Entitlement to deduction of the provision made in respect of Non Performing Assets which are considered irrecoverable - Whether the Tribunal was justified in not appreciating that the provision made in respect of Non Performing Assets if not allowable as a bad debt is allowable as a business loss? - HELD THAT:- Either side fairly concede that the questions of law raised in these appeals covered by a decision of Southern Technologies Ltd. [2010 (1) TMI 5 - SUPREME COURT] and answered similar questions of law against the assessee and in favour of the Revenue as held assessee is not entitled to deduction as a bad debt or as a business loss the provision made in respect of non-performing assets which were considered irrecoverable. Decided in favour of revenue.
Order passed by the Central Information Commission directing the Petitioner – SEBI to provide the information sought of assets and liabilities statement of Mr. U.K. Sinha, Chairman SEBI for the last three years, or for the period declared by him; and his total present emoluments along with perquisites on which he has been employed with SEBI - HELD THAT:- In our view, in the impugned order no reasons have been given by the Central Information Commission. It is obvious that the Central Information Commission while allowing the appeal of Respondent No.1 has not given any reason whatsoever for taking a view which is contrary to the view taken by it earlier. Therefore, on this ground alone, the impugned order will have to be set aside.
Apex Court in S.N. Mukherjee vs. Union of India [1990 (8) TMI 345 - SUPREME COURT] held that an important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making.
Thus, impugned order is set aside and the matter is remanded back to the Central Information Commission. All contentions of both the parties are kept open.
Whether the process commenced under Section 48 of the Act Competition Act, 2002 is premature, in view of the fact that the CCI has not returned any finding as to the contravention of the Act, as yet? - HELD THAT:- There cannot be two separate proceedings in respect of the company (i.e. VeriFone) and the key-persons. As the scheme of the Act, to my mind, does not contemplate such a procedure. As in every such matter, including the proceedings under Section 138 of the Negotiable Instruments Act, 1881 (in short N.I. Act), a procedure of the kind suggested is not contemplated.
The judgment of the Supreme Court in the case Aneeta Hada [2012 (5) TMI 83 - SUPREME COURT]dealt with proceedings under Section 138 of the N.I. Act. The judgment does not deal with issue at hand, which is whether adjudication in two parts is permissible. The judgment is distinguishable.
It is no doubt true that the petitioners can only be held liable if, the CCI, were to come to a conclusion that they were the key-persons, who were in-charge and responsible for the conduct of the business of the company. In the course of the proceedings qua a company, it would be open to the key-persons to contend that the contravention, if any, was not committed by them, and that, they had in any event employed due diligence to prevent the contravention. These arguments can easily be advanced by key-persons without prejudice to the main issue, as to whether or not the company had contravened, in the first place, the provisions of the Act, as alleged by the D.G.I., in a given case.
Conclusion - The Competition Act does not require separate proceedings for the company and its key-persons and that key-persons can present their defenses during the unified proceeding.
Maintainability of the suit - entitlement to interim relief/injunction - abuse of process and suppression of material facts - plaintiffs have prima facie case, where the balance of convenience lies or not - absence of any direction from any judicial forum.
Maintainability of the suit - HELD THAT:- On conjoint reading of Section 100 of Companies Act, 2013 and the objection taken by the respondents, including the one that the voting right is already suspended by the Company qua the said share holding, asking the plaintiffs to move the Company Law Board would be meaningless because their (plaintiffs’) lack of voting right as contended by the respondents would make the proceedings before the Company Law Board as well, not maintainable. This is over and above an additional aspect that, the provision of Section 186 of the Companies Act, prima facie can not be read to be meant for the circumstances like the present one, however no final opinion needs to be expressed with regard to the scope and ambit of the said section, since that is not the controversy before this Court - Suffice it to hold that, in the facts of this case, considering the material on record and the chequered history between the contesting parties, and the chronology of the actions taken by the respondents, as borne out from record, the suit in question can not be termed to be not maintainable. The suit is therefore held to be maintainable.
Whether the plaintiffs have prima facie case, where the balance of convenience lies and who would suffer irreparable loss, if the injunction as prayed for is not granted? - HELD THAT:- This Court finds that, what is prayed for by the plaintiffs is within four corners of law, and even in absence of any direction from any judicial forum, the respondents were under legal obligation to act in accordance with law. Therefore, by giving direction to the respondents to act in accordance with law, no prejudice would be caused to them, but in the event it is not done, the plaintiffs would certainly suffer irreparable loss. By the impugned action taken at the Board Meeting dated 10.11.2014 the voting right is also claimed to have been taken of the plaintiffs/ shareholders - This Court finds that, refusal by this Court to grant interim relief as prayed for by the plaintiffs, would not only make the civil suit infructuous but would have effect of giving premium to the respondents for the impugned actions/in actions, if ultimately it turns out to be unsustainable.
The argument of learned advocate for the respondents with regard to arbitration clause would not help the respondents for the reason that even they had, unsuccessfully attempted so, once before this Court. This Court also does not find any substance in the argument canvassed on behalf of the respondents about suppression of material fact by the plaintiffs or that the proceedings are taken out one by one by the plaintiffs or persons of their group. This Court has taken into consideration the cause of action and prayer clauses of those proceedings and after doing so, this contention is rejected.
Appeal admitted - List for further consideration on 16.03.2015.
Addition made on account of purchases of paintings from different parties - unproved purchases - HELD THAT:- As gone through the statement recorded by the AO from the supplier of paintings. It is evident from the record that assessee has claimed purchase of paintings by issue of account payee cheques. The paintings were also found during the course of search at assessee’s premises.
AO has made the addition by treating the paintings as bogus purchase merely on the basis of the statement of the seller/supplier of paintings. It is also a matter of record that assessee has not claimed any expenditure in its profit and loss account with respect to cost of paintings. The source of fund from where payment was made is also not in dispute, insofar as payment was made out of credit balance in the bank account.
The fact that paintings were found during the course of search indicated that paintings were actually purchased. Accordingly, we do not find any merit for adding the amount of paintings in the assessee’s income when the source of funds for making such purchase was not in dispute, nor the physical form of paintings. Under these circumstances, the only inference which can be drawn is that the assessee might have purchased paintings from some other parties. The value paid to the other parties are not known.
We direct the AO to ascertain the actual value of paintings in case assessee claims any depreciation on such assets in future. Assessee appeal allowed.
Challenge to award passed by the sole Arbitrator in the disputes arising between the Petitioner and the Respondent - ex parte Award requiring the Petitioner to pay to the Respondent together with interest @ 18% per annum from the date of the claim till realisation apart from costs of arbitral proceedings - HELD THAT:- The Court finds that the learned Arbitrator has simply gone by the clauses in the agreement and even without scrutinising the calculation of the amount claimed by the Respondent, has awarded it in toto. The Court finds that this is a case where the Respondent is seeking to enforce terms and conditions of an agreement dated 1st March 2012 which are on the face of it opposed to public policy and clearly hit by Sections 23 and 28 of the Contract Act, 1872.
The clauses of agreement appear to the Court to be wholly unconscionable and opposed to public policy and, therefore, hit by Section 23 of the Contract Act. An award based on the above clauses which promise the Respondent to recover an unconscionable sum would be clearly opposed to the public policy of India and likely to be interfered with under Section 34 (2) (b) (ii) of the Act.
The above clauses clearly constitute an unconscionable restraint on the right of one of the parties to seek legal redress. The clauses are hit by Section 28 of the Contract Act. What is even strange is that even a copy of the said agreement is not made available to the other party. The Petitioner was only allowed to see/read the agreement. The Petitioner was required to contact the Centre Director with prior appointment. In fact, it is the Petitioner”s case that he was not even given a copy of the agreement.
It shocks the judicial conscience that the Arbitrator mechanically proceeded to pass an Award in favour of the Respondent on the basis of the aforementioned patently illegal clauses of the contract. The Court is unable to sustain the impugned Award of the learned Arbitrator - the impugned Award is hereby set aside. The petition is allowed.
Abuse of dominant position by the appellant - determination of relevant market - guilty of contravention of Section 4(2)(c) of the Competition Act, 2002 - rule of audi alteram partem/principles of natural justice - HELD THAT:- The ambit and scope of principles of natural justice has been considered by the Courts across the globe. In India, the High Courts and Supreme Court have invoked these principles in innumerable cases and quashed administrative, quasi judicial or even judicial orders the ground of violation thereof.
The judgment in State of Orissa vs. Dr. (Miss) Binapani Dei and others [1967 (2) TMI 96 - SUPREME COURT], contains a lucid exposition of the principles of natural justice and their applicability to what was then thought as purely administrative action. The facts of that case were that the respondent had been retired from service by the State Government by relying upon the date of birth which was unilaterally changed by the competent authority. The Orissa High Court quashed the retirement of the respondent by declaring that it was punitive and amounted to removal from service within the meaning of Article 311 of the Constitution. The High Court further held that the order of retirement was vitiated because the writ petitioner had not been given a reasonable opportunity of showing cause against the proposed change in the date of birth recorded in her service book.
In Kothari Filaments and another vs. Commissioner of Customs (Port), Kolkata and others [2008 (12) TMI 28 - SUPREME COURT], the Supreme Court considered the correctness of an order passed by the Calcutta High Court dismissing the writ petition filed by the appellant against the order of the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta, which, in turn, approved the order of confiscation and penalty passed by the competent authority under the Customs Act, 1962.
In State (NCT of Delhi) v. Navjot Sandhu [2005 (8) TMI 663 - SUPREME COURT], the Supreme Court held that print outs taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. This would make the call records admissible. The Supreme Court went further on to state that irrespective of the compliance of the requirements of Section 65B of the Evidence Act which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. The Court held that merely because a certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.
The finding recorded by the Commission on the issue of abuse of dominance is legally unsustainable and is liable to be set-aside because the information downloaded from the net and similar other material do not have any evidentiary value and, in any case, the same could not have been relied upon by the Commission without giving an effective opportunity to the appellant to controvert the same.
The discussion made by the Commission in the context of clause 9.1(c)(i) of the media agreement is also vitiated due to breach of principles of natural justice because the same was neither referred in the order passed under Section 26(1) nor the Director General recorded any finding qua its validity or otherwise and on this count the appellant did not get an opportunity to defend the said clause.
The impugned order is set aside and the matter is remitted to the Commission for fresh disposal in accordance with law - Appeal allowed.
Scope of review - Disbursement of all retirement benefits that are due to him on the date of attaining his superannuation with interest - HELD THAT:- From the records, it is seen that the review applicant did not contest the claim of the first respondent on merits in the writ petition. On the other hand, the learned counsel for the review applicant admitted the contentions of the first respondent. Based on the said admission only, an order was passed in the writ petition.
The review application and the writ appeal filed by the review applicant herein were dismissed as not maintainable - It is well settled that the scope of review is very limited. The review applicant cannot re-argue and he is not entitled for re-hearing on merits.
There are no error apparent on the face of record in the judgment, passed by this Court. Accordingly, the Review Application fails - the Review Application is dismissed.
Seeking custody of the child - Jurisdiction of the Delhi High Court in child custody matters - Application of the principle of comity of courts - Interim custody and visitation rights -Appellant sought their production to enable him to take the children with him to the U.K. since they were wards of the court in the U.K. to enable the foreign court to decide the issue of their custody - High Court set aside the petition on the ground that the Guardian Court had no jurisdiction to entertain the proceedings since the child was not ordinarily resident in Delhi.
HELD THAT:- The court framed the following principles:
1. The welfare of the child is the paramount consideration. The principle of comity of courts demands consideration of an order passed by a foreign court but not necessarily its enforcement.
2. The time gap in moving the domestic court for repatriation affects whether a summary or elaborate inquiry should be held.
3. An order of a foreign court is a factor for repatriation but does not override the welfare of the child.
4. The domestic court must consider whether to conduct an elaborate or summary inquiry on the question of custody if a child is removed from the jurisdiction of a foreign court.
5. A constitutional court may conduct an elaborate inquiry into the welfare of the child in a habeas corpus petition.
6. The domestic court is duty-bound to examine the matter independently, taking the foreign judgment only as an input.
On the facts of the case, this court held that “repatriation of the minor to the United States, on the principle of “comity of courts” does not appear to us to be an acceptable option worthy of being exercised at that stage.” Accordingly, it was held that the “Interest of the minor shall be better served if he continued to be in the custody of his mother [Ruchi Majoo].”
Discussion of the law - The principle of the comity of courts is essentially a principle of self-restraint, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. There may be a situation where the foreign court though seized of the issue does not pass any effective or substantial order or direction. In that event, if the domestic court were to pass an effective or substantial order or direction prior in point of time then the foreign court ought to exercise self-restraint and respect the direction or order of the domestic court (or vice versa), unless there are very good reasons not to do so.
Therefore, we are concerned with two principles in a case such as the present. They are (i) The principle of comity of courts and (ii) The principle of the best interests and the welfare of the child. These principles have been referred to “contrasting principles of law” but they are not ‘contrasting’ in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case.
Discussion on facts - We have considered the fact that the children have been in Coimbatore since August 2012 for over two years. The question that arose in our minds was whether the children had adjusted to life in India and had taken root in India and whether, under the circumstances, it would be appropriate to direct their repatriation to the U.K. instead of conducting an elaborate inquiry in India. It is always difficult to say whether any person has taken any root in a country other than that of his or her nationality and in a country other than where he or she was born and brought up.
From the material on record, it cannot be said that life has changed so much for the children that it would be better for them to remain in India than to be repatriated to the U.K. The facts in this case do not suggest that because of their stay in India over the last two years the children are not capable of continuing with their life in the U.K. should that become necessary. However, this can more appropriately be decided by the foreign court after taking all factors into consideration.
We are conscious that it will not be financially easy for Mayura to contest the claim of her husband Surya for the custody of the children. Therefore, we are of the opinion that some directions need to be given in favour of Mayura to enable her to present an effective case before the foreign court.
The appeal was disposed of with specific directions for the mother to take the children to the U.K. during their summer vacations, with the father bearing the cost of litigation expenses, air fare, and maintenance. The court emphasized the importance of the principle of comity of courts and the welfare of the child in making its decision.
Impleadment of a party to the suit - Suit for specific performance of contract - HELD THAT:- Freshly impleaded defendant-applicant (respondent No.2 herein) has claimed to be owner of the property in dispute by way of purchase in public auction held by the Debts Recovery Tribunal and thus, is asserting right, title and interest in the property. In tune with law laid down in Sumtibai and others Versus Paras Finance Company Manknwar w/o Parasmal Chordia (D) and others [2007 (10) TMI 653 - SUPREME COURT], leaving such party unimpleaded in litigation would be resulting in truncated resolution of dispute which would lack wholesomeness. It would also not be effective, competent and appropriate adjudication. Where a third party clearly has right, title and interest in the property in dispute, impleadment of such party in the suit, rather, becomes necessary to avoid multiplicity of litigation and for competent, complete and effective adjudication of the litigation among the parties.
Looking from another angle, applicant-respondent-defendant claims ownership in the suit property even earlier to filing of the suit by the plaintiff, petitioner herein, who is real sister of the respondent-vendor- defendant who was in litigation with State Bank of Patiala before the Debts Recovery Tribunal and this property having been sold in public auction had lost her title in the said property.
The impugned order affirmed - the revision petition is dismissed.
Civil court amenable to writ jurisdiction Under Article 226 or not - whether the view taken in SURYA DEV RAI VERSUS RAM CHANDER RAI & ORS. [2003 (8) TMI 527 - SUPREME COURT] that a writ lies Under Article 226 of the Constitution against the order of the civil court, which has been doubted in the reference order, is the correct view? - HELD THAT:- In TC. BASAPPA VERSUS T. NAGAPPA [1954 (5) TMI 21 - SUPREME COURT], question before this Court was as to the scope of jurisdiction Under Article 226 in dealing with a writ of certiorari against the order of the Election Tribunal. This Court considered the question in the background of principles followed by superior courts in England which generally formed the basis of decisions of Indian Courts. This Court held that while broad and fundamental norms regulating exercise of writ jurisdiction had to be kept in mind, it was not necessary for Indian Courts to look back to the early history or procedural technicalities of the writ jurisdiction in England in view of express constitutional provisions. Certiorari was meant to supervise "judicial acts" which included quasi judicial functions of administrative bodies.
In NARESH SHRIDHAR MIRAJKAR VERSUS STATE OF MAHARASHTRA [1966 (3) TMI 77 - SUPREME COURT], a nine Judge Bench judgment, a judicial order of High Court was challenged as being violative of fundamental right. This Court by majority held that a judicial order of a competent court could not violate a fundamental right. Even if there was incidental violation, it could not be held to be violative of fundamental right.
In RUPA ASHOK HURRA VERSUS ASHOK HURRA & ANOTHER [2002 (4) TMI 889 - SUPREME COURT] it was held that final order of this Court cannot be challenged Under Article 32 as violative of fundamental right. Judgment of this Court in SMT. TRIVENIBEN & ORS. VERSUS STATE OF GUJARAT & ORS. [1989 (2) TMI 404 - SUPREME COURT] was referred to with approval to the effect that a judicial order could not violate a fundamental right.
It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision Under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts.
Judicial orders of civil court are not amenable to writ jurisdiction Under Article 226 of the Constitution - Jurisdiction Under Article 227 is distinct from jurisdiction from jurisdiction Under Article 226 - Contrary view in Surya Dev Rai is overruled.
The matters may now be listed before the appropriate Bench for further orders.
The High Court of Delhi rejected the application for provisional release of goods in an order dated 13.2.2015. The writ petition was disposed of on 30.1.2015. The petitioner can seek further legal remedies in accordance with the law regarding the rejected order.
Right to maintenance - Payment of maintenance, medical, clothing and educational expenses - seeking an order to protect the right to reside in the share household, under Section 17 of the Act - seeking protection order, under Section 17(e) of the Act, not to alienate or encumber the property - HELD THAT:- The Protection of Women from Domestic Violence Act, 2005, is to rectify the causus omission in the ordinary civil law. The expression, "Causus Omissus", as explained in various decisions, means (1) Omitted case, (2) What a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a Causus Omissus.
In a given case, Wife would not have made any claim for maintenance under Section 125 of the Code of Criminal Procedure, or any other law, for the time being in force. However, under Section 23 of the Act, she can make a claim for maintenance. In such circumstances, the Magistrate has the power to order monthly payment of maintenance, under Section 20(3) of the Act. Though the words, "appropriate lumpsum payment" in Section 20(3) of the Act, may suggest to mean that it is a permanent alimony, yet from the reading of the Act, the power of the Magistrate, to order for lumpsum payment, arising out of necessity, including educational, medical expenses and such other need, enumerated in Section 20 of the Act, is not circumscribed.
Reading of the Act in entirety makes it clear that the legislature has enumerated certain contingencies and circumstances, in relation to domestic violence and empowered the Court to pass just and proper orders, to redress the grievance of the aggrieved person. From the reading of the Act, it is manifestly clear that the Domestic Violence Act, is independent of other laws.
It provides for redressal of all kinds of deprivation or any economic or financial resources to which the aggrieved person is entitled under any law or custom, whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.
Wife and son have not filed any appeal against the denial of maintenance. But the petitioner has filed Crl. A. No. 180 of 2012 against the directions to pay Rs. 5,00,000/- towards the educational expenses to son. The appellate Court has modified the same, to the extent directing wife to furnish proof of admission in VLB College or any other college, and also to furnish complete fee structure to be paid, for the year 2012, alongwith the proof of capitation fees, if any, before the trial Court and further directed the petitioner to pay 50% of the capitation fees within two days of filing the proof of fees structure before the trial Court - The appellate Court has also directed the balance of 50% of the capitation fees to be paid by the husband and on production of the admission letter, before the trial Court. In addition to the above, the appellate Court has directed Rs. 50,000/- to be paid to the son, with liberty to utilise the same, for his other personal expenses. Monthly maintenance of Rs. 5,000/- for the son has been ordered to be deposited on or before, every 5th day of the English Calendar Month, in the personal account of the son.
Husband is directed to pay a sum of Rs. 2,11,200/- towards the college fees for 3rd and 4th years, in two installments. The first installment should be paid within 10 days, from the date of receipt of a copy of this order. The 2nd payment should be made within one month thereafter. Payment of Rs. 50,000/- to the Son, on admission, is sustained, having regard to the amount spent towards purchase of books, travel, etc., for all these years. Monthly maintenance of Rs. 5,000/- ordered to the Son is modified and ordered to be paid to the Wife. The 4th respondent-College is directed to permit the Son to continue his education in B. Tech (IT) course, without any interruption. Conversion of the amount of maintenance, earlier ordered to the Son, in favour of the Wife, would not preclude the learned Judicial Magistrate No. 1, Coimbatore, to consider the merits of the case and pass suitable orders, as to the entitlement of maintenance of both the respondents. Arrears of maintenance, at the rate of Rs. 5,000/-, ordered to be paid to the wife, upto date, shall be paid, within one month, from the date of receipt of the order.
Liability towards interest expenditure claimed by the appellant - HELD THAT:- This issue was stated to be covered by the earlier decision of the Tribunal, as while deciding this ground Ld. CIT(A) has relied upon the decision in the case of Hitesh S. Mehta [2013 (10) TMI 1065 - ITAT MUMBAI] wherein tribunal has restored back the issue to the file of AO and in assessee’s own case in respect of assessment years 2002-03, 2008-09, 2000-01, 2001-02, similar issue has been restored back to the file of AO.
Thus respectfully following the aforementioned decision of the Tribunal in assessee’s own case we restore this ground for all the years to the file of AO with similar directions and this ground for all the years is considered to be allowed for statistical purposes.
MAT - calculation of book profit u/s 115JB - HELD THAT:- As decided in assessee’s own case for A.Y 2008-09 [2014 (10) TMI 1075 - ITAT MUMBAI] issue allowed for statistical purposes with a direction to decide it afresh as per the provisions of law after giving finding on the claim of interest thus this ground is allowed for statistical purposes.
Charging of interest u/s 234A, 234B and 234C - HELD THAT:- Tribunal in the case of assessee for assessment year 2008-09 [2014 (10) TMI 1075 - ITAT MUMBAI] - Agreed, levy of interest is mandatory and sometimes consequential depending upon the facts of each case. thus direct the Assessing Officer to recomputed the interest liability after reducing the amount of tax deductable at source. We direct accordingly, thus, this ground is allowed for statistical purposes.
Applicability of G.O. Ms. 124 dated 7th March, 2002 to the posts for which selection process has already started pursuant to 1999 advertisement - retrospective in nature or not - If the said G.O. Ms. is retrospective, whether it is required to review the entire select list disturbing the appointments already made during the period between the 2001 and 7th March, 2002? - HELD THAT:- In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha [1961 (4) TMI 82 - SUPREME COURT], the Constitution Bench of this Court while considering the question as to whether an Act is to be made operative prospectively or retrospectively held a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the legislature is apparent.
A statutory provision is held to be retrospective either when it is so declared by express terms, or the intention to make retrospective clearly follows from the relevant words and the context in which they occur.
By Presidential order, 1975 the State Government has not been empowered to pass any order under sub-paragraph (1) of paragraph 3 or paragraph 8 with retrospective effect. Apart from the fact that the State Government was not empowered by the Presidential Order, 1975 to pass any orders with retrospective date, in absence of any terms or the intention to make it retrospective date, the G.O. Ms. No. 124 dated 7th March, 2002 cannot be given effect from a retrospective date - In any case, the State Government cannot pass any order amending a procedural law regarding reservation in the matter of selection to posts, with retrospective effect, once the procedure of selection starts.
The G.O. Ms. No. 124 dated 7th March, 2002 is prospective and is not applicable to the process of selection started pursuant to Advertisement No. 10 of 1999 including the 973 executive posts which were ordered to be filled up by the High Court pursuant to the advertisement. The Tribunal erred in directing the APPSC to re-caste the merit list pursuant to G.O. Ms. No. 124 dated 7th March, 2002. The High Court by the impugned judgment dated 27th December, 2004 rightly held that the order passed by the Court will not affect the appointments already made to the executive post between 2001-2002 but erred in holding that the selection is to be made in accordance with G.O. Ms. No. 124 dated 7th March, 2002.
The Respondents are directed to fill up the rest of the posts including the posts of Municipal Commissioners Grade-III, Asstt. Commercial Tax Officers, Asstt. Labour Officers in executive cadre and Asstt. Section Officers in non executive cadre, which are vacant, as per President Order, 1975 and the Government orders in consonance with the Presidential Order which were prevailing in the year 1999 when the Advertisement was issued. The inter se seniority between the persons appointed in the 1st round and the persons appointed afterwards in the same cadre, if any, shall be decided by the appropriate authority in accordance with the rules, depending on the merit ranking obtained by them.
Cognizance of offence - against the petitioners under Sections 323/417 of the Indian Penal Code - no offence under Sections 323/417 of the Indian Penal Code made out - HELD THAT:- The complainant specifically alleged at paragraph No. 2 that petitioners induced him to invest money in the contract work allotted to them by Idea Mobile Tower Company and they will return the said amount after payment of the bill. Petitioners also assured the complainant that they will give him half of the profit. Paragraph No. 3 of the complaint petition shows that complainant agreed to invest money in the contract work of accused on the aforesaid inducement. Paragraph No. 5 of the complaint shows that complainant invested Rs. 1,65,000/- in the work of petitioners. It is further stated that after payment of the bill amount, petitioners refused to pay the amount as promised. At paragraph No. 12 it is stated that when complainant went to the house of petitioners and requested for returning the money, he was assaulted by the petitioners.
Prima-facie it is found that the offences under Sections 323/417 of the India Penal Code are made out. Accordingly, there are no merit in this application, thus, same is dismissed.
TDS u/s 195 - Disallowance u/s 40(a)(i) - payments made to non-residents - assessee has not deducted TDS on agency commission and consultancy charges - assessee before ITAT submitted that the issue may be remitted back to the file of the A.O. for verification - HELD THAT:- We find that neither the A.O. nor the Ld. CIT(Appeals) discussed the factual aspects of the issue. Therefore we set aside the order passed by the Ld. CIT(Appeals) and remit the matter back to the file of the A.O. to decide the issue after considering all the facts with regard to agency commission and consultancy charges and after giving reasonable opportunity of being heard to the assessee.
Disallowance u/s 14A - As again the authorities below have not discussed the facts relating to the actual expenditure incurred by the assessee. Therefore we set aside the order passed by the CIT(Appeals) and direct the A.O. to decide this issue also afresh after examining the facts of the case.
Appeal filed by the Revenue is allowed for statistical purposes.
TDS u/s 194J - addition u/s 40(a)(ia) - Non deduction of TDS - assessee has submitted that the assessee had not claimed these payments as expenditure, hence there was no question of disallowance of any expenditure - HELD THAT:- We are in agreement with the above finding of the Tribunal. When there is no claim of expenditure there cannot be any disallowance of expenditure. Respectfully following the decision of the Tribunal in the immediate preceding assessment year in the own case of the assessee [2015 (3) TMI 185 - ITAT MUMBAI], this issue is decided in favour of the assessee and the disallowance made by the lower authorities under section 40(a)(ia) is hereby ordered to be deleted.
Disallowance u/s 40(a)(ia) which has been correctly deleted by the CIT(A) on the basis of certificates furnished under section 197 of the Act by the payee hospitals
Disallowance on account of unreconciled receipts - as agitated on behalf of the Revenue that the Ld. CIT(A) deleted the disallowance without properly appreciating the factual and legal matrix of the case - HELD THAT:- A perusal of the impugned order reveals that the Ld. CIT(A), after going through the reconciliation statement, had accepted the contention of the assessee that the difference was on account of different method of accounting of Revenue. Assessee had shown income much more than as reflected in the ICS data. He agreed with the contentions of the assessee that the differential amount had been shown either in earlier or later years. We do not find any infirmity in the above findings of the CIT(A) in deleting the disallowance on account of differences in the reconciliation statement.
Reversal of acquittal recorded under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - illegal gratification - demand of bribe - HELD THAT:- It is agreed that the High Court that the trial court while appreciating the prosecution evidence completely ignored the presumption required to be taken under Sub-section (1) of Section 20 of the Prevention of Corruption Act, 1988. Sub-section (1) of Section 20 provides that where, in any trial of an offence punishable Under Section 7 or Section 11 or Clause (a) or Clause (b) of Sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
In the present case, there was no question of giving benefit of reasonable doubt to the accused.
In Himachal Pradesh Administration v. Om Prakash [1971 (12) TMI 127 - SUPREME COURT], explaining the expression "reasonable doubt", this Court has observed that It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether.
In view of law laid down by this Court, as above, and after considering evidence on record in the light of Section 20 of Prevention of Corruption Act, 1988, we hold that the trial court did err in law in giving benefit of reasonable doubt in the present case relating to corruption.
Considering the rival submissions of learned Counsel for the parties, there are no reasons to interfere with the impugned order passed by the High Court convicting and sentencing the Appellant Under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
Seeking grant of bail - arranging undeserving candidates to get admission to the M.B.B.S. - Main contention advanced on behalf of the Appellant is that the Appellant has already been in custody for about one year and there is no prospect of commencement of trial in the near future - HELD THAT:- It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time.
Undoubtedly, the offence alleged against the Appellant has serious adverse impact on the fabric of the society. The offence is of high magnitude indicating illegal admission to large number of undeserving candidates to the medical courses by corrupt means. Apart from showing depravity of character and generation of black money, the offence has the potential of undermining the trust of the people in the integrity of medical profession itself. If undeserving candidates are admitted to medical courses by corrupt means, not only the society will be deprived of the best brains treating the patients, the patients will be faced with undeserving and corrupt persons treating them in whom they will find it difficult to repose faith. In these circumstances, when the allegations are supported by material on record and there is a potential of trial being adversely influenced by grant of bail, seriously jeopardising the interest of justice, there are no ground to interfere with the view taken by the trial Court and the High Court in declining bail.
It is certainly a matter of serious concern that the Appellant has been in custody for about one year and there is no prospect of immediate trial. When a person is kept in custody to facilitate a fair trial and in the interest of the society, it is duty of the prosecution and the Court to take all possible steps to expedite the trial. Speedy trial is a right of the accused and is also in the interest of justice - the prosecution and the trial Court must ensure speedy trial so that right of the accused is protected. This Court has already directed that the investigation be finally completed and final charge sheet filed on or before March 15, 2015.
It is directed that if the trial is not completed within one year from today for reasons not attributable to the Appellant, the Appellant will be entitled to apply for bail afresh to the High Court which may be considered in the light of the situation which may be then prevailing.
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