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Showing 1 to 20 of 1477 Records
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2016 (4) TMI 1479
Disallowance u/s 40(a)(ia) - non deduction of TDS on consultancy charges and towards audit fees - HELD THAT:- Under the scheme of Income-tax Act, the tax has to be deducted at the time of payment or while giving credit in the books of account. In this case, admittedly, the assessee has paid the amount without deducting the tax. Since the assessee admittedly failed to deduct tax at the time of payment, this Tribunal is of the considered opinion that the CIT(A) has rightly confirmed the addition made by the Assessing Officer.
Addition u/s 68 - there was a contradiction between the claim of the assessee and the evidence available with regard to share application money received - HELD THAT:- Tribunal is of the considered opinion that the letters have to be sent to the address mentioned in the Government website of Department of Corporate Affairs to find out the existence or otherwise of the nine companies who said to have invested in the shares of the assessee-company. Since the assessee specifically claims that the letters were not sent to the correct address of the investors, Tribunal is of the considered opinion that giving one more opportunity to the AO to send the letters to correct address of nine companies may not prejudice the interest of the Revenue.
This Tribunal is of the considered opinion that giving such an opportunity would definitely promote the cause of justice. Before concluding that the transactions are bogus or dubious in nature, this Tribunal is of the considered opinion that the existence of the so-called nine companies need to be ascertained.
Accordingly, the orders of the authorities below are set aside and the issue of addition made u/s 68 is remitted back to the file of the AO. AO shall issue notice to the nine companies in the address mentioned in the website of Department of Corporate Affairs. It is open to the assessee to furnish correct address of nine companies so as to enable the Assessing Officer to issue letters / show cause notice with regard to investment made in the assessee-company.
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2016 (4) TMI 1478
TPA - comparable selection - selection criteria - Held that:- The Appellant provides mapping services mainly to COWI A/S, which is 59% of the total turnover of the Appellant. As per the functional analysis documented in the Transfer Pricing documentation, the Appellant can be is characterized as a service provider, which assumes less than normal risks associated with carrying out such business, companies functionally dissimilar with that of assessee need to be deselected from final list of comparability.
Computing the addition to the international transactions - appellant submitted that its AE segment transactions constitutes only 59% of the total transactions however DRP has held that percentage at 70% without any basis - Held that:- Before us assessee has submitted that it is only 59% and not 70%. The same facts were also put before ld. DRP vide letter dated 16th May 2011 placed at Page No.804 of the Paper Book. In view of the above facts to verify this factual matter as principal has already been accepted by ld. TPO on direction of DRP we set aside this matter to the file of ld. TPO to work out the correct adjustment after verification.
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2016 (4) TMI 1476
Dishonour of Cheque - legality and validity of the order of issuance of process and continuity of proceedings in absence of impleadment of Hindu Undivided Family (HUF) as party to such proceedings and as an equator - Hindu Undivided Family (HUF) can be considered a "company" or "association of individuals" or not - vicarious liability of karta of the family - invocation of extraordinary jurisdiction under Article 226 of the Constitution of India read with inherent powers under section 482 of the Code of Criminal Procedure, 1973 - HELD THAT:- The Supreme Court in the case of Ramanlal Bhailal Patel v. State of Gujarat [2008 (2) TMI 859 - SUPREME COURT], while interpreting the Gujarat Agricultural Land Ceiling Act, 1960, was considering the definition of a person to hold that it is inclusive one and it includes 'a joint family' and word 'includes' indicates an intention to enlarge the meaning of the words used. The word 'include' is used in contrast from 'means'. The Court also held that the 'person' in Ceiling Act will, unless the context otherwise requires, refer to, a natural human being, any legal entity which is capable of possession of rights and duties, including any company or association of person or individuals (whether incorporated or not) and a Hindu Undivided Family or any other group or unit of persons, the members of which by custom or usage, are joint in estate and residence, are covered. The Court also held that the 'association of persons' or 'body of individuals' are the expressions which are interchangeable at legal connotation.
The Apex Court has held that the HUF is a person for the purpose of Gujarat Agricultural Lands Ceiling Act. Section 2(21) of the said Act defined that a 'person' includes a joint family and section 2(16) of the very Act defined that a joint family means Undivided Hindu Family. The Apex Court held that the word 'person' in Ceiling Act will, unless the context otherwise requires refers to HUF as the definition is inclusive and also in absence of exclusion. There is no inclusion of HUF in the definition of the term 'company' under the Negotiable Instruments Act and, thus, in absence of any specific inclusion, it cannot be termed as 'company'.
This Court essentially agrees with the reasonings given by the learned Single Judge of the Madras High Court in the case of Arpit Jhanwar [2012 (6) TMI 933 - MADRAS HIGH COURT], to hold that an HUF will not constitute the association of individuals as per the term 'company' explained in section 141 of the Act and any member of the HUF would not be vicariously liable for commission of the offence punishable under section 138 of the Negotiable Instruments Act.
Conclusion - The expression 'association of individuals' as explained in section 141 of the Act will not include an HUF so as to be called as a 'company' in terms of section 141 of the Act. The complaints against the petitioner as Karta of the HUF are maintainable without impleading the HUF as a party.
Petition dismissed.
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2016 (4) TMI 1475
Prayer to wind up the respondent Company - Sections 433 and 434 of the Companies Act, 1956 - HELD THAT:- Upon perusal of the averments made in the petition and the documents annexed thereto, it is, prima facie, evident to the Court that the respondent Company, after having admitted the dues it owes to the petitioner, is unable to make the payment of the same.
Petition admitted - The final hearing of the petition shall be taken place on 09.06.2016.
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2016 (4) TMI 1474
Maintainability of appeal - locus standi of the appellants to file an appeal - appellants contended that the High Court has failed to appreciate that the FIR and the charge sheet establish a prima-facie case against the respondent nos. 2-9 - it is also submitted that criminal proceedings ought not to have been quashed by the High Court in exercise of its power under Section 482 of Cr.PC.
Whether this appeal is maintainable by the appellants on the ground of the locus standi? - HELD THAT:- The appellants have locus standi to maintain this appeal. From the material placed on record, it is clear that the appellants have precise connection with the matter at hand and thus, have locus to maintain this appeal - Further, it is pertinent here to observe that it may not be possible to strictly enumerate as to who all will have locus to maintain an appeal before this Court invoking Article 136 of the Constitution of India, it depends upon the factual matrix of each case, as each case has its unique set of facts. It is clear from the aforementioned case law that the Court should be liberal in allowing any third party, having bonafide connection with the matter, to maintain the appeal with a view to advance substantial justice. However, this power of allowing a third party to maintain an appeal should be exercised with due care and caution. Persons, unconnected with the matter under consideration or having personal grievance against the accused should be checked. A strict vigilance is required to be maintained in this regard.
Whether the High Court, in the instant case, has exceeded its jurisdiction while exercising its inherent power under Section 482 of the CrPC? - HELD THAT:- A careful reading of the material placed on record reveals that the learned CJM took cognizance of the offences alleged against the accused-persons after a perusal of case diary, chargesheet and other material placed before the court. The cognizance was taken, as a prima facie case was made out against the accused-persons. It is well settled that at the stage of taking cognizance, the court should not get into the merits of the case made out by the police, in the chargesheet filed by them, with a view to calculate the success rate of prosecution in that particular case. At this stage, the court’s duty is limited to the extent of finding out whether from the material placed before it, offence alleged therein against the accused is made out or not with a view to proceed further with the case.
The High Court has exceeded its jurisdiction under Section 482 of the CrPC. It has erred in quashing the cognizance order passed by the learned CJM without appreciating the material placed before it in correct perspective. The High Court has ignored certain important facts, namely, that on 17.10.2008, the appellant no.1 was allegedly threatened by the accused-Mukhtar for which FIR No. 104/08 was registered against him for offences punishable under Sections 25 and 26 of the Arms Act, 1959 - The evidence collected by the I.O. by recording the statement of prosecution witnesses, filed alongwith the chargesheet was duly considered by the learned CJM before taking cognizance and therefore, the same should not have been interfered with by the High Court in exercise of its inherent power under Section 482 of the CrPC.
Further, the High Court has failed to take into consideration another important aspect that the case at hand relates to the grave offence of murder and that the criminal proceedings related thereto should not lightly be interfered with, which is a well settled proposition of law.
Order - HELD THAT:- This Court is of the view that the High Court in the instant case has failed to appreciate the material placed before it and has exceeded its jurisdiction while exercising its power under Section 482 of the CrPC. Therefore, the impugned judgment and order passed by the High Court is liable to be set aside by this Court.
The impugned judgment and order of the High Court is set aside and the matter is remitted to the learned CJM for proceeding further in accordance with law - The appeal is allowed.
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2016 (4) TMI 1473
Cess - Paper cess - Inclusion of paper cess in calculation of Education Cess - it was held by CESTAT that 'the Cess on Paper is not includable in the calculation of the Education Cess.' - HELD THAT:- The appeal is dismissed.
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2016 (4) TMI 1472
Penalty imposed for violation of the provisions of FERA - argument of breach of the principles of natural justice as petitioner was not afforded a reasonable opportunity to present his case - HELD THAT:- We are not in a position to accept the contention on behalf of the petitioner that no notice of the proceedings or of the date of hearing of the proceedings was served upon the petitioner. Since the petitioner chose not to participate in the proceedings, the question of making over documents by the authorities relied upon at the hearing to the petitioner does not arise.
Had the petitioner participated in the proceedings he would not have been made over the documents at the hearing. The request for cross-examination also is of no assistance as the petitioner was not present in the hearing to undertake the cross-examination of the witness on behalf of the authorities.
The impugned order is appealable. It gives reasons. The petitioner has chosen not to prefer an appeal. The petitioner has chosen to file a writ petition. The scope of enquiry in a writ jurisdiction is limited. The contention of breach of principles of natural justice cannot be accepted in the facts and circumstances of this case. No other ground has been canvassed at the hearing. Thus there is no infirmity in the order impugned.
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2016 (4) TMI 1471
Dishonour of Cheque - Whether judgment and sentence passed by learned Trial Court and affirmed by learned first Appellate Court are perverse and based upon non appreciation of oral as well as documentary evidence and whether learned Trial Court and learned Appellate Court have committed illegality as mentioned in memorandum of criminal revision petition? - HELD THAT:- Presumptions of Section 118 of Negotiable Instruments Act 1881 against the revisionist remained un-rebutted on record. Revisionist did not adduce any oral as well as documentary evidence in order to rebut the presumptions of Section 118 of Negotiable Instruments Act 1881. Even as per Section 139 of Negotiable Instruments Act 1881 there is presumption in favour of holder of the cheque. Complainant is the holder of the cheque Ext. C-1. Cheque Ext. C-1 is duly signed by revisionist in sound state of mind. Revisionist was major when he signed the cheque. It is held that revisionist had admitted his liability of antecedent debt when revisionist signed the cheque Ext. C-1 placed on record. Under Section 139 of Negotiable Instruments Act 1881 there is legal presumption that cheque was issued for discharging of antecedent liability.
Revisionist did not adduce any oral as well as documentary evidence on record in order to rebut the presumption in favour of holder of cheque under Section 139 of Negotiable Instruments Act 1881.
The criminal revision petition is dismissed.
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2016 (4) TMI 1470
Retrenchment from services by the Respondent-Managing Committee, DAV Public School - Appellant is a workman for the purpose of ID Act or not - conditions precedent for the retrenchment of a workman as prescribed Under Section 25F(a), (b) and (c) of the ID Act have been fulfilled or not - applicability of provision of Section 8(2) of the DSE Act.
Whether the Appellant is a workman for the purpose of ID Act? - HELD THAT:- The issue whether educational institution is an 'industry', and its employees are 'workmen' for the purpose of the ID Act has been answered by a Seven-judge Bench of this Court way back in the year 1978 in the case of Bangalore Water Supply [1978 (2) TMI 204 - SUPREME COURT]. It was held that educational institution is an industry in terms of Section 2(j) of the ID Act, though not all of its employees are workmen.
Thus, a driver employed by a school, being a skilled person, is a workman for the purpose of the ID Act. The question is answered accordingly in favor of the Respondents. The provisions of ID Act are applicable to the facts of the present case.
Whether the conditions precedent for the retrenchment of a workman as prescribed Under Section 25F(a), (b) and (c) of the ID Act have been fulfilled in the instant case? - HELD THAT:- Admittedly, the notice Under Section 25F(c) of the ID Act has not been served upon the Delhi State Government. In support of the justification for not sending notice to the State Government reliance has been placed upon the decision of this Court in the case of Bombay Journalists [1963 (12) TMI 33 - SUPREME COURT]. This decision was rendered in the year 1963 and it was held in the said case that the provisions of Section 25F(c) of the ID Act is directory and not mandatory in nature. What has been ignored by the Tribunal as well as the High Court is that subsequently, the Parliament enacted the Industrial Disputes (Amendment) Act, 1964.
Rule 76(a) clearly mandates that the notice has to be sent to the appropriate authorities within three days from the date on which notice is served on the workman. In the instant case, the notice of retrenchment was served on the Appellant on 07.01.2003. No evidence has been produced on behalf of the Respondents to show that notice of the retrenchment has been sent to the appropriate authority even till date.
Thus, it is clear that in the instant case, the mandatory conditions of Section 25F of the ID Act to retrench a workman have not been complied with. The notice of retrenchment dated 07.01.2003 and the order of retrenchment dated 25.07.2003 are liable to be set aside and accordingly set aside.
Whether the provision of Section 8(2) of the DSE Act is applicable to the facts of the instant case? - HELD THAT:- A number of legislations across the country have been enacted which deal with the Regulation of educational institutions, which contain provisions similar to the one provided for Under Section 8(2) of the DSE Act. One such provision came for consideration before a Constitution Bench of this Court in the case of Katra Educational Society v. State of Uttar Pradesh and Ors. [1966 (1) TMI 80 - SUPREME COURT]. The impugned provisions therein were certain Sections of the amended Intermediate Education Act (U.P. Act 2 of 1921). Section 16-G of the Intermediate Education (Amendment) Act, 1958 provided that Committee of Management could not remove or dismiss from service any Principal, Headmaster or teacher of a college or school without prior approval in writing of the Inspector. The Amendment Act also contained other provisions providing for governmental control over certain other aspects of the educational institutions.
A perusal of the Statement of objects and reasons of the DSE Act would clearly show that the intent of the legislature while enacting the same was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment.
The Respondent-Managing Committee in the instant case, did not obtain prior approval of the order of termination passed against the Appellant from the Director of Education, Govt. of NCT of Delhi as required Under Section 8(2) of the DSE Act. The order of termination passed against the Appellant is thus, bad in law.
Relief - HELD THAT:- The termination of the Appellant is bad in law for non-compliance with the mandatory provisions of Section 25F of the ID Act and also Section 8(2) of the DSE Act. Further, the Respondent-School has not produced any evidence on record to show that the retrenchment of the Appellant was necessary as he had become 'surplus'. The termination of the Appellant was ordered in the year 2003 and he is unemployed till date. The Respondents have been unable to produce any evidence to show that he was gainfully employed during that period and therefore he is entitled to back wages and other consequential benefits in view of the law laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyala (D.ED.) and Ors. [2013 (8) TMI 1142 - SUPREME COURT] wherein it was held 'Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.'
The impugned judgment and order dated 28.07.2008 passed by the Delhi High Court is liable to be set aside and accordingly set aside, by allowing this appeal. The retrenchment of the Appellant from his service is bad in law. The Respondent-Managing Committee is directed to reinstate the Appellant at his post. Consequently, the relief of back wages till the date of this order is awarded to the Appellant, along with all consequential benefits from the date of termination of his services. The back wages shall be computed on the basis of periodical revision of wages/salary.
Appeal allowed.
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2016 (4) TMI 1469
Validity of Block assessment u/s. 158BD - jurisdiction to record satisfaction - during the course of the Search proceedings at the premises of the UIC Group, no incriminating materials against the appellant company had been found - as argued satisfaction was to be recorded by the AO of the UIC group where the search was conducted but in the case in hand the satisfaction has been recorded by the AO having jurisdiction over the assessee.
HELD THAT:- As per the provisions of section 158BD of the Act the materials found during search should have been handed over to the AO having jurisdiction over such other person to initiate the action in terms of the aforesaid section.
But in the instant case no such procedure has been followed by the authorities. The share certificates found during the search were not handed over to the AO having jurisdiction over the assessee.
Thus AO of UIC group was to record the satisfaction before initiating the proceeding under section 115BD - But in the instant case the AO having the jurisdiction over the assessee has recorded the satisfaction which is incorrect as per law. Taking the consistent views in the decisions of Hon'ble Supreme Court in the case of Manish Maheshwari [2007 (2) TMI 148 - SUPREME COURT] and Champakbhai Mohanbhai Patel [2014 (2) TMI 1168 - GUJARAT HIGH COURT] we reverse the orders of Authorities Below and this ground of assessee's appeal is allowed.
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2016 (4) TMI 1468
Suspension of Customs Broker License - failure on the part of the petitioners herein to respond to a notice issued under Regulation 20(1) of the said Regulations of 2013 - HELD THAT:- Since it is evident that the petitioners have waited for more than ten months in seeking a stay of the operation of an order of continuance of suspension under Regulation 19(2) of the said Regulations of 2013, no order is called for except to expedite the process under Regulation 20 of the said Regulations.
Petition is disposed of by permitting the petitioners a week from date to file the reply to the show-cause notice received, without prejudice to the petitioners’ rights in the pending appeal before CESTAT.
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2016 (4) TMI 1467
Sanction of scheme of arrangement and compromise - sections 391 to 393 of the Companies Act, 1956 - HELD THAT:- The Scheme is not prejudicial to the interest of any person or entity, which has a stake/interest in the petitioner company. The said scheme as framed is not violative of any statutory provisions.
The scheme as formulated is fair, just, sound and is not contrary to any public policy or public interest. No proceedings appear to be pending under the provisions of Sections 231 to 237 of the Companies Act, 1956. All the statutory provisions appear to have been complied with - there shall be an order approving the scheme of arrangement and compromise between the petitioner company, viz., Updater Services Private Limited and its shareholders, with effect from the Effective Date, i.e., the date on which the sanctioned Scheme is filed with the Registrar of Companies, Chennai, Tamil Nadu by the petitioner company, as per the procedure laid down under Sections 391 to 393 of the Companies Act, which are duly complied with.
Petition disposed off.
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2016 (4) TMI 1466
Refusal to quash the criminal proceedings - Forgery - mis-appropriation of funds and breach of trust - HELD THAT:- As regards the commission of offences under the Information Technology Act, 2000 the allegations are that the Appellant had, with fraudulent and dishonest intention on the website of Devi Consultancy Services i.e. www.devidcs.com that the former is a sister concern of Devi Polymers. Further, that this amounts to creating false electronic record. In view of the finding, no offence is made out Under Section 66 of the I.T. Act, read with Section 43. The Appellant was a Director of Devi Polymers and nothing is brought on record to show that he did not have any authority to access the computer system or the computer network of the company. That apart there is nothing on record to show the commission of offence Under Section 65 of the I.T. Act, since the allegation is not that any computer source code has been concealed, destroyed or altered.
The acts of the Appellant did not have any dishonest intention while considering the allegations in respect of the other offences. In the circumstances, no case is made out Under Sections 65 and 66 of the I.T. Act, 2000.
The High Court seems to have over looked these circumstances and has merely dismissed the petition Under Section 482 of the Code of Criminal Procedure on the ground that it requires evidence at a trial to come to any conclusion - the criminal proceedings initiated by the Respondent constitute an abuse of process of Court and it is necessary to meet the ends of justice to quash the prosecution against the Appellant.
The prosecution is quashed - Appeal allowed.
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2016 (4) TMI 1465
Commissioning or installation of construction service - Activity of laying, jointing, testing and commissioning of PSC Pipes, construction of pumps, civil structures, supply, delivery and commissioning of submersible pump set and turbine pump sets, maintenance etc. - it was held by High Court that It was an activity in public interest, to take care of the civic amenities liable to be provided by the State. Therefore, the Tribunal was right in holding in favour of the Assessee - HELD THAT:- Leave granted.
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2016 (4) TMI 1464
Power under Section 482 of Cr.P.C. - Magisterial Court has taken cognizance against the applicants of the offence under Sections 147, 148, 323, 325, 307 and 302 read with Section 149 of IPC - right of investigating officer to keep the investigation pending - HELD THAT:- Investigation would be complete if the investigation officer would be in a position to opine that crime was found committed and hence charge sheet is filed with the final conclusion of the investigation officer. A clear distinction needs to be drawn amongst power under Section 173(8) of Cr.P.C. for further investigation, which would not result in subsequent reinvestigation. An investigation officer cannot be allowed to reinvestigate his own conclusions.
As held by the Apex Court in cases of MITHABHAI PASHABHAI PATEL AND ORS. VERSUS STATE OF GUJARAT [2009 (5) TMI 1004 - SUPREME COURT] and VINAY TYAGI VERSUS IRSHAD ALI @ DEEPAK AND ORS [2012 (12) TMI 1130 - SUPREME COURT], that under the power of Section 173(8) of Cr.P.C. only further investigation can be done by the investigation officer though the investigation agency is changed, but re-investigation or "de novo" investigation cannot be done. Hence when chargesheet is filed, the investigation officer has no right to reserve the investigation for few accused under Section 173(8) of Cr.P.C. because he is not permitted under that provision to reopen the case or reinvestigate the matter.
The provisions of Section 173(8) of Cr.P.C. does not give any right to the investigating officer to keep the investigation pending against few accused persons. It is for him to complete the investigation of the case within a period prescribed under S. 167 of Cr.P.C. and if he wants to ensure as to whether any offence is made out against any person or not then such conclusion should be obtained prior to filing of charge-sheet against any of the accused persons. After due investigation, it is a right of the police to declare some of the accused persons as absconding or at the time of filing of charge-sheet he may file the report under Section 169 of Cr.P.C. against some of the accused persons with the opinion that no offence is made out against them but the police has no right to reserve the investigation against few accused persons under the residuary provisions of Section 173(8) of Cr.P.C. either to give advantage to a particular accused person or otherwise. If such procedure is not followed then the Magistrate can refuse to take cognizance of the case because the investigation is incomplete and arrested person can be released on bail under Section 167(2) of Cr.P.C.
There is no reason to invoke the inherent power of this Court in favour of the applicants. It would be apparent that the applicants have challenged the order dated 01-11-2013 in a revision as well as with the petition before this Court and again started re-agitating that order by filing of application where such procedure could not be adopted. A litigant cannot be permitted to agitate a particular objection again and again. In such circumstances, looking to the conduct of the applicants, present petition is hereby dismissed at motion stage with imposition of costs of Rs. 5,000/- against the applicants. The costs be deposited before the High Court Legal Services Committee within a month from the date of this judgment.
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2016 (4) TMI 1463
Smuggling - recovery of 6 kgs of opium from possession of petitioner - Report of chemical examiner having not been received within a period of 180 days which expired on 29.1.2016 - whether challan without the report of chemical examiner presented within a period of 180 days could be said to be a challan as per the legal requirements of Section 173 (2) Cr.P.C. read with Section 173 (5) Cr.P.C., dis-entitling the accused for the default bail under Section 167 (2) Cr.P.C?
HELD THAT:- A Division Bench of this Court in VARINDER SINGH SANDHU AND ORS. VERSUS STATE OF PUNJAB [2015 (11) TMI 1900 - PUNJAB AND HARYANA HIGH COURT], has held that where an application for extension of time is filed by the PP before the expiry of 180 days for report of FSL having not been received, the accused would not be entitled to the benefit of Section 167 (2) Cr.P.C.
This Court in RAVINDER VERSUS STATE OF HARYANA [2014 (9) TMI 1284 - PUNJAB AND HARYANA HIGH COURT] has granted the default bail under Section 167 (2) Cr.P.C. when the cognizance had been taken by the trial Court without having obtained report of chemical examiner, observing that a report not accompanied by chemical examiner report would be a no charge-sheet. The Andhra Pradesh High Court in Matchumari China Venkatareddy and others Vs. State of AP, [1993 (3) TMI 391 - ANDHRA PRADESH HIGH COURT], has held that filing of charge sheet under Section 173 (2) Cr.P.C. was not complete unless it is accompanied by the papers contemplated under Section 173 (5) Cr.P.C. The Bombay High Court in Sunil Vasantrao Phulbande and another Vs. State of Maharashtra, [2002 (2) TMI 1362 - BOMBAY HIGH COURT] has granted benefit of Section 167 (2) Cr.P.C. to accused holding that incomplete charge sheet cannot be treated as police report at all as contemplated under Section 173 (2) Cr.P.C.
Following the judgment of Apex Court in Satya Narain Musadi’s case [1979 (9) TMI 197 - SUPREME COURT] which has been followed by the High Court of Andhra Pradesh in Matchumari China’s case, and by Calcutta High Court in Raghubirsaran Jain and another Vs. State and another, [1995 (6) TMI 203 - CALCUTTA HIGH COURT], it is opined that the petitioners herein should have been released, in peculiar circumstances of this case, as indefeasible right had accrued to them under Section 167 (2) Cr.P.C. on presentation of incomplete challan without the report of chemical examiner and the prosecution agency having not availed the benefit of Section 36 A (4) of the NDPS Act within a period of 180 days. In a case under the NDPS Act, a right of bail under Section 167 (2) Cr.P.C. of an accused can be defeated by the prosecution agency by availing the remedy under Section 36 A (4) of the NDPS Act subject to the fulfillment of the statutory requirement of Section 36 A (4) of the NDPS Act which is to be considered in each case on individual merits by the concerned trial Court/ Special Judge. The right under Section 167 (2) Cr.P.C. cannot be defeated by merely filing an incomplete challan.
The facts and circumstances of Narendra Kumar Amin’s case [2015 (1) TMI 1456 - SUPREME COURT] are not applicable to the facts of the present case as the challan presented in the said case fulfilled all the requirements of Section 173 (2) Cr.P.C. In the present case, without availing the remedy under Section 36 A (4) of the NDPS Act, an attempt had been made by the prosecution agency to defeat the rights of the petitioner by presenting challan within a period of 180 days without the report of chemical examiner which report had not been received even till the date of filing of the present revision petition.
The order passed by the Special Judge, Ludhiana dated February 3, 2016 dismissing the application under Section 167 (2) Cr.P.C. is hereby set aside. Petitioners are ordered to be released on bail on their furnishing bail bonds/ surety bonds to the satisfaction of the trial Court - petition allowed.
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2016 (4) TMI 1462
Seeking grant of bail - right to seek police remand - Challenge to rejection of prayer for police remand - HELD THAT:- The denial of police custody to the investigating agency in the instant case was not due to any fault on the part of such agency or due to operation of any supervening circumstance beyond the control of the parties, namely, state of health of the accused person etc. On the other hand, the denial of such right was due to an erroneous order passed by the Court below. Hence, merely setting aside the impugned order dated 18.3.2016 rejecting police remand would not cure the prejudice caused to the entitlement of the investigating agency to seek police remand which was scuttled by the said illegal order of the Magistrate. Investigating agency had rightly availed of its valuable right to seek police remand within the first 15 days of detention of the accused but was denied the same due to a wrong order passed by the Court.
Applying the maxim "actus curiae neminem gravabit" to the facts of the case, it is held that such erroneous order cannot defeat the right to seek police remand and the matter is accordingly remitted to the Magistrate for consideration of the prayer for further police remand as if such consideration is being made as on 18.3.2016.
In CENTRAL BUREAU OF INVESTIGATION SPECIAL INVESTIGATION CELL-I VERSUS ANUPAM J. KULKARNI [1992 (5) TMI 191 - SUPREME COURT], the prayer for police remand, in fact, was granted by the Magistrate but could not be availed of due to the health condition of the accused. Under such circumstances, the Apex Court held that further prayer for police remand could not have been entertained and granted after lapse of 15 days of detention. In the instant case further prayer for police remand was within the stipulated period but was illegally denied by the Court. Hence, the ratio of the aforesaid report is of no assistance to the petitioner.
Bail cannot be granted to accused - the learned Magistrate is directed to consider the prayer for further police remand of the accused forthwith positively by Friday i.e. 08.04.2016 and pass appropriate order thereon in accordance with law in the light of the observations made in this order.
Application disposed off.
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2016 (4) TMI 1461
Demand of service tax - Reverse charge mechanism - Overseas Commission Agent - it was held by CESTAT that the appellants claimed benefit of exemption Notification 14/2004 dt.10.9.2004 which was denied by the lower authorities, the demand of service tax under reverse charge confirmed against the appellants is set aside - HELD THAT:- Appeal admitted.
Tag with Civil Appeal Nos. 8676-8678 of 2015.
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2016 (4) TMI 1460
Subsidy with respect to Sales Tax payable - Tribunal holding that the subsidy received by the assessee cannot be reduced from written down value for purpose of computing depreciation of wind mills - as per assessee subsidy was not linked to any capital asset and accordingly, the same should not be reduced from the cost of asset for the purpose of granting depreciation - As held by HC[2011 (6) TMI 853 - GUJARAT HIGH COURT] Tribunal committed no error as CIT (A) as well as Tribunal both concurrently found that subsidy was not for the purpose of acquisition of the assets but was by way of incentive for encouraging development of alternative source of energy. It had, in fact, come on record that windmills were acquired in the earlier years. The Sales Tax incentive was granted by the State Government during the year in question. It, thus, remains established that the incentive was not given for acquisition of the wind mills but for development of wind farm by way of alternative source of energy - HELD THAT:- The special leave petition is dismissed.
Application, if any, also stands disposed of.
Subsidy received - Tribunal holding that the subsidy received by the assessee cannot be reduced from written down value for purpose of computing depreciation of wind mills - Whether cannot be reduced from written down value for purpose of computing depreciation of wind mills? - as per HC [2011 (8) TMI 1189 - GUJARAT HIGH COURT] Tribunal committed no error. CIT (A) as well as Tribunal both concurrently found that subsidy was not for the purpose of acquisition of the assets but was by way of incentive for encouraging development of alternative source of energy. It had, in fact, come on record that windmills were acquired in the earlier years. The Sales Tax incentive was granted by the State Government during the year in question. It, thus, remains established that the incentive was not given for acquisition of the wind mills but for development of wind farm by way of alternative source of energy - HELD THAT:- Delay condoned. The special leave petition is dismissed.
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2016 (4) TMI 1459
Reduction of Equity Share Capital - procedure prescribed under Section 101(2) of the Companies Act dispensed with - HELD THAT:- No objector has come forward to oppose the proposed reduction. Since the requisite statutory procedure has been fulfilled, the Company Scheme Petition is made absolute.
Petitioner to publish notices in the same newspapers i.e., ‘Free Press Journal’ in English language and ‘Navshakti’ in Marathi language, both having circulation in Mumbai and also in the Maharashtra Government Gazette about registration of Order and minutes of reduction by the concerned Registrar of Companies, Maharashtra.
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