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Showing 1 to 20 of 1436 Records
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2015 (7) TMI 1445
Import or Export of services - Commission received - reverse charge mechanism - transfer of money from abroad to persons situated in India - it was held by CESTAT that 'the service receiver is M/s. Western Union, who has paid the consideration for the service and who is situated outside India and therefore, the place of provision of service should be treated as falling outside India.'
HELD THAT:- Issued notice.
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2015 (7) TMI 1444
Method of valuation - determination of assessable value of bulk chocolates manufactured on job work basis for M/s. Nestle and M/s. Cadbury - applicability of Provisions of Rule 10A(iii) of Central Excise Valuation Rules, 2000 or Rule 8? - HELD THAT:- Tribunal in the case of Advance Surfactants India Ltd. [2011 (3) TMI 1380 - CESTAT, BANGALORE] has considered an identical position and has held that in the case of manufacture of goods on job work basis neither Rule 10A(iii) nor Rule 8 of the Central Excise Valuation Rules, 2000 would have any applicability and the goods have to be assessed to duty in terms of Ujagar Prints formula. To the same effect is another decision of the Tribunal in the case of GLAMOUR TIN INDUSTRIES PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE-II [2014 (5) TMI 1243 - CESTAT MUMBAI].
Tribunals decisions in the case of Indian Extrusions vs. CCE, Mumbai [2012 (5) TMI 271 - CESTAT, MUMBAI] can also be referred to. The said decision of the Tribunal in the case of Advance Surfactants India Pvt. Ltd. stands confirmed by the Hon'ble Supreme Court, when the appeal filed by the Revenue was rejected as reported in 2013-TIOL-07-SC-CX.
Conclusion - The appellant was not required to adopt Rule 8 for assessing the value of bulk chocolates manufactured on job work basis for M/s. Nestle, Rule 10A shall apply.
Appeal allowed.
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2015 (7) TMI 1443
Reasonableness of rate of interest payable on refund of registration amount - HELD THAT:- The Commission has clearly erred in interfering with the contractual rate of interest in absence of any finding against the actions and orders of the appellant. Without returning a finding that there was any unfair trade practice or any restrictive/monopolistic trade practice pursuant to inquiry under the provisions of the Act, the Commission clearly erred in compensating the respondent with a higher rate of interest. Even the basis for grant of higher interest is without discussion of any material. The judgment and order under appeal indicates no material for coming to the impugned finding that payment of interest on the registration amount should not be less than one charged from the applicants when they commit a default. A default clause is introduced to deter any delay or default and hence such penalty is by its very nature a deterrent one. That by itself offers a reasonable justification for the appellant to charge a higher rate of interest in the case of delay/default. So far as interest on the registration amount is concerned it stands on a different footing. In absence of relevant pleadings and evidence it cannot be presumed that the appellant has resorted to any unfair trade practice as defined under Section 36A or has increased its price unreasonably or made unreasonable earnings by investing the registration amount in accounts bearing higher interest.
Conclusion - The Commission has clearly erred in interfering with the contractual rate of interest in absence of any finding against the actions and orders of the appellant.
Tthe impugned order of the Commission awarding interest at the rate of 12% per annum on the registration amount and also award of Rs. 5000/- towards litigation charges are found to be against law and unjustified. The impugned judgment and order is therefore set aside - appeal allowed.
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2015 (7) TMI 1442
Direction to deposit the auction amount received by it from the sale, which was confirmed by the Company Court on 28.07.2011, of the immovable assets of the company in liquidation - Rule 9 of the Companies (Court) Rules, 1959.
Whether the amount received by RFC from the auction sale of the immovable assets of the company in liquidation under the direction and supervision of this Court has to be remitted to the O.L. or whether RFC is entitled to hold the said amount and appropriate it as the secured creditor of the Company in liquidation subject only to the pari passu charge of the workers under the proviso to Section 529(1) of the Act of 1956?
HELD THAT:- A State Financial Corporation cannot take possession of the assets of a debtor company after the said company is ordered to be wound up. This issue is not res integra and stands firmly settled by the judgment of the Hon'ble Supreme Court in the case of Rajasthan State Financial Corporation & Anr. Vs. Official Liquidator & Anr. [2005 (10) TMI 280 - SUPREME COURT] where a three judge Bench has endorsed the earlier two Judge judgments in the case of A.P. State Financial Corporation Vs. Official Liquidator [2000 (8) TMI 986 - SUPREME COURT] and International Coach Builders Ltd. Vs. Karnataka State Financial Corporation [2003 (3) TMI 529 - SUPREME COURT]. It has been held that in cases where a winding up order in respect of company in liquidation has been passed prior to the exercise of powers under Section 29 of the Act of 1951, by virtue of the workers' debts of the company in liquidation statutorily being deemed to be pari passu with the debt of the secured creditors and all assets, including fixed assets of the company in liquidation coming, in such a situation, in the custody of the O.L. on behalf of the Company Court, the O.L., aside of being mandatorily required to be associated with the sale of the assets in all aspects should hold the proceeds of the sale for distribution thereof amongst creditors in terms of the priorities detailed for the purpose under the provisions of Sections 528, 529, 529A & 530 of the Act of 1956.
The application filed by the O.L. deserved to be allowed. The respondent-RFC is directed to deposit with the O.L. within seven working days following today, the entire amount received by it from the sale of the assets of the company in liquidation along with upto date accrued interest. RFC as the secured creditor however would be entitled to receive amounts due to it in that capacity in accordance with the provisions of the Companies Act, 1956 and the Rules of 1959.
Pendency of cases is a serious issue in the administration of justice. Causes are multiple. Not the least however is reckless litigation by State instrumentalities despite being supported by legal departments and no lack of funds to obtain good legal advise before filing cases or setting up defences. Where the defences are baseless and in the face of admitted facts and/or settled legal position, this Court would be failing in its duty in not imposing exemplary costs. The Hon'ble Supreme Court in the case of Ramramesh Wari Devi Vs. Nirmala Devi & Ors. [2011 (7) TMI 1305 - SUPREME COURT] has held that frivolous and vexatious defence should be visited with exemplary costs. The present case is such a case.
RFC is held liable to pay costs of Rupees One lac to the Rajasthan State Legal Services Authority within a period of ten weeks from today. The Deputy Registrar (Judicial) is directed to ensure that costs as directed are paid—no doubt subject to an order to the contrary in an appeal. If costs are not paid as directed, without just cause, the Dy. Registrar (Judicial) to bring the matter to the notice of this court after ten weeks.
The Company Application stands allowed accordingly.
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2015 (7) TMI 1441
Addition of unexplained cash credit - CIT (A) has adopted peak credit - assessee’s source of income in the impugned assessment year was only from ‘’other’’ sources’ and also that there was no business activity at her behest - AO noticed in the course of scrutiny that the assessee had not disclosed her bank account maintained with the Prime Co-op. Bank, Katargam GIDC Branch, Surat - HELD THAT:- The Revenue seeks to restore the entire addition credited in the assessee’s undisclosed bank account.
CIT (A) has adopted peak credit along with profits @ 5% of the sums in question totalling to Rs. 9,02,519/-.
Revenue does not file any evidence on record disputing these figures of peak credit as the AO had himself arrived at the said figures (supra). Its sole argument is that once the assessee has not carried out any business activity, there is no evidence that the amount debited from her bank account was available for credit entries in question.
We observe that the same forms all the more reason to infer that the amount debited was not utilised elsewhere else than the credit entries in question. The Revenue does not advance any other argument. We uphold the CIT(A)’ s order under challenge and reject the Revenue’ s sole substantive ground.
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2015 (7) TMI 1440
TDS u/s 195 - Payment to foreign entities - whether the services rendered come within the purview of Article 13(4)(c) of the DTAA between India and UK as technical service? - determination of PE in India - HELD THAT:- Services can be said to "make available" technical knowledge etc, where such technical knowledge is transferred to the person utilizing the service that is the assessee in the present case and such person is able to make use of the technical knowledge etc by himself in his business or for his own benefits and without recourse to the performer of service in the future. We find that on the second set of services M/s. Appledore International Ltd., has merely provided services for global market survey to determine demand for repairs, conversions, new builds and to determine the short/medium/long term business prospects at Pipavav.
These services by M/s. Appledore International Ltd., were not given towards imparting any technical knowledge or experience to the assessee that could be used by the assessee independently in its business and without recourse to M/s. Appledore International Ltd. These services were neither geared to nor did they "make available" any technical knowledge, skill or experience to the assessee or consisted of development and transfer of a technical man or technical design to the assessee. See Nokia India Pvt. Ltd. [2015 (7) TMI 476 - ITAT DELHI]
M/s. Appledore International Ltd., in the second set of services is not responsible for preparation of any design, diagram etc. for the assessee and accordingly on the second set of services provided by M/s. Appledore International Ltd., does not involve development and transfer of a technical man or technical design to the assessee. Accordingly, we hold that the payments made by the assessee to M/s. Appledore International Ltd., on the second set of services for which payment has been made GBP 88950 do not qualify as FTS under the provisions of Indo-UK Tax treaty.
As per the provisions of Indo-UK Tax Treaty where the services do not qualify as FTS, Article 13 would not be applicable to M/s. Appledore International Ltd. and its taxability would need to be examined as per Article-7 read with Article-5 of the Indo-UK tax treaty. Business profits earned by M/s. Appledore International Ltd., is taxable in India only if that enterprise carries on business in India through PE in India. Moreover, this is not the issue before us therefore, we decline to interfere with the findings of the Ld. CIT(A). All these appeals by the Revenue are accordingly dismissed
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2015 (7) TMI 1439
Income from other sources - deposits appearing in the capital account of the assessee as also in his bank account represented assessee's income from other sources as no books of account and supporting evidence with regard to commodity transactions were produced -relevancy of documentary evidence available on record - reliance on mentally unfit assessee statements - CIT (Appeals) came to the conclusion that the assessee did not make any claim in the statement regarding the fact that these deposits were on account of profits received from commodity transactions carried out through M/s. Pashupati Scripts
HELD THAT:- Assessee was admitted in Dayanand Medical College & Hospital, Ludhiana and was operated upon and nailing of femur and K-wire fixation of radius was done on 26.8.2009. The assessee was discharged from the hospital on his request on 2.9.2009 and a team of doctors of the said hospital advised to follow up in Ortho OPD after seven days for suture removal. As per OPD slip (No. 12435) dated 10.12.2009 of Shree Sanatan Dharam Charitable Hospital, Dhuri (Sangrur), the assessee's case was of loss of memory and some altered behavior.
AO recorded the statement of the assessee on 23.11.2009 i.e. after few days when the assessee had undergone surgery. Even otherwise also, when there are documentary evidence available on record relating to the transactions, therefore, the CIT (Appeals) was not justified in drawing an adverse inference against the assessee from the statement recorded on 23.11.2009. The assessee has not made any admission, rather he has categorically stated that he does not remember anything about these entries. It was also stated that he has not much knowledge about the matter which could be explained by his counsel in a better way.
In our opinion, the authorities below were not justified in relying on the statement of the assessee recorded on 23.11.2009, when he was not mentally fit to explain the matter.
There are sufficient documentary evidence on record to explain the deposits credited in assessee's capital account. The amounts in question were received from Shri Shagun Garg through banking channels and Shri Shagun Garg has confirmed the payment of commodity profits to the assessee. There is no dispute that Shri Shagun Garg is assessed to Income Tax. He has also confirmed that he has received back an amount of Rs. 5 lacs on 10.1.2007 by D.D. No. 005245 and an amount of Rs. 4,76,552/- on 25.1.2007 by D.D. No. 005527. These transactions were on account of stock and commodity transactions done by the assessee through M/s. Pashupati Scripts Dhuri.
Multi Commodity Exchange of India Ltd. also stated that in the bills attached, the basic details like trade number, trade time, client code, member code are not mentioned. Therefore, they have stated that in the absence of even basic details, they were unable to verify whether the trades were carried out at MCX. Thus, it is clear that the Assessing Officer has not conducted the proper enquiries without mentioning the basic details like trade number, trade time, client code, etc.
This was a futile exercise on the part of the AO. CIT (Appeals) vide his letter dated 1.2.2011 directed the AO to check the assessment status of these issues in the hands of the concern brokers.
Considering the entire facts and circumstances of the present case, it is clear that Shri Shagun Garg confirmed having given demand drafts of Rs. 6 lacs and Rs. 4,85,734/- to the assessee and received demand drafts of Rs. 5 lacs and Rs. 4,76,552/-. He has provided copy of account. There is no denying fact that the bank drafts were prepared from the bank account of M/s. Manavi Confin Services, which belonged to Shri Shagun Garg. Shri Shagun Garg appeared in person before the Assessing Officer on 9.1.2009. There is no dispute as regard the identity of Shri Shagun Garg.
There was no justification in making the addition in the hands of the assessee. It is relevant to observe here that Shri Shagun Garg in his statement recorded on 9.11.2009 has stated that the nature of entries was of profit and loss in commodity transaction done by Shri Timple Kumar during the financial year 2006-07 relevant to assessment year 2007-08. In view of the statement dated 9.11.2009 given by Shri Shagun Garg and also in view of the copy of reply dated 23.12.2009 filed to the Assessing Officer on 24.12.2009 by Shri Shagun Garg in response to the summons issued under section 131 of the Act, it is clear that he was engaged in the business of commodity transactions.
In our opinion, if the Assessing Officer has suspicion that the commodity profit was not genuine in the hands of Shri Shagun Garg, the same could have been added in his assessment by reopening of the same, but the same cannot be assessed in the hands of the assessee because Shri Shagun Garg has confirmed the payment of commodity profits to the assessee by way of drafts and has filed the relevant papers. He has also explained the nature of transactions and the payments paid and received by him. He is assessed to Income Tax. Shri Shagun Garg has clarified that he is also proprietor of Manvi Confin Services. Thus, the assessee has discharged onus of proving the nature and source of deposits credited in his capital account. No body has doubted the identity of Shri Shagun Garg. In view of the above, no addition can be made in the hands of the assessee - Decided in favour of assessee.
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2015 (7) TMI 1438
Allowance of MODVAT credit on forged/fabricated documents/Bills of Entries under Rules 57A and 57G of Central Excise Rules, 1944 - HELD THAT:- It is noticed that the judgment VERA LABORATORIES LTD. VERSUS COMMISSIONER OF C. EX., VISAKHAPATNAM [2004 (11) TMI 366 - CESTAT, BANGALORE], wherein, as a matter of fact, which is the subject matter of the present appeal, was followed.
It is found that the facts of the case on hand were taken into consideration and we do not find any distinction. In the absence of a specific question raised with respect to any perversity of fact and based on the submissions made by the learned Standing Counsel for the Department, the impugned final order cannot be interfered with.
The Tribunal allowed the appeal of the respondents both on facts and on the ground of limitation. In the present appeal, there is no challenge with respect to the aspect of limitation.
Appeal dismissed.
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2015 (7) TMI 1437
Appointment of the Chancellor of the CMJ University - requirement of prior approval or not - scope of judicial review - HELD THAT:- Under Section 14(1) of the said Act of 2009, sponsor shall appoint a person suitable to be appointed as the Chancellor of the University subject to the approval of the Visitor. Therefore, prior approval is not required for appointment of the Chancellor. There is a clear distinction between "prior approval" and "subject to approval". In the case of appointment subject to approval, appointment is good so long it is not disapproved.
The appellant is right in contending that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law and initiate fresh proceedings.
The appointment of the Chancellor of the CMJ University does not require the prior approval but subject to approval of the Visitor and the appointment of the Chancellor is good so long it is not disapproved.
Judicial review generally speaking, is not directed against a decision, but is directed against the decision-making process. The Apex Court in Narayan Govind Gavate & Ors v. State of Maharashtra & Ors [1976 (10) TMI 146 - SUPREME COURT] held that it is also clear that, even a technically correct recital in an order or notification stating that the conditions precedent to the exercise of a power have been fulfilled may not debar the Court in a given case from considering the question whether, in fact, those conditions have been fulfilled.
It is now well settled that judicial review of the administrative action/quasi judicial orders passed by the Govt. is limited only to correcting the errors of law or non compliance with/breach of fundamental procedural requirements which may lead to manifest injustice - When the conclusions of the authority are based on evidence, the same cannot be re-appreciated by the court in exercise of its powers of judicial review. The court does not exercise the powers of an appellate court in exercise of its powers of judicial review. It is only in cases where either findings recorded by the administrative/quasi judicial authority are based on no evidence or are so perverse that no reasonable person would have reached such a conclusion on the basis of the material available that the court would be justified to interfere with the decision. The scope of judicial review is limited to the decision making process and not to the decision itself, even if the same appears to be erroneous.
This Court is of the considered view that there was non-compliance with or breach of the fundamental procedural requirements as provided under Section 48 of the said Act of 2009 as well as principles of natural justice and the concept of the obligation of the administrative authorities to act fairly in issuing the show cause notices dated 12.11.2013 and 24.01.2014 and passing the impugned order dated 31.03.2014 which would lead to many facets injustice. Thus, the impugned order dated 31.03.2014 and the show cause notices dated 11.12.2013 and 24.01.2014 are hereby quashed and set aside.
Petition allowed.
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2015 (7) TMI 1436
TP Adjustment - exclusion of forex loss from the computation of operating cost of the assessee - HELD THAT:- We find that this issue is squarely covered by decision in the case of M/s. Infac India Pvt. Ltd [2015 (9) TMI 1172 - ITAT CHENNAI] wherein the Tribunal following the decisions of various other orders of the Tribunal had held that profits or loss arising out foreign exchange fluctuation has to be taken into consideration while arriving at the operating cost in the Transfer pricing matters - Appeal of Revenue is allowed.
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2015 (7) TMI 1435
Validity of reassessment notice dated 31.5.1994 issued under Section 12 of the Rajasthan Sales Tax Act, 1954 - it is submitted that provisions of Section 12 are applicable in its spirit and the assessing authority is empowered for initiating reassessment proceedings for 'any reason' - HELD THAT:- The provisions of Section 12 of the Act though prescribe for reassessment in case of escaped assessment, or the assessee having been assessed at too low a rate in any year, the said provision cannot be applied in a case where the assessee has placed the entire material before the Assessing Authority and the Assessing Authority while passing the original assessment order had applied his mind and a particular notification, only on account of change of opinion, later on without there being any allegation of the petitioner not having disclosed material facts at the time of assessment, cannot empower the Assessing Officer to issue notice under Section 12 of the Act.
The fact that a purportedly wrong notification for calculating rate of tax has been applied by the Assessing Authority while the original assessment, for which there are no allegation about suppression of facts by the assessee, cannot be a ground for initiating the reassessment proceedings.
In the case of Tarajan Tea Co. (P) Ltd. [1999 (2) TMI 722 - SUPREME COURT], the Hon'ble Supreme Court on coming to the conclusion that there was no omission or failure on part of the assessee to make a return, held the reopening as unsustainable. The law laid down in various judgments as noticed herein-before, is clearly applicable to the facts and circumstances of the present case wherein as noticed herein-before, at the time of passing of the original assessment order, the petitioner had disclosed the relevant facts and was accordingly assessed, there is no allegation that the material facts were not disclosed and therefore, the issuance of notice under Section 12 of the Act cannot be sustained.
The writ petition filed by the petitioner is allowed.
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2015 (7) TMI 1434
Exemption u/s 11 - depreciation on fixed assets - Double deduction - HELD THAT:- We note that the assessee is engaged in carrying out charitable activities by making donation to the different organizations, which are carrying out charitable activities as defined in section 2(15) - Before finalization of assessment, the assessee filed the necessary details, as called for by the Assessing Officer which were examined by him.
Assessee filed copy of 12A certificate along with the certificate u/s 80G of the Act and also the certificate issued by Charity Commissioner. From the record of the assessee, it was found by the AO that the assessee has claimed depreciation through application within the meaning of section 11(1)(a) of the Act for availing exemption u/s 11 of the Act. The stand of the ld. DR as well as the conclusion drawn by the AO is that the assessee has claimed double deduction as the capital expenditure incurred on the assets has already been allowed as application of income. On appeal, before the CIT (Appeals), reliance was placed upon the decision from Hon’ble jurisdictional High Court in CIT vs Institute of Banking Personnel [2003 (7) TMI 52 - BOMBAY HIGH COURT] - AO was directed to allow claim of depreciation to the assessee. The Revenue is aggrieved and is in appeal before this Tribunal.
We note that the Hon’ble jurisdictional High Court in the aforementioned case is allowable as a application of income although the deduction was allowed, when the asset was purchase originally. The assessee before CIT (Appeals) explained that no capital expenditure was claimed by the assessee in its income and expenditure account in any of the earlier years. Respectfully following the decision from Hon’ble jurisdictional High Court, we affirm the stand of the ld. Commissioner of Income Tax (Appeals). Appeal of the Revenue is dismissed.
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2015 (7) TMI 1433
Addition u/s 41 - Sales tax refund due to third parties which have also been paid to third parties but which has been treated as income in the hands of the Assessee - HELD THAT:- Admittedly, the Assessee has received Sales tax refund in respect of Texmaco Cement plant which had been taken over by the Assessee in 1995. The refund relates to Sales tax excessively paid by Texmaco for the years 1985-86 to 1992-93.
CIT(A) failed to appreciate that the Assessee has credited the account of Texmaco with the Sales tax refund as is evidenced in the paper book on 26.2.1998 i.e. during the relevant assessment year. Consequently, even assuming that the said amount is taken as income of the Assessee during the relevant assessment year, in view of the fact that the Assessee has transferred the amount to Texmaco, as it relates to Texmaco for a period which was before the date of taking over by the Assessee-company, the same would have to be netted off and there would be no income on this count in the hands of the Assessee.
Thus the said amount cannot be treated as income of the Assessee insofar as the conditions prescribed u/s 41(1) are not applicable in the case of the said refund i.e. the Assessee has not claimed deduction of the said Sales tax and consequently, the refund of the same in the hands of the Assessee cannot be taxed by invoking the provisions of Sec. 41(1) - the amount having been transferred by the Assessee to Texmaco, the same is in no way even real income of the Assessee. In the circumstances, the addition as made by the AO and as confirmed by the ld. CIT(A) stands deleted. In the result, the appeal of the Assessee is allowed.
Levy of interest u/s 234D - HELD THAT:- Admittedly, in the present case the assessment year relates to 1998-99. The provisions of Sec. 234D was inserted w.e.f. 1.6.2003. The original assessment in the Assessee’s case was completed on 29.3.2001 i.e. before the introduction of Sec. 234D. Consequently, we are of the view that the decision of the Hon'ble Supreme Court in the case of Reliance Energy Ltd. [2013 (10) TMI 280 - SUPREME COURT] is squarely applicable and the ld. CIT(A) was right in deleting the levy of interest u/s 234D of the Act. Consequently, we find no reason to interfere with the finding of the ld. CIT(A) on this issue. In the result, the appeal of the Revenue is dismissed.
Disallowance u/s 14A - HELD THAT:- Admittedly, the Assessee has provided a calculation of the disallowance liable to be made u/s 14A before the ld. CIT(A) and the ld. CIT(A) has directed the AO to verify the computation made by the Assessee. We find that even the computation as made by the Assessee is erroneous. Consequently, the issue of Sec. 14A is restored to the file of the AO for re-adjudication. All the aspects in respect of the disallowance u/s 14A are left open. The Assessee shall be at liberty to raise all such defences against the disallowance u/s 14A which shall be adjudicated by the AO. Consequently, ground no. 1 of the Assessee’s appeal stands allowed for statistical purpose.
Nature of loss - loss on the sale of Fertilizer companies Government of India Special Bonds - action of the ld. CIT(A) directing the AO to allow real loss on the ground that the loss on sale of the bonds was a capital loss - HELD THAT:- Admittedly, these bonds are not shown as investments by the Assessee in its books of accounts. These are shown as current assets. These bonds have been received by the Assessee in the course of its business and consequently we are of the view that the finding of the ld. CIT(A) directing the AO to allow the real loss is on the right footing and does not call for any interference. In the result, the appeal of the Revenue stands dismissed.
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2015 (7) TMI 1432
Seeking cancellation of sale deed submitting that the deed in question was a sham document - committing of the murder of Brahmadeen by assaulting with lathi - High Court gave benefit of doubt to the accused and allowed their appeal acquitting them of all the charges levelled against them - HELD THAT:- It must be stated that PW4 Dr. K.N. Mehrotra, in his examination clearly stated that the injuries in question were possible because of crushing by a tractor. In the cross examination, all that was suggested was that such injuries could also be possible by a jeep or a truck - the observations seen in the post mortem indicate that on internal examination it was found that all bones of the skull were broken in pieces, membrane and brain were burst and that eye ball had come out. Further, all bones on the left side of the chest were broken, left lung was protruding out. Air pipe, trachea lerenex were also broken. The external examination and injuries indicated in the post mortem suggest crushing injuries - In the face of these facts, the assessment that the medical evidence belies that the deceased was repeatedly crushed under the wheels of the tractor, is completely incorrect. Further, the area where the incident occurred is such where a vehicle would not enter by mistake causing an accident but the attempt was definitely deliberate.
The complaint Ext.P1 shows that PW1 and the deceased had gone at a distance from the village for easing themselves. Narrative clearly shows that it was at that stage that the tractor was driven straight towards the deceased - the version coming from PW1 to be consistent, supported by all relevant circumstances and lodged with promptitude. Having found his presence to be natural and his version getting complete support on material particulars, the witness is completely trustworthy.
It is well settled that in such circumstances it is open to an appellate court to consider the matter afresh RAMESH BABULAL DOSHI VERSUS STATE OF GUJARAT [1996 (5) TMI 429 - SUPREME COURT]. Having undertaken such exercise, it is concluded that PW1 is a natural witness whose presence at the time and place of incident is established and is worthy of acceptance. However, mindful of the fact that in the original reporting he had attributed lalkara to respondent Basant Lal alone while the tractor was being driven by respondent Om Prakash, which meant that the other two accused, though sitting on the tractor were not attributed any overt act, benefit of doubt granted to the other two accused, namely, Lalji and Gyan Prakash. It could possibly be put that Brahmadeen, an old man of 90 years would normally be accompanied by someone for assistance but would be unaccompanied while easing out and therefore the time and place was so deliberately chosen, in which case culpability of every occupant of the tractor would be made out. However, in the absence of any material establishing that, Lalji and Gyan Prakash are entitled to benefit of doubt.
The acquittal of Basant Lal and Om Prakash is set aside - the order of conviction as recorded against them is restored by the trial court for the offences punishable under Section 302 read with 34 IPC - it is not deemed appropriate to restore the sentence of death - the appropriate sentence in the matter ought to be sentence for imprisonment for life, is proceeded to impose on said Basant Lal and Om Prakash.
Consequently, the appeals are partly allowed.
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2015 (7) TMI 1431
Dismissal from the service - respondent was granted 50% backwages from the date of attaining superannuation - HELD THAT:- It is apparent that the Labour Court has erred in deciding the preliminary issues concerning the fairness of the enquiry and the findings of the enquiry officer along with all the issues while delivering the impugned judgment. The procedure laid down in law, which has been considered by this Court and followed in the case of MAHARASHTRA STATE ROAD TRANSPORT CORPORATION VERSUS SYED SAHEBLAL SYED NIJAM [2014 (5) TMI 1229 - BOMBAY HIGH COURT], has not been followed by the Labour Court. It could not have decided the preliminary issues along with all the rest of the issues in one stroke while delivering the impugned award. For this reason alone, the impugned award is rendered unsustainable.
No purpose would be served by remanding the reference proceedings to the Labour Court for a decision in the light of the ratio laid down by this Court in the case of MAHARASHTRA STATE CO-OPERATIVE COTTON GROWERS MARKETING FEDERATION LTD. AND ORS. VERSUS VASANT AMBADAS DESHPANDE [2014 (1) TMI 1935 - BOMBAY HIGH COURT], and the MSRTC, Beed case [2016 (12) TMI 1905 - SUPREME COURT], since the respondent has already superannuated. His PF accumulations totalling Rs. 1,17,621/- have already been paid to him on 24.12.2002. The 50% of the backwages as were granted by the Labour Court in the impugned award have not been paid. The petitioner submits that the respondent is not entitled for gratuity as the charge of mis-appropriation has been proved against him which involves moral turpitude.
The issue is as to whether the matter can be remitted back to the Labour Court for fresh a decision by following the procedure laid down in law. For the said purpose, the respondent who is about 70 years today, will have to prosecute his reference proceeding. Under fortuitous circumstances, the findings of the enquiry officer have been held to be perverse by the Labour Court, thereby setting aside the enquiry.
This petition allowed in part by depriving the respondent / employee of gratuity. However, he shall be entitled to the 50% backwages as have been granted by the Labour Court, which is an amount of Rs.1,13,276/- approximately as stated by the petitioner.
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2015 (7) TMI 1430
Corruption and amassing of uncounted money - seeking reference to the Central Bureau of Investigation (CBI) to take up, enquire and register First Information Reports and investigate into the dealings of the ninth respondent - ninth respondent was prior to his suspension, Chief Engineer in New Okhla Industrial Development Authority NOIDA, Greater Noida Industrial Development Authority, Greater NOIDA and Yamuna Expressway Authority - HELD THAT:- In the present case, an important aspect of the matter which merits emphasis is that initially on 13 June 2012, an FIR was lodged in Case Crime No. 371 of 2012 under Sections 409, 420, 466, 467, 469, 471 and 120-B of the Penal Code and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against the ninth respondent and one Ramendra, the then Project Engineer and two construction companies. The allegation in the FIR related to the disbursement of an amount of Rs. 954 crores of various departments of Noida in respect of which agreement bonds were executed within a span of eight days. There were various other allegations in regard to the carrying out of work even before the finalization of tenders resulting in a loss to NOIDA. The investigation was transferred by the State Government to the CBCID at the behest of a partner of a construction company which was one of the co-accused on 3 November 2012, following the receipt of a request on 22 October 2012.
The essence of the allegation is that the ninth respondent has been able to use his personal proximity in the corridors of power with successive governments in State by indulging in corruption, amassing wealth for conferring favours on himself, the members of his family and business associates. The ninth respondent has, it is alleged, been able to shield himself due to his proximity with the corridors of power both in the previous government and the present government in the State of Uttar Pradesh.
There are several reasons why the submission of the State, that based on the constitution of a Commission of Inquiry further action be deferred or held in abeyance, cannot be accepted. Firstly, the terms of reference of the Commission of Inquiry are evidently confined to the ninth respondent and ninth respondent alone. The Commission of Inquiry would have no jurisdiction to enquire into wider allegations of the misuse of power or to investigate into the interrelationship of the ninth respondent with other persons in respect of whom there is no reference to the Commission. Secondly, the report of the Commission may or may not be accepted or acted upon by the State Government. A non-binding report of a Commission of Inquiry is no substitute for a proper, fair and objective investigation into alleged criminal offences - There is a serious case to be probed on whether as alleged the activities of the ninth respondent have benefactors in high places in the State who have been associated through their close relatives and associates with the business dealings of the ninth respondent and his family. In our view, having due regard to the admittedly complex nature of the case, the wide ramifications involving corruption by persons in public offices and the gravity of the allegations required to be probed, a fit and proper case has been made out for investigation by the CBI.
The Central Bureau of Investigation shall conduct an investigation into all allegations of corruption and amassing of uncounted money by the ninth respondent and in regard to all transactions, persons and entities connected thereto - Petition disposed off.
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2015 (7) TMI 1429
Seeking grant of bail - transaction of purchase of certain medicines at exorbitant prices - HELD THAT:- The investigation demonstrates the involvement of the applicant who is the proprietor of M/s Daffodills Pharmaceuticals and M/s. Eastern Drugs & Sanitary Products. The aforesaid allegations in the charge sheet are supported by evidence that has been filed along with the charge sheet itself and has also been explained by the learned counsel for the C.B.I.
Similar grounds had been taken by one Devendra Mohan in a 482 application filed before this Court and the same was considered in detail along with other co-accused of the NRHM scam. The said application was dismissed by a detailed judgment of a learned Single Judge of this Court reported in DEVENDRA MOHAN VERSUS C.B.I. /EOU-IV/NEW DELHI [2013 (2) TMI 929 - ALLAHABAD HIGH COURT]. On the arguments that have been advanced by Sri Samit Gopal, the reasons given in the aforesaid judgment clearly apply. The entire gamut of facts and the fact of misappropriating government funds resulting in the NRHM scam is clearly extended therein and therefore there is no occasion or any reason to quash the proceedings or the charge sheet against the applicant.
Thus, no case is made out for quashing of the proceedings or the charge sheet - application dismissed.
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2015 (7) TMI 1428
Levy of Service Tax - Tour Operator services - conducting outbound tours for performing Haj to Mecca and Medina - HELD THAT:- Both sides agree that the issue has been covered by the earlier decision of the Tribunal in the case of M/S COX & KINGS INDIA LTD., M/S TRAVEL CORPORATION OF INDIA LTD. AND M/S SWAGATAM TOURS PVT. LIMITED VERSUS CST, NEW DELHI [2013 (12) TMI 1024 - CESTAT NEW DELHI] which stands followed in the subsequent decision - One such reference can be made to Tribunal’s decision in the case of ATLAS TOURS & TRAVELS PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2015 (2) TMI 476 - CESTAT MUMBAI] where it was held that activity of outbound tours abroad is not taxable.
Appeal allowed.
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2015 (7) TMI 1427
Refund of accumulated and unutilized credit denied - denial on the ground that undertaking market survey for foreign entity does not amount to export of service - absence of certain facts from the concerned invoices - nexus of the service with their output service as also effect of invoices raised by the service provider paying in foreign currency.
HELD THAT:- The Tribunal in TEXAS INSTRUMENTS (INDIA) PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX [2014 (9) TMI 1135 - CESTAT, BANGALORE] in the appellant’s own case involving identical refund dispute pertaining to the earlier quarter where the matter was remanded for fresh adjudication in the light of the interim order passed by the Tribunal.
Matter remanded to the original adjudicating authority for fresh decision in the light of the above order - appeal disposed off.
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2015 (7) TMI 1426
Capital goods - other goods (input, packing materials) - respondent has not followed the settled law and the interpretation for said goods made by the respondent being totally arbitrary has to be decided by the appellate authority - HELD THAT:- The respondent having miserably failed to follow the above said two legal positions, had also decided the two other issues with regard to issue relating to capital goods and other goods – input, packing materials.
No doubt, the learned counsel appearing for the petitioner was right is saying that the first two issues relating to the cancellation of the registration certificate with retrospective effect, which is covered in a reported decision in JINSASAN DISTRIBUTORS VERSUS THE COMMERCIAL TAX OFFICER (CT) [2013 (4) TMI 615 - MADRAS HIGH COURT] and one another issue relating to selling dealers not filed their manual returns and not paid taxes in their assessment circle and for the fault on the part of the dealers, the petitioner mulcted with tax along with penalty has to be covered in the decision SRI VINAYAGA AGENCIES VERSUS THE ASSISTANT COMMISSIONER (CT) [2013 (4) TMI 215 - MADRAS HIGH COURT]. But the issue relating to capital goods and other goods – input, packing materials, have to be gone into by the appellate authority. Therefore, this Court is not inclined to entertain these Writ Petitions.
The Writ Petitions are dismissed.
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