|
Advanced Search Options
Case Laws
Showing 1 to 20 of 281 Records
-
1984 (2) TMI 367
Issues Involved:
1. Non-furnishing of vital documents and statements.
2. Use of disjunctive language in the detention order.
3. Non-furnishing of court proceedings and denial statements.
4. Compliance with Article 22(5) of the Constitution of India.
Issue-wise Detailed Analysis:
1. Non-furnishing of Vital Documents and Statements:
The petitioner argued that the detention order was invalid due to the non-furnishing of the taxi driver's statement and the detenu's retraction letter dated 1-9-1983. The court examined whether these documents were material to the detaining authority's subjective satisfaction. It was concluded that the driver's statement was not material as it did not implicate the detenu, and the retraction letter was received after the detention order was issued, thus not affecting the order's validity.
2. Use of Disjunctive Language in the Detention Order:
The petitioner contended that the use of the disjunctive word 'or' instead of the conjunctive 'and' in the detention order indicated non-application of mind by the detaining authority. The court referred to previous judgments and distinguished between the concepts of public order and security of the state, which are distinct, and the activities under the COFEPOSA Act, which are interrelated. The court found that the use of 'or' did not invalidate the order as the activities were interconnected and often overlapped.
3. Non-furnishing of Court Proceedings and Denial Statements:
The petitioner claimed that the non-furnishing of the court proceedings where the detenu and others retracted their statements and the department's denial of torture allegations violated Article 22(5). The court held that the detaining authority considered the detenu's complaints and the absence of visible injuries as noted by the Magistrate. The non-furnishing of the denial statement was not deemed material as it was not relied upon by the detaining authority.
4. Compliance with Article 22(5) of the Constitution of India:
The court emphasized the constitutional safeguards under Article 22(5), requiring the detenu to be informed of the grounds of detention and provided an opportunity to make a representation. It was reiterated that all basic facts and materials influencing the detaining authority's decision must be communicated to the detenu. The court found that the detenu was furnished with all material documents, and the non-furnishing of immaterial documents did not infringe upon the constitutional rights.
Conclusion:
The court dismissed the writ petition, holding that the detention order did not suffer from any constitutional infringement or illegality. The non-furnishing of certain documents and the use of disjunctive language did not vitiate the order, as the detaining authority had sufficient material to arrive at a subjective satisfaction for detention.
-
1984 (2) TMI 366
Issues:
Quashing of orders dated 18-1-84 and 19-1-84 under Articles 226 & 227 of the Constitution.
Analysis:
The petitioner sought to quash the orders dated 18-1-84 and 19-1-84 passed by the 2nd respondent concerning the seizure of rice being transported without a release certificate. The Dy. Commissioner's orders directed the rice to be taken for levy and public distribution without satisfying the requirements of S. 6A of the Essential Commodities Act. The petitioner's counsel contended that the orders did not show the 2nd respondent's application of mind to the case and no notice was issued under S. 6B of the Act.
The Dy. Commissioner's power under S. 6A of the Act allows for disposal of essential commodities under specific conditions. However, it is crucial that the Dy. Commissioner is satisfied about two aspects before ordering disposal: prima facie case under S. 6A and the necessity for disposal in the public interest. The satisfaction of these aspects is a condition precedent for a valid order. The judgment emphasized the importance of the Dy. Commissioner's application of mind to the facts and circumstances before directing disposal under S. 6A.
The court noted that the orders were not sustainable due to the lack of satisfaction on the required aspects. However, since the rice had already been distributed, quashing the orders would serve no purpose. Instead, the Dy. Commissioner was directed to complete the proceeding under S. 6A of the Act promptly. The court allowed two months for the completion of the proceeding, as submitted by the learned H.C.G.P., and kept all contentions of the petitioner open.
In conclusion, the court directed the Dy. Commissioner to complete the proceeding under S. 6A of the Essential Commodities Act within two months, despite the distributed rice, and left all petitioner contentions open for further consideration.
-
1984 (2) TMI 365
Issues:
Interpretation of provisions under s. 81 and s. 82 of the Representation of the People Act regarding the supply of copies of documents and schedules in an election petition.
Analysis:
The Supreme Court addressed a petition challenging the rejection of an application to dismiss an election petition under s. 86 of the Representation of the People Act. The key issue was whether the failure to supply copies of documents and schedules with the election petition warranted the dismissal of the petition. The Court considered the mandatory provisions of s. 81(3) of the Act, which require the petition to be accompanied by copies for each respondent, attested by the petitioner. The Court confirmed that these conditions were met in the case at hand, emphasizing that the documents need not be served on the respondent but could be inspected in court.
The petitioner argued that documents and schedules were integral to the petition and should have been served, failing which the petition should be dismissed under s. 86. However, the Court disagreed, stating that the provisions of ss. 81 and 82 were fulfilled without the need to serve the documents separately. The Court cited a previous decision to support this interpretation, highlighting that stringent provisions must be strictly construed to uphold the Act's objective.
The Court differentiated between documents serving as evidence and those integral to the petition, emphasizing that not every document produced as evidence becomes part of the election petition. It referenced another case to clarify that sub-section (2) of s. 83 applies only to schedules or annexures that are integral parts of the petition. The Court rejected the petitioner's reliance on a subsequent decision, affirming that the earlier interpretation remained valid and consistent.
Ultimately, the Court upheld the High Court's decision, stating that no interference was warranted as the issue had been conclusively settled by prior authorities. The petition was dismissed based on the established legal principles and interpretations of the relevant statutory provisions.
In conclusion, the Supreme Court's judgment clarified the requirements for election petitions under the Representation of the People Act, emphasizing strict construction of statutory provisions and distinguishing between documents integral to the petition and those serving as evidence. The decision reaffirmed the necessity of complying with the Act's provisions while interpreting the obligations regarding the supply of copies of documents and schedules in election petitions.
-
1984 (2) TMI 364
Issues:
- Suit for specific performance of a contract
- Validity of deed of agreement
- Claim of fraudulent sale deed by defendant 3
- Contesting defendant's status as bona fide purchaser
- Onus of proof regarding prior contract knowledge
- Delay in filing the suit
Analysis:
1. The plaintiff filed a second appeal seeking specific performance of a contract dated 16-6-1969 with Ramyaad Singh for the purchase of land. The plaintiff alleged that Ramyaad Singh fraudulently sold the land to defendant 3, denying the plaintiff's legal right based on the deed of agreement. The plaintiff claimed to have advanced earnest money and repeatedly requested the defendants to execute the sale deed, which they failed to do.
2. Defendant 3 contested the suit, claiming to be a bona fide purchaser without knowledge of any prior contract. Defendant 3 alleged that the deed of agreement was forged and fabricated, orchestrated by defendants 1 and 2 to defeat his title based on sale deeds from Ramyaad Singh. The trial court dismissed the suit, finding the plaintiff's evidence suspicious and placing the onus on the plaintiff to prove defendant 3's prior knowledge.
3. The court of appeal upheld the trial court's decision, emphasizing defendant 3's bona fide purchase status and lack of prior knowledge of the alleged contract. The court considered the delay in filing the suit as a factor against the plaintiff, leading to the dismissal of the appeal.
4. In the second appeal, the plaintiff argued that the onus was wrongly placed on him and defendant 3 should prove lack of knowledge of the prior contract. The plaintiff contended that the delay in filing the suit should not be a decisive factor. However, the court upheld the lower courts' decisions, stating that the onus shifted to the plaintiff due to the denial of prior contract knowledge by the defendants.
5. The court analyzed the pleadings and evidence, concluding that the lower courts correctly placed the burden of proof on the plaintiff. The court found that defendant 3 denied knowledge of the prior contract, justifying the onus shift. Additionally, the court deemed the delay in filing the suit not fatal as long as within the limitation period, dismissing the appeal based on these findings.
6. Ultimately, the court dismissed the appeal, noting that the delay factor, though wrongly emphasized by the lower court, did not alter the main legal aspect. The court upheld the decision that the onus of proving defendant 3's prior knowledge rested on the plaintiff, leading to the denial of specific performance of the contract.
-
1984 (2) TMI 363
Issues Involved:
1. Whether the document executed by the plaintiff's father in favor of the first defendant is a mortgage by conditional sale or an outright sale.
2. Whether the present suit is under the Bengal Money Lenders Act, 1940.
3. Whether oral evidence can be admitted to prove the real nature of the impugned transaction.
4. Whether the impugned transaction is a mortgage by conditional sale or an outright sale based on the intention of the parties and the surrounding circumstances.
Issue-Wise Detailed Analysis:
1. Mortgage by Conditional Sale or Outright Sale:
The primary issue in this appeal was to determine the true nature of the document executed by the plaintiff's father in favor of the first defendant. The plaintiff alleged that the transaction was a loan secured by an ostensible sale deed, while the defendant contended it was an outright sale. The learned Munsif initially found it to be a loan transaction based on the market value of the property and the evidence provided by the pro forma Defendant No. 2. However, the learned Sub-Judge reversed this finding, concluding that the transaction was an outright sale, not a mortgage by conditional sale, as the plaintiff failed to prove any agreement for reconveyance or repayment of the loan.
2. Suit Under the Bengal Money Lenders Act, 1940:
The plaintiff claimed that the suit was under the Bengal Money Lenders Act, 1940, arguing that the transaction was a loan, hence falling under the Act's purview. The learned Sub-Judge, however, determined that the suit was for declaration and injunction under the Specific Relief Act, not under the Bengal Money Lenders Act. The court noted that the plaintiff did not comply with the procedural requirements of the Act, such as filing an application in the prescribed form for taking accounts and declaring the amount due. Therefore, the suit could not be treated as one under the Bengal Money Lenders Act.
3. Admissibility of Oral Evidence:
The plaintiff argued that oral evidence should be admissible to prove the real nature of the transaction, citing Section 40(6) of the Bengal Money Lenders Act, which allows borrowers to provide oral evidence contradicting the terms of a document witnessing a loan. However, the court held that this provision applies only if the document in question creates or witnesses a loan, which was not established in this case. The impugned document did not indicate a loan transaction, and thus, the plaintiff could not rely on Section 40(6) to admit oral evidence.
4. Determining the Real Nature of the Transaction:
The court examined whether the impugned transaction was a mortgage by conditional sale or an outright sale. The learned Sub-Judge found no evidence of an agreement for reconveyance or repayment, and the plaintiff failed to prove any stipulation for payment of interest. The court emphasized that the intention of the parties must be gathered from the document itself, and if the language is clear and unambiguous, extraneous evidence is not admissible. The impugned deed did not contain any terms indicating a mortgage by conditional sale, and the evidence suggested an absolute transfer of rights in the property. The court also considered factors such as possession and market value, concluding that the transaction was an outright sale, not a loan transaction.
Conclusion:
The appeal was dismissed, with the court affirming that the impugned transaction was an outright sale and not a mortgage by conditional sale. The suit was not under the Bengal Money Lenders Act, and the plaintiff could not rely on oral evidence to prove the real nature of the transaction. The court's decision was based on the clear and unambiguous language of the deed, the absence of any agreement for reconveyance, and the overall circumstances of the case.
-
1984 (2) TMI 362
Issues Involved:
1. Constitutionality of the entertainment tax provisions in the Bombay Entertainment Duty (Amendment) Ordinance, 1983.
2. Basis for the levy of entertainment duty.
3. Validity of the consolidated sum or lump sum tax on touring cinemas and video exhibitions.
4. Definition and scope of "payment for admission" under the Principal Act and the Ordinance.
Detailed Analysis:
1. Constitutionality of the entertainment tax provisions in the Bombay Entertainment Duty (Amendment) Ordinance, 1983:
The petitioners challenged the provisions of the Bombay Entertainment Duty (Amendment) Ordinance, 1983, arguing that the tax imposed was illegal and ultra vires the Constitution. The Ordinance sought to amend the Bombay Entertainment Duty Act, 1923, by introducing new forms of entertainment tax, including consolidated sums and lump sums for touring cinemas and video exhibitions. The court examined whether these amendments constituted a valid tax on entertainment under Item 62 in List II of the Seventh Schedule of the Constitution.
2. Basis for the levy of entertainment duty:
Before the amendment, Section 3 of the Principal Act provided for the levy of entertainment duty on all payments for admission to any entertainment. The amendment introduced by the Ordinance maintained this provision but also added new bases for the levy, including consolidated sums for touring cinemas and lump sums for video exhibitions. The court noted that the basis for calculating the consolidated sum for touring cinemas was the gross collection capacity on the maximum number of shows permitted, rather than the actual number of shows conducted or the actual payments made for admission.
3. Validity of the consolidated sum or lump sum tax on touring cinemas and video exhibitions:
The court found that the new basis for the levy of entertainment duty on touring cinemas and video exhibitions was not a tax on actual entertainment but rather on a hypothetical or notional basis. The consolidated sum for touring cinemas was based on the maximum number of shows permitted, assuming all seats were occupied, while the lump sum for video exhibitions was based on a similar hypothetical calculation. The court held that this was not a valid tax on entertainment, as it did not take into account the actual entertainment held or the actual payments made for admission.
4. Definition and scope of "payment for admission" under the Principal Act and the Ordinance:
The court examined the definition of "payment for admission" under Section 2(b) of the Principal Act, which included any payment made for attending or continuing to attend an entertainment. The court found that the amendments introduced by the Ordinance did not align with this definition, as they imposed a tax based on gross collection capacity or lump sum rather than actual payments for admission. The court held that the provisions of clauses (c) and (d) of Section 3(1) of the Principal Act, as amended by the Ordinance, were inconsistent with the concept of entertainment duty and therefore invalid.
Conclusion:
The court concluded that the provisions of clauses (c) and (d) of Section 3(1) of the Bombay Entertainment Duty Act, 1923, as amended by the Maharashtra Ordinance No. XXII of 1983, were ultra vires the Constitution and invalid. The court declared these clauses invalid and allowed the petitions, entitling the petitioners to a refund of any amounts paid under these provisions. The judgment emphasized that a valid tax on entertainment must be based on actual entertainment held and actual payments made for admission, rather than hypothetical or notional calculations.
-
1984 (2) TMI 361
The Allahabad High Court allowed the revision under Section 11(1) of the U.P. Sales Tax Act, finding that the Tribunal did not have sufficient material to enhance the turnover beyond the disclosed amount. The Tribunal's decision was deemed unjustified, and the revision was allowed with no costs.
-
1984 (2) TMI 360
Issues Involved:
1. Whether the assessment for the year 1953-54 dated 27-3-1962 has been made within the time prescribed by the statute or is barred by limitation.
2. Application of sections 28(1)(c) and 34(3) of the Indian Income-tax Act, 1922.
3. Validity of disallowances and additions made by the Income Tax Officer (ITO).
4. Requirement for the ITO to record reasons for applying section 28(1)(c).
Detailed Analysis:
1. Whether the assessment for the year 1953-54 dated 27-3-1962 has been made within the time prescribed by the statute or is barred by limitation:
The primary issue was whether the assessment made on 27-3-1962 was within the statutory time limit. The assessee argued that the assessment was barred by limitation as it was made after four years from the end of the assessment year. However, the department contended that the extended period of eight years under section 28(1)(c) applied due to the concealment of income and furnishing of inaccurate particulars by the assessee.
2. Application of sections 28(1)(c) and 34(3) of the Indian Income-tax Act, 1922:
The Tribunal interpreted sections 28(1)(c) and 34(3) harmoniously, concluding that the extended period of limitation under section 34(3) could be availed if the ITO was satisfied that the assessee had concealed income or furnished inaccurate particulars. The Tribunal emphasized that the ITO's satisfaction must be based on material on record and not be illusory.
3. Validity of disallowances and additions made by the Income Tax Officer (ITO):
The ITO disallowed several claims by the assessee, including bad debts, loss on revaluation of shares, and deposits treated as income from undisclosed sources. The AAC initially annulled the assessment, finding that the provisions of section 28(1)(c) did not apply. However, the Tribunal later found sufficient material to support the ITO's satisfaction that the assessee had concealed income, thus justifying the extended limitation period.
4. Requirement for the ITO to record reasons for applying section 28(1)(c):
The assessee argued that the ITO must record reasons within the limitation period for applying section 28(1)(c). The court rejected this argument, stating that section 34(3) does not mandate the recording of reasons. It only requires that the ITO had good reasons to believe that the assessee concealed income or furnished inaccurate particulars.
Conclusion:
The court concluded that the assessment was made within the extended period of limitation as prescribed by section 34(3) due to the applicability of section 28(1)(c). The Tribunal's findings were based on material evidence, and the ITO's satisfaction regarding the concealment of income was justified. Consequently, the court answered the referred question in the affirmative, in favor of the department and against the assessee. The department was entitled to costs, with counsel's fee set at Rs. 250.
-
1984 (2) TMI 359
Issues:
Challenge to order rejecting the petition to recall ad interim injunction order based on violation of Section 80(2) C.P.C.
Analysis:
The case involved an application under Section 115 C.P.C. challenging the order of the Munsif rejecting the petitioners' request to recall an ad interim injunction order. The opposite parties had filed a suit seeking declaration of title and possession over a land, along with an application for injunction. The petitioners argued that the suit was not maintainable without proper notice under Section 80(1) C.P.C. and that the ex parte injunction order was passed in violation of Section 80(2) C.P.C. The Munsif rejected the petitioners' application, citing reasons such as the fixed date for objections and ongoing separate proceedings under Order 39, Rule 1 C.P.C. However, the High Court found the Munsif's reasoning lacking, stating that he failed to address the urgency of the matter and the jurisdictional issues raised by the petitioners. The High Court emphasized the mandatory nature of Section 80 C.P.C. and directed the Munsif to dispose of the injunction matter promptly, vacating the impugned order.
In conclusion, the High Court found no justification for the trial court's delay in considering the petitioners' objections regarding the ad interim injunction order. The court emphasized the mandatory nature of Section 80 C.P.C. and directed the trial court to promptly address the injunction matter in accordance with the law. Both parties were instructed to appear before the trial court for further directions.
-
1984 (2) TMI 358
Issues Involved:
1. Validity of the leave granted under Section 92 of the Code of Civil Procedure.
2. Whether the suit was instituted in a representative capacity for public interest.
3. Whether the plaint disclosed a cause of action.
4. Whether the amendment of the plaint can be allowed under Order VI, Rule 17 of the Code of Civil Procedure.
Issue-wise Detailed Analysis:
1. Validity of the Leave Granted Under Section 92 of the Code of Civil Procedure:
The plaintiffs, residents of Delhi and followers of Sanatan Dharam, filed a suit under Section 92 of the Code of Civil Procedure against the Badri Bhagat Jhandewalan Temple Society and others, alleging mismanagement and misappropriation of trust properties. The plaintiffs moved Civil Rule 4/82 for permission to sue in a representative capacity. The Court granted permission with the order: "Subject to just exceptions, the permission to sue under section 92 C.P.C. is granted."
The defendants contended that the leave was conditional and thus invalid. The Court clarified that the words "subject to just exceptions" were added ex abundanti cautela (by way of abundant caution) and did not render the leave provisional or interim. The Court emphasized that the leave granted was absolute and final, ensuring the defendants' rights to contest the suit were reserved.
2. Whether the Suit was Instituted in a Representative Capacity for Public Interest:
The defendants argued that the suit was filed to vindicate personal rights of certain individuals rather than in a representative capacity for public interest. They pointed out that the plaintiffs were associated with a rival faction involved in litigation against the current trustees.
The Court noted that the plaintiffs had alleged large-scale misappropriation of trust properties and funds, and prayed for the removal of current trustees and the appointment of new trustees. The Court found that the suit was indeed instituted in a representative capacity for public good, aiming to address the mismanagement and misappropriation of the trust properties.
3. Whether the Plaint Disclosed a Cause of Action:
The defendants argued that the plaint did not disclose any cause of action, as the plaintiffs' interest in the trust was not substantial and existing but merely remote and potential. They cited several cases to support their contention that the interest must be real and substantial.
The Court distinguished the present case from the cited cases, noting that the plaintiffs were residents of Delhi and regular worshippers at the temple. The Court found that the plaintiffs had a substantial and existing interest in the proper management of the temple and trust properties. The Court held that the plaint disclosed a cause of action sufficient to proceed with the suit.
4. Whether the Amendment of the Plaint can be Allowed Under Order VI, Rule 17 of the Code of Civil Procedure:
The plaintiffs filed I.A. 3553/83 seeking to amend the plaint to furnish more particulars about their interest in the trust. The defendants opposed the amendment, arguing that the Court had no jurisdiction to allow an amendment if the plaint did not disclose a cause of action.
The Court disagreed with the defendants' contention, stating that Order VI, Rule 17 allows for amendments at any stage of the proceedings to determine the real questions in controversy. The Court emphasized that the provisions for amendment are intended to promote justice, not to defeat it. The Court allowed the amendment, noting that it did not introduce a new cause of action but merely sought to rectify an omission in the original pleadings.
Conclusion:
The Court rejected the defendants' application (I.A. 383/83) to dismiss the plaint and allowed the plaintiffs' application (I.A. 3553/83) to amend the plaint. The plaintiffs were ordered to pay Rs. 250 as costs to the contesting defendants. The suit was permitted to proceed, addressing the allegations of mismanagement and misappropriation of trust properties in the interest of the public and the beneficiaries of the trust.
-
1984 (2) TMI 357
Issues Involved:
1. Applicability of Section 23 of the University Grants Commission Act, 1956 to Commercial University Limited (CUL).
2. Legislative competence of Parliament to enact the University Grants Commission Act, 1956.
3. Right of minority communities to establish universities under Article 30 of the Constitution.
4. Resignation of the accused persons from CUL and its implications on prosecution.
Issue-Wise Detailed Analysis:
1. Applicability of Section 23 of the University Grants Commission Act, 1956 to Commercial University Limited (CUL):
The appellants were prosecuted under Section 24 of the University Grants Commission Act, 1956 for continuing to use the word "University" in the name of Commercial University Limited (CUL) beyond the two-year period allowed by the proviso to Section 23. The appellants argued that since CUL was incorporated under the Companies Act of 1913, it should be exempt from the prohibition in Section 23. The court disagreed, stating that the Act only recognizes universities established or incorporated under specific Central, Provincial, or State Acts, and not those incorporated under general statutes like the Companies Act. The court emphasized that the legislative intention was to eradicate the mischief of unauthorized institutions awarding degrees and using the term "University."
2. Legislative Competence of Parliament to Enact the University Grants Commission Act, 1956:
The appellants contended that the Act was ultra vires because "Education including universities" was a State subject under Entry 11 of List II of the Seventh Schedule of the Constitution. However, the court noted that the Act was intended to coordinate and determine standards in universities, which falls under Entry 66 of List I. The court held that Parliament had the competence to legislate on this matter, as the Act's primary purpose was to regulate standards in higher education, a field covered by Entry 66. The court also cited several precedents to support the view that incidental encroachments on State subjects do not invalidate a law if it is substantially within the legislative competence of Parliament.
3. Right of Minority Communities to Establish Universities under Article 30 of the Constitution:
The appellants argued that the Act's restrictions were ultra vires because Article 30 guarantees minority communities the right to establish educational institutions, including universities. The court referred to the case of S. Azeez Basha v. Union of India, which recognized the right of minority communities to establish universities. However, the court noted that CUL was not a minority institution, and therefore, the argument based on Article 30 was not applicable in this case. The court declined to examine the vires of the Act concerning minority rights as it was not relevant to the present appeals.
4. Resignation of the Accused Persons from CUL and Its Implications on Prosecution:
The appellants claimed that they had resigned from CUL between 1962 and 1970, similar to another accused, Shri Anand Singh, against whom the prosecution was withdrawn. The prosecution did not dispute these resignations. The court acknowledged that there was a bona fide belief among those connected with CUL that its incorporation under the Companies Act satisfied the requirements of the University Grants Commission Act. Given these circumstances, the court found it appropriate to acquit the appellants and set aside their convictions under Section 24 of the Act. The fines, if already paid, were ordered to be refunded.
Additional Considerations:
The court suggested that CUL could apply to the Central Government for recognition as a deemed university under Section 3 of the Act. This would allow CUL to confer degrees legally. The court also recommended that the Central Government consider whether institutions recognized under Section 3 should be exempt from the prohibition in Section 23, potentially through an amendment to the Act. The court provided CUL with a reasonable time until the end of 1984 to take appropriate steps to avoid further prosecution under the Act.
Conclusion:
The appeals were partly allowed, with the court acquitting the appellants and setting aside their convictions under Section 24 of the University Grants Commission Act, 1956. The court provided guidance on the potential for CUL to seek recognition as a deemed university and suggested legislative amendments to address the issues raised.
-
1984 (2) TMI 356
The High Court of Bombay decided in favor of the assessee in a case involving the possession of contraband gold. The Tribunal found that the assessee was not the owner of the gold but only a carrier, based on evidence of his poor financial condition and lack of ownership indicators. The addition of Rs. 65,000 to the assessee's income was deemed unjustified under section 69A of the IT Act, 1961. The Tribunal's findings were considered to be based on evidence, and the questions were answered in favor of the assessee.
-
1984 (2) TMI 355
The High Court of Bombay dismissed the application under section 256(2) of the Income-tax Act, 1961. Question 1 was decided in favor of the assessee based on a previous court decision. Question 2 was also decided in favor of the assessee as the Tribunal's finding was based on evidence and not challenged by the department. The Rule was discharged with no order as to costs.
-
1984 (2) TMI 354
Issues:
- Deduction of secret commission paid by the assessee to employees of various mills for income tax assessment purposes.
Analysis:
The judgment pertains to an application under section 256(2) of the Income-tax Act, 1961, seeking direction for the Tribunal to state a case and refer questions regarding the deduction of a specific amount as secret commission for determination by the Court. The primary dispute revolves around whether an amount of Rs. 26,112 should be allowed as a deduction from the assessee's total income. The assessee, engaged in supplying mill stores to various mills, claimed this sum as a deduction for secret commissions paid to employees of mills purchasing goods from the assessee. The Income Tax Officer (ITO) initially disallowed the deduction, citing lack of evidence establishing the payment's connection to the assessee's business. However, the Commissioner (Appeals) overturned this decision, which was subsequently upheld by the Tribunal, leading to the current application challenging the Tribunal's order.
The critical issue before the Court was the existence of evidence proving the payment of the secret commission and its direct link to the assessee's business. The Tribunal's decision was based on the assessee's submission that the board of directors had approved these payments, which had been a recurring practice without objection from the tax department in previous years. Additionally, the assessee provided a detailed list of mills, agents, and employees receiving the commission, along with the value of goods sold to these mills. Despite the non-disclosure of individual names to protect the employees from potential repercussions, the Tribunal found sufficient circumstantial evidence indicating a connection between the payments and the assessee's business activities.
Referring to a previous case, the Court emphasized the Tribunal's role as the final arbiter of facts and upheld its findings unless unsupported by evidence. In this instance, as the Tribunal believed the assessee's claims regarding the payments and their business nexus, the Court declined to interfere with the factual determinations made by the Tribunal. Consequently, the Court discharged the rule with costs, affirming the Tribunal's decision to allow the deduction of Rs. 26,112 as a valid business expense for income tax assessment purposes.
-
1984 (2) TMI 353
Issues Involved:
1. Validity of prosecution during the pendency of appeal.
2. Whether contravention of Section 9(1)(b) constitutes an offence.
3. Basis of prosecution on incorrect and irrelevant particulars.
4. Consideration of government policy on repatriation.
5. Adequacy of adjudication proceedings versus criminal prosecution.
6. Alleged arbitrary action and violation of Article 14.
7. Requirement of a show cause notice before filing a complaint.
Detailed Analysis:
1. Validity of prosecution during the pendency of appeal:
The petitioner argued that the criminal prosecution should not proceed while his appeal against the adjudication order was pending. The court clarified that the power to adjudicate under Section 51 and the right to prosecute under Section 56 of the Foreign Exchange Regulation Act, 1973, are independent. Section 56 explicitly states that criminal prosecution can proceed "without prejudice to any award of penalty by the adjudicating officer." Thus, the criminal prosecution is independent of the adjudication proceedings, and the pendency of the appeal does not bar the prosecution.
2. Whether contravention of Section 9(1)(b) constitutes an offence:
The petitioner contended that only contraventions of Sections 44 and 58 constitute criminal offences under the Act. The court refuted this, stating that Section 56 penalizes contraventions of various sections of the Act, including Section 9(1)(b). Sections 44 and 58 deal with specific offences by Enforcement Directorate officers, while Section 56 covers broader contraventions, making the petitioner's argument untenable.
3. Basis of prosecution on incorrect and irrelevant particulars:
The petitioner claimed that the prosecution was based on incorrect facts, specifically regarding alleged contraventions in 1966 when he was not a repatriate. The court dismissed this argument, emphasizing that the petitioner's past conduct, regardless of his status at the time, was relevant. The court noted that the petitioner had a history of illicit monetary transactions, which justified the prosecution.
4. Consideration of government policy on repatriation:
The petitioner argued that the Deputy Director failed to consider the Government of India's policy granting exemptions and relaxing rules for repatriates from Sri Lanka. The court found that the exemptions were related to income-tax assessments and did not waive the restrictions under the Foreign Exchange Regulation Act. Therefore, the prosecution was justified despite the government policy.
5. Adequacy of adjudication proceedings versus criminal prosecution:
The petitioner argued that the Deputy Director should have chosen either adjudication or prosecution, not both. The court dismissed this argument, noting that the current Act does not require stopping adjudication proceedings if prosecution is warranted. Sections 51 and 56 operate independently, allowing for both adjudication and prosecution based on the severity of the contravention.
6. Alleged arbitrary action and violation of Article 14:
The petitioner claimed that the Deputy Director acted arbitrarily by prosecuting him while showing leniency to another individual, Amirdham. The court found that the facts of Amirdham's case were different, and he was not a repeat offender like the petitioner. The decision to prosecute depends on the specific facts of each case, and there was no violation of Article 14.
7. Requirement of a show cause notice before filing a complaint:
The petitioner argued that the Deputy Director should have issued a show cause notice before filing the criminal complaint, as mandated by the proviso to Section 61(2). The court held that the proviso requires an opportunity to show cause at some point before the complaint, not necessarily immediately before filing. Since a show cause notice was issued during the adjudication proceedings, it satisfied the requirement, making a second notice unnecessary.
Conclusion:
The petition to quash the proceedings was dismissed. The court instructed the trial court to dispose of the case on its merits, uninfluenced by the dismissal of the petition or the observations made in the judgment.
-
1984 (2) TMI 352
Issues Involved:
1. Seniority of the appellant in the cadre of District Judges.
2. Entitlement of the appellant to the salary and allowances in the selection grade scale.
3. Posting of the appellant as an Inspecting Judge.
Issue-wise Detailed Analysis:
1. Seniority of the appellant in the cadre of District Judges:
The appellant contended that his seniority should be reckoned from the date he was initially recruited as a District Judge and posted as an Assistant Judge under Rule 5(2)(i)(b) of the Bombay Judicial Service Recruitment Rules, 1956. The High Court rejected this claim, and the Supreme Court did not consider this contention due to a delay of nearly nine years in questioning the seniority assigned in 1973.
2. Entitlement of the appellant to the salary and allowances in the selection grade scale:
The Supreme Court examined the structure of the Judicial Service in Maharashtra, noting that the Senior Branch includes District Judges. The Rules did not create a separate cadre for selection grade District Judges or Inspecting District Judges. The scale of pay for District Judges was revised over time, with resolutions in 1963, 1974, and 1975 increasing the number of posts and adjusting pay scales. The selection grade was an extension of the existing pay scale to address stagnation, not a promotion requiring selection.
The High Court's error was in treating Inspecting District Judges as equivalent to selection grade District Judges. The Supreme Court clarified that the selection grade pay scale did not involve promotion or selection and should be granted based on seniority. The appellant was entitled to the selection grade pay scale from the date his immediate junior started drawing it.
3. Posting of the appellant as an Inspecting Judge:
The High Court had guidelines for posting District Judges as Inspecting Judges, considering factors like administrative capacity and years of service. However, the Supreme Court noted that Inspecting District Judges did not form a separate cadre superior to District Judges. The refusal to post the appellant as an Inspecting Judge was within the High Court's discretion, but it did not affect his entitlement to the selection grade pay scale.
Conclusion:
The Supreme Court set aside the High Court's judgment regarding the selection grade pay scale, declaring the appellant entitled to it from the date his immediate junior began drawing it, along with consequential reliefs. The appeal was allowed in part, with no costs awarded.
-
1984 (2) TMI 351
Issues Involved
1. Relevant date for a valid sanction u/s 6 of the Prevention of Corruption Act, 1947.
2. Necessity of sanction from multiple authorities if the accused holds multiple public offices.
3. Identification of the sanctioning authority for prosecution.
4. Whether an MLA is a public servant u/s 21(12)(a) IPC.
5. Whether an MLA is a public servant u/s 21(3) and 21(7) IPC.
6. Necessity of sanction for prosecution of an MLA.
7. Identification of the competent authority to remove an MLA.
Summary
Issue (a): Relevant Date for a Valid Sanction
The court held that the relevant date for determining the necessity of a valid sanction u/s 6 of the 1947 Act is the date when the court is called upon to take cognizance of the offence. If the accused has ceased to be a public servant by that date, no sanction is required. This was affirmed by citing precedents like S.A. Venkataraman v. The State and C.R. Bansi v. State of Maharashtra.
Issue (b) and (c): Necessity of Sanction from Multiple Authorities
The court concluded that if the accused holds multiple offices, sanction is only required from the authority competent to remove him from the office alleged to have been abused. The court rejected the argument that sanction from each authority of every office held by the accused is necessary. The decision in Air Commodore Kailash Chand v. The State (S.P.E. Hyderabad) was distinguished, and it was clarified that the sanction must come from the authority related to the office alleged to have been misused.
Issue (d): MLA as a Public Servant u/s 21(12)(a) IPC
The court held that an MLA is not a public servant u/s 21(12)(a) IPC. The historical evolution of Section 21 and the recommendations of the Santhanam Committee were considered, which did not include MLAs in the definition of 'public servant.' The court also emphasized that MLAs are not in the pay of the Government (executive) but receive their remuneration from the Legislature.
Issue (e): MLA as a Public Servant u/s 21(3) and 21(7) IPC
The court found that MLAs do not fall within the purview of Section 21(3) or 21(7) IPC. Clause (3) pertains to persons discharging adjudicatory functions, which does not apply to MLAs. Clause (7) relates to persons empowered to place or keep any person in confinement, which also does not apply to MLAs.
Issue (f) and (g): Necessity of Sanction for MLA and Identification of Sanctioning Authority
Given that an MLA is not a public servant within the meaning of Section 21 IPC, no sanction is necessary for prosecuting an MLA for offences alleged to have been committed. Consequently, the question of identifying the competent sanctioning authority becomes academic and was left open by the court.
Conclusion
The court allowed the appeal, set aside the order of the Special Judge discharging the accused, and directed that the trial proceed further. The case was transferred to the High Court of Bombay for expeditious disposal. The court emphasized the importance of a speedy trial in the interest of justice for both the prosecution and the accused.
-
1984 (2) TMI 350
Issues Involved:
1. Validity of the order of requisition without specifying the public purpose.
2. Continuation of requisition for an indefinite period.
3. Challenge to the requisition order after a long delay.
4. Appellant's claim of becoming a direct tenant.
Summary:
1. Validity of the order of requisition without specifying the public purpose:
The Supreme Court held that it is not necessary for the order of requisition to explicitly set out the public purpose for which it is made. The law only requires that the requisitioning must be for a public purpose. The Court referenced the case of *State of Bombay v. Bhanji Munji & Anr.*, stating that the omission to set out the purpose in the order is not fatal as long as the public purpose is established to the satisfaction of the court. In this case, the High Court found no material to show the public purpose for which the order was made, and this view was upheld by the Supreme Court.
2. Continuation of requisition for an indefinite period:
The Supreme Court emphasized the distinction between requisition and acquisition, noting that requisition must be of temporary duration. The Court stated that continuing requisition for an indefinite period would blur the distinction between requisition and acquisition, effectively allowing the government to take over property without acquiring it and paying full market value as compensation. The Court held that the order of requisition, even if valid when made, ceased to be valid after a reasonable period of time. In this case, the requisition had continued for about 30 years, which was deemed unreasonably long.
3. Challenge to the requisition order after a long delay:
The appellant contended that the 3rd respondent could not challenge the requisition order after a lapse of over 30 years. The Supreme Court acknowledged that if the only ground of challenge was the lack of public purpose, the writ petition might have been dismissed due to the delay. However, the Court found another formidable ground of challenge: the indefinite continuation of the requisition order. This ground was sustained, and the Court held that the State Government was bound to revoke the requisition order and derequisition the flat.
4. Appellant's claim of becoming a direct tenant:
The appellant argued that by paying rent to Rukmanibai, he had become a direct tenant, making the requisition order irrelevant. The Supreme Court rejected this contention, stating that the appellant's occupation of the flat was under the order of requisition. Any payment of rent to Rukmanibai did not alter the nature of his occupation or make him a tenant. The Court upheld the High Court's decision to direct the State Government to derequisition the flat and evict the appellant.
Conclusion:
The Supreme Court dismissed the appeal, confirming the High Court's order to derequisition the flat and evict the appellant. The appellant was given time until 28th February 1985 to vacate the flat, provided he filed an undertaking within two weeks. No order as to costs was made.
-
1984 (2) TMI 349
Issues Involved:
1. Determination of compensation for acquired land.
2. Legality of the High Court's judgment post-remand by the Supreme Court.
3. Admissibility and impact of additional evidence.
Summary:
1. Determination of Compensation for Acquired Land:
The appeals challenge the compensation awarded for land acquired u/s 3(1) of the Land Acquisition Act of Hyderabad (corresponding to s. 4 of the Land Acquisition Act, 1894) for a Medical College and hospital. The Land Acquisition Officer initially awarded 4 paise per square yard for Navkhanda lands and 3 paise per square yard for Ahmadibag lands. The Civil Judge increased these to 15 paise and 12 paise per square yard, respectively. The Bombay High Court further divided the lands into zones and fixed varying compensation rates. Dissatisfied, the claimants appealed to the Supreme Court, which remanded the case to the High Court for reconsideration. The Supreme Court, upon final review, fixed the compensation at Rs. 1.50 per square yard or Rs. 7260 per acre, with statutory solatium of 15% and interest at 6% per annum on the additional compensation from the date of dispossession till payment.
2. Legality of the High Court's Judgment Post-Remand:
The Supreme Court found that the High Court exceeded its jurisdiction by reinstating its earlier judgment, which had been set aside by the Supreme Court. The High Court was expected to dispose of the appeals afresh based on the existing record or any additional evidence, but it failed to do so. The Supreme Court emphasized that judicial discipline requires lower courts to follow the directions of higher courts, citing the hierarchical nature of the judicial system.
3. Admissibility and Impact of Additional Evidence:
The Supreme Court noted that neither party presented additional evidence upon remand. The High Court's failure to consider the possibility of additional evidence and its reliance on the previously set-aside judgment was criticized. The Supreme Court decided to resolve the matter itself to avoid further delays, given the protracted nature of the litigation.
Conclusion:
The Supreme Court allowed the appeals, setting aside the High Court's judgment and determining the compensation at Rs. 1.50 per square yard with additional statutory benefits. The Court also highlighted the importance of judicial discipline and adherence to appellate directions. Costs were awarded to appellant Syed Yusufuddin Syed Ziauddin, but not to the Kausalya Devi group due to their conduct in previous proceedings.
-
1984 (2) TMI 348
Issues Involved:
1. Extent of Nepal's Right of Passage Across India
2. Definition and Scope of "Import" u/s 53 of the Copyright Act
3. Application of International Law and Treaties
4. Role and Powers of the Registrar of Copyrights
Summary:
1. Extent of Nepal's Right of Passage Across India:
The court examined whether Nepal's right of passage across India includes the transit of goods that are prohibited from being imported into India. The judgment emphasized that while international conventions and treaties provide for the transit of goods between land-locked states and the sea, they also allow for exceptions, particularly concerning the protection of intellectual property. The treaties between India and Nepal, such as the Treaty of Trade and the Treaty of Transit, contain provisions that permit India to impose restrictions to safeguard industrial, literary, or artistic property.
2. Definition and Scope of "Import" u/s 53 of the Copyright Act:
The court clarified that the term "import" in Sec. 53 of the Copyright Act means "bringing into India from outside India" and is not limited to importation for commerce but includes importation for transit across the country. The court rejected the narrow interpretation that goods merely passing through India en route to Nepal do not constitute "import." The judgment stressed that the word "import" should be interpreted in a manner consistent with international conventions and treaties, which prioritize the protection of copyright.
3. Application of International Law and Treaties:
The court discussed the incorporation and transformation doctrines in international law, concluding that international law can be part of municipal law unless it conflicts with national legislation. The judgment highlighted that international conventions, like the 1965 Convention on Transit Trade of Land-Locked States and the Berne Convention for the Protection of Literary and Artistic Works, support the protection of intellectual property. The treaties between India and Nepal also reflect this concern, allowing for restrictions to prevent copyright infringement.
4. Role and Powers of the Registrar of Copyrights:
The court outlined the quasi-judicial nature of the Registrar of Copyrights' role u/s 53 of the Copyright Act. The Registrar must conduct an inquiry and consider various factors before making an order to prohibit the import of infringing copies. The judgment emphasized that an order under Sec. 53 is not automatic upon application but requires a thorough examination of the circumstances, including the ownership of the copyright and the nature of the infringement.
Conclusion:
The Supreme Court set aside the judgment of the Division Bench of the Calcutta High Court and restored the order of the learned single judge. The court held that the term "import" in Sec. 53 of the Copyright Act includes transit across India and is consistent with international conventions and treaties aimed at protecting intellectual property. The Registrar of Copyrights has the authority to prohibit the import of infringing copies after a quasi-judicial inquiry. The appeal was allowed without any order as to costs.
........
|
9911796707
