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Showing 1 to 20 of 2160 Records
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2018 (8) TMI 2167
Addition u/s 14A r.w. Rule 8D - Assessee disallowed an amount as administrative expenditure pertaining to exempt income earned by the assessee during the year under consideration - HELD THAT:-Assessee was having enough interest free own fund and there was no unsecured loan reflected in the balance sheet of the company. Therefore, we are not inclined with the decision of the ld. CIT (A) to make disallowance in respect of interest expenses u/s. 14A of the act.
Administrative expenses we find merit in the finding of the assessing officer that assessee has not maintained separate accounts for the treasury division and it has also failed to furnish the relevant basis for allocation of this expenses and also failed to substantiate with relevant material for not allocating the common management expenses towards administrative expenses. We justify the decision of the CIT (A) for the disallowance u/s 14A r.w. Rule 8D as computed by the assessing officer in para 8.11 of the assessment and we delete the other part of expenses in the category of interest disallowance to the amount.
Nature of expenses - Disallowance on account of product registration expenses - AO noticed that assessee has incurred an amount for registering PPL products in foreign countries - assessee company explained that these expenses have been incurred to enable assessee to register and sell its products in specified territories - CIT(A) deleted addition - HELD THAT:- It is noticed that assessee has incurred these expenses for registering its product in various countries to enable the assessee to sell the product in such counties. As in absence of registration, the assessee would not be able to sell the product in the foreign countries as per the regulatory requirement of different countries, it is mandatory to get the product of the assessee registered in respect of counties for the purpose of selling in the overseas markets. Therefore, the finding of the assessing officer that assessee is getting benefit of enduring nature of registration of product has no merit. In the light of the above facts and circumstances we observed that ld. CIT (A) has correctly deleted the impugned addition.
Addition on account of difference in value of stock shown before the bank - CIT(A) deleted addition - HELD THAT:- The assessee has also explained that details of closing stock used to be furnished to the bank on the basis of estimated fair market value whereas inventory shown under books of account was valued on cost or market rate whichever was lower on the basis of accounting standard-2. It is also noticed that loan obtained from the bank during the year was reduced to Rs. 5.54 crores as on 31st March, 2008 as against Rs. 12.5 crores as on 31st March, 2007 which demonstrate that there is no question of inflating the value of stock because of reduction in the amount of loan obtained from the bank. AO has not disproved the above facts contended by the assessee in support of its claim that difference is only on account of difference in valuation rates - Decided in favour of assessee.
Reduction of the claim u/s 80IC of the Income Tax Act for the Baddi unit - AO as of the view that profit was comprised of three parts i.e. manufacturing of product, marketing of product and on account of brand sales, thus Baddi unit comprised of only manufacturing activity therefore, the profit in respect of Baddi unit should be restricted to profit attributable towards manufacturing activities only - HELD THAT:- After perusal of material on record we observe in the case of the assessee the sale and market division are the integral part of the manufacturing unit which cannot be separated on artificial basis. In the case of the assessee there are only two units located at Kalol and Baddi and while claiming tax benefits incomes and expenses incurred for Kalol units has been reduced from the total profits and deduction has been claimed on the basis of profit attributable to Baddi unit.
The marketing and distribution costs are generally allocated on the basis of turnover on scientific basis therefore we do not justify the action of the assessing officer of segregation of profit to Baddi unit on assumption basis. All the activities from beginning to end of the process together constitute the business of Baddi unit and profit derived from the entire process is eligible for the tax holiday and not from separate activities of the unit.
In such circumstances, provisions of section 80IC do not require assessee to split the activities and contribute the profit attributable to separate activities which constitute one business. We have also considered the decision of Cadila Healthcare Ltd. [2012 (6) TMI 13 - ITAT AHMEDABAD] wherein on identical facts on claim of deduction from eligible profits derived by a Baddi unit of a pharmaceutical company it is held that that eligible profits should not be artificially segregated in to manufacturing, marketing and brand profits. Decided against revenue.
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2018 (8) TMI 2166
Conviction and sentencing of appellants for the offences punishable under Sections 307, 449, 201, 427, 143, 144, 147, 148 and 302 of IPC - prosecution proved the guilt of the accused beyond a reasonable doubt or not - HELD THAT:- Perusing the entire material, it is opined that the view taken by the learned Sessions Judge is not supported by any material. He has wrongly read the evidence and not considered the legal aspect involved in the case. Therefore, the judgment and order of conviction passed by the Court below is not in accordance with the material produced in the case. The appellants have made out a case to allow the appeal.
The concerned Prison Authorities are hereby directed to release the appellants/accused Nos. 1 and 2 forthwith, if they are not required in any other case. The bail bonds executed by the other accused persons stand cancelled.
Appeal allowed.
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2018 (8) TMI 2165
Consulting Engineer Services - Reverse Charge Mechanism - demand of service tax - whether service tax of ₹ 1,31,98,941/- has been rightly demanded under “Consulting Engineer Services” from the appellant under reverse charge mechanism along with equal amount of penalty under Section 78 as well as penalty under Section 77 (1) (a) of the Finance Act? - extended period of limitation.
Held that:- The payment made by the appellant company is for transfer of technology under intergovernmental agreement and not for receipt of any services in India in relation to business or commerce - under Section 65 (105)(g) “taxable service” under ‘consulting engineers service’ means provided or to be provided to a client by consulting engineer in relation to advise consultancy or technical assistance in any manner in one or more disciplines of engineering.
In the present facts and circumstances, there is no relation of any Consulting Engineering Service with any client or appellant. Thus, Service Tax is not attracted under the head “Consulting Engineer Services” on reverse charge basis.
Appeal allowed - decided in favor of appellant.
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2018 (8) TMI 2163
Suit for possession and mesne profits filed by the respondent/plaintiff with respect to the suit property - Section 96 of the Code of Civil Procedure, 1908 (CPC) - validity of oral gift/Hibba by Laiq Ahmed to his brother, the appellant/defendant - Reliability of unregistered documents by the respondent/plaintiff - HELD THAT:- Trial court has disbelieved the case of the appellant/defendant that the suit property was gifted to the appellant/defendant by his brother Laiq Ahmed - the reasoning and conclusions of the trial court is agreed because trial court has referred to the fact that the stand of the suit property being gifted to the appellant/defendant was taken up for the first time only in the written statement and no such case was taken up by the appellant/defendant when he gave a Reply dated 24.4.2008 (Ex. PW1/O) to the Legal Notice dated 16.4.2008 (Ex. PW1/N) sent by the respondent/plaintiff - the conclusion of the trial court that appellant/defendant has failed to prove that the suit property was gifted to him by his brother is agreed.
Whether respondent/plaintiff can rely upon the unregistered documents dated 20.2.2008 being the Agreement to Sell (Ex. PW1/F), General Power of Attorney (Ex. PW1/G), Affidavit (Ex. PW1/H), Will (Ex. PW1/I), Receipt (PW1/J) in view of the Act 48 of 2001 becoming effective from 24.1.2001 and by which Act, documents such as agreement to sell cannot be looked into for conveying the title of part performance under Section 53A of the Transfer of Property Act, 1882 of the property unless the same are duly stamped and registered? - HELD THAT:- Trial court in this regard has held that the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. [2011 (10) TMI 8 - SUPREME COURT] being only prospective in nature and therefore will not affect the validity of the subject documents executed in 2008, however this reasoning is questionable, but the subject suit for possession still had to be decreed because respondent/plaintiff can definitely be said to be suing as an attorney for and on behalf of the owner Laiq Ahmed, and Laiq Ahmed is not in any manner objecting to the respondent/plaintiff taking possession of the suit property. Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant.
Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant - Trial court therefore was justified in decreeing the suit for possession and mesne profits.
There is no merit in the appeal and the same is therefore dismissed.
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2018 (8) TMI 2162
Direction to respondents 1 and 2 to complete the process of investigation carried on against the 3rd respondent on the basis of the representations given by the petitioner dated 05.06.2003 - criminal and adjudicatory action for the various offences and violations of Foreign Contribution (Regulation) Act, 1976 within the time frame to be fixed by this Court - Section 28 of the Foreign Contribution (Regulation) Act, 1976 - HELD THAT:- On a reading of the renewal order passed by the 1st respondent, it became abundantly clear that the 1st respondent who is the authority to give renewal under the said Act, i.e., Foreign Contribution (Regulation) Act, 2010, had given the renewal of approval/license for a further period of five years with effect from 01.11.2016. Before giving such renewal, the 1st respondent had thoroughly verified the performance of the Society/Fellowship and thereafter only, such a renewal was issued. Therefore, from the said document, one can easily infer that the authority has not found anything adverse against the private respondents and that is the reason why they have given the latest renewal of the permission/approval for a further period of five years.
So, all these documents would coherently and conjointly go to show that, all these stake holders/authorities have gone into the affairs of the Society/Fellowship and they found nothing adverse or anything illegal or in violation of any law much less the Foreign Contribution (Regulation) Act, 1976. When that being the position, the petitioner cannot even now insist upon this Court to still give certain direction to the respondents to probe into or investigate into or enquire into subsequent allegations.
If at all the petitioner has got any further grievances or still the petitioner has grievances, it is open to him to agitate the matter in the manner known to law. More over, since the learned Senior Counsel for the private parties raised the issue that the petitioner has no locus to file the Writ Petition like the one which is on hand, as he has not given anything, what so ever in any capacity with the private respondents/Society/Fellowship. The petitioner shall establish the said locus also in future endeavors like the one of the present Writ Petition - If at all the petitioner has got any grievances in the public interest, he shall make endeavors to re-address the same in the manner known to law and not by way of adversary Writ Petition like the one which is presently dealt with by this Court.
This Court is of the considered view that the Writ Petition does not deserve any further consideration for adjudication and no relief can be given to the petitioner as the only relief sought for by the petitioner has already been accomplished in the eye of law - the Writ Petition is dismissed.
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2018 (8) TMI 2161
Maintainability of appeal on low tax effect - monetary limits for filing of appeals by the Department before the Tribunal with retrospective effect - HELD THAT:- The tax effect in dispute in the captioned appeals is stated to be below the monetary limit of ₹ 20.00 lakhs specified in the CBDT Circular dated 11.07.2018.
Revenue was required to state their position; they have not referred to any material which would show that the captioned appeals are protected by any of the exceptions provided in para 10 of the Circular (supra).
Without going into the merit of the issues raised in the captioned appeals, this bunch of appeals are deemed to be withdrawn/not pressed as their filing is in contravention of the CBDT Circular dated 11.07.2018 (supra). Before parting, we clarify here that the Revenue shall be at liberty to approach the Tribunal for re-institution of appeals, if the requisite material is brought to show that the appeals are protected by the exceptions prescribed in para 10 of the Circular (supra).
By applying the CBDT Circular dated 11.07.2018 the captioned appeals of the Revenue are dismissed as withdrawn/not pressed.
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2018 (8) TMI 2160
TDS in respect of royalty income - HELD THAT:- As assessee claims that Panasonic Carbon India deducted tax it is not known for which year the tax was deducted and whether the corresponding income was declared by the assessee for taxation during the year under consideration need to be examined by the AO.
Therefore, this Tribunal is of the considered opinion that as rightly submitted by the Ld. D.R., the fact needs to be verified by the AO. Accordingly, the order of the Assessing Officer is set aside and the issue of TDS credit by Panasonic Carbon India and royalty is remitted back to the file of the AO for reconsideration. AO shall re-examine the matter in the light of the material that may be filed by the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee.
Treating sum as income of the assessee without allowing corresponding tax deducted at source - HELD THAT:- If the tax was deducted at source in respect of income for the year under consideration, it is not known why the tax deducted was not given credit? Therefore, this Tribunal is of the considered opinion that the matter needs to be re-examined by the AO Accordingly, the order of the AO is set aside and the issue is remitted back to the file of the AO to re-examine whether the income is taken as income by the assessee. It also needs to be verified whether tax was deducted at source in respect of the income.
Royalty receipts - Year of assessment - as submitted that the royalty income is taxable on receipt basis as per Article 12(4) of DTAA between India and Japan and assessee has already disclosed the income during the assessment year 2015-16 - HELD THAT:- As reported the royalty payable to the assessee in Form 3CEB. Correspondingly, the assessee has reported the same in Form 3CEB. The assessee claimed before the AO that a provision was made by M/s Panasonic Appliances India Co. Ltd. and no tax was deducted on the said sum. These details have not been verified by the AO. Therefore, this Tribunal is of the considered opinion that the AO has to re-examine the issue afresh. Accordingly, the order of the AO is set aside and the entire issue is remitted back to the file of the AO. AO shall re-examine the matter and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee.
Reimbursement of employee cost / secondment of employee - HELD THAT:- AO as well as DRP could not be controverted by the assessee by producing necessary material before this Tribunal. In view of the fact that the employees of Panasonic Corporation Japan are all senior technical / managerial position who reported to the President and Vice President who, in turn, was expected to report to the assessee herein, the seconded employees have to work as per the direction, control and supervision of the Panasonic Corporation Japan. Since the employees deputed by the assessee are high level technical executives and they are rendering highly technical services to Panasonic Corporation India Pvt. Ltd., the payments for such services would fall within the ambit of fee for technical services as defined in Explanation 2 to Section 9(1)(vii) - as rightly observed by the Assessing Officer, the technology was made available to the subsidiary in India, therefore, there is no need for the employees of the assessee to come again. Hence, this Tribunal do not find any reason to interfere with the order of the lower authorities and accordingly the same is confirmed.
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2018 (8) TMI 2159
Promotion of the Respondent to the rank of Lieutenant General - judicial interpretation given by the Court to the concept of seniority cum suitability - post of DGMS (Army) which is to be tenanted in terms of the circular of 10th July, 1992 is required to be appointed based on seniority cum suitability or not - officer who has tenure of less than one year can be appointed by the Respondents despite the minimum tenure prescribed by its own circular or not.
HELD THAT:- The Respondent belongs to Army Medical Corps (AMC) which comes under Armed Forces Medical Service (AFMS). In this service, there are ten appointments in the rank of Lt. General (& Equivalent) which are held by Officers belonging to AMC - The DGs of the three Services are Medical Advisors to the respective Chief of Staff and are responsible for the day to day administration and proper functioning of the medical services of the Army, Navy and Air Force. The remaining six posts of Lt General or their equivalent are placed in other appointments held in other establishments of the Armed Forces.
There are force in the submission of the Appellant that the word 'inter se' applies both to seniority as well as suitability. Therefore, 'inter se suitability' is also to be assessed inasmuch as this assessment is 'in the light of their earlier experience of serving in a particular service'.
The view of the AFT that the post of DGMS (Army) is to be filled by the officer on the strength of 'seniority-cum-suitability', where seniority is a decisive factor and suitability is a secondary factor, is not correct. In the entire discussion resting with the aforesaid view, the Tribunal ignored the fact that it is not only seniority and suitability simpliciter but 'inter se' seniority and suitability. The expression 'inter se' is totally ignored and there is no discussion thereupon at all, which has led the AFT to take wrong view insofar as interpretation of the criteria laid down in the Circular dated 10th July, 1992 is concerned, which talks of 'inter se seniority and suitability'.
The appointment of Lt. General Sanjiv Chopra to the post of DGMS (Army) warrants to be quashed.
The direction of the AFT that the Respondent be straightaway appointed to the post of DGMS (Army) may not be proper - the civil appeal is partly allowed and is disposed of.
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2018 (8) TMI 2158
Condonation of delay of 546 days in filing the appeal suit - it was held by High Court that 'this court come to the conclusion that the reasons stated in this petition are not sufficient and they are not acceptable.'
HELD THAT:- Issue notice - In the meanwhile, there shall be interim stay of the execution of the decree in O.S. No. 76 of 2015 on condition of depositing 50% of the decretal amount before the executing Court within a period of eight weeks from today.
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2018 (8) TMI 2157
Estimation of income - bogus purchases - addition @ 12.5% of bogus purchases sustained by CIT(A) - HELD THAT:- We have noted that before the ld. CIT (A), the assessee has furnished the Gross Profit margin for earlier and subsequent Assessment Year. CIT (A) has not given any finding on such submission of the assessee. As noted that in assessee’s brothers case, the co-ordinate bench of Tribunal in ITO-19 (3) (1) , Mumbai Versus Shri Ratnaram K. Chaudhari [2017 (11) TMI 1142 - ITAT MUMBAI] sustained the similar disallowance @ 6.5%.
As the Gross Profit declared by assessee for the year @ 5.76%. We are of the view that disallowance @ 6.5% would be sufficient to avoid the possibility of revenue leakage. Therefore, we direct the Assessing Officer to restrict the disallowance on account of bogus purchases @ 6.5%. Appeal of the assessee is partly allowed.
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2018 (8) TMI 2156
Levy of interest u/s 234B - payments mad are subject to tax deduction u/s 195 - HELD THAT:- An identical issue has already been adjudicated in [2018 (6) TMI 1854 - ITAT DELHI] for the Asstt. Year 2010-11 in assessee’s own case wherein as held decision rendered by Hon’ble jurisdictional High court on the issue of interest – whether leviable on the non-resident assessee or not, as per provisions of Section 234B of the Act, as the assessee was subject to withholding tax u/s 195 of the Act. No counter decision is placed on record on behalf of the Revenue. Appeal of the department is dismissed.
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2018 (8) TMI 2155
Consideration received under franchise agreement - transfer of right to use goods and the trademark under the Delhi Sales Tax Right to Use Goods Act, 2002 and under the Delhi Value Added Tax Act, 2004 or not - HELD THAT:- This Court is of the opinion that it would be appropriate to follow the judgment of 17.05.2017 because the issues are identical, however, in the event the final judgment is in any way set aside, modified or clarified by the Supreme Court in the pending proceedings before it, that decision will be binding upon the parties. In other words, if it becomes necessary, in some manner, to give effect to the final order of the Supreme Court by an appropriate modification (to give tax effect) by the Revenue, it shall be at liberty to do so.
The writ petition is disposed off.
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2018 (8) TMI 2154
Validity of Complete and overall cap on the duty credit scrip - Incremental Export Incentivisation Scheme (“IEIS”) - misuse of the scheme - HELD THAT:- Shri P. Prasad, learned counsel for respondent No.3 submits that said judgment of Bombay High Court has been followed by the Delhi High Court also in the case of M/s Welldone Exim Pvt. Ltd. (formerly known as M/s G.D. Mangalam Exim Pvt.Ltd.) Vs. Director General of Foreign Trade and another [2018 (4) TMI 979 - DELHI HIGH COURT] whereby the Delhi High Court relying upon the judgment of JSW Steel Ltd [2016 (1) TMI 957 - BOMBAY HIGH COURT] has allowed the writ petition and directed the Regional authority to examine the case of the petitioner for grant of export incentive and pass a reasoned and speaking order and the application would not be rejected on the ground that total amount being claimed exceeded Rs.1 Crore during the financial year 2013-2014.
Thus, we relying upon the judgment in the case of JSW Steel Limited Vs. Union of India, direct the respondents to follow the directions issued by the Bombay High Court and comply with the order within a period of 8 weeks from the date of receipt of certified copy of this order.
With the aforesaid, the petition stands disposed of.
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2018 (8) TMI 2153
Dishonour of Cheque - acquittal of the Respondent of the offence - appellant failed to bring home proof of the existence of a legally recoverable debt or other liability for which the cheque was issued by the Respondent/Accused - rebuttal of presumption - HELD THAT:- Section 138 of the NI Act provides that for a dishonoured cheque the drawer shall be liable for conviction if the demand is not met within 15(fifteen) days of the receipt of notice. If the cheque amount is paid within the above period or before the complaint is filed, the legal liability under Section 138 of the NI Act, ceases. It was argued by the Respondent that the dishonoured cheque by itself does not give rise to cause of action and the Respondent ought to be afforded an opportunity to remedy his error. Perusal of the records nowhere indicates any such effort on the part of the Respondent to have acted in compliance of this provision to prevent prosecution. Despite opportunity afforded to the Respondent during the cross-examination of the Appellant to disprove the Appellant’s case, no contrary evidence whatsoever emerged to that effect nor did he testify despite opportunity afforded to him.
Section 139 of the NI Act provides that unless the contrary is proved, the Court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 139 for the discharge, in whole or in part of any debt or other liability. It would appear that the presumption under Section 139 of the NI Act is an extension of the presumption under Section 118(a) of the NI Act which provides that the Court shall presume a negotiable instrument to be one for consideration. If the negotiable instrument happens to be a cheque, Section 139 raises a further presumption that the holder of the cheque received the cheque in discharge in whole or in part of any debt or other liability.
Having perused the observations of the learned Trial Court, it may be reasoned that obviously there would be no evidence of an oral agreement by simple virtue of the fact that it was an oral agreement. Despite opportunity afforded to the Respondent, the fact of such oral agreement between the parties was not decimated during cross examination. The reasoning that the agreement is void for allegedly being devoid of consideration from the Complainant but was merely a unilateral payment from the Accused is also unclear. Although, the learned Trial Court was of the opinion that there is an existence of presumption under Section 118(a) of the NI Act which can be rebutted, he has failed to indicate how the Respondent has rebutted the presumption.
The issuance of Exhibit-1 as already explained leads to the irrevocable conclusion of acceptance of liability. The reasoning of the learned Trial Court that the repayment of Rs.1,00,000/- only, by the Respondent during the pendency of the trial can amount to an evidence of conduct but it would not suffice to raise a presumption under Section 139 of the NI Act does not impress.
The Appellant has proved his case - Respondent is convicted of the offence under Section 138 of the NI Act - impugned Judgment is set aside - Appeal allowed.
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2018 (8) TMI 2152
Seeking permission for withdrawal of petition - Recall of petition admitted - appointment of OL as the Provisional Liquidator - OL states that expenses have been spent on the company on account of security and other expenses - HELD THAT:- The order dated 20.9.2017 is recalled, subject to the respondent paying a sum of Rs.24,00,000/- to the OL. The order appointing the OL as the Provisional Liquidator would stand recalled on payment of the dues of the OL. OL will de-seal the premises which have been sealed by it and hand over the possession to the Authorised Representative of the respondent company on payment of the dues of the OL.
Petition is dismissed as withdrawn.
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2018 (8) TMI 2151
Approval of Resolution Plan - Committee of Creditors have not provided (suspended) Board of Directors with the copies of the resolution plans for their comments - Regulations 19 and 21 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- From the report of the Joint Parliamentary Committee it is clear that the 'Committee of Creditors' can modify the terms of 'debt' contract only by negotiations between the 'creditors' and the 'corporate debtor' i.e. the 'Board of Directors'. Therefore, for the purpose for modifications/terms of 'contract' between the 'creditors' and 'corporate debtor', the 'Board of Directors' are to be taken into confidence - The Board of Directors cannot decide the viability and feasibility of a 'Resolution Plan' nor is competent to restructure their debt in order to make the 'Corporate Debtor' as a going concern. It only in the domain of the 'committee of creditors' who are expert in the field to decide the viability, feasibility and financial matrix of one or other 'resolution plan' by majority share of voting rights.
However, if the 'Committee of Creditors' are still negotiating the matter with the 'resolution applicants' in such case the representative of the Board of Director may give its suggestions.
It is not required to grant relief as sought for - appeal disposed off.
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2018 (8) TMI 2150
Utilization of credit accumulated on account of Education Cess and Secondary and Higher Education Cess for payment of service tax leviable and payable on telecommunication services - It was held by High Court that In the present case, credit of EC and SHE could be only allowed against EC and SHE and could not be cross- utilized against the excise duty or service tax. In fact, what the petitioners seek is an amendment of the scheme to allow them to take cross utilization of the unutilized EC and SHE upon the two cesses being withdrawn against excise duty and service tax, though this was not the position even earlier. Both EC and SHE were withdrawn and abolished.
HELD THAT:- Issue notice.
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2018 (8) TMI 2149
Government and the BDA had not taken any steps to issue a final notification or to develop the land for the last 5 years - BDA refused to give permission to develop the land on the ground of preliminary notification Under Section 17 of the BDA Act - right to enjoy the property has been taken away without finalizing the acquisition - HELD THAT:- This Court has emphasized that the primary object of the BDA Act is to carry out planned development. The State Act has provided its own scheme. The time constraints of the land acquisition are not applicable to the BDA Act. Making applicable the time frame of Section 11A of LA Act would debilitate very object of the BDA Act. It is apparent that the decision of the Single Judge as well as the Division Bench is directly juxtaposed to the decision of Five Judge Bench of this Court in OFFSHORE HOLDINGS PVT. LTD. VERSUS BANGALORE DEVELOPMENT AUTHORITY & ORS. [2011 (1) TMI 1322 - SUPREME COURT] in which precisely the question involved in the instant cases had been dealt with. By indirect method by making applicable the time period of two years of 11A of LA Act mandate of BDA Act has been violated. However, it is shocking that various decisions have been taken into consideration particularly by the Single Judge, however, whereas the decision that has set the controversy at rest, has not even been noticed even by the Single Judge or by the Division Bench.
It is apparent from the fact that the Single Judge has relied upon the decision in H.N. Shivanna [2012 (11) TMI 1333 - KARNATAKA HIGH COURT] in which it was observed by the Division Bench that scheme to be completed in 2 years otherwise it would lapse. It was precisely the question of time period which was dwelt upon and what was ultimately decided by this Court in Offshore Holdings has been blatantly violated by the Single Judge and that too in flagrant violation of the provisions and intendment of the Act.
It is also apparent from the facts and circumstances of the case that there were a large number of irregularities in the course of an inquiry Under Section 18(1) of the BDA Act. Government had nothing to do with respect to the release of the land at this stage, as the stage of final notification had not reached but still the landowners in connivance with the influential persons, political or otherwise, managed the directions in respect of 251 acres of the land and Special Land Acquisition Collector also considered exclusion of 498 acres of the land against which the question was raised in the Assembly and eyebrows were raised in public domain. Two inquiries were ordered on 24.11.2012 and 19.1.2013 by the State Government and based upon that inquiry, it was ordered and a public notice was issued on 3rd May, 2014 that the BDA will consider the entire matter afresh - it was not at all open to the High Court to quash the preliminary notification issued Under Section 17, as the land owners, State Government and BDA were responsible to create a mess in the way of planned development of the Bangalore city.
The State Government as well as the BDA directed to proceed further to issue final notification without any further delay in the light of the observations made in the order. The impugned orders passed by the Single Judge and the Division Bench are hereby quashed and set aside. The scheme and notification Under Section 17 of the BDA Act are hereby upheld with the aforesaid directions - the Land Acquisition Officer proposed exclusion of 251 acres of land from acquisition on being asked by the Government after the preliminary notification was issued. The Land Acquisition Officer, has considered another 498 acres of land to be excluded from being acquired.
Hon'ble Mr. Justice K.N. Keshavanarayana, former Judge of the Karnataka High Court appointed as the Inquiry Officer for fixing the responsibility on the officials of the BDA and the State Government who were responsible for the aforesaid. The Commissioner, BDA is hereby directed to consult Inquiry Officer and pay his remuneration. Further, we direct BDA to provide appropriate secretarial assistance and logistical support to the Inquiry Officer for holding the inquiry.
Appeal disposed off.
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2018 (8) TMI 2148
Dishonour of Cheque - failure to take into consideration the provisions of Section 269 SS of the Income Tax Act, 1961 while taking cognizance of offence - HELD THAT:- In the instant case, the prosecution is initiated against the petitioner for the alleged dishonor of a cheque. The case of the complainant is that in repayment of the hand loan advanced by him, the petitioner/accused issued the cheque in question which has been dishonored. No doubt, the sources from which the complainant paid the loan amount may be required to be established during the trial, but the prosecution under Section 138 of N.I. Act cannot be stalled for non-compliance of Section 269 SS of the Income Tax Act. Any cash transaction in violation of Section 269 SS of Income Tax Act may give rise to an independent criminal offences, but on account of violation of the said provision, the prosecution of the petitioner for the alleged dishonour of cheque under Section 138 of Act does not become bad in law. Even otherwise, the contention urged by the petitioner could be decided only during the trial.
Petition dismissed.
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2018 (8) TMI 2147
High Court exercising its revisional power overturned the verdict (refusal to discharge) and thought it proper to order for discharge - Appreciation of evidence for discharge undertaken by High Court - HELD THAT:- Appreciation of evidence is an exercise that the High Court, could not have undertaken at this stage of consideration of the application for discharge. But this is what precisely what High Court appears to have been done.
While there can be no dispute on the proposition that has been laid by this Court in Yogesh alias Sachin Jagdish Joshi [2008 (4) TMI 803 - SUPREME COURT] what has happened in the present case is that the statements recorded in the course of investigation had been weighed, analyzed and appreciated. In a situation where the said evidence is yet to be tested by cross-examination and the veracity of either of the two versions is yet to be established, it cannot be said that there are two possible views of the matter. The observations of this Court in Yogesh alias Sachin Jagdish Joshi will, therefore, not assist the accused.
The power exercised by the High Court to order for discharge was premature. Consequently, the order of the High Court ought to be set aside - The appeals are, consequently, allowed.
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