dt. 20.1.2014, the appellants were not entitled to credit prior to the N/N. 01/10-CE dt. 6.2.2010 - HELD THAT:- Tribunal in the case of M/S. SARASWATI AGRO CHEMICALS (INDIA) PVT. LTD. VERSUS CCE, JAMMU [2018 (9) TMI 1996 - CESTAT CHANDIGARH], where it was held that 'Admittedly, in this case, the show cause notice has been issued by invoking the extended period of limitation, therefore, I hold that the denial of credit is barred by limitation. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief, if any.'
The Cenvat credit cannot be denied to the appellant. Therefore, the impugned orders are set aside - Appeal allowed.
-
2019 (11) TMI 1834
Dismissal of assessee's appeal on non-prosecution - HELD THAT:- As none appeared on behalf of Assessee nor an adjournment application was filed on behalf of the Assessee though the notice fixing the date of hearing was served on Assessee, which indicates that the assessee is not interested in prosecuting the appeal, therefore, following the decision of Multiplan India (Pvt.) Ltd [1991 (5) TMI 120 - ITAT DELHI-D] we dismiss the appeal of the assessee in limine. The assessee shall however be at liberty to approach the Tribunal for recalling of this order, if prevented by sufficient cause for non-appearance on the date of hearing.
Appeal filed by the Assessee is dismissed.
-
2019 (11) TMI 1833
Income taxable in India or not - Taxability of payment received under Offshore supply contracts - DCIT/DRP held amounts received by the appellant company from f he Offshore Supply Contracts are covered by the provisions of section 44BBB and consequently liable to tax in India.
HELD THAT:- The coordinate bench of ITAT in assessee’s own case for AY 2007-08 to 2011-12 [2017 (4) TMI 758 - ITAT MUMBAI] had considered an identical issue and after considering relevant facts held that offshore supply contracts were carried out and concluded outside and hence, no income there-from deemed to accrue or arise in India in terms of section 9(1)(i) of the I.T.Act, 1961 and DTAA provisions and accordingly, not chargeable to tax.
We, further noted that an identical issue has been considered for AY 2014-15 [2018 (9) TMI 2119 - ITAT MUMBAI], where by following the earlier order of the Tribunal, the coordinate bench held that amount received towards supply of material and equipment under offshore supply contracts would not form part of the business receipts for the purpose of section 44BBB of the I.T.Act, 1961.
Thus, amount received towards offshore supply contracts, in respect of goods supplied outside India is not liable to tax in India in terms of section 9(1) of the I.T.Act, 1961 and under DTAA provisions and accordingly, direct the AO to delete additions made towards estimation of income u/s 44BBB of the I.T.Act, 1961, in respect of offshore supply contracts. Appeal filed by the assessee is allowed.
-
2019 (11) TMI 1832
Allowability of deduction u/s 80P - assessee is registered under Karnataka Souharda Sahakari Act, 1997 - assessee is a co-operative and not a co-operative society - HELD THAT:- Order of SMC Bench Siddartha Pattina Souharda Sahakari Niyamitha [2019 (7) TMI 1390 - ITAT BANGALORE] hold that the CIT (A) is not justified in holding that the assessee is not eligible or deduction u/s 80P for the reason that the assessee is registered under Karnataka Souharda Sahakari Act, 1997.
We set aside the order of CIT (A) in both years. After holding so, we restore the issue about allowability of deduction u/s 80P in both years to the file of the AO to decide the issue about allowability of deduction u/s 80P after examining this aspect as to whether the assessee is satisfying other conditions of section 80P and pass necessary order as per law after providing adequate opportunity of being heard to the assessee in both years. Appeals of the assessee are allowed.
-
2019 (11) TMI 1831
Exemption u/s 11 - addition by invoking the provisions of section 13(1)(d) - treatment of advance payment for land purchase and the enhancement of income due to a purported double claim of exemption u/s 11(1)(a) - HELD THAT:- Before us, it is assessee’s contention that the advance for purchase of land was given in earlier years i.e. 2011-12, 2012-13 and 2013-14 and in the assessment framed u/s. 143(3) of the Act, the same has been accepted by the Revenue. It is further contention of assessee that for subsequent years also, advance paid by the assessee towards purchase of land has been accepted. The aforesaid contention of assessee has not been controverted by Revenue.
Further, before us, the Ld. AR has also relied on the decision cited hereinabove in support of the contention that the advance paid towards purchase of land cannot be considered within the purview of section 13(1)(d) of the Act. These contentions of Ld. AR have not been controverted by Revenue. Considering the totality of the aforesaid facts and more so, when the payment for land has been accepted by the Revenue in earlier years and in subsequent years, a different view in isolation is not called for. Following the principle of consistency, we are of the view that invocation of provisions of section 13(1)(d) of the Act is not called for.
Enhancement of income by CIT(A) - contention of Revenue that the Term Loan which was obtained by the assessee in earlier years was claimed as application of money and therefore the claim of repayment of Term Loan as application of income would amount to double claim - HELD THAT:- Before us, the assessee submitted that the Term Loans were restricted as application of income and in support of which he also pointed to the comparative chart placed. The chart placed by the assessee in the Paper Book reveals that the assessee has not claimed the purchase of land from the loans as application of income. Before us, the Revenue has not controverted the submissions made by the assessee. We further find that CBDT in Circular No. 100 dated 24.01.1973 has held that repayment of loan originally taken to fulfill one of the objects was amount to application of income for charitable and religious purposes. CIT(A) was not justified in enhancing the income. We therefore, set aside the order of CIT(A) on this ground. Thus, the ground raised by assessee is allowed.
-
2019 (11) TMI 1830
Dishonour of Cheque - accused while appearing as witness in defence can be allowed to lead his evidence on affidavit or not - HELD THAT:- The Apex Court in case of Indian Bank Association [2014 (5) TMI 750 - SUPREME COURT] was dealing with the issue of laying down appropriate guidelines/directions to be followed by the Courts while trying complaints under Section 138 of the Negotiable Instruments Act and the issue before the Apex Court was to ensure expeditious disposal of such cases. Though, reference to observations of the Apex Court in case of Mandvi Cooperative Bank Ltd. [2010 (1) TMI 570 - SUPREME COURT] was made in para 12 of the judgment but as already discussed the law settled by the Apex Court in that case is clear and has not been set aside or dissented so far. Even that was not in issue before the Apex Court in case of Indian Bank Association.
The petitioner being an accused, who is facing trial in complaint under the provisions of Negotiable Instruments Act, is not competent to tender his evidence through affidavit and learned trial Court has not committed any error while declining permission to this effect to petitioner.
This petition has no merit and the same is dismissed.
-
2019 (11) TMI 1829
Doctrine of pith and substance - Wildlife sanctuary - area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary - Whether housing activities are permissible within a short distance of 123 meters from Sukhna Wildlife Sanctuary, such a project can be permitted to come up? - HELD THAT:- Considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, in our opinion, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco-sensitive zone around a Wildlife and has permitted setting up of high-rise buildings up to 92 meters in the area in question, which is not at all permissible.
Such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Moreso, in view of the Notification issued with respect to the Sukhna wildlife sanctuary towards the side of Chandigarh Union Territory and also considering the fact that proposal made by the Punjab Government, confining the Buffer Zone to 100 meters, has rightly not been accepted by MoEF, as the Government of Punjab as well as the MoEF, cannot be the final arbiter in the matter. The Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco-sensitive zone. The entire exercise of obtaining clearance relating to the project is quashed.
Appeal dismissed.
-
2019 (11) TMI 1828
Violation of Marketing Discipline Guidelines, 2012 - Validity of sample testing and procedural compliance - Applicability of the Control Order and Section 100 of the CrPC - Legality of the termination of dealership - stock variation beyond permissible limits and non-availability of reference density - Dealer's retail outlet was inspected, and samples were drawn, revealing non-conformities. The dealer requested retesting, which confirmed the initial findings.
HELD THAT:- The Control Order has been issued Under Section 3 of the Act. Such Act has been enacted for control of the production, supply and distribution and trade and commerce, of certain commodities. In respect of High Speed Diesel and Motor Spirit, the Control Order is issued for Regulation of supply and distribution and prevention of the malpractices. Section 6A of the Act provides for confiscation of the essential commodity whereas, Section 7 of the Act makes any person who contravenes any order made Under Section 3 liable for criminal prosecution. Therefore, we find that the effect of issuance of the Control Order is that in the event of violation of such Control Order, any person who contravenes any order made Under Section 3 of the Act i.e. the Control Order, he is liable to be punished by a Court.
Therefore, the violation of the Control Order has penal consequences leading to conviction. The provisions of search and seizure contained in Clause 7 read with Section 100 of the Code will come into play only in the event a person is sought to be prosecuted for violation of the provisions of the Control Order. Admittedly, in the present case, the dealer is not sought to be prosecuted for the violation of the Guidelines, therefore, the procedure for drawing of samples which is a necessary pre-condition under the Control Order for prosecuting an offender does not arise for consideration.
Since the Guidelines use the time line as a preferred time line, it cannot be said that the time line mentioned has to be strictly adhered to and is mandatory. The language, the purport and the effect of testing do not warrant to read the word 'preferably' as mandatory time line. It is not the case of the dealer that the sample sent after five days will lose its efficacy as the umpire sample would be sent only after the first report is confronted to the dealer. Still further, the dealer has not raised any objections regarding delay in sending the sample in the two replies submitted by him on 17th July, 2013 and 2nd January, 2014. The argument that the umpire sample in the hands of the dealer could not be tested because of sludge and to doubt the other two samples is totally untenable. Such argument is based upon conjectures as the other two samples collected and sealed cannot be permitted to be disputed only because one sample was found with sludge. There is no material to doubt the correctness of the samples taken.
The first test report dated 29th May, 2013 was found deficient in the density as also in K.V. @40 degree celsius, sulphur and distillation recovery. Even the report dated 19th August, 2013 is found to be deficient in density, K.V., distillation recovery and sulphur. The result of the second report is almost the same as the sample tested on 29th May, 2013. Thus, the Appellant has rightly terminated the dealership for adulteration of the High Speed Diesel.
However, in case of stock variation beyond permissible limits and the sample passing the quality test, it leads to suspension of sale and supply for fifteen days in the first instance, suspension of sale and supply for thirty days in the second instance and termination of dealership in the third instance. In this case, since the stock variation was beyond permissible limits and the sample failed, therefore, the action was rightly taken under Clause 5.1.11 of the Guidelines which is a critical irregularity when read with Sub-clause (i) of Clause 8.2 and Sub-clause (iv) of Clause 8.3 of the Guidelines.
The Supreme Court set aside the High Court's order, upheld the termination of the dealership, and dismissed the writ petition, validating the actions taken by the appellants as per the Guidelines.
-
2019 (11) TMI 1827
Obligation of the investigating officer flowing from Section 173 of the 1973 Code and that of the Magistrate while dealing with the police report Under Section 207 of the 1973 Code - "Document" within the meaning of Section 3 of the Indian Evidence Act, 1872 - contents of a memory card/pen-drive being electronic record - obligation to furnish a cloned copy of the contents of such memory card/pen-drive to the Accused facing prosecution for an alleged offence of rape and related offences - possibility of misuse of such cloned copy by the Accused (which may attract other independent offences under the 2000 Act and the 1860 Code).
Obligation of the investigating officer flowing from Section 173 of the 1973 Code and that of the Magistrate while dealing with the police report Under Section 207 of the 1973 Code - HELD THAT:- The investigating officer after completing the investigation, is obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the offence on such police report. Alongwith the police report, the investigating officer is also duty bound to forward to the Magistrate "all documents" or relevant extracts thereof, on which prosecution proposes to rely other than those sent to the Magistrate during investigation. Similarly, the statements recorded Under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses, are required to be forwarded to the Magistrate alongwith the police report - On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the 1973 Code, the Magistrate is then obliged to furnish copies of each of the statements and documents to the Accused.
Section 207 of the 1973 Code does not empower the Magistrate to withhold any "document" submitted by the investigating officer alongwith the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of 'statements' referred to in Sub-section (6) of Section 173 of the 1973 Code.
Whether the contents of the memory card/pen-drive submitted to the Court alongwith the police report can be treated as "document" as such? - HELD THAT:- Indubitably, if the contents of the memory card/pen-drive are not to be treated as "document", the question of furnishing the same to the Accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise - the contents of the memory card would be a "matter" and the memory card itself would be a "substance" and hence, the contents of the memory card would be a "document".
It is crystal clear that all documents including "electronic record" produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the Accused must be furnished to the Accused as per the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/pen-drive must be furnished to the Accused, which can be done in the form of cloned copy of the memory card/pen-drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial.
Whether parting of the cloned copy of the contents of the memory card/pen-drive and handing it over to the Accused may be safe or is likely to be misused by the Accused or any other person with or without the permission of the Accused concerned? - HELD THAT:- In the present case, there are eight named Accused as of now. Once relief is granted to the Appellant who is Accused No. 8, the other Accused would follow the same suit. In that event, the cloned copies of the contents of the memory card/pen-drive would be freely available to all the Accused - the Accused, who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen-drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial, are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.
The contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the Accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the Accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides.
The impugned judgment and order passed by the trial Court and the High Court respectively stand modified - Appeal allowed in part.
........
|
9911796707
