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1988 (7) TMI 420
Issues involved: Jurisdiction of Additional District Magistrate (ADM) u/s 47-A of the Stamp Act, cancellation of previous order, imposition of additional stamp duty and penalty, power of review by the Collector.
The judgment dealt with a petition challenging the order of the ADM cancelling a previous order and imposing additional stamp duty and penalty. The initial order dated 28-2-83 was passed by the ADM under Section 47-A of the Stamp Act, determining the valuation of a property covered by a sale deed. The subsequent order dated 13-9-83 cancelling the earlier order was found to be without jurisdiction as it did not provide any reasons for the cancellation and did not cite any provision under which the earlier order was being reviewed. The Court emphasized that the powers exercisable by the Collector under Section 47-A are quasi-judicial in nature and cannot be disturbed or reopened without an express provision for review in the enactment. The judgment cited legal precedents to support the principle that the power of review must be conferred by law either specifically or by necessary implication. In this case, the ADM's order cancelling the previous order was deemed to be completely without jurisdiction as there was no power of review vested in the ADM. Consequently, the impugned orders were quashed, and the petitioner was awarded costs.
In conclusion, the judgment focused on the lack of jurisdiction in the ADM's order cancelling the previous order passed under Section 47-A of the Stamp Act. It highlighted the importance of a legal basis for the power of review and emphasized that quasi-judicial decisions cannot be reopened without specific provisions allowing for such a review. The Court held that the ADM's actions were unauthorized, leading to the quashing of the impugned orders and a favorable outcome for the petitioner in terms of costs.
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1988 (7) TMI 419
Issues:
Revision against order allowing prosecution to examine sanctioning authority under Section 311 of the Code of Criminal Procedure.
Analysis:
The case involved a revision against the order passed by the Special Judge, allowing the prosecution to examine the authority sanctioning the prosecution under Section 311 of the Code of Criminal Procedure. The petitioner, a former Branch Manager, was charged with misappropriation of cash and offenses under the Prevention of Corruption Act. During the trial, the defense raised the issue that the order of sanction under the Act was not proved, leading to the prosecution filing a petition under Section 311 for examination of the sanctioning authority. The defense objected, arguing that permitting the prosecution to examine the authority after the close of arguments was unjust.
The learned Judge relied on the case law and held that proving the sanction order through the sanctioning authority did not amount to filling gaps in the prosecution case. The Judge considered it necessary in the interest of justice to examine the sanctioning authority for a just decision in the case. The Judge emphasized the discretionary and mandatory aspects of Section 311 of the Code, highlighting that the court must act if the just decision of the case demands it, regardless of the trial stage. The Judge concluded that in this case, examination of the sanctioning authority was necessary for a just decision, as no new material was brought by the defense requiring the prosecution to adduce evidence to rebut it.
The Judge distinguished a previous case where only a passing reference was made to Section 311 without expressing a specific opinion on its application. The Judge found that the learned Judge did not commit any illegality or irregularity in passing the order, and therefore, interference was unwarranted. Consequently, the criminal revision was dismissed, and the lower court records were to be sent back promptly.
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1988 (7) TMI 418
The petitioner's charges under Section 5(2) of the Prevention of Corruption Act and Section 136(1) of the Customs Act were quashed due to lack of proper sanction. The charge under Section 477A, IPC remains, and the trial will proceed.
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1988 (7) TMI 417
Issues Involved:
1. Whether the suit was undervalued by the plaintiff for the purpose of court fee.
2. Whether the plaint should be rejected under Order VII, Rule 11(b) of the CPC.
Issue-wise Detailed Analysis:
1. Whether the suit was undervalued by the plaintiff for the purpose of court fee:
The primary contention of the appellants was that the suit for dissolution of partnership and accounts was undervalued by the plaintiff-respondent. The suit was valued at Rs. 25 lakhs for jurisdiction purposes and Rs. 500 for court fee. The appellants argued that the relief sought was grossly undervalued and the plaint should be rejected under Order VII, Rule 11(b) of the CPC.
The Division Bench of the Delhi High Court, affirming the decision of the Single Judge, held that the suit was not undervalued. The Division Bench relied on a Full Bench decision in Smt. Sheila Devi and Ors. v. Shri Kishan Lal Kalra and Ors., which stated that Section 7(iv) of the Court Fees Act gives the plaintiff the right to place any value on the relief sought, subject to any rule made under Section 9 of the Suits Valuation Act. The court has no power to interfere with the plaintiff's valuation.
The Supreme Court noted that for suits under Section 7(iv) of the Court Fees Act, the Legislature has left the valuation to the plaintiff due to the difficulty in laying down a standard of valuation. The Punjab High Court rules under Section 9 of the Suits Valuation Act, applicable to Delhi, do not provide a standard for suits under Section 7(iv). The valuation for court fee purposes is determined by the Court Fees Act, meaning the plaintiff must value the relief under Section 7(iv)(f) of the Court Fees Act.
In a suit for accounts, it is nearly impossible for the plaintiff to accurately value the relief until the accounts are taken. The court cannot determine the correct value at a preliminary stage and thus must accept the plaintiff's valuation tentatively.
2. Whether the plaint should be rejected under Order VII, Rule 11(b) of the CPC:
Order VII, Rule 11(b) of the CPC states that a plaint shall be rejected if the relief claimed is undervalued and the plaintiff fails to correct the valuation within a time fixed by the court. The court must determine the correct valuation before requiring the plaintiff to correct it. In suits for accounts, it is typically not possible for the court to determine the correct valuation at a preliminary stage.
The Supreme Court acknowledged divergent judicial opinions on whether the plaintiff can place any valuation on the relief in a suit for accounts. The court referred to the Five-Judge Bench decision in S.Rm. Ar. S.Sp. Sathappa Chettiar v. S.Rm.Ar.Rm. Ramanathan Chettiar, which stated that in suits under Section 7(iv), the plaintiff has the option to value the claim due to the difficulty in precise valuation.
The court also considered decisions where objective standards for valuation were available, such as Urmilabala Biswas v. Binapani Biswas and Ors. and Kishori Lal Marwari v. Kumar Chandra Narain Deo and Anr., where the court could determine the correct valuation based on objective standards.
The Supreme Court reiterated that while the plaintiff cannot place an arbitrary valuation, if there are no objective standards or positive materials, the plaintiff's valuation must be accepted. In the present case, the plaintiff's statement estimating Rs. 25 lakhs to Rs. 30 lakhs was based on wishful thinking without supporting material, and thus not an objective standard for valuation.
The court concluded that the valuation of the relief for rendition of accounts under Section 7(iv)(f) of the Court Fees Act was neither unreasonable nor demonstratively arbitrary.
Conclusion:
The appeal was dismissed with costs of Rs. 5,000, affirming that the suit was not undervalued and the plaint should not be rejected under Order VII, Rule 11(b) of the CPC.
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1988 (7) TMI 416
Issues Involved:
1. Whether the plaintiff's suit was barred by time.
2. Whether the plaintiff was entitled to accounts of the firm M/s. Shah Vaktaji Dalichand and Company.
3. Whether the defendants committed fraud on the plaintiff preventing her from filing the suit within the limitation period.
Issue-wise Detailed Analysis:
1. Whether the plaintiff's suit was barred by time:
The primary issue revolves around the timeliness of the plaintiff's suit. The courts below held that the suit was filed within the limitation period, relying on Section 47 of the Limitation Act. They concluded that the cause of action arose when the plaintiff discovered the fraud by the defendants, which prevented her from approaching the court earlier. The plaintiff learned in 1963 that she was not made a partner in the firm despite assurances from the defendants, and she filed the suit in 1964. However, the High Court found that the suit was barred by time. Under Article 5 of the Limitation Act, the period for filing a suit for accounts of a dissolved firm is three years from the date of dissolution. Since the firm dissolved on 5-11-1960 upon the death of the plaintiff's husband, the suit should have been filed by 5-11-1963. The High Court concluded that the suit filed in February 1964 was beyond the limitation period.
2. Whether the plaintiff was entitled to accounts of the firm M/s. Shah Vaktaji Dalichand and Company:
The plaintiff sought a decree for the rendition of accounts of the firm, claiming her husband's share. The trial court held that although the plaintiff was not entitled to a share in the new firm, she was entitled to accounts of the quondam firm. The High Court, however, disagreed, stating that the plaintiff's right to claim accounts was barred by time. The court emphasized that the firm automatically dissolved upon the death of the plaintiff's husband, and the limitation period for seeking accounts began from that date.
3. Whether the defendants committed fraud on the plaintiff preventing her from filing the suit within the limitation period:
The defendants allegedly assured the plaintiff that she was made a partner in the firm, which prevented her from seeking legal redress earlier. The trial court found that the defendants' fraudulent assurances prevented the plaintiff from filing the suit within the limitation period. However, the High Court held that the plaintiff was not prevented from knowing her right to file the suit. The court cited precedents, including Ramalagu Servai v. Solai Servai and Re Marappa Goundar, to support the principle that subsequent fraud does not stop the running of time once the cause of action has arisen. The High Court concluded that the plaintiff's reliance on Section 17 of the Limitation Act was misplaced, as there was no concealment of her right to seek accounts.
Conclusion:
The High Court allowed the appeal, setting aside the decrees of the lower courts. It held that the plaintiff's suit was barred by time and dismissed the suit in O.S. No. 11/64. The court emphasized that the plaintiff was not entitled to any relief regarding the accounts or dissolution of the new firm, and parties were directed to bear their own costs throughout.
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1988 (7) TMI 415
Issues Involved:
1. Whether the ANFO can be taken to be the result of a process of manufacture?
2. Whether ANFO can be considered as goods for the purpose of Central Excise levy?
3. Whether ANFO can be considered as a prepared explosive?
4. Whether the demand beyond a period of 6 months could be raised due to alleged suppression of facts?
Summary:
1. Whether the ANFO can be taken to be the result of a process of manufacture?
The Tribunal observed that ANFO is produced by mixing ammonium nitrate of explosive grade with a small proportion of fuel oil, resulting in a new product known as ANFO. This product is used for blasting purposes and has a distinct name, character, and use. The Tribunal cited the Supreme Court's judgment in Union of India and Ors. v. Delhi Cloth and General Mills Co. Ltd. and Ors. 1977 ELT (J 199), which held that manufacture implies a transformation resulting in a new and different article with a distinctive name, character, or use. Therefore, the Tribunal held that ANFO is the result of a process of manufacture.
2. Whether ANFO can be considered as goods for the purpose of Central Excise levy?
The Tribunal noted that ANFO is manufactured for a particular need and is used as a standard product for blasting, mining, etc. It finds a separate mention in the Chemical Dictionary and the Harmonised Coding System of CCCN under the heading "Prepared Explosives." The Tribunal held that irrespective of whether ANFO is actually marketed or not, it is capable of being marketed and thus qualifies as goods for the purpose of Central Excise levy. This view aligns with the decision of the Delhi High Court in J.K. Synthetics Ltd. v. Collector of Customs, Delhi 1985 (21) ELT 410 (Delhi).
3. Whether ANFO can be considered as a prepared explosive?
The Tribunal observed that ANFO is described as a high explosive in the Condensed Chemical Dictionary and is specifically prepared for blasting rocks. The Tribunal rejected the appellants' plea that ANFO is not an explosive but a phlegmatising agent, as this was not backed by any technical authority. The Tribunal held that ANFO is a prepared explosive falling under Chapter 36 of the Central Excise Tariff, as evidenced by the Explanatory notes to the Harmonised Coding System of CCCN.
4. Whether the demand beyond a period of 6 months could be raised due to alleged suppression of facts?
The Tribunal noted that the demand was raised u/r 9(2) read with Section 11A(1) of the Central Excises and Salt Act, 1944, alleging suppression of facts by the appellants. However, the Tribunal found no basis for the Collector's allegation that the appellants' non-compliance was with the intention to evade payment of duty. The Tribunal held that the extended time limit of five years could not be invoked in the absence of any finding of mala fide intention or clandestine manufacture. Therefore, the duty demand was limited to a period of six months from the date of receipt of the show cause notice by the appellant.
Conclusion:
The appeals were partially allowed, upholding the levy of duty on ANFO but limiting the demand to a period of six months.
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1988 (7) TMI 414
Issues Involved:
1. Eligibility for deduction under Section 80U of the Income-tax Act, 1961.
2. Interpretation of "gainful employment" in the context of Section 80U.
3. Validity of the Commissioner of Income-tax's invocation of Section 263(1).
Issue-wise Detailed Analysis:
1. Eligibility for deduction under Section 80U of the Income-tax Act, 1961:
The assessee, suffering from a permanent physical disability, claimed a deduction of Rs. 10,000 under Section 80U for the assessment years 1983-84 to 1985-86. The Commissioner of Income-tax invoked Section 263(1) to withdraw this deduction, arguing that the assessee's employment as a stenographer indicated that his disability did not substantially reduce his capacity to engage in gainful employment. The Tribunal, however, found that the assessee's permanent physical disability (Post Polio Paralysis of the left lower limb with a 50% disability) qualified him for the deduction under Section 80U. The Tribunal noted that the assessee had produced the required medical certificate from an Orthopaedic Surgeon, which was sufficient under the provisions of Section 80U for the relevant assessment years.
2. Interpretation of "gainful employment" in the context of Section 80U:
The Commissioner argued that the assessee's continued employment as a stenographer for over 20 years indicated that his disability did not prevent him from engaging in gainful employment. The Tribunal disagreed, stating that gainful employment should offer opportunities for vertical promotion or more lucrative employment elsewhere. The Tribunal emphasized that mere employment for subsistence does not constitute gainful employment. The assessee's inability to secure promotions or alternative employment due to his disability demonstrated that his capacity for gainful employment was substantially reduced. The Tribunal referenced similar cases, such as Anand Prakash Saksena v. ITO and Prem Narayan Somani v. ITO, where deductions under Section 80U were granted despite the individuals being employed.
3. Validity of the Commissioner of Income-tax's invocation of Section 263(1):
The Tribunal vacated the order of the Commissioner, stating that he misinterpreted the purpose of Section 80U. The section provides a deduction for individuals with permanent physical disabilities that substantially reduce their capacity for gainful employment, and the Commissioner erred in requiring additional proof beyond the medical certificate. The Tribunal highlighted that the Board's circulars, which are binding, assume that certain disabilities inherently reduce the capacity for gainful employment. The Commissioner's requirement for further proof was not warranted under Section 80U or the related circulars and rules. Moreover, the Tribunal noted that the Board's instructions should have guided the Commissioner's decision, and his interference with the Income-tax Officer's orders was unjustified.
Conclusion:
The Tribunal allowed the appeals, ruling that the assessee was entitled to the deduction under Section 80U. The Commissioner of Income-tax's interpretation of gainful employment and his invocation of Section 263(1) were found to be erroneous. The Tribunal emphasized the importance of adhering to the Board's circulars and the legislative intent behind Section 80U, which aims to provide relief to individuals with substantial disabilities affecting their employment capacity.
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1988 (7) TMI 413
Issues Involved:
1. Rejection of account books by the Sales Tax Tribunal.
2. Validity of the grounds for rejection of account books.
3. Discrepancy in the stock of Khand.
4. Assessment on best judgment basis.
5. Legal provisions and precedents relevant to the case.
Issue-wise Detailed Analysis:
1. Rejection of Account Books by the Sales Tax Tribunal:
The primary issue in this case was the rejection of the assessee's account books by the Sales Tax Tribunal. The Tribunal sustained the rejection on two grounds: (i) failure to produce account books during the survey, and (ii) discrepancy in the stock of Khand during physical verification.
2. Validity of the Grounds for Rejection of Account Books:
The Tribunal's decision to reject the account books was contested by the assessee. The assessee argued that the account books could not be produced during the survey because neither he nor his accountant was present, and those present (his brother and father) were not involved in the business. The Tribunal's findings were based on the assumption that the business was being managed by family members who should have produced the books. However, the court noted that the Tribunal's findings were not supported by any legal evidence and that the rejection of account books should not be done lightly or based on suspicion. The court emphasized that account books maintained in the ordinary course of business should be accepted unless there are strong reasons to believe they are unreliable.
3. Discrepancy in the Stock of Khand:
The Tribunal noted a discrepancy in the stock of Khand, where the stock found during the survey was less than what was recorded in the stock register. The assessee explained that the stock noted by the Surveying Officer was based on an estimate without actual counting. The court observed that there was no indication in the orders about the number of bags found during the survey, and the stock registers maintained by the assessee were accepted by the Excise Authorities. The court concluded that the discrepancy noted by the Surveying Officer was not sufficient to reject the account books.
4. Assessment on Best Judgment Basis:
The Tribunal's decision to assess the taxable turnover on a best judgment basis was also challenged. The court found that the rejection of account books and the subsequent best judgment assessment were not justified. The court referred to legal precedents which established that non-cooperation with a Surveying Officer does not automatically render account books unreliable. There must be additional material to justify the rejection of account books.
5. Legal Provisions and Precedents Relevant to the Case:
The court referred to Section 12 of the U. P. Sales Tax Act, 1948, which mandates maintaining true and correct accounts. It also cited several precedents, including Paramount Trading Corporation v. C. S. T., U.P., which held that non-cooperation with a Surveying Officer does not justify rejecting account books without additional material. The court reiterated that rejection of account books should be an exception and not the rule, and should only be done for proper reasons.
Conclusion:
The court found that the rejection of the assessee's account books by the Sales Tax Tribunal was not sustainable. It emphasized that the account books maintained in the ordinary course of business should be accepted unless there are strong reasons to believe they are unreliable. The court allowed the revision, set aside the Tribunal's order, and directed the Tribunal to pass an order in conformity with the judgment.
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1988 (7) TMI 412
Issues Involved:
1. Constitutionality of the prohibition on the transfer of immovable property in scheduled areas by non-tribals to non-tribals.
2. Reasonableness of restrictions imposed by the impugned provision under Article 19(1)(f) of the Constitution of India.
3. Retrospective or prospective operation of the 1970 Regulation.
4. Validity of the presumption under Section 3(1)(b) of the 1970 Regulation.
5. Interpretation of the term "land" in the context of the impugned provisions.
Detailed Analysis:
1. Constitutionality of the prohibition on the transfer of immovable property in scheduled areas by non-tribals to non-tribals:
The appellants challenged the validity of the provision prohibiting the transfer of immovable property situated in the scheduled areas of Andhra Pradesh by a non-tribal in favor of another non-tribal. The High Court upheld the constitutionality of the provision, and the Supreme Court affirmed this decision. The Court emphasized the socio-economic landscape and the historical exploitation of tribals by non-tribals, which necessitated such legislation. The regulation aimed to protect the tribals from further exploitation and to restore the lands originally belonging to them. The Court concluded that the prohibition was reasonable and essential for the protection of the interests of the Scheduled Tribes.
2. Reasonableness of restrictions imposed by the impugned provision under Article 19(1)(f) of the Constitution of India:
The appellants argued that the restrictions imposed by the impugned provision were unreasonable and violated Article 19(1)(f) of the Constitution. However, the Court noted that Article 19(1)(f) was repealed by the 44th Amendment in 1979, and thus, the challenge could not survive. The Court further examined the reasonableness of the restrictions in light of the socio-economic context and the need to protect the tribals from exploitation. The Court held that the restrictions were reasonable and necessary to achieve the objective of preserving and protecting the interests of the tribals.
3. Retrospective or prospective operation of the 1970 Regulation:
The question of whether the 1970 Regulation had retrospective or prospective operation was not addressed in this judgment, as it was pending in another set of appeals before the Court. The Court refrained from expressing any opinion on this issue in the present judgment.
4. Validity of the presumption under Section 3(1)(b) of the 1970 Regulation:
The appellants challenged the presumption under Section 3(1)(b) of the 1970 Regulation, which presumed that any immovable property in possession of a non-tribal was acquired through transfer from a tribal unless proven otherwise. The Court upheld the validity of this presumption, stating that it was a rebuttable presumption and a rule of evidence. The Court reasoned that non-tribals who acquired lands from tribals could reasonably be expected to disclose their title to the properties. This presumption aligned with the rule of evidence under Section 106 of the Indian Evidence Act, which places the burden of proof on the person with special knowledge of the fact.
5. Interpretation of the term "land" in the context of the impugned provisions:
The appellants argued that the term "land" in paragraph 5(2)(a) of Schedule V of the Constitution should be interpreted in its restricted sense, excluding structures on the land. The Court rejected this argument, stating that the term "land" in its legal sense is comprehensive and includes structures raised on it. The Court cited various legal sources to support this interpretation and emphasized that interpreting "land" narrowly would render the provisions ineffective, allowing circumvention by raising structures on the land. The Court concluded that the High Court was justified in repelling this plea.
Conclusion:
The Supreme Court dismissed the appeals, upholding the constitutionality and reasonableness of the impugned provisions. The Court emphasized the need to protect the tribals from exploitation and to restore their lands. The presumption under Section 3(1)(b) was deemed valid, and the term "land" was interpreted comprehensively to include structures. The Court's decision aimed to ensure the welfare of the tribals and prevent further exploitation by non-tribals.
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1988 (7) TMI 411
Issues Involved:
1. Validity of the acquisition proceedings initiated against the assessee.
2. Legitimacy of the protective addition of Rs. 85,250 under Section 69B of the Income-tax Act.
3. Evaluation of the fair market value of the property sold by Smt. Razia Begum.
4. Examination of the procedural conduct of the Income-tax Officer during the investigation.
5. Consideration of the enhancement request by the Inspecting Assistant Commissioner (IAC).
6. Jurisdiction and authority of the Commissioner of Income-tax (Appeals) [CIT (A)] to set aside the assessment order.
Detailed Analysis:
1. Validity of the acquisition proceedings initiated against the assessee:
The Tribunal noted that acquisition proceedings were initiated against the assessee and his brothers, with the property being valued thrice by the valuation cell. The first valuation report determined the value at Rs. 4.53 lakhs, the second at Rs. 11.85 lakhs, and the third revised the value to Rs. 4.60 lakhs. The Tribunal previously held that the acquisition proceedings were invalid due to non-compliance with Section 269D(2) of the Income-tax Act.
2. Legitimacy of the protective addition of Rs. 85,250 under Section 69B of the Income-tax Act:
The Income-tax Officer initially proposed to treat the undeclared consideration as the income of the assessee and his brothers but concluded that the fair market value did not exceed Rs. 4.56 lakhs. However, as a protective measure, he added 11% of Rs. 7.75 lakhs, amounting to Rs. 85,250, under Section 69B. The CIT (A) upheld the objection that such a protective addition was not legally valid, and the Tribunal concurred, stating that protective additions of this nature are void ab initio and cannot be cured by subsequent proceedings.
3. Evaluation of the fair market value of the property sold by Smt. Razia Begum:
The Tribunal examined the various valuation reports and the circumstances under which they were obtained. The first valuation report valued the property at Rs. 4.53 lakhs, the second at Rs. 11.85 lakhs (influenced by an affidavit from Smt. Razia Begum), and the third revised the value to Rs. 4.60 lakhs. The Income-tax Officer, after thorough investigation, concluded that the fair market value did not exceed Rs. 4.56 lakhs. The Tribunal upheld this conclusion, noting that the department had not brought any material to impeach the findings.
4. Examination of the procedural conduct of the Income-tax Officer during the investigation:
The CIT (A) criticized the Income-tax Officer for not examining Smt. Razia Begum and for conducting the investigation in a "topsy-turvy fashion." However, the Tribunal found that the Income-tax Officer had conducted a thorough investigation, including issuing summons to Smt. Razia Begum, examining relevant witnesses, and considering various valuation reports. The Tribunal held that the procedural conduct of the Income-tax Officer was proper and legitimate.
5. Consideration of the enhancement request by the Inspecting Assistant Commissioner (IAC):
The IAC requested an enhancement based on several grounds, including the sale of adjacent property by Dr. Zahir Ahmed for Rs. 12 lakhs and affidavits filed by Smt. Razia Begum. The CIT (A) found that the authenticity of the documents relied upon by the IAC was not established and held that the request for enhancement was premature. The Tribunal agreed, noting that the scribblings and other documents were not relevant to the assessment of the assessee and that the CIT (A) was not justified in directing a fresh investigation.
6. Jurisdiction and authority of the Commissioner of Income-tax (Appeals) [CIT (A)] to set aside the assessment order:
The CIT (A) set aside the order of the Income-tax Officer, directing a fresh investigation. The Tribunal held that while the CIT (A) has the authority to order a fresh enquiry, this power must be exercised judicially in appropriate circumstances. The Tribunal found that the order passed by the Income-tax Officer was fair and reasonable and that no case was made out by the revenue to warrant setting aside the order. Therefore, the Tribunal set aside the order of the CIT (A) and deleted the protective addition of Rs. 85,250.
Conclusion:
The Tribunal allowed the appeal, setting aside the order of the CIT (A) and deleting the protective addition of Rs. 85,250. The assessment as framed by the Income-tax Officer, sans the protective addition, was upheld. The Tribunal emphasized that protective additions of this nature are void ab initio and that the procedural conduct of the Income-tax Officer was proper and legitimate.
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1988 (7) TMI 410
The Supreme Court set aside the High Court's order granting bail to accused persons involved in an encounter with the police. The High Court had no jurisdiction to entertain the bail application. The accused persons are directed to be taken into custody, but they may apply for bail again before the Designated Court. The Designated Court will consider the bail application based on principles laid down by the Supreme Court in a previous case.
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1988 (7) TMI 409
Issues Involved:
1. Jurisdiction of the arbitrator.
2. Validity of non-reasoned award.
3. Arbitrability of claims under Clause 11 of the contract.
4. Proportionality of the awarded amount.
5. Award of interest pendente lite.
Issue-wise Detailed Analysis:
1. Jurisdiction of the Arbitrator:
The appellant contended that the arbitrator had no jurisdiction to deal with the claims raised by the respondent, arguing that these claims were fictitious and baseless. The arbitrator, however, proceeded with the arbitration, considering all evidence and making an award. The Supreme Court found that the arbitrator acted within his jurisdiction and the award was not made ex parte.
2. Validity of Non-reasoned Award:
The appellant argued that the non-reasoned award was invalid. However, the Supreme Court held that this contention was not raised before the lower courts and thus could not be entertained at this stage. The Court emphasized that arbitration is a method for speedy adjudication and that the law, as it stands, does not consider non-reasoned awards to be bad per se. The contention was rejected.
3. Arbitrability of Claims under Clause 11 of the Contract:
The appellant argued that Clause 11 of the contract made the decision of the Engineer-in-Charge final and binding on certain matters, thus excluding them from arbitration. The Supreme Court examined Clause 11 and its proviso, which stated that the decision of the Superintending Engineer of the Circle would be final in case of disputes about rates and time for completion. The Court found that the disputes adjudicated by the arbitrator were not covered by Clause 11 and thus were arbitrable. The Court rejected the appellant's reliance on similar cases from other jurisdictions, noting differences in contract clauses and dispute nature.
4. Proportionality of the Awarded Amount:
The appellant contended that the awarded amount of Rs. 15,23,657 for additional work was disproportionately high and per se bad. The Supreme Court reiterated that when parties choose their arbitrator, they cannot object to the decision on law or facts if the award is good on its face. The Court noted that the arbitrator was a qualified individual who considered all evidence and found no basis to declare the award disproportionately high or bad per se. The High Court's decision to uphold the award was affirmed.
5. Award of Interest Pendente Lite:
The Supreme Court held that the arbitrator did not have jurisdiction to grant interest pendente lite, referencing the decision in Executive Engineer (Irrigation), Balimela & Ors. v. Abhaduta Jena & Ors. The direction for payment of interest pendente lite was deleted from the award. The High Court's grant of interest from the date of the decree was sustained.
Conclusion:
The appeal was dismissed except for the modification regarding the deletion of interest pendente lite. The parties were directed to bear their own costs.
Appeal dismissed.
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1988 (7) TMI 408
Issues Involved:
1. Valuation of the lands under acquisition.
2. Deduction percentage for largeness of the block of land.
3. Market value determination of the appellant's land.
4. Depressing the market value to ascertain the 'present value.'
5. Entitlement to the benefit of Central Amending Act (Act 68 of 1984).
Summary of Judgment:
1. Valuation of the Lands Under Acquisition:
The controversy centered on the valuation of lands situated in 'Tigris Camp' within Poona city limits, acquired for constructing the Headquarters of Poona Rural Police Charge. The trial court valued the lands correctly, but the High Court revised the valuation downwards, reducing the compensation from Rs. 1,14,517 to Rs. 63,846.
2. Deduction Percentage for Largeness of the Block of Land:
The High Court made a deduction of 25% instead of the 20% made by the trial court to account for the largeness of the block of land. The Supreme Court found no error in this deduction, stating it was a question of fact based on the shape, size, and situation of the land.
3. Market Value Determination of the Appellant's Land:
The High Court valued the appellant's land at Rs. 7,000 per acre, considering its interior location and future development potential. The Supreme Court upheld this valuation, noting that the High Court had taken into account the land's situation and the estimated time for development to reach the land.
4. Depressing the Market Value to Ascertain the 'Present Value':
The Supreme Court found fault with the High Court's methodology of depressing the market value of Rs. 7,000 per acre to ascertain the 'present value.' The correct approach should have been to ascertain the present value of land that would fetch Rs. 20,000 per acre after 12 years. The Supreme Court modified the compensation to Rs. 5,250 per acre after a 25% deduction.
5. Entitlement to the Benefit of Central Amending Act (Act 68 of 1984):
The appellant's entitlement to the benefits of the Central Amending Act (Act 68 of 1984) depends on the decision of the Constitution Bench regarding the retrospective operation of the Act. The appellant will be entitled to the benefits if the Constitution Bench upholds the view expressed in Bhag Singh's case.
Conclusion:
The appeal was partly allowed, modifying the High Court's order to award compensation at Rs. 5,250 per acre. There was no order regarding costs in the Supreme Court.
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1988 (7) TMI 407
Issues:
- Confirmation of appointment and seniority of the appellant.
Analysis:
The appellant, an Assistant Engineer-II, was appointed in 1963 and faced a disciplinary proceeding in 1968, resulting in a minor penalty of one increment stoppage. Despite completing his probation in 1965, he was confirmed in 1969, placed below juniors in the seniority list. The appellant challenged this in a writ petition, which was dismissed by the Single Judge and the Division Bench. The main issue was the justification of confirming the appellant in 1969 and placing him below juniors in the seniority list.
The Supreme Court found the Board's actions unjustified. The penalty of increment stoppage did not affect the appellant's seniority, making the Board's decision to place him below juniors arbitrary. The Court emphasized that seniority should not be linked to disciplinary actions and criticized the lack of guidelines for confirmation, highlighting the potential for arbitrary decisions in government service. Referring to a previous case, the Court stressed the uncertainties and malpractices in confirmation processes.
The Court held that the Board acted arbitrarily in deferring the appellant's confirmation and placing him below juniors without valid reasons. The Board's claim of considering confirmations after vacancies in 1969 lacked supporting evidence. Consequently, the Court set aside the previous judgments and directed the preparation of a new seniority list placing the appellant correctly below a specific senior and above a particular junior within six weeks, maintaining his seniority in the promoted post.
In conclusion, the Supreme Court allowed the appeal, emphasizing the importance of fair and transparent confirmation processes and seniority determinations in government service to prevent arbitrary actions and unjust treatment of employees.
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1988 (7) TMI 406
Issues Involved:
1. Whether the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is ultra vires the legislative power of Parliament.
2. Whether the premises in question fall under the definition of "public premises."
3. Whether the 1971 Act prevails over State legislation under Article 254 of the Constitution.
4. Whether the appointment of an Estate Officer from the respondent bank violates Article 14.
Summary:
1. Legislative Competence of Parliament:
The primary issue was whether the impugned Act, which provides for the eviction of unauthorized occupants from public premises, is ultra vires the legislative power of Parliament. The Court held that the 1971 Act is intra vires Parliament. The judgment emphasized that the subject matter of housing accommodation and control thereof falls within the purview of the Concurrent List, as reaffirmed in V. Dhanapal Chettiar v. Yesodai Ammal, [1980] 1 SCR 334. The Court preferred the view of the Division Bench of the Madhya Pradesh High Court in L.S. Nair v. Hindustan Steel Ltd., AIR 1980 MP 106 over the Single Judge of the Bombay High Court in Miscellaneous Petition No. 458/79 Elliot Waud Hill (P) Ltd. v. Life Insurance Corporation.
2. Definition of Public Premises:
There was no dispute regarding whether the premises in question are public premises. The premises belong to the United Commercial Bank, a statutory corporation constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, and thus fall under the definition of "public premises" u/s 2(e) of the 1971 Act.
3. Prevalence of 1971 Act over State Legislation:
The Court held that the provisions of the 1971 Act prevail over the provisions of the West Bengal Premises Tenancy Act, 1956, and the West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962, under Article 254 of the Constitution. The 1971 Act, being a later Act and a special Act, prevails against the State Acts. The Court referred to Jain Ink Manufacturing Co. v. LIC, [1981] 1 SCR 498, which held that the 1971 Act would prevail over the Delhi Rent Control Act, 1956, and the Delhi Slum Areas (Improvement & Clearance) Act, 1956.
4. Appointment of Estate Officer:
The contention that the appointment of an Estate Officer from the respondent bank violates Article 14 was dismissed. The Court found no substance in the argument that personal bias could be attributed to such an officer merely because he is an officer of the bank. The Act provides for an appeal to an independent judicial officer, ensuring fairness and impartiality.
Conclusion:
The appeal was dismissed, and the Court made no order as to costs. The judgment clarified that the 1971 Act is intra vires Parliament, the premises in question are public premises, and the provisions of the 1971 Act prevail over the State Acts under Article 254 of the Constitution. The appointment of an Estate Officer from the respondent bank does not violate Article 14.
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1988 (7) TMI 405
Whether a teacher employed in a school falls within the definition of the expression 'workman' as defined in section 2(s) of the Industrial Disputes Act, 1947?
Held that:- Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as 'workmen' as defined under the Act. Thus the High Court was right in holding that the appellant was not a 'workman' though the school was an industry in view of the definition of 'workman' as it now stands. Appeal dismissed.
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1988 (7) TMI 404
Issues:
1. Assessment of trade tax turnover for the year 1976-77.
2. Imposition of penalty under section 15-A(1)(c) of the U.P. Trade Tax Act for alleged concealment of turnover.
3. Imposition of penalty for importing goods without proper certificate.
Analysis:
1. The judgment concerns the assessment of trade tax turnover for the year 1976-77. The applicant, engaged in the sale of shoes, had multiple depots, retail shops, and agencies across the state. The applicant followed a practice of filing returns for specific periods due to the extensive network, leading to the declaration of turnover figures for different time frames. The assessing authority disallowed the deduction claimed by the applicant for a specific turnover amount, leading to penalty proceedings under section 15-A(1)(c) of the U.P. Trade Tax Act. The first appeal allowed the deduction, but penalty proceedings were initiated. Subsequent appeals resulted in an increased penalty amount, which was challenged in the revision.
2. The issue of penalty under section 15-A(1)(c) for alleged turnover concealment was a significant aspect of the judgment. The Trade Tax Tribunal upheld the penalty, citing discrepancies in the applicant's return filing practice. However, it was argued that the applicant had provided all necessary details, and although there was a delay in showing a portion of turnover, the entire turnover was eventually accounted for and taxed. The Tribunal's decision to uphold the penalty was deemed incorrect as the applicant did not conceal turnover details, and the penalty imposition was unjustified based on the facts presented. The revision set aside the penalty under section 15-A(1)(c) for concealment of turnover, ruling in favor of the applicant.
3. Additionally, a penalty of Rs. 3,600 was imposed on the applicant for importing goods without the required certificate, a decision that was upheld by the Tribunal and not challenged further. This penalty remained unaffected by the revision judgment. Ultimately, the revision succeeded in overturning the penalty imposed under section 15-A(1)(c) for alleged turnover concealment, emphasizing that the applicant had not concealed turnover details and had complied with tax obligations despite the unique return filing practice. The judgment highlighted the importance of accurately assessing penalties based on the actual circumstances and adherence to statutory requirements.
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1988 (7) TMI 403
Issues:
1. Whether plastic straps are taxable as "plastic articles" or "general goods" under the Andhra Pradesh General Sales Tax Act.
2. Whether plastic rope, plastic packing strips, and synthetic yarn should be taxed as "plastic articles" or "general goods" under the Act.
3. Application of the functional test in determining the taxability of goods under specific entries.
Analysis:
The High Court of Andhra Pradesh heard three tax revision cases together concerning the taxability of certain goods under the Andhra Pradesh General Sales Tax Act. The primary issue revolved around whether plastic straps should be taxed as "plastic articles" or "general goods" under the Act. The Tribunal applied the functional test and concluded that plastic straps should be taxed as "general goods" due to their use as packing material. The Court examined the functional test's application, emphasizing that it is one of several tests to be considered in interpreting tax entries. The Court highlighted the need to give full meaning to entries in the Act's Schedules and not exclude goods arbitrarily from specific categories. Referring to previous Supreme Court decisions, the Court reiterated the importance of interpreting tax entries based on popular meanings rather than technical interpretations.
Regarding plastic rope, plastic packing strips, and synthetic yarn, the Court noted the Tribunal's reliance on previous decisions. Despite the dealers' arguments, the Court upheld the Tribunal's consistent view on tax classification. The judgment emphasized that the functional test should not be applied in isolation and that other factors and considerations must also be taken into account. The Court dismissed the tax revision cases, affirming the Tribunal's decisions and emphasizing the importance of consistency in tax classification matters.
In conclusion, the High Court's judgment clarified the application of the functional test in determining the taxability of goods under specific entries of the Andhra Pradesh General Sales Tax Act. The Court highlighted the need for a comprehensive analysis considering various factors beyond just the functional test. The judgment underscored the importance of interpreting tax entries based on popular meanings and ensuring consistency in tax classification decisions to maintain clarity and fairness in tax assessments.
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1988 (7) TMI 402
The Rajasthan High Court upheld the imposition of interest under section 11-B of the Sales Tax Act and ordered the refund of penalty amount, not interest. The revision petition was disposed of accordingly.
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1988 (7) TMI 401
Issues:
1. Interpretation of consideration paid to Forest Department - sale or license fees
2. Tax liability on packed mahul leaves - manufacturing process involved or not
Analysis:
1. The case involved a reference under section 44(1) of the M.P. General Sales Tax Act, 1958, and section 9(2) of the Central Sales Tax Act, 1956, regarding the nature of consideration paid by the dealer to the Forest Department. The Tribunal had to determine whether the payment made was in exchange for the sale of mahul patta or as license fees, as contended by the Revenue. The Court analyzed the sales tax realization by the Forest Department from the dealer and concluded that the consideration paid was indeed in lieu of the sale of mahul patta, not as license fees. This interpretation was based on the absence of any prohibition against the sale of mahul leaves to a licensee and the fact that sales tax had been collected by the Forest Department, indicating a sale transaction.
2. The second issue pertained to the tax liability on packed mahul leaves. The assessee had argued for exemption from Central sales tax based on the purchase of mahul leaves after paying full sales tax to the Forest Department. The department contended that packing the leaves resulted in a new commodity subject to tax. However, the Court disagreed, stating that the utility and value of mahul leaves remained unchanged after packing, and no manufacturing process occurred in the packing. Therefore, the Tribunal's decision that no new taxable commodity emerged from the packing of mahul leaves was upheld.
In conclusion, the Court ruled in favor of the assessee on both issues, rejecting the department's contentions. The reference was answered in the affirmative, with no costs awarded.
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