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Showing 1 to 20 of 1441 Records
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2014 (2) TMI 1445
Denial of exemption u/s 10(23C)(iiiad) - assessee is imparting education for earning profit - CIT(A) allowed assessee appeal - HELD THAT:- CIT(A) has decided this issue in a cryptic and non speaking manner by referring to some Tribunal decisions and judgments of various High Court and Supreme Court by stating that the issue is covered in favour of the assessee by these judgments but we have seen that those judgments are not rendering any help to the assessee on merit and CIT(A) has also not pointed out as to how the issue in dispute is covered in favour of the assessee by these judgments.
There was none present on behalf of the assessee before us to represent his case.
Under these facts, we feel that in the interest of justice, the matter should go back to the file of CIT(A) for fresh decision and hence, we set aside the order of learned CIT(A) and restore the matter back to the file of CIT(A) for fresh decision.
CIT(A) should pass a speaking and well reasoned order after providing adequate opportunity of being heard to both the sides. Appeal is allowed for statistical purposes.
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2014 (2) TMI 1444
Dishonour of Cheque - bona fide defense against the winding-up petition filed by the respondent due to the alleged outstanding debt - sub-standard goods supplied by the respondent - HELD THAT:- The contemporaneous correspondence annexed to the affidavit-in-opposition are in dispute. Such dispute could not be effectively dealt with by the company in their subsequent pleadings. The learned advocate while giving reply to the statutory notice of admission did not make a mention of the e-mails. Even if we accept the authenticity of the e-mails, it would not specifically raise any constructive defence that could resist successfully a winding up petition.
From section 434 of Companies Act 1956, it is found that the company could resist the winding up petition offering security at the stage of giving reply to the statutory notice of demand, instead they denied the claim. They could also offer security on the first returnable date. They did not opt. After completion of the pleading, in course of hearing when they could not successfully resist the winding up petition, offering security would rather strengthen the presumption that they were neglecting to pay the debt. A company might be in a precarious condition to pay off its creditor's dues, that would be a "failure". A high mighty, if willfully neglects to pay an admitted debt, that would certainly come within the mischief of "neglected" within the meaning of section 434(1)(a).
Conclusion - The winding-up petition was upheld. The offer of security was deemed insufficient. The claim of sub-standard goods was rejected.
Appeal dismissed.
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2014 (2) TMI 1443
Admission of petition filed by the respondent for winding up the appellant - appellant is unable to pay its debts - HELD THAT:- Considering the stand taken by the appellant and considering the interests, not merely of the respondent, but of the general body of creditors and the workers, it is necessary to give the appellant an opportunity of repaying the dues in installments. No purpose would be served by winding up the company or even having the petition admitted at this stage for that would seriously hamper the functioning of the company. The offer as contained in the statement is, in these circumstances, reasonable. The appellant has also agreed to issue post dated cheques within one week from today in respect of all the payments. Further, the appellant has agreed to furnish the undertaking of one Kapil Puri, the Chairman and Managing Director of the appellant that the cheques will be honoured on presentation. The appellant shall be entitled to a grace period of five days in respect of each payment. The consequences of default are provided for hereafter.
Conclusion - No purpose would be served by winding up the company or even having the petition admitted at this stage for that would seriously hamper the functioning of the company. The undertaking of the appellant and of its said Chairman & Managing Director to pay the amounts as per the statement which was taken on record and marked “X” is accepted.
Appeal disposed off.
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2014 (2) TMI 1442
Winding up the respondent company - respondent company has failed to discharge its liability and obligation - HELD THAT:- The respondent company has admittedly neither applied for nor obtained the permission. It is argued that it did not apply for permission because it was not in a position to pay the amount. That was the amount guaranteed and confirmed by it. That shows nothing other than a default on the part of the respondent company. Had the respondent company applied for the permission and was not granted the permission or refused the permission by the RBI, its contract of guarantee would have stood frustrated by the act of the RBI. The respondent cannot benefit from its own wrong. It is not possible to accept the contention of the respondent that it could never have performed the obligation under the agreement in view of prohibition under the notification, in the absence of making any application to the RBI because the petitioner acted under the agreement by releasing a part of the cargo upon the confirmation contained in the agreement itself. It is, therefore, rightly argued that the petitioner acted to its own detriment. After having a part of the cargo released upon the confirmation of the agreement dated 18.7.2012, it is not only an act lacking in bonafides but a dishonest act to claim that the respondent company neither applied for RBI permission nor made payment and was discharged from its liability from making payment altogether. The contention that the guarantee was not enforceable is therefore a dishonest defence which cannot be countenanced by the Court. A dishonest defence cannot be bonafide.
Summons for judgment is pending adjudication. No order has been passed thereupon. A winding up order is not passed yet. At present only the petition needs to be admitted. As and when the suit is decreed or dismissed, the judgment will be considered at the time of winding up of the respondent company.
Conclusion - It is seen that the respondent company has not shown a bonafide disputed debt. Consequently, the non- payment of its admitted liability would result in statutory consequences. Hence there is no bonafide defence to the petitioner's claim. Consequently the petition deserves to be admitted.
Petition admitted.
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2014 (2) TMI 1441
Violation of provisions of section 8(3) read with section 8(4) of FERA - Failure to import goods after remitting foreign exchange abroad - whether the two remittances as mentioned in the first SCN have also been included in the second SCN making the second SCN consolidated one to cover all the remittances - HELD THAT:- The expression "shall not be bound by the Procedure laid by the Code of Civil Procedural 1908 (5 of 1908), but shall be guided by the principles of natural justice" used in the afore quoted sub-section (1) of section 28 of FEMA does not debar this Tribunal to follow provisions of Code of Civil Procedure to the extent the provisions are in consonance with the principles of natural justice.
As such this Tribunal refers the issue so framed to the Ld. Deputy Director who has made impugned order for trial. The Ld. Deputy Director may take the additional evidence, if necessary for determining the issue framed by this Tribunal.
After trial of the issue and recording the evidences which soever are necessary, the Ld. Deputy Director shall return the same to this Tribunal with his findings and reasons thereon preferably within three months from the date on which the parties in this appeal first appear before him and the parties in the instant appeal are directed to appear before the Ld. Deputy Director for such purpose on the date fixed by him within 15 days from the receipt of this order.
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2014 (2) TMI 1440
Sanction of scheme of compromise and arrangement - Whether the principal debtor's discharge under a scheme of compromise and arrangement affects the liability of the guarantor/surety? - HELD THAT:- It may be mentioned that since the guarantor/surety is not discharged the secured creditor could certainly proceed against the guarantor after part liability is discharged and satisfied. This would give the guarantor/surety the rights under Section 140 of the Act to be invested with all the rights of the creditor against the principal debtor. The guarantor would be required to make payment of the remainder of the liability.
It is held in the case of Jagannath Ganeshram Agarwala Vs. Shivnarayan Bhagirath [1939 (11) TMI 12 - HIGH COURT OF BOMBAY] that the discharge of the principal debtor by operation of law would not discharge a surety.
In the case of Punjab National Bank Ltd. Vs. Sri Bikram Cotton Mills Ltd. [1969 (9) TMI 68 - SUPREME COURT] the Supreme Court considered the contract of guarantee, indemnity and the liability of a guarantor under Section 128 of the Contract Act. This was also a case of composition under a contract of compromise and arrangement. It was held that binding obligation created in a composition under Section 391 of the Companies Act between the company and its creditors does not effect the liability of a surety / guarantor unless the contract of suretyship otherwise provides. In that case a Director / Managing Agent stood guarantee to a bank from whom the company took some loans and executed certain documents.
Consequently after the discharge of the liability by the applicant company by payment of the one time settlement amount its release was in order. The No Dues Certificate was called for. The claim against the applicant company before the Releasing Officer may not survive and may be withdrawn. However the right of the respondent / secured creditor to proceed against the guarantor / surety was open and available in law subject of course, to the contract of guarantee. That right having been kept open is in accordance with the law. It would have been a legal not to keep it so.
The review application is rejected.
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2014 (2) TMI 1439
Admission of debt - existence of cause of action to present the winding up petition or not - HELD THAT:- It cannot be said that there is a clear admission of a debt by the contracting party and that it would give rise to a cause of action to present this winding up petition. The claim, if any of the petitioner is relatable to a contract and the claim for various amounts under several heads are matters which have to be adjudicated in a formal suit or other proceedings which the parties may have agreed upon in the contract. It is also admitted by the learned counsel for the petitioner that the parties have provided for arbitration in the event of any disputes. The counsel for the respondent however, stoutly refutes and would submit that there is not even a contract signed by the present respondent.
In any event, it is not evident that there is an admitted debt crystallized, which gives rise to a cause of action for the winding up petition.
The petition is accordingly disposed of, without prejudice to the claim of the petitioner.
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2014 (2) TMI 1438
Applicability of the SARFAESI Act to the loan transaction post-merger - it is urged that once the proceedings under Section 9 of the Arbitration Act have been initiated, it is not permissible for the 4th respondent to initiate proceedings of any other form, that are prohibited under Section 8 of that Act - HELD THAT:- The validity of the Sarfaesi Act has been dealt with by the Hon’ble Supreme Court in Mardia Chemicals Ltd. v. Union of India & others [2004 (4) TMI 294 - SUPREME COURT]. It was upheld in all respects, observing that enough safeguards are provided in it. It was also observed that even if proceedings in relation to a loan transaction are pending before the Tribunal, the financial agency can invoke its powers under the Sarfaesi Act and proceed against the security. The reason that appears to have weighed with the Hon’ble Supreme Court is that the amounts advanced as loan by Banks and other agencies constitute public finance, and it is in the national interest that the procedure is streamlined for recovery of such amounts. Once the Sarfaesi Act is upheld, any amount of argument, advanced by the petitioners, vis-à-vis its provisions, cannot be countenanced. Ultimately, it is for the Supreme Court to say anything further, if it comes to the conclusion that the beneficiaries under that Act are heckling at the age old legal system.
It is trite that an individual or a corporate personality has the freedom to contract, and while taking a decision in the course of their business, several factors assume importance. If an individual intends to purchase an item, he would take into account, several factors, such as the quality of the item, its price structure, the reliability of the supplier and the like. Similarly, if a person is in need of money, he has to take several aspects into account. Even where an agency is willing to lend the amount, the conditions subject to which, the money is lent, would assume importance.
The 1st petitioner is in existence for the past several decades and it is running a reputed newspaper. May be, for expansion or other purposes, it wanted some finances. By the time it has chosen to borrow the amounts, the Sarfaesi Act has already come into force. It has deliberately chosen to approach a non-discrepit financial agency, IBFSL, even while several Nationalized Banks were prepared to lend the amount, by taking the same security. What prompted the 1st petitioner to approach IBFSL appears to be that, it was not under the purview of the Sarfaesi Act. It is also essential to mention that the 4th respondent, a sister concern of the IBFSL, was also in existence at that time - The sequence of events, in the instant case, discloses that the predominant purpose for which the IBFSL was merged with the 4th respondent, was to bring the loan transaction of the 1st petitioner-company, under the purview of the Sarfaesi Act.
The proceedings initiated by the 4th respondent, against the petitioners are set aside - petition allowed.
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2014 (2) TMI 1437
Company collected funds amounts to a Collective Investment Scheme (CIS) - vicarious liability of the appellants for the contraventions by the Company - whether the scheme under which a sum was collected by the Company from various investors amounts to CIS or not? - HELD THAT:- A perusal of the brochure issued by the Company clearly shows that the Schemes floated by the Company were meant for mobilization of funds by way of contribution of public at large and the corpus was sought to be invested in property with a view to share the benefits arising out of deployment of such common corpus. Therefore, the Teak Unit Schemes of the Company were, in fact, CIS.
The Company could not have come out with such a scheme, without obtaining a certificate of registration from SEBI, in accordance with its Regulations on the subject. Admittedly, no such registration was even applied for by the Company before it came out with its scheme. As far as the proviso is concerned, it is evident from its bare perusal that it applies to only those schemes which were already in operation on 25.1.1995 when Security Laws (Amendment) Act, 1995, came into force. Therefore, by coming out with its CIS, the Company contravened the provisions of Section 12(1B) of the Act which is punishable under Section 24 of the Act.
Company has rightly been convicted for contravening sub-section (1B) of Section 12 of SEBI Act by collecting money from the investors under its CIS schemes without registration with SEBI and it also committed contravention of the provisions of Section 24 of the Act by not complying with the Regulations framed by SEBI and the directions issued by the Chairman. Therefore, no fault can be found with the conviction of the Company.
Vicarious liability of the appellants - Persons as directors and persons in-charge and responsible to the company for conduct of its business, they are vicariously liable for the contravention of the provisions of SEBI Act and the Regulations framed thereunder. Therefore, no fault can be found with their conviction.
As far as the appellants – Yashwant Jain and Sachin Gupta are concerned, admittedly they have never been the directors of the company. There is no evidence to show that either of them was the person in-charge and responsible to the company for conduct of its business. This is not the case of SEBI that the offence by the Company was committed with the consent or connivance of Mr. Yashwant Jain and Mr. Sachin Gupta and is attributable to any neglect on their part. Moreover there is no evidence of their even being a Director, Manager, Secretary or officer of the Company. SEBI fairly conceded during the course of arguments that the charge against them could not be established during the course of trial. Mr. Yashwant Jain and Mr. Sachin Gupta, therefore, liable to be acquitted.
As regards the sentence, the appellants – Pankaj Jain and Deepak Jain have been sentenced to undergo imprisonment for three months each, appellants Pankaj Jain and Deepak Jain are directed to surrender forthwith before the trial court in order to undergo the sentence awarded to them. The appellants – Pankaj Jain and Deepak Jain shall surrender forthwith. The trial court shall take necessary steps to procure their presence and commit them to prison to undergo the sentence awarded to them.
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2014 (2) TMI 1436
Conviction of petitioner under Section 630 of the Companies Act - Validity of the scheme of arrangement - legality of the conviction under Section 630 of the Indian Companies Act, 1956 - HELD THAT:- Section 630 of the said Act had been engrafted in the Legislature to provide speedy relief to a company where its property is wrongfully obtained or wrongfully withheld by an ‘employee’ or an ‘officer’ or a ‘past employee or an officer’ or ‘legal heirs and representatives’ deriving their colour and content from such an ‘employee or officer’ in so far as the occupation and possession of the property belonging to the company is concerned. The failure to deliver property back to the employer on the termination, resignation, superannuation or death of any employee, would amount to wrongful withholding that property giving rise to an actionable claim under Section 630 of the said Act. A broader, liberal as also a purposeful interpretation has to be given to Section 630 in furtherance of the object and purpose for which this legislation has been engrafted.
The learned counsel for the petitioner was given a suggestion that time period could be extended for vacation of the quarter but he declined the offer and sought an order on merits stating that this revision petition be decided on its merits. As such further extension of time period has not even been prayed for.
Petition is without any merit - petition dismissed.
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2014 (2) TMI 1435
Constitutional Validity of Section 10-A of the Indian Divorce Act, 1869 - period of 'two years' as the separation period before filing a petition for divorce by mutual consent is discriminatory or not - violation of of Articles 14 and 21 of the Constitution - expression 'two years' in Section 10-A of the Act to be read as 'one year' - HELD THAT:- On perusal of the judgment of the Kerala High Court in Soumya Ann Thomas [2010 (2) TMI 1282 - KERALA HIGH COURT], as well as the judgment of the Apex Court in Kusum Ingots and Alloys Ltd. [2004 (4) TMI 342 - SUPREME COURT], what follows is that Section 10A(1) of the Act has been held to be unconstitutional being violative of Articles 14 and 21 of the Constitution. However, to save it from the vice of unconstitutionality, the expression of 'two years' has been read down to 'one year' in sub-section (1) of Section 10A of the Act.
The Kerala High Court's pronouncement on the constitutionality of a provision of a Central Act would be applicable throughout India. This is made clear by Hon'ble Supreme Court in Kusum Ingots and Alloys Ltd., wherein it has been stated that an order passed on a Writ Petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution, would have effect throughout the territory of India subject of course to the applicability of the Act.
This Writ Petition would not call for any specific orders with regard to holding constitutionality or otherwise of Sub-section (1) of Section 10A of the Act - Keeping in mind the pronouncement of the Division Bench of the Kerala High Court and reading the same in the context of Kusum Ingots and Alloys Ltd. the position of law with regard to sub-section (1) of Section 10A of the Act is now been made clear, particularly, insofar as State of Karnataka is concerned.
Petition disposed off.
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2014 (2) TMI 1434
Contravention of FEMA - Remission of foreign exchange w/o submitting the exchange control copy of bill of entry to their banker to show that the goods against the remittance were actually imported - Penalty imposed - HELD THAT:- The goods purchased by the appellants from the foreign exchange pertaining to remittance in question has been actually imported by the appellants or not has yet to be established. This fact may be provide by production of the exchange control copy of the bill of entry or by other means. As to whether the records of Dena bank has been rectified or not as per responsibility undertaken by the second appellant and as to whether secondary evidence i.e. true copy or photocopy of the exchange control copy of bill of entry is admissible or not is yet to be examined.
Penalties are imposed in the impugned order without determining effectively as to whether such goods were actually imported or not. Hence the impugned order is reversed in appeal by this Tribunal and the case is remanded back for fresh adjudication by the Adjudicating Officer under its original number.
Adjudicating Officer shall determine the alleged contravention considering the evidences already recorded and by providing the opportunity to the parties to produce further evidences, if any, apart from what have been recorded in the impugned order regarding the fact as to whether the goods in question have been actually imported by the appellants or not. While determining the contravention, in case the appellants are relying on secondary evidence the reasons shall also be recorded by the. Ld. Adjudicating Officer as to whether the secondary evidence is admissible or not.
The instant appeal is disposed of accordingly. This Tribunal directs the Appellants to appear before the Ld. Adjudication Officer on 20th March, 2014.
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2014 (2) TMI 1433
Recovery of amount from the gratuity and pension of the petitioner under the provisions of Rule 9(1) of the U.P. Retirement Benefits Rules, 1961 - Guilty for misappropriation of funds - HELD THAT:- Rule 7 (vii) of the U.P. Government Servant (Conduct and Appeal) Rules, 1999 deals with the procedure for imposing major penalties and enjoins that where the charged Government Servant denies the charge, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant, who shall be afforded an opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence. Rule 8 deals with the submission of enquiry report, whereas Rule 9 prescribes action on the enquiry report.
In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, [1960 (11) TMI 130 - SUPREME COURT], State of U.P. v. Shatrughan Lal and another [1998 (7) TMI 689 - SUPREME COURT] and State of Uttaranchal and others v. Kharak Singh, [008 (8) TMI 1026 - SUPREME COURT], the Apex Court has emphasized that a proper opportunity must be afforded to a Government servant at the stage of the enquiry, after the charge-sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal and others v. Kharak Singh the Apex Court has enumerated some of the basic principles to be observed in the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed.
It is required to be examined that whether there is any defect in the enquiry or not. The petitioner, while submitting reply, as indicated in para 11 of the writ petition, has stated that he may be permitted to cross-examine S/Shri D.N. Upadhyaya, Ram Surat Dubey, D.N. Verma, Uma Shanker Shukla, Santoshi Ram and few other persons but during the course of enquiry, only Santoshi Ram was examined and no other witness was called for. In paragraph 16 of the rejoinder-affidavit, the petitioner has specifically stated that he was not permitted to cross-examine the witnesses nor any personal hearing was afforded - No documentary evidence has been produced by the respondents to establish that it is the petitioner, who did not cross-examine the witnesses though he was afforded ample opportunity. In para 29 of the writ petition, it may be added that the petitioner requested for cross-examination of Shri Ram Surat Dubey and Shri B.N. Upadhaya, who, as indicated in para 7 of the counter-affidavit, that they have submitted report against the petitioner. Despite requests, the Enquiry Officer did not call them for cross-examination and submitted its report. Thus, the enquiry was conducted not only in the breach of the principles of natural justice but in violation of the Rules, referred.
The services of the petitioner are governed by U.P. Government Servant (Disciplinary and Appeal) Rules, 1999. The rules contemplate that an enquiry can be conducted against a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh. The power to impose penalty is contained under the Rules of 1999 which provides penalties which can be imposed against the Government servants. There is no provision under the Rules allowing the enquiry to be conducted against the person who has retired from service. In absence of any such rule, the enquiry cannot be continued against a Government servant who has retired - Regulation 351-A provides that the Government has a right to withhold or withdraw a pension or any part of it whether permanently or for a specific period and also has a right to order for the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if the pensioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence, during his service. However, this rule has certain exceptions which are germane for determination of the controversy in hand.
It may be added that there are specific provisions in Regulation 351-A, which are to be followed before initiating the disciplinary proceedings against a retired employee. The conditions for the purpose of invoking Regulation 351-A have not been satisfied. There is no valid approval of Governor and the matter regarding the alleged misconduct relates to four years prior to institution of proceedings. In other words, alleged misconduct has been committed beyond the period of four years as contemplated under the Rules. On plain reading of the Regulations, it clearly emerges that the same cannot be invoked in the present case.
The impugned order of punishment dated 20.3.2001 is hereby quashed. The unpaid terminal benefits due to the petitioner together with admissible interest shall be paid to the petitioner, expeditiously, say, within a period of three months from the date of receipt a certified copy of this order - Petition allowed.
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2014 (2) TMI 1432
Nude photography appeared in the Anandabazar Patrika, as well as in the Sports World - seeking censuring of obscene photographs - HELD THAT:-It is to be appreciated that the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white skinned man and a black skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 Indian Penal Code or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
It is found that no offence has been committed under Section 292 Indian Penal Code and then the question whether it falls in the first part of Section 79 Indian Penal Code has become academic. We are sorry to note that the learned Magistrate, without proper application of mind or appreciation of background in which the photograph has been shown, proposed to initiate prosecution proceedings against the Appellants. Learned Magistrate should have exercised his wisdom on the basis of judicial precedents in the event of which he would not have ordered the Appellants to face the trial. The High Court, in our view, should have exercised powers under Section 482 Code of Criminal Procedure to secure the ends of justice.
The criminal proceedings initiated against the Appellants set aside - appeal allowed.
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2014 (2) TMI 1431
Entitlement for payment of full wages - Whether, in the absence of any specific provision in the Regulations, 1963 of the Corporation specifying put off duty as an interim measure pending departmental proceedings, the workman is entitled to payment of full wages or whether the said put off duty can be treated as suspension pending enquiry as in the case of the regular workman of the Corporation?
HELD THAT:- When the subsequent co-equal bench renders the judgment in ignorance of the earlier pronouncement of co-equal bench, the judgment of the previous bench will have binding effect. On the other hand, if the latter bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds.
The put off duty cannot be equated with suspension and in the absence of any statutory support from the Regulations, 1963, it shall be treated as absence of the workman induced by compulsive proscription on the part of the 2nd respondent Corporation, which, in fact, denied him an opportunity to work during the said period.
The petitioner - in the light of the submissions of the 2nd respondent Corporation that already 50% of the wages have been paid - shall be entitled to the remaining 50% of the wages for the put off duty period with effect from 03.05.2002 to 27.03.2003. Accordingly, the 2nd respondent Corporation is hereby directed to pay the said differential amount of 50% for the put off duty period, as early as possible, at any rate, not beyond two months' time from the date of receipt of a copy of this order.
Petition allowed.
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2014 (2) TMI 1430
Seeking grant of regular bail - allegation of bringing intoxicant tablets from outside and to sell them in the city - whether the tablets allegedly recovered from the petitioner and co-accused were prescription drugs or any intoxicating substance? - HELD THAT:- Under Section 167 of the Code of Criminal Procedure and under its various sub-sections, the maximum period beyond which a person cannot be detained while investigation is under way has been provided and the same varies between 60 to 90 days keeping in view the gravity of offence. If the investigation is not completed within such stipulated period, the accused is entitled to bail under Section 167 (2) of the Code of Criminal Procedure if he makes an application for such purpose. However, under the Act, the maximum period of 90 days fixed under Section 167(2) of the Code of Criminal Procedure has been increased to 180 days for several categories of offences under the Act. Under Section 36-A of the Act, the period of detention may go on to a total of one year subject to satisfaction and compliance of the stringent conditions provided therein i.e. (i) upon a report of the Public Prosecutor; (ii) which in turn indicates the progress of the investigation; (iii) specifies the compelling reasons for seeking the detention of the accused beyond the period of 180 days; and (iv) after notice to the accused.
The only reason and basis cited in the application seeking extension of time for completion of investigation is that the report of the Chemical Examiner as regards the sample of the intoxicating/narcotic tablets has not been received. Solely on such premise, the Additional Public Prosecutor, Incharge of the case, has recorded a satisfaction that the Investigating Agency has made an effort to obtain the report of the Chemical Examiner and as such, on account of non-receipt of the same, further extension of a period of 180 days for completion of investigation was prayed for.
There has been a noncompliance of the provisions contained in Section 36-A of the Act. The provision mandates a report of the Public Prosecutor indicating the progress of the investigation as also the specific and compelling reason for seeking the detention of the accused beyond a period of 180 days. This Court would have no hesitation in observing that the application submitted seeking extension of time for completion of investigation as also the order passed thereon by the Special Court, Patiala granting extension of 60 days have been done in a routine and mechanical fashion. In this view of the matter, the petitioner is held entitled to the benefit of regular bail.
The petitioner is enlarged on bail subject to the satisfaction of the Chief Judicial Magistrate/Illaqa Magistrate, Patiala - the petition is allowed.
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2014 (2) TMI 1429
Seeking a direction to the Commercial Taxes Department, Government of Jharkhand, to levy Value Added Tax on the actual sale price and not on any hypothetical or assumptive price - Opportunity of hearing not provided - violation of principles of natural justice - HELD THAT:- In the present case, this is not in dispute that the first notice was issued to the assessee on 18.2.2013 calling upon the petitioner to appear on 26.2.2013 and the impugned order has been passed on such first hearing date, that is, on 26.2.2013. An amount of Rs. 3,47,38,258.54 on account of tax and interest has been ordered to be paid by the petitioner. According to the petitioner, petitioner's representatives, namely Mukesh Kumar and Pawan Verma, appeared before the assessing authority, but without affording an opportunity to them, impugned order was passed. Per contra, according to the respondents, on 26.2.2013, neither the petitioner, nor the representatives appeared.
Without going into the rival statements of the parties, since the impugned order dated 26.2.2013 has visited the petitioner with serious civil consequences, the petitioner should have been afforded sufficient opportunity at least by giving one more hearing to put forth their case.
The impugned order has been passed in violation of the principles of natural justice, the matter is remitted back to the Assessing Officer for taking a decision afresh, after affording adequate opportunity of hearing to the petitioner-assessee - Petition allowed by way of remand.
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2014 (2) TMI 1428
Validity of Reopening of assessment - CIT(A) upholding the action of the ITO in declining the assessee’s claim that the impugned transactions of purchase and sale of agriculture land were in HUF capacity and that the same were therefore, not taxable in individual capacity - as argued assessee Sh. Surjit Singh having died before the filing of return against notice u/s 148, the ITO ought to have issued fresh notice impleading all the legal heirs of the deceased, sans which, the impugned order is bad in law - HELD THAT:- We are of the view that FAA has passed the impugned order without appreciating the evidence produced by the assessee during the course of appellate proceedings, which the assessee has raised in ground No.5 in all the appeals. We are of the considered view that the ld. first appellate authority ought to have appreciated the additional evidence filed by the assessee while deciding the issue in dispute, which is very much essential for adjudication of the case.
The issues involved in all the grounds of appeals are interconnected and some of them are legal issues, which are required to be decided on the basis of additional evidence furnished by the assessee and as per material available on record and after hearing the Ld. counsel for the assessee.
In the interest of justice, we are not commenting upon the merits of the case on all the issues involved in the present appeal, as mentioned in the aforesaid paragraph while reproducing the grounds of appeal raised by the assessee.
Keeping in view the above facts and circumstances of the case and in the interest of justice, we are of the view that the issues in dispute require fresh adjudication at the level of the first appellate authority.
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2014 (2) TMI 1427
Denial to interfere with the award of a contract for the supply of 486 Standard Gauge Cars Electrical Multiple Units meant for use in Phase-III of the Mass Rapid Transit System (MRTS) for Delhi and its extension corridors - process of evaluation of the bids received from eligible bidders culminating in the award of a contract in favour of Respondent No. 2-Hyundai Rotem Company.
Appellant sought a restraint order against the award of the contract before the High Court who in turn accepted an undertaking given by the counsel for the DMRC and HR that they will not act in pursuance of the letter of award pending disposal of the writ petition.
HELD THAT:- The High Court has, in the case at hand, undertaken that exercise and concluded that there was neither any illegality nor any irregularity in the process of evaluation of the bids or the final allotment of the contract. That view has come to be assailed by the Appellant on what is essentially a short point raised by Mr. Lalit in support of the appeal. The contention is that while no malafide or extraneous considerations have prevailed to vitiate the decision of the DMRC allotting the contract in favour of HR, the process of evaluation of the bids offered by the eligible bidders should have in the facts and circumstances of the case included validation of the GEC values offered by HR to determine whether they were achievable having regard to the ground realities and the laws of physics relevant to the consumption of energy.
It is common ground that the price bid offered by the tenderers was not itself determinative. What was equally important was the GEC values comprising X and Y factors which the tenderers had to disclose in their technical bids. That the values offered had to be converted into Indian Rupees and loaded to the price bid of the tenderers is also beyond question. That each one of the bidders had offered their GEC values comprising X and Y factors separately was also beyond doubt. There is no error even in the conversion of such values in terms of Indian Rupees nor is there any dispute about the effect of such loading of values to the price bid of all the tenderers because of which loading the bid offered by HR eventually emerged as L-1 with Appellant-Siemens sliding to L-4 position - there are no real basis for the contention that the DMRC was supposed to go any further than it did in protecting its interest. In the absence of any specific stipulation or requirement for validation of the GEC values by the DMRC and its experts or by any outside agency such a requirement could not be implied into the tender process. Inasmuch as the DMRC found the bid offered by HR to be acceptable, keeping in view the GEC values offered by it, the former had committed no illegality in the evaluation of the bids or in making its choice of the contractor.
There are no manner of doubt that the terms of reference give a clear indication that the process initiated by the Government was a parallel process of the adjudication of the very same issue as fell for consideration before the High Court and at a later stage before this Court - Continuance of the process of review even after the High Court had delivered its judgment amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose.
In the absence of any such opportunity to the party whose GEC values were being test checked for their achievability, the report can hardly provide a sound basis for a writ court to upset a decision which the competent authority has taken after due deliberations by not one but four different Committees including experts in the field - the preparation and submission of a report that does not even take the view point of the party affected by it into consideration can hardly provide to this Court a good reason to scuttle the entire process at this stage when HR, the successful bidder, has already taken substantial steps in the direction of executing the works allotted to it.
This appeal fails and is, hereby, dismissed with costs of Rs. 5,00,000/- to be deposited within six weeks from today with the Supreme Court Advocates-on-Record Welfare Fund.
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2014 (2) TMI 1426
Review/recall of an order - Recovery proceedings for unrecovered loan - right of the intervenor was not considered - judgment of the Supreme Court in the case of DENA BANK VERSUS BHIKHABHAI PRABHUDAS PAREKH AND CO. AND OTHERS [2000 (4) TMI 36 - SUPREME COURT] is not applied properly - HELD THAT:- The applicant herein admittedly was an intervenor in M.A No. 1153/1999 and they were claiming their right to the property by virtue of the auction held in their favour at the instance of Sales Tax Department. An intervenor cannot claim any relief or decree for himself in the capacity of an intervenor in the appeal under Order 21 Rule 58 of C.P.C, that being the legal position.
It is clear that in M.A No. 1153/1999, the applicant as an intervenor could not claim any relief for himself, accordingly, even if this application is allowed and the appeal proceedings under Order 21 Rule 58 are restored the intervenor cannot get any benefit as he cannot claim any relief for himself. That being so no useful purpose would be served in considering the question of review at the instance of the applicant.
Application dismissed.
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