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2016 (8) TMI 1615
Non issue of notice u/s. 143(2) within period of limitation - also not addressed to the "the principal Officer" - non compliance with the procedural requirement - HELD THAT:- We find that in this case no notice u/s.143(2) of the Income Tax Act, 1961 was served upon the assessee within the time permitted by proviso to section 143(2) of the Act and secondly the notice u/s. 143(2) is not addressed to the "the principal Officer" as required by section 282 of the Act. In this case the return for AY 2001-02 was filed on 31.10.2001 and the period of limitation for service of notice u/s 143(2) expired on 31.10.2002, hence, such notice had to be mandatorily served by 31.10.2002; however, admittedly, the first notice was issued on 16.09.2002; the said notice was sent by Regd. Post and admittedly the same returned back unserved on 21.9.2002 without any postal remark.
According to A.O., another notice was issued and served through Process Server and Inspector on 26.9.2002; but there is no entry in the order sheet to this effect. According to A.O., another notice was issued and served through process server and inspector on 28.10.2002; but there is no entry in the order sheet to this effect also; the next notice was dated 7.7.2003 which is beyond statutory period. In view of the above discussions, we are of the considered view that Revenue has failed to establish that it has followed the procedure as laid down under Section 282 of the Income Tax Act, 1961; under order V Rule 17 & 20 of the CPC, hence, the Service of Notice is illegal and void ab inito. See Ramendra Nath Ghosh [1971 (8) TMI 26 - SUPREME COURT] Naveen Chander [2010 (2) TMI 155 - PUNJAB AND HARYANA HIGH COURT] Appeal filed by the Assessee stands allowed.
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2016 (8) TMI 1614
Fraudulent and manipulative activities in the trading of shares -scheme/device or artifice involving a façade of preferential issue of equity shares in order to provide fictitious long term capital gains ("LTCG") to Pine’s preferential allotees and promoter related entities - preferential allotees and the promoter related entities artificially increased the volume of the scrip and misused securities market system for making illegal gains and to convert ill-gotten gains into genuine one to avail LTCG.
Responsibility of Pine and its Directors - HELD THAT:- A director who is part of a company’s board shall be responsible for all the deeds/acts of the Company during the period of his directorship. From this, I note that the whole scheme of operations starting from issue of equity shares on preferential basis to exit of preferential allottees at a very high price could not have been fructified without the involvement and co-operation of the directors of Pine.Therefore, do not find any merit in the contention of the directors in this regard.
One of the directors, viz; Mr. Rajagopalan Nagaraja Sharma has submitted that he had tendered his resignation to the Board, immediately on change of ownership of the company, but was asked to continue for a short time till the new Board of Directors was formed. However, finding his name still appearing as director of the company in January 2013, he had written to the Registrar of Companies, Tamil Nadu, Chennai on February 04, 2013, informing them about his resignation in July 2012. I note that Mr. Sharma has not produced any document to substantiate that the company had received the resignation letter submitted by him in July 2012. Further, the Annual Report of the company for the year ending March 2013, continued to show Mr. Sharma as one of the directors of Pine and also mentions about his appointment as Executive Director for a period of one year from 2nd September 2013 to 1st September 2014. Therefore, do not accept claims of Mr. Sharma.
Promoters of Pine and Directors of the Promoter Companies -The transfer of these shares in physical form was under a prior arrangement for the ulterior motive or the end objective of the scheme that has been brought out explicitly in the interim order and in the light of the contrary submissions made by the concerned entities and in the absence of any documentary evidence in support of their submissions, do not find any merit in the submissions made by the promoters and their directors at this stage.
Promoter related entities - As brought out in the interim order, the ultimate beneficiaries of the whole scheme in question are preferential allottees and the Promoter Related Entities. It is beyond reason to hold that the company and other entities mentioned in the interim order, except the Promoter Related Entities, would devise the impugned plan/scheme for the benefit of the entities who are neither party to the plan/scheme nor have any complicity in the plan with others. The facts and circumstances of this case, in my view, prima facie indicate that the transfer of these shares in physical form was under a prior arrangement for the ulterior motive or the end objective of the scheme that has been brought out explicitly in the interim order. In view of the foregoing, reject the contentions of Promoter related entities in this regard.
Preferential Allottees - No merit in the contention of the preferential allotees that they have no nexus with the exit providers as none of the shares sold by them were purchased by the exit providers.
With regard to contention made by some of the preferential allotees that they have not paid a premium of ₹10 per share and that an error in the interim order was evidenced from paragraph 5 wherein it was mentioned that "Strangely, in spite of such fundamentals and tarnished track record of long period of suspension of trading, exit by the promoters and no available market price on account of no trading in the scrip, Pine was able to garner funds aggregating to ₹24,70,00,000 from aforesaid 92 entities at a premium of ₹ 10 per share within a short span of few months from the revocation of suspension". In this regard, it may be clarified that this was a typo error in the interim order.
LTP Contributors - From the analysis of order book made after the passing of the interim order, it was observed that during the price increase period i.e. patch 1, there were total of 119 buy orders for 21,420 shares placed by 25 buyers. Of these 21,420 shares, buy orders for 16,740 shares constituting 78.15% of the order book were placed by the 6 LTP Contributors as brought out in the table above. From the data it is also observed that, they have placed buy orders with average quantity per order in the range of 47 shares to 461 shares. From the above trading pattern of the noticees, it was observed that the contribution to price rise by top 3 LTP Contributors is individually quite high (around 15%). In this background, reject the submissions of top 3 LTP Contributors that their trading did not have an impact on the price rise of the scrip of Pine.
The Noticees have demonstrated that they had placed the buy orders seeing huge demands on previous trading day as against thin volume traded and purchase quantity was always far less than the traded volume. Further, they had placed impugned orders in the scrip without foreseeing any manipulation or being a party to the scheme described in the interim order. They have also demonstrated that they had purchased only 1181 shares out of his own funds through 31 trades without being party to the scheme in question. I do not find sufficient material at this stage to attribute role of the some of the LTP contributors in the dubious plan, scheme or devices and to continue the directions issued in the interim order against such LTP contributors.
Supply side was being intentionally restrained/controlled by the sellers - This type of trading pattern in illiquid scrip like Pine, prima facie, indicates that the seller being in control of the tradable shares of this scrip played a major role in manipulating the price of the scrip. From the order book it appears that a facade of huge demand at upper circuit was created without which a scrip like Pine with hardly any credential regarding its trading history, fundamentals, business or financial standing etc., could not have witnessed an increase in the price (113%) within a period of 19 trading days. The only way the price of such scrip could have increased is by deploying manipulative trading pattern. Although the role of buyers in creating such demand cannot be outrightly ignored, the facts and circumstances of each case need to be holistically examined.
Exit Providers - Exit providers have contended that SEBI has erroneously named them as exit providers and clubbed them as Pine Animation Group entities and they have not done any wrong-doing -Exit providers had prima facie acted in concert/league and misused the exchange platform to provide exit to the preferential allotees and promoter related entities at a high price thereby enabling these preferential allotees and promoter related entities to reap the benefit of tax exemption available under the Income Tax Act, as discussed in the interim order. Therefore, at this stage reject the contention of these Noticees in this regard.
In the instant case, the interim order has reasonably highlighted the modus operandi wherein Pine, its promoters and directors in nexus with the preferential allottees made a facade of preferential allotment ostensibly to raise money and simultaneously the promoters of Pine transferred their holdings to the promoter related entities. Thereafter the preferential allottees and the promoter related entities with the aid of the Exit providers misused the stock exchange mechanism to exit at a high price in order to generate fictitious LTCG. While the tax related issues will be looked after by the other law enforcement agencies, SEBI would look into the probable violations of securities market system. Thus, in the instant case, some of the Noticees, while acting under dubious plan, device and artifice, have traded in the shares of Pine that prima facie led to the creation of artificial volume in the scrip by misuse of securities market system. Therefore, prima facie, the acts and deeds of some of the Noticees are fraudulent and are in contravention of the provisions of the Securities Laws so far as it relates to the misuse of securities market system.
Considering the findings as mentioned above, the facts and circumstances of the case do not justify the continuation of the directions passed against Rajesh Kumar Shukla (BGGPS9416R) vide the interim order dated May 08, 2015. Therefore, in exercise of the powers conferred upon me under section 19, read with sections 11(1), 11(4) and 11B of the Securities and Exchange Board of India Act, 1992 hereby revoke the directions as against him.
122 Noticees have, at this stage, failed to give any plausible reasoning/explanation for their acts and omissions as described in the interim order and have not been able to make out a prima facie case for revocation of the interim order.
Case in hand is peculiar as large number of entities have been restrained and the ongoing investigation in the matter may take time in completion. I have been conscious that the restraint order should not cause disproportionate hardship or avoidable loss to the portfolio of the noticees. That is why several relaxations, such as allowing investment in mutual fund units, permission to liquidate existing portfolio and keep the proceeds in escrow account and even utilize 25% of the proceeds for meeting exigencies, etc. have been made in the past.
Now at this stage, considering the facts and circumstances of this case and submissions/oral arguments made, we deem it appropriate to make further relaxations so as to address the issues of the personal and business exigencies or other liquidity problems.
Considering the above, in exercise of the powers conferred upon me under section 19 of the SEBI Act, read with sections 11(1), 11(4) and 11B thereof, hereby confirm the directions issued vide the ad interim ex parte order dated May 08, 2015 as against the aforesaid 122 Noticees except that they can:-
(a) enter into delivery based transactions in cash segment in the securities covered in NSE Nifty 500 Index scrips and/ or S&P BSE 500 scrips;
(b) subscribe to units of the mutual funds including through SIP and redeem the units of the mutual funds so subscribed;
(c) deal in Debt/Government Securities;
(d) invest in ETF
(e) avail the benefits of corporate actions like rights issue, bonus issue, stock split, dividend, etc.;
(f) tender the shares lying in their demat account in any open offer/delisting offer under the relevant regulations of SEBI;
Few exceptions/relaxation/reliefs for 122 Noticees and those restrained entities in respect of whom the confirmatory orders have already been passed.
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2016 (8) TMI 1613
Failure to take effective measures for combating the adulteration of milk with hazardous substance like urea, detergent, refined oil, caustic soda, etc. which adversely affects the consumers’ health and seek appropriate direction - violation of fundamental rights of the petitioners and public at large guaranteed under Article 21 of the Constitution of India - HELD THAT:- Considering the seriousness of the offence and referring to the amendment to Section 272 Indian Penal Code made by States of Uttar Pradesh, West Bengal and Odisha, wherein the punishment for adulteration of food and products is enhanced to imprisonment for life and also fine, by order dated 05.12.2013, this Court observed that “similar amendments are to be made in other states as well.” The same direction was reiterated by this Court vide order dated 30.01.2014 and this Court also directed Union of India to consider bringing in suitable amendments to FSS Act. On 13.03.2014, counsel appearing for the Union of India produced a letter dated 12.03.2014 of the Ministry of Health and Family Welfare wherein it has been stated that under the chairmanship of the Chairman of FSSAI, it has been decided to seek approval of the Government for initiating the process of amendment of the Food Safety and Standards Act 2006 in the light of the observations made by this Court. Vide order dated 11.11.2014, this Court observed that Union of India and State Governments must come out with suitable amendments in the Act or with a new legislation to stop adulteration and production of synthetic milk which is consumed by the infants/children and by the public at large.
Since in India traditionally infants/children are fed milk, adulteration of milk and its products is a concern and stringent measures need to be taken to combat it. The consumption of adulterated milk and adulterated milk products is hazardous to human health. As directed by this Court by order dated 10.12.2014, it will be in order that the Union of India come up with suitable amendments in the Food Safety and Standards Act, 2006 and the respondent-Union of India shall also make penal provisions at par with the provisions contained in the State amendments.
It will be in order, if the Union of India considers making suitable amendments in the penal provisions at par with the provisions contained in the State amendments to the Indian Penal Code. It is also desirable that Union of India revisits the Food Safety and Standards Act, 2006 to revise the punishment for adulteration making it more deterrent in cases where the adulterant can have an adverse impact on health.
Conclusion - Union of India and the State Governments shall take appropriate steps to implement Food Safety and Standards Act, 2006 in a more effective manner. The respondent-Union of India shall take up the matter seriously and come up with all possible amendments in the Food Safety and Standards Act, 2006.
Petition disposed off.
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2016 (8) TMI 1612
Application of the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 - provisions of the Act are retroactive in nature or not - non consideration of this aspect of the matter renders the decisions of this Court in Modern Industries [2010 (4) TMI 903 - SUPREME COURT] and Purbanchal Cables & Conductors Pvt. Ltd. [2013 (3) TMI 518 - SUPREME COURT] as sub silentio - judgment rendered in Purbanchal Cables & Conductors Pvt. Ltd. [2013 (3) TMI 518 - SUPREME COURT] operates as res judicata in the instant case or not - suit filed by the appellants is barred by limitation or not - maintainability of appeal against the review.
As per V. GOPALA GOWDA, J
Whether provisions of the Act are retroactive in nature? - Whether non consideration of this aspect of the matter renders the decisions of this Court in Modern Industries and Purbanchal Cables & Conductors Pvt. Ltd. as sub silentio? - HELD THAT:- Though a catena of cases which have been extensively adverted to in the case of Purbanchal Cables & Conductors Pvt. Ltd. have held that the statutory provisions of the 1993 Act do not have retrospective operation, they have failed to consider the aforesaid statutory aspects in a proper perspective keeping in view the objects and reasons of the Act and the usage of the non obstante clause phrase in Section 4 of the Act.
Since the focus of the Act is on delayed payment, which is in consonance with the definition of the term ‘appointed day’ as well, there is no need to consider when the ‘transaction’ was entered into or the date of the ‘supply order’. Section 3 of the Act clearly provides that the liability of the buyer to make payment accrues after the supplier supplies goods or renders any services to the buyer. Thus, what was envisaged by the legislature as delayed payment was payment of the outstanding money due to the supplier after the goods had been supplied, and after the date agreed upon or the date of deemed acceptance. A bare reading of the Section makes it clear that the date of entering into the agreement or the date of supply order were not in contemplation of the legislature at all. Thus, it is amply clear from a bare reading of Section 3 that for the purpose of the Act, it does not matter when the contract was entered into, as long as the supply of the goods was after the Act came into force on 23.09.1992. It is in that sense that the question of retrospective application of the Act does not arise at all.
Further, even on the issue of retrospectivity, what was required to be examined by this Court in the aforesaid cases was whether by reading the relevant statutory provisions Sections 3, 4, 5 and 6 of the Act, a vested statutory right is conferred. As I have already held that aforesaid provisions of the Act are retroactive in nature therefore, non-consideration of this aspect in Purbanchal Cables & Conductors Pvt. Ltd. and cases mentioned therein, renders the said judgment sub silentio on this question.
Purbanchal Cables & Conductors Pvt. Ltd. and other decisions of this Court referred to supra did not consider the important aspect of the matter namely as to whether the provisions of the Act are retroactive or not? They merely held that the provisions of the Act have no retrospective effect. Thus, the judgments have been rendered sub silentio on this aspect.
Whether the judgment rendered in Purbanchal Cables & Conductors Pvt. Ltd. (supra) operates as res judicata in the instant case? - Whether the suit filed by the appellants is barred by limitation? - Whether the appeal against the review in the connected matter is maintainable? - HELD THAT:- Taking into consideration the supply order against the actual supply of the goods with payment made, the last payment was made on 05.03.1994. Thus, time began to run from that date. Taking into consideration the fact that the date of the institution of the suit is 10.01.1997, the suit has been filed within the period of limitation as prescribed in the Limitation Act. Though on this aspect of the matter no finding has been recorded either by the Trial Court or by the High Court, the question is answered in favour of the appellants.
Appeal allowed.
As per Arun Mishra, J.
HELD THAT:- The decision of a Co-ordinate Bench is binding and there has to be consistency and settled principle should not be unsettled as laid down in Raghubir Singh and other decisions. Judicial discipline demands that a decision of the Division Bench of this Court should be followed by another Bench of two Judges.
In Modern Industries, a Division Bench of this Court has also held that the Act of 1993 is prospective in operation is settled by two decisions of this Court in Assam Small Scale Industries’ case [2005 (10) TMI 494 - SUPREME COURT] and Shakti Tubes [2009 (7) TMI 1033 - SUPREME COURT]. This Court has observed that since the earlier contract got altered from time to time, it was last altered on 29.4.1995. By that time Act of 1993 had already come into force. Hence the date of alteration in the agreement was held to be material for the applicability of the provisions of the Act. In Rampur Fertiliser Ltd. [2009 (2) TMI 694 - SUPREME COURT], a Division Bench of this Court has held that the provisions of the Act of 1993 are prospective. The Court considered various provisions contained in sections 1, 3, 4, 5 and 10 of the Act.
The Act of 1993 cannot be said to be retrospective in operation or having retroactive operation. The question stands answered affirmatively beyond pale of doubt and the decisions are binding on a Co-ordinate Bench. It cannot be said that the decisions are sub silentio or per incuriam in any manner whatsoever and, in my opinion, it is not open to the Co-ordinate Bench to take a different opinion. There is no confusion with respect to meaning of transaction, supply order and agreement. This Court while deciding aforesaid cases was not in oblivion of aims and objects of beneficial legislation, considered same and it has affirmatively pronounced on all the aspects. Hence, I find no scope to dwell further into the same arena to declare the various judgments to be sub silentio, per incuriam or not laying down the law correctly.
Considering the scheme of the Act, various provisions of the Act it cannot be said to have retrospective operation or retroactive operation and where a supply order has been placed before the date of commencement of the Act, that is before 23.9.1992, the beneficial provisions of the Act regarding higher interest would not be applicable.
Appeal dismissed.
Conclusion - i) The Act is prospective, not retroactive, and applies only to transactions initiated after its commencement. ii) The res judicata did not apply, allowing for the re-litigation of the issue. iii) The suit was filed within the limitation period. iv) The maintainability of the appeal against the review upheld.
In a dissenting opinion, it was argued that the Act should not apply retroactively and that prior decisions were correctly decided.
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2016 (8) TMI 1611
Time limitation for initiation of disciplinary proceedings against the Appellant - Rule 9(2)(b)(ii) of the Central Civil Services (Pension) Rules, 1972 - Whether the impugned judgment and order passed by the Division Bench of the High Court correctly appreciates the scope of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 in light of the fact the disciplinary proceedings were initiated more than four years after the alleged incidents? - Whether the impugned judgment and order is erroneous and is vitiated in law?
HELD THAT:- The High Court quashed the Memorandum of Charges on the ground that it was issued after four years from the date of the alleged incident. Therefore, it was held that the said action of the Disciplinary Authority in initiating disciplinary proceedings is not valid in law as the same was barred by limitation as per the provision of Rule 9(2)(b)(ii) of the CCS (Pension) Rules 1972. This important legal aspect of the case was not considered by the Division Bench of the High Court while setting aside the common judgment and order dated 01.09.2010 passed by the learned single Judge in Writ Petition No. 904 of 2008 (arms and ammunitions case) and Writ Petition No. 264 of 2010 (contraband ganja case).
It is a well established principle of law that if the manner of doing a particular act is prescribed under any statute then the act must be done in that manner or not at all.
The Division Bench of the High Court failed to appreciate the fact that liberty had been granted by the High Court vide its judgment and order dated 07.11.2006 in W.A. (C) No. 45 of 2006 to the Disciplinary Authority to take disciplinary action against the Appellant. Thus, there was no need for the Respondent Disciplinary Authority to withdraw the Memorandum of Charges dated 14.05.1998 for the purpose of initiating disciplinary proceedings afresh against the Appellant on the same charges by obtaining an order of sanction from the President of India as required under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Division Bench of the High Court in its judgment and order dated 05.08.2013 has completely ignored this important legal aspect of the matter, that the prior sanction accorded by the President under the above said Rules was in fact, barred by limitation. Thus, it has committed serious error in law in arriving at the conclusion that the Respondent Disciplinary Authority had obtained due sanction from the President of India to conduct the departmental proceedings against the Appellant for the same charges, which action was barred by limitation as provided under Rule 9(2) (b)(ii) of CCS (Pension) Rules, 1972. Therefore, the impugned judgment and order passed by the Division Bench of the High Court cannot be allowed to sustain in law.
Conclusion - In the instant case, the action of the Disciplinary Authority is untenable in law for the reason that the interpretation of the CCS (Pension) Rules, 1972 which is sought to be made by the learned ASG on behalf of the Respondents amounts to deprivation of the Fundamental Rights guaranteed to the Appellant under Part III of the Constitution of India. Therefore, the disciplinary proceedings initiated by the disciplinary authority after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 are liable to be quashed.
Appeals are partly allowed only to the extent of answering the legal questions framed and the impugned judgment and order is set aside to that extent with the above liberty given to the Respondents - application disposed off.
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2016 (8) TMI 1610
Allowance of interest paid against interest earning from Partnership Firm where assessee is a partner - applicability of sec. u/s 14A is upon the incidence of tax free income in the hands of the assessee, as in this case of tax free profit from partnership firm - HELD THAT:- The issues involved in this case are identical to the case of assessee’s father there is a direct nexus between the borrowings and money given to the firm’s current account and earning of interest income.
Once the amount borrowed is not towards capital contribution then, it cannot be held that any disallowance u/s 14A can be made on the ground that share profit from the firm is exempt in the hands of the assessee. In the account of the firm there is a separate fixed capital account and current capital account.
It needs to be examined, whether or not the borrowed funds which has been given to the current capital account and interest earned thereon has been offered as taxable income or not. If that is so, then no disallowance u/s 14A can be made. Decided in favour of assessee.
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2016 (8) TMI 1609
Challenge to Constitutional validity of the provisions of Rule 3 and Rule 3A of Chapter XXIV of the Allahabad High Court Rules, 1952 - right to practice as an Advocate - ultra vires the provisions of Section 30 of the Advocates Act, 1961 or not - HELD THAT:- Article 19 of the Constitution of India guarantees certain freedoms to the citizens of this country which includes right to practice any profession, or to carry on any occupation, trade or business. It, therefore, naturally follows that right to practice law, which is a profession, is a fundamental right that is conferred upon all citizens of this country. Therefore, it can be said that the appellant has right to appear in any Court in India which would include right to appear and argue the matters even in High Court of Allahabad.
In N.K. Bajpai v. Union of India [2012 (3) TMI 200 - SUPREME COURT], this Court made it clear that right to practice can be regulated and is not an absolute right which is free from restriction or without any limitation.
The administration of justice is a sacrosanct function of the judicial institutions or the persons entrusted with that onerous responsibility and principle of judicial review has now been declared as a part of the basic structure of the Constitution. Therefore, if anything has the effect of impairing or hampering the quality of administration of justice either due to lack of knowledge or proper qualification on the part of the persons involved in the process of justice dispensation or they being not properly certified by the Bar Council as provided under the Act and the Rules made there under, it will surely affect the administration of justice and thereby affecting the rights of litigants who are before the Courts seeking justice - The easy identification of the person who appears before the Court when he is the enrolled advocate of another Bar Council or is not on the rolls of Advocates of the High Court is to ensure his presence whenever the cases are listed and to minimise the cases being dismissed for default which may result in serious consequences to the litigants and multiplicity and inordinate delay in proceedings whether it be a criminal case or civil dispute is the objective of Rule 3 or 3A of the Rules. That objective is achieved when he is permitted to appear along with the local Advocate of the High Court.
It is imperative for the smooth and effective functioning of the court that the court is able to fix responsibility on Advocates, which is not possible if Roll of Advocates is not maintained in the High Court. Moreover, an advocate is permitted to file vakalat on behalf of a client even though his appearance inside the court is not permitted. Conduct in court is a matter concerning the Court. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an Advocate - the Rules in question amount to reasonable restrictions which are imposed in public interest.
The High Court is duly empowered to make rules and Rules in question are not ultra vires Section 30 of the Act. It is more so when power under Section 34 of the Act is given to the High Courts, which are Constitutional Courts.
The principle that the High Court has right to regulate the conduct of its own proceedings can also be found in Pravin C. Shah v. K.A. Mohd. Ali & Anr. [2001 (10) TMI 1049 - SUPREME COURT]. In that case, it was held that the High Court cannot be divested of the control or supervision of the court merely because it may involve the right of an advocate. The High Court has power to formulate rules for regulating proceedings inside the court. Such power should not be confused with the right to practice law. The court has supervisory power over the right of an Advocate to appear and conduct cases in the court.
Rules 3 and 3A of the Allahabad High Court Rules, 1952 and perfectly valid, legal and do not violate the right of the appellant under Article 19(1)(g) of the Constitution of India.
The appeal, therefore, fails and is hereby dismissed.
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2016 (8) TMI 1608
Maintainability of petition - Imposition of share on Adjusted Gross Revenue (AGR) even on income earned in relation to non-telecom activities - levy of One Time Spectrum Charge (OTSC) - Merger of Licenses of Aircel Limited (AL) and Aircel Cellular Limited (ACL) - seeking to declare the first proviso to Section 4 of the Indian Telegraph Act, 1885 as violative of Articles 14 and 19(1)(g) of the Constitution.
Whether Section 14 of the TRAI Act bars the jurisdiction of this Court under Article 226 to entertain writ petitions and if so, whether the petitioners/appellants can be relegated to approach the Tribunal under Section 14(a)(i) of the TRAI Act?
HELD THAT:- While Section 14(1) of the TRAI Act confers power on the Tribunal to adjudicate any dispute between (i) a licensor and a licensee, (ii) between two or more service providers and (iii) between a service provider and a group of consumers, as against any such adjudication, appeal is provided to the Supreme Court under Section 18. Section 15 bars the Civil Courts from entertaining any suit or proceeding in respect of any matter which could be determined by the Tribunal. In effect, the Tribunal is empowered to deal with any dispute as enumerated in Section 14(1) of the TRAI Act. Such being the case, whether in respect of any matter in dispute, is the jurisdiction of this Court under Article 226 of the Constitution ousted?
In WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI & ORS. [1998 (10) TMI 510 - SUPREME COURT], the Supreme Court observed that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provision of the Constitution. In the facts of the particular case, the High Court has a discretion to entertain or not to entertain a writ petition, subject to self-imposed restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would normally refrain to exercise its writ jurisdiction. However, the said alternative remedy cannot be consistently be held as a bar where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
In the case of KARTAR SINGH VERSUS STATE OF PUNJAB [1994 (3) TMI 379 - SUPREME COURT], a Constitution Bench of the Supreme Court observed that extraordinary power is given to High Court under Article 226 not only for the purpose of correcting manifest errors but also to exercise the said jurisdiction for the sake of rendering complete justice. The High Court, being the highest court for the purposes of exercising civil, appellate, criminal or constitutional jurisdiction so far as that State is concerned in terms of the framework of the Constitution, the jurisdiction possessed by it before coming into force of the Constitution was preserved by Articles 225 and in terms of Articles 226 and 227, extraordinary jurisdiction was conferred on it so as to ensure that the subordinate authorities do not act against the rule of law, but to see that they function within the framework of law. That jurisdiction of the High Court cannot be taken away by legislation.
It is trite law that under Article 226 of the Constitution of India, untrammelled powers and jurisdiction has been vested with the High Court for the purpose of issuance of any writ or order or direction to any person or authority within its territorial jurisdiction for enforcement of any of the fundamental rights or for any other purpose. The legislature has no power to divest the Court of the constituent power engrafted under Article 226.
The availability of an alternative remedy is no bar to the maintainability of a writ petition. However, it is trite law that where an alternative efficacious remedy is available under a statute, High Courts normally refrain itself from exercising their jurisdiction under Article 226. However, the above restriction is only self-imposed restriction and the same in no way precludes the jurisdiction of the High Court under Article 226 - the prerogative writ jurisdiction of this Court under Article 226 having not been ousted or curtailed, this Court having granted stay of recovery/demand as made by the DoT in the above batch of writ petitions, relegating the petitioners to approach the Tribunal to have their grievance redressed would be a futile exercise as without vacating the interim orders granted by this Court, any order passed would serve no purpose as has been rightly pointed out by the learned single Judge that any order that may be passed by the Tribunal in conflict with the interim orders passed by this Court would amount to judicial anarchy, which should be avoided.
This Court holds that the writ petitions, at the instance of the petitioners, in the circumstances of the facts of case, are maintainable and the finding of the learned single Judge warrants no interference.
Revenue Share on Non-Telecom Activities - Whether the first proviso to Section 4 of the Indian Telegraph Act gives unbridled powers to DoT to claim a share of revenue from non-telecom activities vide the definition of 'Adjusted Gross Revenue', forming part of the amended licence agreement in No. 842-2/2000-VAS (Vol. IV) (Part) dated 25.9.01 and whether such a power is violative of Articles 14 and 19(1)(g) of the Constitution? - Whether a writ of declaration can be issued that the respondents can charge only License Fee/AGR (Adjusted Gross Revenue) from revenue earned from licensed activities? - HELD THAT:- The Supreme Court, in the decision in Association of Unified Telecom Service Providers of India case [2011 (10) TMI 580 - SUPREME COURT], while deciding the issue as to whether TRAI and the Tribunal had jurisdiction to decide on the validity of the terms and conditions of licence, including the definition of adjusted gross revenue finalised by the Central Government and incorporated in the licence, held that while the Tribunal had no jurisdiction to decide upon the validity of the terms and conditions incorporated in the licence of a service provider, however, will have jurisdiction to decide "any" dispute between the licensor and the licensee on the interpretation of the terms and conditions of the license. The Supreme Court also further held that once the licensee had accepted that licence fee would be a percentage of the gross revenue, which would be the total revenue of the licensee company and had also accepted that the Government would take a final decision not only with regard to the percentage of revenue share but also the definition of revenue for this purpose, the licensee could not have approached the Tribunal questioning the validity of the definition of adjusted gross revenue in the licence agreement on the ground that adjusted gross revenue cannot include revenue from the activities beyond the licence.
From the above decision of the Supreme Court it is abundantly clear that a licensee, having accepted Clause (iii) of the letter dated 22.7.1999, which stipulated that the licence fee would be a percentage of the gross revenue, which would be the total revenue of the licensee company and has also accepted that the Government would take a final decision not only with regard to the percentage of revenue share, but also with regard to the definition of revenue, is estopped from questioning the definition of adjusted gross revenue on the ground that it includes revenue from activities beyond the licence. The Supreme Court further held, in relation to the wide definition of adjusted gross revenue, if the licensee is really aggrieved that the activities that they undertake are outside the purview of telecom activities, which are outside the terms of licence, it was open to the licensee to transfer the activities to any other person or firm or company.
The decision by the Supreme Court was on the issue whether the Tribunal had powers to decide on the validity of the terms and conditions, which the Supreme Court negatived and held that the Tribunal has jurisdiction only to interpret the terms and conditions of the licence. The Supreme Court did not go into the question of whether AGR would stand attracted even on revenue generated through non-telecom activities, which are not governed by the licence. On that ground the petitioners are before this Court on the issue as noted above, which is before this Court for consideration.
The rule of law as propounded by the Supreme Court on the jurisdiction of the Tribunal is clear. However, in the case on hand, the point that requires consideration is whether Section 4 of the Indian Telegraph Act gives unbridled powers to DoT to claim a share of revenue generated from non-telecom activities on the basis of the definition of "Adjusted Gross Revenue", which forms part of the licence agreement and whether such power is violative of Articles 14 and 19(1)(g) of the Constitution.
Once a licence is issued under the proviso to sub-section (1) of Section 4 of the Telegraph Act, the licence becomes a contract between the licensor and the licensee and, consequently, the terms and conditions of the licence including the definition of adjusted gross revenue in the licence agreement are part of a contract between the licensor and the licensee - the licence issued under Section 4(1) of the Telegraph Act is a contract between the parties, the issue whether Section 4(1) has given unbridled power to DoT to claim a share of revenue from non-telecom activities as defined in "Adjusted Gross Revenue" is violative of Articles 14 and 19(1)(g) of the Constitution needs to be answered.
As has been held by the Supreme Court in Harinarayan Jaiswal's case [1972 (3) TMI 83 - SUPREME COURT], the Central Government, being the seller has exclusive right to deal with the privileges flowing from Section 4(1) of the Telegraph Act and once the exclusive privilege of the Central Government is conceded, violation of Articles 14 and 19(1)(g) cannot be pressed into service by persons citing fundamental right to trade or carry on business, when such right belongs to the Government and there cannot be any infringement of Article 14, if the Government tries to get the best available price for its valuable rights. The contract executed between the licensor and the licensee above is in the realm of the Government trying to get the best available price for parting with its valuable rights and, therefore, this Court is of the considered view that violation of Articles 14 and 19(1)(g) of the Constitution does not merit acceptance. Accordingly, this Court holds that first proviso to Section 4 of the Indian Telegraph Act is not violative of Articles 14 and 19(1)(g) of the Constitution.
The primary question of Section 4(1) of the Telegraph Act having been held to be not violative of Articles 14 and 19(1)(g) of the Constitution, the incidental issue as to grant of declaration that respondents can charge only licence fee/AGR from revenue earned from licensed activities has to necessarily fail - Accordingly, the incidental issue also merits no consideration.
Levy of One Time Spectrum Charges (OTSC) - HELD THAT:- It is well settled proposition of law, through the decision of the Apex Court in Association of Unified Telecom Service Providers of India case (supra) that the Central Government is vested with exclusive privilege to deal with telegraph and power is vested in it to grant licences for establishing, maintaining and working telegraphs on such conditions and in consideration of such payments as it thinks fit to any person, the relevant portion of which has already been quoted above. Therefore, the right of the Government to deal with the said exclusive privilege and to grant licences is not in issue.
The exclusive privilege to deal with telegraphs, more particularly, spectrum, in this case, and grant of licence for establishment and maintaining of telegraphs by private entities, assumes importance. The Central Government being the legal owner of the natural resource, as a trustee of the people, is empowered to distribute the said resource to private entities in the larger interests of the public. While the State is duty bound to protect the natural resource and utilise the same for public good, equally, the alienation of the same through issue of licences to private entities assumes significance as the revenue it generates also invariably goes towards the overall improvement of the country - the emphasis placed on clause 13 (ii) of the licence agreement for the purpose of OTSC by DoT needs to be addressed.
On a harmonious reading of the said clause 13 (ii) of the licence agreement, what follows is that the licensor reserves the right to modify (inclusive of addition and subtraction) at any time the terms and conditions of licence covered under the schedules in the interests of the general public. When a change by extension/improvement of the term of the licence could be increased to 20 years from 10 years in exercise of power under clause 13 (ii) of the licence agreement, equally so the modification of payment terms by means of addition by way of OTSC is also permissible. When the petitioners have enjoyed the fruits of the extended term by virtue of the migration package, they cannot, at this point of time, claim that the licensor is prohibited from adding anything to the contract.
When the Central Government thought it fit to reject the said recommendation of TRAI with regard to levy of OTSC in the interest of the public at large, it cannot be said to be arbitrary or unreasonable and against the provision of the Telegraph Act and the TRAI Act. Fixing of cut-off date for imposition of levy is within the discretion of the licensor and the licensee cannot have any quarrel on the same as they being party to the licence agreement have agreed for modification of the terms and conditions as is evident from clause 13 (ii) of the licence agreement.
This Court holds that the levy of OTSC by the Central Government, in exercise of powers conferred on it by Section 4(1) of the Telegraph Act r/w Clause 13 (ii) of the Licence Agreement, is not arbitrary, and in fact justified and enforceable.
Merger of Licenses of Aircel Limited (AL) and Aircel Cellular Limited (ACL) - direction to comply with the conditions imposed by DoT for grant of approval of merger - HELD THAT:- The appellants were directed to comply with the payments as contemplated in the NIA and also to pay AGR as per quantification with further direction to give an undertaking of conditions (c) and (d) (i) to pay the dues in case the pending matters are decided against them. Further, the order of the learned single Judge was also stayed - This Court having held that levy of OTSC is sustainable and DoT can levy the said charge on the service providers, in effect, the stay granted by this Court in the writ petitions automatically gets vacated. In such view of the matter, it is not necessary to decide whether the coercive action of the respondent/DoT in demanding an undertaking is per se contemptuous when those levies are under orders of stay granted by this Court as those orders of stay stands automatically vacated in view of the dismissal of the writ petitions.
Petitions are dismissed holding that the petitioners are bound to pay the amount, which is due to the department as a share of AGR on the non-telecom activities. It is for the respondent/Department to quantify the share of AGR on non-telecom activities, which remains unpaid, and issue a fresh demand notice within a period of one month from the date of a receipt of a copy of this order. On receipt of such notice, the petitioners shall pay the amount demanded by DoT within a period of one month from the date of receipt of the demand notice - petitions are dismissed sustaining the levy of OTSC made by DoT on the service providers. It is informed by the learned Addl. Solicitor General that an amount to the tune of approximately more than Rs. 3273 Crores is due from the petitioners to the DoT - petition are dismissed and the appellants shall comply with the order passed by the learned single Judge.
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2016 (8) TMI 1607
Striking down Section 2(p) of Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Act - vires of Rule 3(3)(1)(b) of the PNDT Act - HELD THAT:- It is accepted that the law would be finally laid down by the Hon'ble Supreme Court and thus there is no point in keeping this petition pending and whatever the declaration of law by the Hon'ble Supreme Court would be equally applied. The only question is as to what would happen till the Hon'ble Supreme Court examines the issue. In this behalf, if the Hon'ble Supreme Court had stayed or would stay the operation of the Judgment, then only could those provisions struck down again come in force.
It is trite to say that once a High Court has struck down the provisions of the Central Act, it cannot be said that it would be selectively applied in other States. Thus, there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon'ble Supreme Court upsets the Judgment or stays the operation of the Judgment.
Petition disposed off.
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2016 (8) TMI 1606
Direction to maintain status quo on disposal of the subject mortgaged property, sale of which was undertaken under earlier orders - Enforcement of consent orders in light of Section 22 of SICA - HELD THAT:- There is no bar that the financial institution and the guarantor cannot enter into a compromise in a Section 9 application. The parties filed consent terms and had proceeded accordingly. The sale has been confirmed upto the Supreme Court. Therefore, the further consequential steps and proceedings in the present case, cannot be halted, at the instance of the appellants, who have themselves filed the consent terms and the parties having proceeded accordingly. There was nothing wrong when the consent terms were recorded and modified further by agreement. The rights have been crystalised, at least between the Respondent and the guarantor (whose property is in question) much before the filing of BIFR application by Respondent No.1. The impugned order is in consequent to it.
The scope of inquiry under section 22 is somewhat different as the consent terms were between Respondent/financial institution and the guarantor, prior to the invocation of the BIFR proceedings by the Respondent-Industry. A statement is also made by the learned Counsel for the Appellants that the property involved in the present proceedings is not the property owned by the company/undertaking but of the guarantor only and that the same is not subject matter of the proceedings before the BIFR. Thus the sale of property and the consequential ministerial act of its execution of conveyance in the background in the facts of the case cannot be halted at the instance of Appellant even though it arose out of Section 9 proceedings, pending arbitration before the Arbitral Tribunal and/or even the BIFR proceedings in question. All are the distinct and separable proceedings.
There is no executable order passed under Section 9 application against the company and/or its property. There is no coercive steps taken in this proceeding against the Respondent -Industry/Company or its property pending BIFR proceedings. Therefore, in view of the consent terms finality so attained, there are no reason to interfere with the order so passed by the learned Judge.
The impugned order requires no interference. The appeal is without any merit and is accordingly rejected.
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2016 (8) TMI 1605
Sanction of Scheme of Amalgamation and Arrangement - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy. None of the parties concerned has come forward to oppose the Scheme.
Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No. 148 of 2016 and 150 of 2016 filed by Eaton Industries Private Limited and Eaton Technologies Private Limited are made absolute - Application allowed.
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2016 (8) TMI 1604
Territorial jurisdiction - place of incident is Haryana - FIR and the cognizance of the offence taken at Durg - Scope of inquiry under Section 174 of the Code - Scope of inherent power of the High Court under Section 482 of the Code - HELD THAT:- The allegations made in the FIR are inherently improbable and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the appellants herein. Further, to invoke inherent jurisdiction under Section 482 of the Code, the High Court must be fully satisfied that the material produced on record is based on sound, justifiable and reasonable facts. In the case on hand, malicious prosecution was instituted by the brother of the deceased after a period of five years that too on the basis of anonymous letters. There was no accusation against the appellants before filing of the FIR. The allegations are vague and do not warrant continuation of criminal proceedings against the appellants. Also, the court at Durg has no territorial jurisdiction because cause of action, if any, has arisen in Ambala. The criminal proceeding is grossly delayed and a result of belated afterthought.
The High Court failed to apply the test whether the uncontroverted allegations as made prima facie, establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. The High Court did not apply its mind judiciously and on an incorrect appreciation of record, ordered for continuance of the investigation on a petition under Section 482 of the Code. This power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results.
FIR is hereby quashed and the criminal proceeding against the appellants is dropped for want of prosecution - the appeal is allowed.
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2016 (8) TMI 1603
Seeking grant of bail u/s 439 of Cr.P.C. filed by the petitioner read with Section 437(1) of Cr.P.C. - conspiracy - diversion of funds - it is alleged that at the time of arrest the petitioner was neither informed of the reasons of arrest nor handed over a copy of the arrest memo as required by law, nor her kin was informed - shifting of illegal action of forgery - HELD THAT:- The consideration of bail in economic offences should not be in the same footing as of other offences. Moreover, the parameters of the bail as contained in the decision of Neeru Yadav [2014 (12) TMI 1347 - SUPREME COURT] are the guiding force to consider the bail application under Section 439 Cr.P.C. In the series of cases by CBI where the magnitude of the economic loss to the society and the individual have no magnitude but indefinite. The Court should be cautious in granting bail. It is true that liberty of a person must be visualized where the concept of bail is discussed. In this regard, the observation of the Hon'ble Apex Court cannot be lost sight of.
It is the allegation of the CBI that present petitioner having made conspiracy with principal accused Pradeep Kumar Sethy diversified the funds from A.T. Group of Companies to the fund of M/s. Systematix Entertainment & Media Pvt. Ltd. which later converted to A.T. Food Mart Pvt. Ltd. Subsequently money was siphoned off to her, her sister and her husband's personal account. The CBI produced the copies of the statements recorded and documents seized in support of their contentions. It appears that crores of rupees have been collected by A.T. Group of Companies from the gullible investors with the assurance to return the money with double interest and to allot the plots in their favour. But the poor people neither got back their invested money nor got any plot.
From the statements of witnesses filed before this Court, it is clear that the present petitioner being authorized signatory of M/s. A.T. Food Mart Ltd. in conspiracy with the principal accused person Pradeep Kumar Sethy transferred the account from such A.T. Group of Companies to produce serial "Command Force" and proceeds of such serials have been siphoned off through A.T. Food Mart Pvt. Ltd. to her account, account of her sister and her husband's account. Thus, the money of gullible depositors under well planned has been trailed to the account of the present petitioner. It is also revealed from the materials that petitioner and co-accused Preeti Bhatia have formed a Company, namely, M/s. Candyfloss Media and Entertainment and amount of Rs. 26,30,000/- has been transferred from A.T. Food Mart Pvt. Ltd. to such Company of petitioner and her sister - From the materials, it cannot be said that there is no prima facie case against her at present in respect of economic offences.
Thus, in economic offences the Court cannot sit as a silent spectator but must rise to the occasion to consider the effect of such offence upon the society. Since the present petitioner is actively involved in economic offences as delineated above, the contention of the learned counsel for the petitioner that her involvement is not well conceived, is untenable.
Thus, it is revealed that the petitioner being the authorized signatory of A.T. Food Mart Pvt. Ltd. has trailed the money to her personal account and other account and also has falsely projected her as the Director of A.T. Group of Companies (M/s. Systematix Entertainment & Media Pvt. Ltd.) and opened the account at State Bank of India by forging the signatures of co-accused Pradeep Kumar Sethy & Jyotiprakash Joyprakash which is undoubtedly a serious offence on her part
In toto this Court is of the opinion that for the larger interest of the public and society, the petitioner in such economic offences of serious consequences deserves no sympathy. Even if she is a woman claiming benefit of gender justice but she claims to be film producer and her conduct showing serious thwart to society, this Court is loath to consider her case for bail.
Bail application dismissed.
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2016 (8) TMI 1602
Validity of reopening of assessment u/s 147 - Additional depreciation claimed u/s 32(1)(iia) on vaporizers which are installed in the hospital/medical institutions and which are continued to be owned by the assessee - HELD THAT:- As decided in own case for the assessment year 2007-08 section 32(1)(iia) does not state that setting up of a new machinery or a plant, which was acquired and installed after March 31, 2005, should have an operational connectivity to the article or thing that was already being manufactured by the assessee. Therefore the reasoning of the learned Assessing Officer that the vaporizers, has nothing to do with the manufacturing of articles, etc., is totally not germane to the specific provision contained in section 32(1)(iia) of the Act - assessee is eligible for additional depreciation on vaporizers under section 32(1)(iia) of the Act.
Deduction u/s 80-IB - Assessee claimed deduction being 30 per cent. of the profits of the Goa unit - tenth year of claim - HELD THAT:- In our considered view the assessee has made claim under section 80-IB of the Act which was allowed by the Revenue after detailed enquiry wherein the assessee duly submitted the detailed explanation as to manner of computing deduction u/s 80-IB of the Act which was accepted by the Revenue after scrutiny while framing original assessment under section 143(3) of the Act and no fresh tangible material has come into possession of the Revenue which has live link/nexus with the formation of belief that income has escaped assessment warranting reopening of the concluded assessment, has been brought on record by the Revenue to disturb the claim of the assessee which was earlier accepted in original assessment proceedings under section 143(3) read with section 143(2) of the Act after detailed scrutiny rather it is a case of change of opinion which is not permissible in proceedings under section 147/148 of the Act as the powers of reopening the concluded assessment, under section is to "reassess" and not to "review" the concluded assessments.
The assessee has made a claim of deduction u/s 80-IB on the basis that the same was common costs which should be allocated between manufacturing and trading activities based on the ratio of sales turnover which was accepted by the Revenue after detailed scrutiny in original assessment proceedings u/s 143(3) which culminated into assessment order passed by the AO under section 143(3) of the Act. Although the reopening has been done within a period of 4 years but still the same is not permissible in the instant case as the concluded assessment has been reopened merely due to change of opinion. Hence, the addition is ordered to be deleted.
Non-consideration of the revised return of income - Non- allowance of the share buy-back expenses - This matter needs to be restored to the file of the Assessing Officer for verification of the claims and contentions of the assessee to have incurred expenses towards expenses for buy-back of shares and then to decide the claims and contentions of the assessee in the light of decision of the Tribunal in the assessee's own case for the assessment year 2007-08.
Disallowance u/s 14A of the Act read with rule 8D - relatable expenses to the exempt income - HELD THAT:- Although recorded satisfaction that the disallowance offered by the assessee cannot be accepted as no proper basis of disallowance was specified by the assessee but went on to apply rule8D(2)(iii) of the Income-tax Rules, 1962, while the learned Commissioner of Income-tax (Appeals) ought to have identify the disallowance at the first instance having regards to the accounts of the assessee. Assessee also did not come forward with the complete details of expenses incurred in relation to the earning of exempt income.
Matter needs to be set aside and restored to the file of the AO for de novo determination of the issue on merits after considering the submissions of the assessee having regard to the accounts of the assessee as to the quantum of disallowance to be made under section 14A of the Act.
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2016 (8) TMI 1601
Validity of Settlement Commission order - scope of judicial review in relation to a decision of Settlement Commission - Settlement Commission essentially, came to the conclusion that the petitioners had not made true and full disclosures -Settlement Commission held that the applicant had not disclosed true and full facts of the trade and the income earned - argument of Breach of principles of natural justice on non-granting of cross-examination - HELD THAT:- Settlement Commission is set up under the statute for settlement of revenue claims. Its decision is given finality and it also has power to grant immunity from prosecution, of course, subject to satisfaction of certain conditions. The scope of court's inquiry against the decision of the Settlement Commission, therefore, is necessarily very narrow.
The Apex Court in the case of State of U.P. And Another vs. Johri Mal [2004 (4) TMI 588 - SUPREME COURT] observed that the scope and extent of power of judicial review of the High Court under Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. As observed that the power of judicial review is not intended to assume a supervisory role. The power is not intended either to review governance under the rule of law nor for the courts to step into the areas exclusively reserved by the suprema lex to the other organs of the State.
Objection regarding non-verification of records does not seem to have been taken during the settlement proceedings and in any case, would not go to the root of the matter being a procedural matter.
We, therefore, do not find any scope for interference. All the petitions are, therefore, dismissed.
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2016 (8) TMI 1600
Maintainability of appeal - appeal dismissed based on lack of legal question arising for consideration - HELD THAT:- In view of the decision in INDAIR CARRIER PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS (GENERAL) [2016 (5) TMI 775 - DELHI HIGH COURT], no question of law arises for consideration in this appeal preferred by the Department against the impugned judgment dated 13th January, 2016 of the Customs, Excise and Service Tax Appellate Tribunal passed in Appeal.
Appeal dismissed.
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2016 (8) TMI 1599
Dishonour of Cheque - accused can tender evidence by way of affidavit u/s 145 of the NI Act or not - Interpretation of Section 145 of the NI Act - HELD THAT:- A closer scrutiny of Section 145 would indicate that the same is intended to ensure that the trial is concluded as expeditiously as possible. The said provision does not in any manner affect the right of the accused to cross examine the complainant and his witnesses. The said provision enables even the defence evidence to be led by affidavits. Thus, the said provision is purely procedural in nature.
The trial court is directed to receive the affidavit evidence of the petitioner on his request, in accordance with Section 315 Cr.P.C. and proceed with the pending case in accordance with law.
Petition allowed.
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2016 (8) TMI 1598
Demand of export pass fee on denatured spirit or specially denatured spirit - HELD THAT:- This issue has already been considered and decided by a Division Bench of this Court in M/s Bindal Agro Chemical Ltd. and another versus State of U.P and others [2004 (2) TMI 744 - ALLAHABAD HIGH COURT] wherein it was held that 'Impugned notification dated 23rd November, 1989 imposing export pass fee on denatured and specially denatured spirit is quashed. Consequently, respondents are restrained from realizing the same. Any amount of export pass deposited by petitioner with State Government shall be returned to it within two months along with interest at 10 per cent per annum from date of deposit/realization to date of refund.'
In view of aforesaid decision, this writ petition is allowed and impugned notification dated 31.3.2004 imposing export pass fee on quantity of denatured spirit or specially denatured spirit is hereby quashed - Demand of export pass fee pursuant to aforesaid notification from petitioner is also hereby quashed - petition allowed.
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2016 (8) TMI 1597
Money Suit - Jurisdictional objection of the respondent under Section 16 of Arbitration and Conciliation Act, 1996, was upheld - arbitral proceedings were suspended on the ground that the same are hit by Section 22(1) of the Sick Industrial Companies Act, 1985 - HELD THAT:- From the entire gamut of the present case, it appears to the Court that the PATHEJA BROS. FORGINGS & STAMPING VERSUS ICICI. LTD. [2000 (7) TMI 852 - SUPREME COURT] case has been rightly interpreted by the Division Bench of this Court in OM PRAKASH PARASRAMPURIA AND ORS VERSUS UNION OF INDIA AND ORS [2016 (3) TMI 1476 - DELHI HIGH COURT] to hold that "the judgment of the Supreme Court in Paramjit Singh Patheja's case cannot be interpreted to conclude that each and every kind of action is contemplated to be included in the term 'suit' because the Supreme Court was dealing with a specific issue i.e. whether an award was a decree or an order within the meaning of Section 9(2) of the Insolvency Act."
Admittedly, in the present case, the parties are at a pre-award stage. Let alone a confirmed decree, even an arbitral award has not come into existence. The appellant is an unsecured creditor who has no charge on the assets. The continuance of proceedings do not entail any likelihood of distress or execution against the assets of the sick company, at this stage, thereby resulting in any interference with the BIFR scheme - In the present case, however, the institution of the arbitral proceedings required no prior permission of BIFR as at that stage no reference was pending. The Arbitral proceedings are thus not vitiated by any inherent lack of jurisdiction of the vice of coram non judice. With regard to the continuance of the proceedings in the present case, the same is to be governed by the law laid down in the Larger Bench judgment of Raheja Universal Ltd. [2012 (10) TMI 233 - SUPREME COURT], which prescribes the additional requirement of "interfering with the formulation, consideration, finalisation or implementation of the scheme."
The pre-arbitration proceedings were not covered by Section 22(1) of SICA and such proceedings cannot be treated as a suit. The award which is yet to attain finality cannot be called as decree. The plea of Section 22(1) of SICA can only be raised in arbitration matters once the award becomes a decree and the same could only be raised at the stage of enforcement of a decree.
Appeal allowed.
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2016 (8) TMI 1596
Seeking leave to file further affidavit in lieu of examination-in-chief and further compilation of documents - Jurisdiction to try suit - HELD THAT:- The counsel for the plaintiff states that the plaintiff's affidavit of documents, affidavit in lieu of examination-in-chief together with compilation of documents have already been filed. The counsel seeks leave to file further affidavit in lieu of examination-in-chief and further compilation of documents, if advised, in view of additional issues settled today. Leave granted. The affidavit and compilation of documents to be filed and copy to be served within two weeks from today.
The suit to be listed on 23rd September, 2016 for marking of documents on which date the plaintiff's first witness shall remain present in Court.
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