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1982 (5) TMI 198
The Supreme Court allowed the appeal, stating that every interlocutory order cannot be considered a judgment. The Court directed the division bench to admit the appeal and decide it on merits regarding the amendment of the written statement, which affects the parties' rights. The High Court was requested to expedite the appeal process as the suit is still pending.
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1982 (5) TMI 197
Issues Involved:
1. Judicial action on letters by public-spirited individuals for enforcement of basic human rights.
2. Illegal detention of prisoners with unsound minds.
3. Lack of adequate institutions for the treatment of mentally sick prisoners.
4. Specific cases of prisoners detained for extended periods without justification.
5. Compliance with Section 428 of the CrPC 1973 regarding under-trial imprisonment.
Issue-Wise Detailed Analysis:
1. Judicial Action on Letters by Public-Spirited Individuals:
The Court addressed criticism regarding its practice of taking judicial action based on letters from public-spirited individuals and organizations. The Court defended this practice, emphasizing its role in protecting basic human rights of weaker community sections. The Court cited the case initiated by a letter from the Free Legal Aid Committee, Hazaribagh, which highlighted the illegal detention of prisoners in Hazaribagh Central Jail for decades. The Court treated the letter as a writ petition and issued a notice to the State of Bihar to ascertain facts regarding these prisoners.
2. Illegal Detention of Prisoners with Unsound Minds:
The Court found that several prisoners, including Sadal Chamar, Khedu Bhattacharya, Mohamadin, Kali Singh, Ambika Lal, and Jagannath Mahto, were still of unsound mind as per the latest examination by Dr. A.K. Prasad. The Court could not order their release due to their mental condition and the lack of someone to take care of them. The Court criticized the practice of detaining mentally sick individuals in jail due to inadequate institutions for their treatment. The Court directed the Superintendent of Hazaribagh Central Jail to have these prisoners examined every six months and submit reports to the District Judge, who would order their release if they regained sanity.
3. Lack of Adequate Institutions for the Treatment of Mentally Sick Prisoners:
The Court highlighted the inadequacy of institutions for treating mentally sick prisoners in Bihar, mentioning that the only institution, Mansik Arogayashala Kanke, was overcrowded. The Court criticized the practice of sending mentally ill individuals to jail for safe custody and urged the State Government to establish more institutions for their treatment.
4. Specific Cases of Prisoners Detained for Extended Periods Without Justification:
- Gomia Ho: Convicted in 1945 and found sane in 1966, but remained in jail until 1982 due to administrative negligence. The Court quashed the charge under Section 309 IPC and ordered his immediate release with funds for his journey and maintenance.
- Bhondua Kurmi: Acquitted in 1956 but detained due to insanity. Declared sane in 1961 but remained in jail until 1982 due to bureaucratic delays. The Court ordered his immediate release with necessary funds.
- Hiralal Gope: Remanded in 1963 and declared sane in 1982. The Court quashed the charge under Section 302 IPC and ordered his release with necessary funds.
- Raghunandan Gope: Detained in 1950 and declared sane in 1982. The Court quashed the charge under Section 302 IPC and ordered his release with necessary funds.
- Francis Purti: Acquitted in 1968 but detained due to insanity. Declared sane in 1972 but remained in jail until 1982. The Court ordered his immediate release with necessary funds.
- Gulam Jileni: Detained in 1968 under a reception order and declared sane in 1972 but remained in jail until 1982. The Court canceled the reception order and ordered his release with necessary funds.
- Kamla Singh: Acquitted in 1954 but detained due to insanity. Declared sane in 1979 but remained in jail until 1982. The Court ordered his immediate release with necessary funds.
- Hira Lal: Detained in 1948 and declared sane in 1981. The Court quashed the charge under Section 302 IPC and ordered his release with necessary funds.
5. Compliance with Section 428 of the CrPC 1973:
The Court directed the State Government to drop pending cases against the prisoners who had been in jail for over 25 years, as it would be purely academic to pursue these cases. The Court emphasized that the period of under-trial imprisonment should be taken into account for computing the sentence period, and the maximum imprisonment should not exceed 14 years even in life imprisonment cases.
Conclusion:
The Court adjourned the writ petition to consider whether the prisoners are entitled to compensation from the State Government for their illegal detention in contravention of Article 21 of the Constitution. The next hearing was scheduled for 26th July 1982.
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1982 (5) TMI 196
Issues Involved:
1. Limitation of the suit.
2. Validity of Bimla Devi's marriage.
3. Right of sons to demand partition during the father's lifetime.
4. Determination of joint family property.
5. Liability for accounting and division of assets.
Detailed Analysis:
1. Limitation of the Suit:
The primary issue was whether the suit filed for partition was within the limitation period. The court rejected the objection, stating that the right to sue did not accrue until the defendant infringed or threatened to infringe the plaintiffs' right. The plaintiffs had averred that it was in 1968 and afterwards that the defendant began to infringe their rights. The court concluded that the suit was not barred under Article 113 of the Limitation Act, as the right to sue accrued when the defendant clearly and unequivocally threatened to infringe the plaintiffs' rights.
2. Validity of Bimla Devi's Marriage:
The plaintiffs contended that Bimla Devi's marriage to Nanak Chand was invalid due to her previous undissolved marriage. The court disagreed with the single judge's finding, holding that the first marriage was not properly performed, thus invalid. The court found that Bimla Devi legally married Nanak Chand, and her sons were entitled to a share in the partition.
3. Right of Sons to Demand Partition During Father's Lifetime:
The court affirmed that under Mitakshara Law, a son could claim partition of joint Hindu family property during his father's lifetime, dismissing the contention that such a right was not available in Delhi.
4. Determination of Joint Family Property:
- Shares: The court upheld the finding that shares acquired between 1918 and 1949 were joint family property, as they could not have been purchased solely from Nanak Chand's personal income.
- Deposits and Bank Accounts: The court agreed with the single judge that the fixed deposit of Rs. 15,000 with Goodwill India Ltd. was joint family property, while the deposit of Rs. 10,000 in United Commercial Bank was not proved to belong to the joint family.
- Plots: The court upheld the finding that plots in Shalimar Garden and Mehrauli were self-acquired properties of Nanak Chand.
- Needle Boxes: The court agreed that 31 needle boxes were joint family property, rejecting the claim that they belonged to Bhagwati Devi.
- Ornaments and Jewellery: The court found no evidence to support the existence of joint family jewellery.
- Scooter: The court upheld the finding that the Vespa scooter was joint family property.
5. Liability for Accounting and Division of Assets:
- Marriage Expenses: The court found the amount of Rs. 25,000 for the marriage expenses of daughters reasonable and rejected the appellants' objection.
- Sale of House No. 3895: The court agreed that in the absence of misappropriation allegations, the sale proceeds were presumed to be used for the family's benefit.
- Accounting for Shares: The court upheld the direction that plaintiffs and defendants 2 and 3 were liable to account for shares held since May 1963, including accretions and dividends.
- Interest on Transferred Shares: The court agreed that plaintiffs were liable to pay interest at 6% per annum on the sale consideration of transferred shares.
Final Judgment:
The court dismissed the appeal and cross-objections, modifying the shares of the members to 1/7th each instead of 1/4th each.
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1982 (5) TMI 195
Issues Involved:
1. Maintainability of the petition under Sections 10 and 12 of the Contempt of Courts Act, 1971 in the High Court.
2. Case against the wife for disobedience of the injunction order.
3. Case against the husband as an aider and abettor of contempt.
4. Distinction between civil and criminal contempt.
5. Jurisdiction of the High Court to punish for contempt of subordinate court's orders.
Issue-wise Detailed Analysis:
1. Maintainability of the petition under Sections 10 and 12 of the Contempt of Courts Act, 1971 in the High Court:
The plaintiff filed a petition under Sections 10 and 12 of the Contempt of Courts Act, 1971, alleging that the respondents violated an injunction order issued by a subordinate judge. The court examined whether such a petition is maintainable in the High Court. The judgment clarified that the High Court has discretionary power under Section 10 of the Act but emphasized that the proper court to try cases of disobedience of injunction is the court which issued the order. The judgment cited historical precedents and legal principles, concluding that the High Court should not exercise its jurisdiction in this matter when an effective remedy is available under Order 39, Rule 2A of the Civil Procedure Code.
2. Case against the wife for disobedience of the injunction order:
The court found that the wife, being the defendant in the suit, is directly bound by the injunction order. The plaintiff alleged that she disobeyed the order, and the remedy for such disobedience is provided under Rule 2A of Order 39 of the Civil Procedure Code. The judgment explained that the court which issued the injunction has the jurisdiction to punish for its disobedience, including attachment of property and detention in civil prison. The court emphasized that the High Court should not intervene in such matters, as the subordinate judge is best positioned to ascertain the facts and determine the extent of the disobedience.
3. Case against the husband as an aider and abettor of contempt:
The plaintiff argued that the husband, though not a party to the suit, should be punished for aiding and abetting the wife's disobedience of the injunction. The court rejected this argument, stating that Indian law, as codified in the Civil Procedure Code, does not permit the punishment of individuals who are not parties to the suit for aiding and abetting contempt. The judgment cited several authorities, including the Privy Council and Indian High Courts, which consistently held that only the person directly bound by the injunction can be punished for its disobedience. The court concluded that the husband cannot be held liable for contempt under the Contempt of Courts Act, as aiding and abetting a breach of injunction does not constitute criminal contempt.
4. Distinction between civil and criminal contempt:
The judgment elaborated on the distinction between civil and criminal contempt. Civil contempt involves failure to comply with a court order, and its primary purpose is remedial and coercive, aimed at enforcing the order for the benefit of the party entitled to it. Criminal contempt, on the other hand, involves actions that obstruct or undermine the administration of justice and is penal in nature. The court concluded that the disobedience of the injunction by the wife constitutes civil contempt, and aiding and abetting such disobedience does not elevate it to criminal contempt.
5. Jurisdiction of the High Court to punish for contempt of subordinate court's orders:
The court emphasized that the jurisdiction to punish for disobedience of an injunction order lies with the court that issued the order. The judgment highlighted the procedural framework provided by the Civil Procedure Code, which includes provisions for appeals and enforcement of injunctions. The High Court's intervention in such matters would lead to procedural anomalies and undermine the established legal process. The court concluded that the High Court should not exercise its jurisdiction under the Contempt of Courts Act to punish for contempt of subordinate court's orders when an effective remedy is available within the procedural framework of the Civil Procedure Code.
Conclusion:
The court dismissed the application, stating that the plaintiff should seek remedy under Rule 2A of Order 39 of the Civil Procedure Code in the court that issued the injunction. The judgment clarified that the High Court should not intervene in matters of civil contempt when an effective remedy is available in the lower courts. The court made no order as to costs and emphasized that the subordinate judge should decide the application according to law.
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1982 (5) TMI 194
Issues:
1. Interpretation of section 68 of the Income Tax Act, 1961 regarding cash credits and burden of proof.
2. Imposition of penalty under section 271(1)(c) for concealing income.
Analysis:
Issue 1:
The case involved the CIT filing a petition under section 256(2) of the Income Tax Act, 1961, seeking the Tribunal to refer questions of law related to cash credits of Rs. 17,200 entered in the accounts of the assessee without proper explanation. The Tribunal had added this amount to the assessee's income as undisclosed sources under section 68 of the Act. The assessee argued that the burden of proof lay on the Department to establish that the cash credits were indeed the assessee's income. The Tribunal, relying on Supreme Court decisions, held that the Department needed to prove that the amount received by the assessee constituted its income and that it had concealed the same, ultimately canceling the penalty imposed under section 271(1)(c).
Issue 2:
Regarding the penalty imposed under section 271(1)(c), the Tribunal considered the Explanation added to the section in 1964, which raised presumptions against the assessee if the total income returned was less than 80% of the assessed income. The Tribunal observed that this Explanation was a rule of evidence, creating rebuttable presumptions. The burden of proof initially lay on the assessee to rebut these presumptions. The Tribunal emphasized that the penalty proceedings were separate from assessment proceedings, allowing the assessee to rebut the presumptions based on existing material. The Tribunal noted that previous Supreme Court judgments were not applicable due to the different provisions in the current law. The Court directed the Tribunal to refer one of the questions of law to the Court for opinion, acknowledging that the question related to cash credits treated as the assessee's income had been resolved by the assessment order.
In conclusion, the judgment delved into the interpretation of statutory provisions, burden of proof, and the application of legal principles to determine the treatment of cash credits and the imposition of penalties under the Income Tax Act, 1961.
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1982 (5) TMI 193
Issues Involved:
1. Terms for conversion of land use from residential to commercial.
2. Rejection of building plans by NDMC.
3. Alleged discrimination by NDMC in sanctioning building plans.
4. Interest charges on additional premium.
Issue-wise Detailed Analysis:
1. Terms for Conversion of Land Use from Residential to Commercial:
The petitioners, lessees of 9 Tolstoy Marg, sought permission to convert their property from residential to commercial use as per the 1961 Master Plan. They first applied for this conversion in 1963 but were told their request could only be considered after the finalization of the zonal plan. Despite a follow-up, they did not submit the required plans until 1970. The government treated the 1970 application as the first valid request and quoted a conversion rate of Rs. 1500 per sq. yard, based on 1972 rates. The petitioners argued for the 1963 rate of Rs. 300 per sq. yard. The court ruled that the crucial date for calculating charges should be 30th December 1970, with the applicable rate being Rs. 600 per sq. yard, rejecting the government's demand for 1972 rates.
2. Rejection of Building Plans by NDMC:
The petitioners submitted plans for a multi-storeyed building to NDMC in 1971, which were rejected due to the lack of the Lesser's consent as required under Section 193(2) of the Punjab Municipal Act. The court upheld the NDMC's decision, stating that the land vested in the government and the lease required the Lesser's consent for any new construction or change of use. The court found no merit in the petitioners' argument that the lease itself amounted to consent.
3. Alleged Discrimination by NDMC in Sanctioning Building Plans:
The petitioners claimed discrimination, citing instances where NDMC sanctioned plans for other properties without the government's prior consent. The court found these cases were not comparable as they occurred before a 1971 government ban on multi-storeyed buildings. The court concluded that from 1971 to 1976, NDMC uniformly rejected plans due to the government's directive, and there was no evidence of discrimination.
4. Interest Charges on Additional Premium:
The government demanded interest on the additional premium from 1970 to the present. The court found no justification for this claim, noting that the government did not communicate the terms for conversion until 1982. The court ruled that there was no agreement or statutory provision to support the demand for interest, referencing the case of Bengal Nagpur Railway v. Battanii Ramji.
Conclusion:
The court directed the government to grant permission for the permanent change of purpose at the rate of Rs. 600 per sq. yard, based on 1970 rates, and dismissed the petition against NDMC. The court found no basis for the interest charges and concluded there was no discrimination by NDMC. The parties were ordered to bear their own costs.
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1982 (5) TMI 192
Issues:
1. Interpretation of the term "Jaughat" as cattle fodder in a commercial sense.
2. Requirement of filing Form III-C (2) for claiming exemption on sale of foodgrains to registered dealers under Section 3-D(2).
Analysis:
1. The judgment addresses the issue of interpreting the term "Jaughat" in a commercial sense as cattle fodder. The revising authority directed the assessing authority to determine the popular meaning and common use of Jaughat, which the assessee claimed was cattle fodder. The court held that the mere fact that Jaughat was consumed by horses or cows did not conclusively define it as cattle fodder. The revising authority's directive to assess the common use of Jaughat was deemed appropriate, focusing on how it was understood commercially or popularly.
2. The judgment delves into the controversy surrounding the requirement of filing Form III-C (2) for claiming exemption on the sale of foodgrains to registered dealers under Section 3-D(2). The revising authority observed that the assessee could only be entitled to exemption if it filed Form III-C (2) for sales to registered dealers. The assessee had sold foodgrains to both registered and unregistered dealers but failed to submit Form III-C (2). The revising authority directed the assessing authority to verify the sales list, leading to the disagreement between the parties. The court analyzed the provisions of Section 3-D(7)(b) and emphasized that the law entitles the assessee to prove, to the satisfaction of the assessing authority, that the sale was made to a registered dealer. The filing of forms was deemed a method of proof for the benefit of the assessee, with the intention that proof was not limited to furnishing forms but also proving the same to the satisfaction of the authority concerned.
3. Ultimately, the revision was dismissed, with the observation that the assessing authority should consider other evidence besides Form III-C (2) to determine whether the sale to registered dealers met the requirements of Section 3-D(7)(b). The judgment highlighted the importance of proving the sale to a registered dealer to claim exemption, emphasizing that the intention behind the provision was not solely reliant on filing forms but proving the fact to the satisfaction of the authority concerned.
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1982 (5) TMI 191
Issues Involved:
1. Whether the plaint has been signed, verified, and the suit filed by a duly authorized person.
2. Whether the plaint discloses any cause of action for the claim regarding costs amounting to Rs. 6,36,580.
3. Whether the suit against the defendant as a surety is misconceived and not maintainable.
4. Whether the defendant stands discharged from its liability as a surety due to the plaintiff's acts of omission and commission.
5. Whether the court has jurisdiction to try the case.
6. Whether the defendants are liable to pay the loan sanctioned in the name of J.K. Manufacturers Ltd.
7. Effect of the sale of J.K. Manufacturers' properties by the receiver on the defendant's liability.
8. Whether the plaintiff can claim the amount decreed by the Kanpur court in this suit.
9. Whether the suit is barred due to the previous suit filed by the plaintiff against J.K. Manufacturers Ltd.
10. Whether the amount decreed by the Kanpur court can be claimed in this suit.
11. Whether the loan was sanctioned to both the defendant and J.K. Manufacturers.
12. Effect on the maintainability of the suit if the loan was not sanctioned in favor of the defendant.
13. Amount to which the plaintiff is entitled.
14. Whether the defendant has no right to the benefit of the securities held by the plaintiff due to the agreements and guarantee executed.
Detailed Analysis:
Issue 1: Authorization to File Suit
The court found that Mr. N. M. Bahl, who signed and verified the plaint, was a duly constituted attorney of Citibank, N.A., authorized to file the suit. The power of attorney was authenticated by a notary public, and thus, under Section 85 of the Evidence Act, its due execution and authentication were presumed. The court held that Mr. Bahl was competent to sign and verify the plaint and file the suit.
Issue 2: Cause of Action for Costs
The court held that the plaint disclosed a cause of action regarding the claim for costs amounting to Rs. 6,36,580. The guarantee deed executed by the defendant included the obligation to pay costs. Thus, the issue was decided against the defendant.
Issue 3, 4, 7, 12, and 14: Maintainability and Discharge of Surety
The court examined the deed of guarantee and found that the defendant's liability was that of a surety. The acts of the plaintiff, such as filing a suit in Kanpur and obtaining a consent decree, did not discharge the defendant's liability as a surety. The court also held that the sale of the plant and machinery did not impair the rights of the surety. The defendant had given consent to various acts under the guarantee deed, which included waiving rights under Sections 133, 135, and 141 of the Indian Contract Act. Therefore, the suit against the defendant as a surety was maintainable, and the defendant did not stand discharged from its liability.
Issue 5: Jurisdiction
The court held that it had jurisdiction to try the case as the loan was advanced and repayable in New Delhi. The defendant's contention regarding the jurisdiction based on the Kanpur suit was not accepted.
Issue 6: Liability of Defendants
Given the findings on issues 3, 4, 7, 12, and 14, the court did not delve into whether the relationship between the plaintiff and the defendant was that of a creditor and principal debtor.
Issue 8, 10, and 13: Amount Entitled
The court found that the liability of the principal debtor, J.K. Manufacturers Ltd., was Rs. 77,10,733.67, including unpaid principal, interest, and costs. However, the liability of the defendant-surety under the deed of guarantee was limited to Rs. 60 lakhs. The court held that the plaintiff was entitled to recover Rs. 60 lakhs from the defendant with future interest at 12.5% per annum on Rs. 55 lakhs from the date of the suit till realization.
Issue 9: Bar Due to Previous Suit
The court held that the suit was not barred by the previous suit filed against J.K. Manufacturers Ltd. in Kanpur. The earlier suit was based on the mortgage, and the present suit was based on the deed of guarantee, which constituted a different cause of action.
Issue 11: Loan Sanctioned to Both Parties
The court did not specifically address this issue as the findings on other issues rendered it unnecessary.
Relief:
The court decreed Rs. 60 lakhs in favor of the plaintiff with proportionate costs and future interest at 12.5% per annum on Rs. 55 lakhs from the date of the suit till realization.
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1982 (5) TMI 190
Issues:
Petitioner seeks quashing of confiscation and penalty orders by Central Excise Deputy Collector and appellate/revisional orders, and return of seized gold. Jurisdictional issues under Chapter XIV of Gold (Control) Act, 1968 regarding initiation of adjudication proceedings within prescribed time limits.
Analysis:
The petitioner, an agriculturist and pawnbroker, challenged the legality of the seizure of gold by Central Excise Department, asserting that the adjudication proceedings were not initiated within the statutory time limit of six months. The petitioner argued that failure to provide a notice within the stipulated period rendered the confiscation and penalty orders invalid. The court emphasized the importance of Section 79 of the Act, which mandates giving written notice to the concerned party before confiscation or penalty imposition. The court highlighted the significance of timely notice delivery to uphold procedural fairness and protect the rights of the individual.
The court referred to a Supreme Court judgment regarding similar provisions in the Customs Act, emphasizing the necessity of notice delivery within the prescribed period. The petitioner's counsel relied on a Gujarat High Court decision, reinforcing the principle that mere dispatch of notice is insufficient; it must reach or be tendered to the concerned party within the stipulated timeframe. The court reiterated that the objective of Section 79 is to inform the individual of the grounds for confiscation or penalty imposition, allowing for a fair opportunity to respond and be heard. The court emphasized that the receipt of notice is crucial for the completion of the giving process, ensuring procedural fairness and adherence to legal requirements.
The court found in favor of the petitioner, ruling that the failure to deliver or tender the notice within six months granted the petitioner a civil right to the return of the seized articles. The court criticized the appellate and revisional authorities for not addressing the jurisdictional issue raised by the petitioner, emphasizing the importance of recording findings on all raised points. Consequently, the court quashed the confiscation and penalty orders and directed the return of the seized articles, issuing a mandamus for compliance. The court assessed a hearing fee of &8377;200, concluding the judgment in favor of the petitioner's rights and procedural fairness.
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1982 (5) TMI 189
Issues:
1. Depreciation on technical know-how expenditure.
2. Eligibility for relief under section 35 of the Income-tax Act.
3. Nature of expenditure on construction and strengthening of Spent Wash Bund.
4. Disallowance of expenditure claimed to be incurred on advertisement.
5. Deduction under section 80 MM on gross receipt from technical know-how.
6. Deduction under section 80J for the full accounting period.
7. Classification of water storage pond as plant and machinery for depreciation.
Analysis:
1. The first issue pertains to the allowance of depreciation on technical know-how expenditure for the assessment years 1973-74 and 1976-77. The Commissioner (Appeals) directed the ITO to allow depreciation on this expenditure, following the Tribunal's earlier decision for the assessment years 1968-69 to 1970-71. The Tribunal upheld the Commissioner's order, stating that the expenditure on technical know-how was capital in nature and related to setting up new plants, entitling the assessee to depreciation allowance.
2. The second issue involves the eligibility for relief under section 35 of the Income-tax Act for expenditure on a pilot plant to test the viability of producing ABS Resin. The Commissioner (Appeals) allowed the claim, considering the pilot plant's role in research and development necessary for commercial production. The Tribunal upheld this decision, emphasizing that the pilot project constituted research, justifying the allowance under section 35.
3. The third issue concerns the nature of expenditure on construction and strengthening of Spent Wash Bund. The Commissioner (Appeals) held the expenditure to be revenue in nature, disagreeing with the ITO's classification as capital. The Tribunal dismissed the revenue's appeal, agreeing with the Commissioner's view based on the business's nature and assets' value.
4. The fourth issue relates to the disallowance of expenditure claimed as an advertisement but alleged to be a donation to a political party. The matter was remanded to the ITO for further investigation to ascertain the nature of the payment and its purpose, following the lack of essential facts in the orders of the ITO and the Commissioner (Appeals).
5. The fifth issue involves the deduction under section 80 MM on gross receipt from technical know-how. The Commissioner (Appeals) directed the deduction to be allowed on gross receipt, aligning with the Supreme Court decision in Cloth Traders Pvt. Ltd. v. Commissioner. The Tribunal declined to interfere with this decision, as no contrary High Court decision was presented by the revenue.
6. The sixth issue pertains to the deduction under section 80J for the full accounting period. The Commissioner (Appeals) directed the ITO to allow deduction for 12 months instead of 9 months as done initially. The Tribunal upheld this decision, citing the Madras High Court precedent in Commissioner v. Simpson & Co. as the basis for the ruling.
7. The final issue involves the classification of a water storage pond as plant and machinery for depreciation. The Commissioner (Appeals) allowed depreciation, extra shift allowance, and development rebate on the water storage pond, considering its integral role in the manufacturing process. The Tribunal upheld this decision for the assessment years 1975-76 and 1976-77, finding no error in the Commissioner's findings.
In conclusion, the Tribunal partly allowed the appeal for the year 1974-75 and dismissed the remaining three appeals based on the detailed analysis and findings for each issue presented in the judgment.
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1982 (5) TMI 188
Issues:
1. Interpretation of notification under Section 4 of U.P. Sales Tax Act for tax liability on cotton labels.
2. Application of the principle of more beneficial notification when an item is covered by two notifications.
3. Consideration of past decisions and res judicata principle in determining tax liability.
Analysis:
1. The revision challenged the Sales Tax Tribunal's view on tax liability of cotton labels under a notification. The Tribunal erred by not declaring the assessee non-taxable based on the earlier decision under Notification No. 333 dated 15.11.1971. The Tribunal's decision was based on the conflict between the classification of cotton labels as tapes and laces or cotton fabric. The Tribunal's error lay in not considering the exemption notification under Section 4 of the U.P. Sales Tax Act for cotton fabric. The Tribunal's decision was flawed as it did not invalidate the notification but failed to apply the more beneficial exemption notification to the assessee's case.
2. The principle of applying the more beneficial notification when an item is covered by two notifications was emphasized. In cases where an item is subject to both exemption and tax notifications, the notification granting exemption should prevail. This principle is crucial in determining the tax liability of the assessee. The Tribunal's failure to apply this principle led to an incorrect decision regarding the taxability of cotton labels manufactured by the assessee.
3. The judgment highlighted that each assessment year is an independent unit, and past decisions do not operate as res judicata. The assessing authority was not bound by the previous classification of cotton labels as tapes and laces for the earlier year. The Tribunal's decision should have considered the current assessment year independently and applied the relevant notification granting exemption to determine the tax liability of the assessee. The judgment also referred to Supreme Court decisions and observations supporting the classification of cotton labels as cotton fabric, indicating a potential future resolution of the controversy by the Tribunal under Section 11(8) of the U.P. Sales Tax Act.
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1982 (5) TMI 187
Issues Involved:
1. Denial of constitutional imperatives of Art. 22(5) read with s. 8 of the National Security Act, 1980.
2. Failure to specify the period of detention in the detention order.
3. Whether the grounds of detention relate to "maintenance of public order" or "maintenance of law and order".
4. Sufficiency and clarity of the grounds of detention for forming the subjective satisfaction of the detaining authority.
Summary:
1. Denial of Constitutional Imperatives of Art. 22(5) read with s. 8 of the Act:
The petitioner contended that there was a denial of constitutional imperatives due to an unexplained delay of two days in furnishing the grounds of detention. The Court held that the language of Art. 22(5) and s. 8 of the Act allows for the grounds to be communicated "as soon as may be," normally within five days, and in exceptional circumstances, within ten days. The detenu was served within two days, which was within the permissible period, thus complying with the constitutional safeguards.
2. Failure to Specify the Period of Detention:
The petitioner argued that the failure to specify the period of detention rendered the order invalid. The Court referred to the majority decision in A.K. Roy v. Union of India, stating that there is no duty on the detaining authority to specify the period of detention while making the order. The Act does not require the period of detention to be specified in the initial order, and the period must vary according to the exigencies of each case.
3. Grounds of Detention Relating to "Public Order" or "Law and Order":
The petitioner contended that the grounds of detention related to "maintenance of law and order" rather than "maintenance of public order." The Court distinguished between the two concepts, stating that the potentiality of the act to disturb the even tempo of the life of the community determines whether it affects public order. The Court found that the detenu's activities, including theft, robbery, and use of firearms, created a wave of terror affecting public order, justifying the detention under sub-s. (2) of s. 3 of the Act.
4. Sufficiency and Clarity of Grounds of Detention:
The petitioner argued that the grounds of detention were vague, irrelevant, and lacked particulars. The Court reviewed the grounds and the accompanying chart of 36 cases, concluding that they were neither vague nor irrelevant and provided sufficient nexus for the detaining authority's subjective satisfaction.
Conclusion:
The petition was dismissed, with the Court finding no merit in any of the contentions raised by the petitioner. The detention order was upheld as valid and in compliance with the constitutional and statutory requirements.
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1982 (5) TMI 186
constitutional validity of ss. 1(2), 3 and (5) of U.P. Excise (Amendment) ordinance No. 4 of 1979 - the constitutional validity of ss. 1(2), 3 and 5 of U.P. Excise (Amendment) Act No. 13 of 1979 (which replaced the said ordinance No. 4 of 1979)
(br) (br)
"assessed fee" in addition to the "fixed fee"
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1982 (5) TMI 185
Issues involved: Validity of detention order under COFEPOSA, delay in launching prosecution, legality of detention based on passage of time.
Validity of detention order under COFEPOSA: The Enforcement Directorate apprehended an individual in connection with illegal foreign exchange operations. Subsequently, an order of detention under the COFEPOSA was made by the Additional Secretary to the Government of India. The detenu filed a writ petition challenging the detention order, arguing that no prosecution had been initiated against him despite the initial apprehension being in February 1981 and the detention order being made in October 1981. The detenu's counsel contended that the delay in prosecution and detention order indicated no apprehension of the detenu engaging in activities prejudicial to foreign exchange augmentation. However, the court found that the detaining authority thoroughly examined the matter at various levels, applied their mind satisfactorily, and considered the passage of time before making the detention order. It was concluded that there was no undue delay or illegality in the detention order, as the decision was based on a detailed consideration of the facts and circumstances involved.
Delay in launching prosecution: The detenu's counsel argued that the delay in launching prosecution, coupled with the time gap between apprehension and detention order, undermined the claim that the detention was necessary to prevent activities prejudicial to foreign exchange augmentation. Despite the acknowledgment that the prosecution status was irrelevant to the detention order's validity, the counsel contended that the delay and circumstances exposed the lack of necessity for the detention. However, the court held that the detaining authority had considered the passage of time and thoroughly evaluated the need for detention based on the available material. It was determined that the delay was not due to negligence but was a result of a detailed assessment by the concerned departments. The court found no illegality or tardiness in the detention process, rejecting the argument that the detention was unnecessary due to the delay in prosecution.
Legality of detention based on passage of time: The court examined the original files related to the detention order to ensure there was no undue or unnecessary delay in making the decision. It was observed that the detaining authority had fully considered the facts and circumstances before ordering the detention under the COFEPOSA. The court noted that the detaining authority had also evaluated whether the passage of time had rendered the detention unnecessary. After reviewing the files, it was concluded that the detention was not illegal, and there was no indication of tardiness or unlawfulness in the detention process. The petition challenging the detention order was ultimately rejected by the court.
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1982 (5) TMI 184
Issues: Challenge to order under Emergency Risks (Goods) Insurance Act, 1971 based on appeal timeline calculation.
The judgment pertains to a petition challenging an order under the Emergency Risks (Goods) Insurance Act, 1971. The petitioner lodged an appeal against the order within the prescribed time limit of 30 days. The appeal was dispatched on 14-3-1977 and received by the respondent on 15-3-1977. The respondent rejected the appeal on 13-4-1977, deeming it time-barred. The petitioner argued that the appeal should be considered lodged on the day it was sent, relying on legal precedents. The respondent did not contest the petitioner's claim that the appeal was dispatched on 14-3-1977. The court examined the timeline of appeal filing and the legal interpretation of the date of lodging an appeal by post.
The petitioner contended that the appeal should be deemed lodged on the day it was sent, i.e., 14-3-1977, and not on the day it was received by the respondent, i.e., 15-3-1977. Legal precedents were cited to support this argument, emphasizing that delays in postal transmission should not prejudice the party filing the appeal. The court referenced a Division Bench ruling from the High Court of Gujarat and a local court ruling to establish that the date of filing an appeal by post should be considered the day it was entrusted to the post office. The court agreed with the petitioner's argument and held that the appeal was filed within the stipulated time frame. Consequently, the court deemed the respondent's rejection of the appeal as time-barred to be illegal and ordered the appeal to be reinstated for further consideration on its merits.
The court also addressed the petitioner's argument regarding the absence of a specific time limit for filing an appeal within the statutory scheme. However, this issue became moot as the court had already determined that the appeal was filed within the prescribed period. The court, therefore, quashed the respondent's order, directing the appeal to be reinstated and adjudicated on its merits in accordance with the law. Additionally, the court made the rule absolute, but since the respondent did not contest the case, each party was directed to bear their own costs.
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1982 (5) TMI 183
Issues:
Leviability of excise duty on the manufacture of acrylic plastic sheets, tubes, and plastic bangles from Monomer, both regenerated and virgin.
Analysis:
1. The petitioners, engaged in manufacturing acrylic plastic products, challenged the levy of excise duty on their products made from Monomer, both virgin and regenerated. The petitioners claimed exemption from excise duty under Notification No. 38/73 as amended, arguing that their products fall outside the scope of excise duty.
2. The respondents contended that the petitioners' products, specifically acrylic plastic bangles tubes, are excisable under Tariff Item No. 15A(2) of the Central Excises and Salt Act, 1944. The respondents argued that the exemption under Notification No. 38/73 does not apply to acrylic plastic bangles tubes, making the petitioners liable for excise duty since 1975.
3. The central question before the court was whether the acrylic plastic products manufactured by the petitioners are exempt from excise duty under Tariff Item No. 15A(2). The court analyzed the relevant provisions of Item No. 15A and its sub-items to determine the applicability of excise duty to the petitioners' products.
4. The court interpreted Item No. 15A(2) which covers "Articles made of plastics," including various plastic materials and products. The court emphasized that the raw material used in manufacturing the articles is crucial in determining excisability. Referring to a previous judgment by the Gujarat High Court, the court concluded that products made from Monomer through polymerization do not attract excise duty under Tariff Item 15A(2).
5. The court further clarified that acrylic plastic sheets and tubes, being intermediate products in the manufacturing process of plastic bangles, also do not fall under the category of "Articles made of plastics." Therefore, the court held that the petitioners' products, including acrylic plastic sheets, tubes, and bangles, are not subject to excise duty under Tariff Item No. 15A(2).
6. Given the court's interpretation of Tariff Item No. 15A(2) and the manufacturing process of the petitioners' products, the court ruled in favor of the petitioners. It declared that acrylic plastic sheets, tubes, and bangles are not liable for excise duty under the specified tariff item, restraining the respondents from levying excise duty on these products.
7. The judgment provides a detailed analysis of the legal provisions, previous court decisions, and the manufacturing process involved in determining the excisability of the petitioners' acrylic plastic products. The court's interpretation of the relevant tariff item led to the exemption of the petitioners' products from excise duty.
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1982 (5) TMI 182
Issues:
1. Time-barred refund claim rejection by Assistant Collector.
2. Lack of evidence for protest lodged by petitioners.
3. Applicability of General Limitation Act.
4. Jurisdiction of levy and collection of duty on speciality oils.
5. Classification of speciality oils under Tariff Item 68.
6. Time-barred refund claim for the period 1-3-75 to 1-11-75.
7. Applicability of Limitation Act for the period 20-7-71 to 28-2-75.
8. Direction for refund to petitioners for the duty paid in the period 29-12-73 to 28-2-75.
Analysis:
1. The Assistant Collector rejected the refund claim as time-barred since it pertained to a period before a specific order communicated on 8-10-75 regarding speciality oils falling outside the purview of Tariff Item 11B. The claim was rejected based on Rule 11 of the Central Excise Rules.
2. The petitioners claimed they had lodged a protest in 1971, but the Appellate Collector found no evidence of this protest in the case records. The Appellate Collector also rejected the contention that duty was paid under protest and under a mistaken belief of law, holding that the General Limitation Act would be applicable.
3. The Appellate Collector determined that the goods were not wrongly charged to duty under Tariff Item 11B, rejecting the appeal on these grounds.
4. In the revision application, the petitioners argued that the levy and collection of duty on speciality oils under Item 11B was without jurisdiction and should be implemented from the beginning based on a clarification issued by the Assistant Collector.
5. The Government observed that speciality oils were classified under Tariff Item 68, and the petitioners obtained a license under this item on 4-11-75, paying duty accordingly. This confirmed that prior to 1-8-75, the goods did not fall under the Central Excise Tariff, rendering the duty collected without jurisdiction for the pre-1-3-75 period.
6. For the period 1-3-75 to 1-11-75, the petitioners were liable to pay duty under Tariff Item 68, and the refund claim for this period was time-barred. However, for the period 29-12-73 to 28-2-75, when the goods were not classifiable under any Central Excise Tariff item, the petitioners were entitled to a refund under the Limitation Act.
7. Considering the legal position and the fact that the burden of the indirect tax had been passed to customers, the Government directed a refund for the duty paid in the period 29-12-73 to 28-2-75, remanding the case to the Assistant Collector for necessary sanction. The revision application was allowed in part with this direction.
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1982 (5) TMI 181
Issues: Classification of Ion Exchange Resin under Central Excise Tariff
In this judgment, the central issue revolves around the correct classification of Ion Exchange Resin under the Central Excise Tariff. The process involves the production of Divinyl Benzene Co-polymer Beads (D.V.B. Beads) and subjecting them to certain processes to obtain the final product, Ion Exchange Resin. The Appellate Collectors had differing opinions on the classification of Ion Exchange Resin under Tariff Item 15A(1)(ii) of the Central Excise Tariff for various parties. The main contention was whether Ion Exchange Resin should be classified as resin under this tariff item based on its properties. The parties argued that the mere use of the term 'resin' does not automatically imply resinous properties, and further treatment of D.V.B. beads may result in a product without resinous properties. The judgment also references a Tariff Advice clarifying that only Ion Exchange Resins with resinous properties should be classified under Tariff Item 15A(1)(ii), while those without resinous properties fall under Tariff Item 68. The Government ordered testing of samples of Ion Exchange Resin from each party to determine their resinous properties. If found to possess resinous properties, the resin would be classified under Tariff Item 15A(1)(ii); otherwise, it would fall under Tariff Item 68. The judgment emphasized that if goods are classified under Tariff Item 68, duty should be charged from the time this tariff item came into force, and any excess duty charged should be refunded. The judgment concluded by directing testing of all varieties of Ion Exchange Resin manufactured by the parties to determine their classification under the Central Excise Tariff.
This judgment addresses the classification issue of Ion Exchange Resin under the Central Excise Tariff, specifically under Tariff Item 15A(1)(ii). The key argument raised by the parties was whether Ion Exchange Resin should be classified as resin under this tariff item based on resinous properties. The judgment references a Tariff Advice and an order-in-appeal that support the classification of Ion Exchange Resin based on resinous properties. The Government ordered testing of samples of Ion Exchange Resin from each party to determine their resinous properties. If found to possess resinous properties, the resin would be classified under Tariff Item 15A(1)(ii); otherwise, it would be classified under Tariff Item 68. The judgment also clarified that duty should be charged from the time Tariff Item 68 came into force if goods are classified under this tariff item, and any excess duty charged should be refunded. The judgment concluded by directing testing of all varieties of Ion Exchange Resin manufactured by the parties to ascertain their correct classification under the Central Excise Tariff.
This judgment revolves around the classification issue of Ion Exchange Resin under the Central Excise Tariff, specifically under Tariff Item 15A(1)(ii). The main contention was whether Ion Exchange Resin should be classified as resin under this tariff item based on resinous properties. The judgment highlighted the parties' argument that the term 'resin' alone does not imply resinous properties, and further treatment of D.V.B. beads may result in a product without resinous properties. The Government ordered testing of samples of Ion Exchange Resin from each party to determine their resinous properties. If found to possess resinous properties, the resin would be classified under Tariff Item 15A(1)(ii); otherwise, it would be classified under Tariff Item 68. The judgment also clarified the duty implications based on the classification outcome and directed testing of all varieties of Ion Exchange Resin manufactured by the parties for accurate classification under the Central Excise Tariff.
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1982 (5) TMI 180
Issues:
- Demand of duty on cotton fabrics exceeding 15 CMS in width without observing Central Excise formalities
- Imposition of penalty under Rule 173-Q of the Central Excise Rules, 1944
Analysis:
The appeal was filed against an order demanding duty on cotton fabrics exceeding 15 CMS in width without observing Central Excise formalities and imposing a penalty under Rule 173-Q of the Central Excise Rules, 1944. The appellants argued that they had furnished details of their beltings and that the allegations were based on misdeclaration of cotton beltings as processed 'hair beltings'. The appellants complied with the requirement to separate figures of beltings by width and provided details of goods cleared during the relevant period. The Advocate contended that the test results of a sample drawn on a specific date should not be retrospectively applied to past clearances. The Advocate also argued that there was no basis for the demand of duty or imposition of a penalty.
Upon considering the submissions, the Board noted that the appellants had provided details of clearances of 'hair beltings' and 'goods', denying that they were processed cotton beltings. The Board observed that there was no conclusive evidence establishing that all 'hair beltings' were indeed processed cotton beltings. Regarding the sample test results, the Board stated that they could only apply to hair beltings of the same lot from which the sample was drawn, and there was no practice of prospective application until the next sample. The Board found that after a certain date, there were no clearances of 'hair beltings' exceeding 15 CM width that could be considered cotton beltings subject to duty.
In conclusion, the Board gave the appellants the benefit of the doubt and allowed the appeal, setting aside the original order demanding duty and imposing a penalty.
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1982 (5) TMI 179
Whether the detention continued to be justified on the date of the report of the Advisory Board, even if it was justified on the date of the making of the order of detention?
Held that:- The order of detention was made on 7.1.82 and the consideration by the Advisory Board was on 8.2.82. The passage of time was not so long nor had any circumstances intervened to justify any compartment-wise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board. In the circumstances of the case, I think that the report of the Advisory Board that there was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was found by the Board to be justified on the date of its report as also on the date of the making of the order of detention. Petitions dismissed
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