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2015 (9) TMI 1771
Constitutional validity of Rule 8(3A) of the Central Excise Rules 2002 - Prohibition on assessee from utilising cenvat credit for payment of excise duty for default in payment of duty - Held that:- here shall be interim stay of the impugned judgment and order passed by the High Court of Gujarat at Ahmedabad in Special Civil Application [2014 (12) TMI 585 - GUJARAT HIGH COURT]
We restrain the petitioner(s) herein to recover a sum of ₹ 87,00,000/- (Rupees eighty seven lakhs only) from the respondent till the disposal of the Special Leave Petition
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2015 (9) TMI 1769
Leave without pay or as periods on duty for the petitioner - Grievance of the petitioner is that the intervening period beyond the sanctioned maternity leave period has not been regularized by the respondents nor has she been granted salary benefits during the said period - Non-speaking order - violation of principles of natural justice - HELD THAT:- The impugned order as well as the report of the State Government does not give any explanation for the three periods which have been treated as leave without pay and extraordinary leave. The impugned order thus being a non speaking order and the respondents having failed to give any justification or plausible explanation for the said order, the same cannot be held to be proper, legal and justified and deserves to be set aside.
Once the matter was sent back to the authorities concerned especially by the High Court, the Authorities should have taken extra care while deciding the claim of the petitioner and ought to have given reasons and the provisions of the Rules under which the order was being passed. The impugned order does not disclose application of mind to the grievance and contentions of the petitioner. The authority was duty bound to give independent conclusions on his decisions. Specific reasons should have been given on his findings.
In the case of EAST COAST RAILWAY & ANR. VERSUS MAHADEV APPA RAO & ORS. [2010 (7) TMI 967 - SUPREME COURT], the Supreme Court in a very categorical terms has held that Arbitrariness in making of an order by an authority can manifest itself in different forms. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. Application of mind is best demonstrated by disclosure of mind by the authority making the order and disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable. In the absence of reasons in support of the order it is difficult to assume that the authority had properly applied its mind before passing of the order.
Conclusion - The authority concerned is directed to decide the periods i.e. 16.10.1987 to 13.04.1988, 16.10.1989 to 09.08.1991 and 11.10.1994 to 12.10.1995 afresh taking into consideration the entire facts and circumstances of the case and also giving an opportunity of hearing to the petitioner. It is expected that this time the Authorities concerned shall be more careful while deciding the case of the petitioner and shall decide the same objectively giving the reasons to their findings so arrived within a period of three months from the date of receipt of copy of this order.
The impugned order deserves to be and is accordingly set aside. The matter is remanded to the Authority concerned for passing an order afresh - Petition allowed by way of remand.
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2015 (9) TMI 1768
Deduction u/s 36(1)(viia) - as noted that the cooperative bank is not a company and hence cannot be a non scheduled bank and would therefore not eligible for deduction u/s 36(1)(viia) - HELD THAT:- A conjoined reading of the Banking Regulation Act and the Companies Act makes it clear that all cooperative banks operating under the direct supervision and registration of RBI are companies within the meaning of section 5(c) of the Banking Regulation Act, 1949. The assessee bank i.e. Arvind Sahakari Bank Ltd., Katol has been duly registered and approved by the Reserve Bank of India and has been so notified as per the list submitted by the learned counsel of the assessee. This is a list published by Reserve Bank of India on its website. This has not been doubted as to its veracity. Thus we agree with the learned counsel of the assessee that once the Reserve Bank of India recognizes and notifies a Cooperative Bank as a non scheduled bank, the Revenue cannot contend otherwise.
Admittedly upon fulfilling all the necessary conditions of the RBI, the assessee bank has been duly notified as a non schedule bank and hence being a non schedule bank it is entitled to deduction u/s 36(1)(viia) - Decided in favour of assessee.
Accrual of income on interest - interest accrued of non performing assets of the bank - AO has opined that the same is taxable on accrual basis - HELD THAT:- We find that the ratio from the Durga Urban Cooperative Bank Ltd. decision [2011 (3) TMI 1552 - ITAT VISAKHAPATNAM] is clearly applicable on the facts of this case. We further note that Hon’ble Delhi High Court in Vasistha Chay Vyapar Ltd. [2010 (11) TMI 88 - DELHI HIGH COURT] in similar case has duly expounded that the assessee is correct in not recognizing interest accrued on the NPA. The ratio has been followed by the Tribunal in the order as above. We further note that similar view was taken in the case of CIT v/s M/s. Deogiri Nagari Sahakari Bank Ltd. [2015 (1) TMI 1218 - BOMBAY HIGH COURT] Since the facts are identical, we hold that interest on NPA had not accrued to the assessee. Decided in favour of assessee.
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2015 (9) TMI 1767
Direction to disburse outstanding amount of security charges to the applicant - HELD THAT:- It is clear from the record that the Official Liquidator, in pursuance to the direction given by this Court, appointed the security agencies from time to time. The said security agencies have deployed security guards for protecting the assets and properties of the company in liquidation. The said security agencies raised their bills from time to time. However, the amount is not paid to the concerned security agencies in view of the various disputes and litigations pending before this Court with regard to the theft of the properties and assets of the company in liquidation. It is further revealed from the record that this Court appointed GITCO for assessing the loss caused to the assets of the company in liquidation because of the theft and GITCO has submitted its report.
The Official Liquidator has not paid the security charges to the applicant of Company Application No.242 of 2012 for the period between 2003 to 2008 and the applicant of Company Application No.40 of 2014 for the period between May, 2008 to March, 2009. Thus, now as per the last report filed by the Official Liquidator on 20.3.2015 and as per the documents produced at pages no.346 and 347 of the compilation, the outstanding amount is required to be paid to the concerned applicant. Hence, these applications are required to be considered and hence the following order:
(1) The Official Liquidator is directed/permitted to pay an amount of Rs. 53,84,647/- as per the statement produced at page no.346 to the applicant of Company Application No.242 of 2012 within a period of three weeks from the date of receipt of this order by RTGS.
(2) The Official Liquidator shall make the payment of Rs. 7,49,070/- to Dy. Commissioner, Central Excise, Customs and Service Tax, Makarpura Division, Vadodara-II instead of the applicant of Company Application No.40 of 2014 as per the communication dated 5.2.2014 within a period of three weeks from the date of receipt of the order by RTGS.
Application disposed off.
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2015 (9) TMI 1766
Winding up of respondent-company - Sections 433 and 434 read with Section 439 of the Companies Act of 1956 - HELD THAT:- While considering the winding up petition, this Court is required to consider whether the claim of the petitioner is within the period of limitation or not, i.e. debt is time barred or not and if the defence is raised by the respondent-company, whether the said defence can be said to be reasonable and bonafide dispute or not. If the defence is bonafide and reasonable, then the petition for winding up is not required to be entertained whereas if the defence/dispute raised by the respondent-company is an afterthought or if the same is raised with a view to hide its inability to pay its debt, then the Court would consider the petition filed by the petitioner for winding up and admit the petition and thereafter will pass the order of winding up of the concerned company.
In the facts and circumstances of the present case, this Court is of the opinion that the defence raised by the respondent-company is reasonable and bonafide and the defence cannot be termed as an afterthought, sham and bogus. The respondent-company is a going concern. It has not lost its substratum and the respondent-company is not commercial insolvent nor facing any financial cash crunch or crisis.
The petition is liable to be dismissed and is accordingly dismissed.
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2015 (9) TMI 1765
Seeking appointment of the Court Receiver of the property - respondents have committed default in making repayment of the loan amount with interes - whether this court has jurisdiction to entertain, try and dispose off the present petition or not? - HELD THAT:- A perusal of the agreement entered into between the parties and more particularly clauses 22.1 to 22.6 clearly indicates that the parties have agreed that the dispute between the parties shall be referred to the arbitration. The venue for conducting the arbitration proceedings shall be at Mumbai. The dispute shall be subject to exclusive jurisdiction of the courts in the city of Mumbai. A perusal of the record indicates that the respondents had raised the issue of jurisdiction before the learned arbitrator which has been already negatived by the learned arbitrator. The said arbitration proceedings are still pending before the learned arbitrator.
This court has already taken a view in case of Tata Capital Financial Services Limited vs. Deccan Chronicle Holdings Limited and Anr. [2013 (2) TMI 839 - BOMBAY HIGH COURT] that the proceedings under section 9 for interim measures cannot be equated with the proceedings filed in a pending suit for referring the parties for arbitration under section 8 of the Arbitration Act. The principles laid down by this court in the said judgment can be extended in the present proceedings under section 9. The reliefs under section 9 for appointment of the Court Receiver in respect of the mortgage property through in respect of which no reliefs are claimed by the petitioner in the statement of claim, can still be granted in respect of the said properties to secure the claims of the petitioner under section 9(ii)(d) of the Arbitration Act. This court has held in the said judgment that the court can grant interim measures under section 9(ii)(b), (d) and (e) even if the property or things are not subject matter of the dispute in arbitration.
The respondents have committed default in making repayment of the loan under the facility agreement. The petitioner has good chances of succeeding in the arbitral proceedings. According to the petitioner, as on 31st March, 2015, the respondents are liable to pay to the petitioner a sum of Rs. 23,65,07,643/- with further interest thereon at the rate of 12.5% per annum from 1st April, 2015 till payment. The petitioner has thus made out a case of appointment of the Court Receiver so as to secure the substantial amount of claim of the petitioner. Such relief for appointment of Court Receiver can be granted by this court under section 9(ii)(d) and (e).
Arbitration petition is disposed of.
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2015 (9) TMI 1764
Addition u/s 40A(3) - payments exceeding Rs. 20,000 [prescribed amount] - HELD THAT:- From the list of cash payments made by the assessee as appearing in the order of the AO, we see that there are various payments of amount exactly of Rs. 20,000 totalling Rs. 3,80,000 and the contention of the assessee was that since the language used in sec 40A(3) is disallowance of the payment in excess of Rs. 20,000, the payment of an amount exactly of Rs. 20,000 does not come under the ambit of sec 40A(3). Though the said submission was made before the CIT(A), she has not adjudicated the same and tried to make a new case, which was not made by the AO and which was also not confronted to the assessee. In view of this, we restore the issue to the file of the learned CIT(A) to consider the same in the background of the provisions of s. 40A(3) of the Act.
Addition u/s 40(a)(ia) r.w.s. 194C - HELD THAT:- As seen that the learned CIT(A) has considered the matter in a very casual manner. The issue was invoking of provisions of s. 40(a)(ia) of the Act, which has nowhere been discussed by her. She has just rejected the submissions of the assessee, however, has herself not given any finding as to the nature of expenses incurred by the assessee and whether the same is exigible to tax deduction at source or not. We, therefore, restore the issue to the file of the learned CIT(A) to adjudicate the same in right perspective.
Addition u/s 37(1) - claim of expense in respect of interest for late deposit of service-tax - HELD THAT:- From the perusal of documents filed, it is quite clear that the amount was incurred by the assessee on account of interest on delayed payment of service-tax. An expenditure incurred on account of penalties for infringement of law are disallowed u/s 37(1) - amount on account of interest on delayed payment of tax can by no stretch of imagination, be termed as penalty for infringement of any law. In fact, the law itself provides under these provisions to allow the assessee to pay taxes delayed to a limited extent, however, with interest at a prescribed rate. The penalty provisions are provided elsewhere under the law. Therefore, this amount cannot be disallowed u/s 37(1) - ground of appeal raised by the assessee is allowed.
Set-off of surrendered amount against sustained additions - Assessee has surrendered an amount under the head 'miscellaneous discrepancies' - HELD THAT:- From the reading of the letter filed by the assessee before the Investigating Officer, it is clear that the surrender has been made under specific heads of income, for example advances to certain persons and also on account of payment to certain persons. However, surrender is made under the head 'miscellaneous discrepancies'. Nowhere during the investigation after the search or also during the assessment proceedings, no fact of any other undisclosed income has come on record.
Therefore, it is quite logical to allow the benefit of this surrendered amount to set off the additions and disallowances made by the assessee (sic--AO). Reliance placed by the assessee on the judgment of Akme Projects Ltd. [2013 (5) TMI 326 - DELHI HIGH COURT] is not out of place. In that case also, it was pointed out by the Court that apart from declaring the discrepancies pointed out, in order to make its offer an honest attempt, offer of some additional amount was made at the time of survey.
Tribunal came to the conclusion that the amount of additions and disallowances made by the AO should be considered to be embedded in the additional income offered by the assessee. This finding of the Tribunal was confirmed by the Hon'ble High Court. Respectfully following the above judgment of the Hon'ble Delhi High Court, we also direct the AO to give the assessee the benefit of the amount of Rs. 19,15,005 against the additions and disallowances made by him. This ground of appeal raised by the assessee is allowed in its favour
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2015 (9) TMI 1763
Rejection of prayer for waiving of statutory period of six months prescribed Under Section 13-B(2) of of Hindu Marriage Act, 1955 for filing second motion - Divorce by mutual consent Under Section 13-B(1) of Hindu Marriage Act, 1955 - whether it is a fit case where in order to give complete justice this Court should exercise power Under Article 142 of the Constitution of India? - HELD THAT:- A similar question came for consideration before this Court in the case of Vimi Vinod Chopra v. Vinod Gulshan Chopra [2013 (9) TMI 1306 - SUPREME COURT]. In that case, after considering the terms of settlement arrived at between the parties, the Court observed 'this is a fit case where we may exercise our jurisdiction Under Article 142 of the Constitution of India to give quietus to the multiple disputes between them as this will enable complete justice between the parties. Consequently, we waive the statutory period and pass the decree of divorce Under Section 13-B of the Hindu Marriage Act, 1955. As a result of this, the marriage solemnised between the parties on 7-8-1993 stands dissolved.'
Anxious consideration is given in the matter and the terms of settlement arrived at between the parties and in furtherance of the settlement the Appellant-wife has already received the entire amount of compensation from the Respondent-husband. The satisfaction recorded by the Family Court with regard to the intention of the parties to mutually take divorce also considered and there is no connivance of any of the parties in the decision taken by the Appellant and the Respondent. It is a fit case where in order to do complete justice to the parties it becomes necessary to invoke the power Under Article 142 of the Constitution in an irreconcilable situation.
The cooling off period of six months is waived off - a decree of mutual divorce granted to the parties - it is directed that the marriage between the parties shall stand dissolved by mutual consent - appeal allowed.
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2015 (9) TMI 1762
Exercise of inherent jurisdiction Under Section 482 of the Code of Criminal Procedure (Code of Criminal Procedure) or the extraordinary jurisdiction Under Article 226 of the Constitution for quashment of the criminal proceedings - borrower or borrowers after availing finance by creating mortgage on the base of certain documents which, as alleged, are forged, and ingeniously adopt the same modus operandi to avail the benefit from number of banks - setting the criminal law in motion by lodging different FIRs and in the ultimate eventuate in an adroit manner enter into settlements - Should the High Court on the foundation that the continuance of the criminal proceedings would be a Sisyphean endeavour after the settlement has taken place to quash the same? - Whether a former Assistant Commissioner of Commercial Taxes can be allowed to advance a plea, obviously a remarkable one, that she had signed the documents either as a guarantor or as a co-applicant, showing deference to her late husband's desire?
HELD THAT:- In CBI v. Maninder Singh [2015 (8) TMI 1535 - SUPREME COURT], the allegation against the accused was that bill of lading presented by the proprietors of the accused firms were found forged and cases were registered Under Section 120B Indian Penal Code read with Section 420 Indian Penal Code and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 and further substantive offences Under Sections 420, 467, 468 and 471 Indian Penal Code. The accused person arrived at a settlement with the Bank and thereafter moved the High Court Under Section 482 Code of Criminal Procedure for quashing of the FIR. The High Court placed reliance on the decision in Nikhil Merchant [2008 (8) TMI 966 - SUPREME COURT] and allowed the petition and directed for quashing of the criminal proceedings.
The High Court has been erroneously guided by the ambit and sweep of power Under Section 482 Code of Criminal Procedure for quashing the proceedings. It has absolutely fallaciously opined that the continuance of the proceeding will be the abuse of the process of the Court.
It has been categorically held in JANATA DAL VERSUS H.S. CHOWDHARY [1992 (8) TMI 301 - SUPREME COURT], that the inherent power Under Section 482 Code of Criminal Procedure though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. In Inder Mohan Goswami [2007 (10) TMI 550 - SUPREME COURT], it has been emphasised that inherent powers have to be exercised sparingly, carefully and with great caution.
Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case.
The order passed by the High Court is set aside - the trial magistrate directed to proceed in accordance with law - appeal allowed.
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2015 (9) TMI 1761
Doctrine of lis pendens - Suit for declaration to the effect that they are owners in actual physical possession of the suit land - HELD THAT:- In view of the application for correction of khasra girdawaris in the disputed land, it would be unjust to record the findings as to who is prima-facie in the possession of the disputed property. The learned senior counsel for the revisionists has argued that all these transfers were made in order to avoid the losing of the land due to the tenancy law and the Land Ceiling Act. Some transfers were made by Sikandar Singh in favour of his father-in-law and mother-in-law. Even Selina and Poonam were given in adoption to save the land. All these matters are to be examined during trial. Therefore, at this stage, no findings can be recorded nor the allegations and counter allegations can be controverted.
The first appellate Court has declined the relief on the ground that 'regarding possession of agriculture land and also regarding alienation of suit land, the doctrine of lis pendens will apply.'
The doctrine of lis pendens is no substitute for the expressed order. In these circumstances, it is ordered that the parties shall maintain status quo regarding the possession over the disputed land till the disposal of suit. However, either party can adopt due course of law for correction of revenue entries or take possession. It is further ordered that any further alienation of the suit property can only be made by either party with the prior permission of the Court.
The interest of justice requires that the case should be disposed of expeditiously, so that the plaintiffs are not benefitted by default i.e. on account of Surinder Kaur losing a battle for life during the pendency of the suit. Therefore, in consultation with the learned senior counsel for the parties, it was proposed that the case be made date bound - keeping in view the old age of defendant No. 1, the case shall be decided expeditiously. The plaintiffs shall be given 10 effective opportunities of one month duration each to conclude their evidence and similarly, the defendants shall also be given same number of opportunities of same duration.
The present revision is allowed.
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2015 (9) TMI 1760
Violation of principles of natural justice - no opportunity was given to the petitioner before passing the impugned order - HELD THAT:- In view of the fact that the petitioner was not provided with an opportunity of personal hearing before passing the impugned order, coupled with the fact that the respondent department has not followed the statutory provisions provided under the Act and also in view of the Judgment of this Court in TVL SUPREME INDUSTRIES LTD. VERSUS AUTHORITY FOR CLARIFICATION AND ADVANCE RULING, CHEPAUK, CHENNAI AND ANOTHER [2013 (1) TMI 691 - MADRAS HIGH COURT], the impugned order is liable to be set aside and the matter has to be remitted back to the 1st respondent for passing orders afresh.
The impugned order of the 1st respondent dated 02.09.2015 is set aside and the matter is remitted back to the 1st respondent for passing appropriate orders, after affording an opportunity of personal hearing to the petitioner - Petition disposed off by way of remand.
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2015 (9) TMI 1759
Entitlement to refund of stamp duty - Purchase Of properties - Applicability of Sections 49 and 50 of the Indian Stamp Act, 1899 - Principle of equity and the maxim "actus curiae neminem gravabit" -Limitation period for claiming refund - HELD THAT:- Admittedly the transaction originally intended between the parties, i.e., sale of properties in question by GFIL-Committee to the applicants was not accomplished and failed due to reasons beyond the control of the parties. Secondly, it was not possible for the parties to conclude the transactions originally intended and while cancelling the same directed the seller (GFIL-Committee) to refund the entire sale consideration to the applicants and simultaneously permitted the applicants to claim refund of stamp duty amount from the State Government by order dated 26.09.2012. Thirdly, as a result of the order of this Court, a right to claim refund of amount paid towards the stamp duty accrued to the applicants. Fourthly, this being a court monitored transaction, no party was in a position to take any steps in the matter without the permission of the Court. Fifthly, the applicants throughout performed their part of the contract and ensured that transaction in question is accomplished as was originally intended but for the reasons to which they were not responsible, the transaction could not be accomplished. Lastly, the applicants in law were entitled to claim restoration of all such benefits/advantages from the State once the transaction was cancelled by this Court on 26.09.2012 in the light of the principle contained in Section 65 of the Contract Act which enable the party to a contract to seek restoration of all such advantage from other party which they took from such contract when the contract is discovered to be void or becomes void.
This was a case where contract in question became void as a result of its cancellation by order of this Court dated 26.09.2012 which entitled the applicants to seek restitution of the money paid to the State for purchase of stamp duty.
In our considered opinion, while deciding a case of this nature, we have to also bear in mind one maxim of equity, which is well settled namely " actus curiae neminem gravabit" meaning - An Act of the Court shall prejudice no man.
It is not in dispute that this Court on 26.09.2012 cancelled the transaction in question, and hence by reason of the orders of this Court, the stamps used for an instrument executed by the applicants were found unfit thereby defeating the purpose originally intended. This occurred either due to some error or mistake therein. Since the execution of sale deeds and its implementation was subject to the orders of the court, the parties were required to apply the court for appropriate orders for every step. It is due to this reason, the right to claim the refund of the amount of stamp duty arose for the first time in applicants' favour on 26.09.2012. The applicants had accordingly filed their applications within 6 months from the date of this order, as provided in Section 50. Thus, the applications should have been entertained treating the same to have been filed Under Section 49 (d)(2) read with Section 50 of the Act for grant of refund of stamp duty amount claimed therein by the applicants.
Even if we find that applications for claiming refund of stamp duty amount were rightly dismissed by the SDM on the ground of limitation prescribed Under Section 50 of the Act yet keeping in view the settled principle of law that the expiry of period of limitation prescribed under any law may bar the remedy but not the right, the applicants are still held entitled to claim the refund of stamp duty amount on the basis of the grounds mentioned above. In other words, notwithstanding dismissal of the applications on the ground of limitation, we are of the view that the applicants are entitled to claim the refund of stamp duty amount from the State in the light of the grounds mentioned above.
Thus, I.A. Nos. 9 and 10 filed by the applicants deserve to be allowed and are accordingly allowed. The State of Punjab through the SDM, Dera Bassi is directed to refund the entire stamp duty amounting to Rs. 6.22 crores spent by the applicants for purchasing of stamps papers for execution of sale deeds in relation to purchase of the properties in question.
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2015 (9) TMI 1758
Levy of penalty u/s 56(c) of Punjab Value Added Tax, 2005 - seeking release of vehicle alongwith the goods - HELD THAT:- Annexure P-2 is the order dated 21.12.2009, whereby penalty imposed under Section 56 (c) of the Act was deposited by the petitioner No. 1 and the vehicle in question was released to petitioner No. 1. Thus, in the present case, when the vehicle belonging to petitioner No. 1 was stopped for checking, it was found that the driver could not produce any bill or receipt qua payment of tax. Proceedings under the Act were initiated and penalty imposed has already been deposited by the petitioner No. 1.
In these circumstances since in the proceeding under the Act, penalty has already been deposited by petitioner No. 1, owner of the vehicle in question, continuation of criminal proceedings against the petitioners would be nothing but to abuse of process of law.
Petition allowed.
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2015 (9) TMI 1757
Condonation of delay in filing the complaint - present writ petition is filed on 27.8.2012 i.e. practically more tan 8 months of passing of the order by Hon'ble Justice Tahaliyani - HELD THAT:- It is true that Hon'ble Justice Tahaliyani had granted liberty to file the Writ Petition. However, "liberty to file" is a phraseology without a valid sanction of any statute or any specific precedent. It is the liberty granted to the petitioner to probe the possibility of seeking the relief by an alternative remedy. The said liberty does not give right to a litigant fresh/anew to agitate the same issue/order which has attained finality. The liberty may confer a right to the petitioner to file a petition, but it does not confer jurisdiction upon the Court to probe into the correctness or the validity of the order under challenge. Review of a judgment cannot be had on this liberty.
This Court is of the opinion that only because liberty is granted does not mean that the subsequent proceeding is maintainable in the eyes of law or that it calls upon the successor Court to hold subsequent petition maintainable or pass an order setting aside the order passed by the Court granting liberty. The successor Court is not bound to hold the proceeding maintainable.
This Court is of the opinion that the present Writ Petition is not maintainable and it deserves to be dismissed in limine.
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2015 (9) TMI 1756
Evacuee property or not - acquisition of land vested with the Central Government - Validity of acquisition proceedings under the Land Acquisition Act, 1894 - whether the land, after issuance of notification Under Section 12 of the DPCR Act, ceased to be evacuee property so as to be excluded from the purview of the notification issued Under Section 4 of the LA Act or not? - HELD THAT:- The acquisition of the land Under Section 12 of the DPCR Act brings the evacuee property into a common pool which is to be utilised in accordance with the provisions of the Act. Specifically, once the property is included in the common pool and vests in the Central Government, Under Section 16 of the DPCR Act, the Central Government may take such measures as it considers necessary or expedient for the custody, management and disposal of such property including transfer of the property out of the compensation pool to a displaced person. In the face of the clear provisions of the two enactments and the respective schemes contemplated thereunder, it is difficult to hold that the evacuee property continues to retain such status after issuance of the notification Under Section 12 of the DPCR Act.
Section 19 of the Act provides that notwithstanding anything contained in any contract or any other law for the time being in force but subject to the rules that may be made under the Act the managing officer or managing corporation may cancel any allotment etc., under which any evacuee property acquired under the Act is held or occupied by a person whether such allotment or lease was granted before or after the commencement of the Act. This provision thus confers the power to deal with evacuee property acquired under the Act only on a managing officer appointed or managing corporation constituted under the Act and makes no mention whatsoever of the Custodian appointed under the Administration of Evacuee Property Act. No doubt, Under Section 10 of the Administration of Evacuee Property Act the Custodian is empowered to manage evacuee property and in exercise of his power he will be competent to allot such property to any person or to cancel an allotment or lease made in favour of a person. Apart from the fact that subsequent to the issue of the notification Under Section 12(1) of the Displaced Persons (Compensation and Rehabilitation) Act, the property would cease to be evacuee property, the aforesaid powers of the Custodian would be in conflict with those conferred by Section 19 of the 1954 Act on a managing officer or a managing corporation constituted under that Act.
Thus, the subject land ceased to be evacuee property after publication of the notification of acquisition Under Section 12 of the DPCR Act. Consequently the exemption clause in the notification issued Under Section 4 exempting from its purview evacuee land will have no application to the present case.
If the subject land vested in the Central Government upon publication of the notification Under Section 12 of the DPCR Act and thereby ceased to be evacuee land, could such land vested in the Central Government be acquired under the provisions of the LA Act? - HELD THAT:- In Saraswati Devi [2013 (1) TMI 1058 - SUPREME COURT] on an exhaustive consideration of the issue with regard to the effect of delivery of provisional possession, which in the present case was handed over to the Respondents on approval of the highest bid, it was held that such provisional possession gives the auction purchaser possessory rights as distinguished from proprietary rights in the auctioned property. The above proposition culled out in a judgment of the Punjab High Court in Roshan Lal Goswami v. Gobind Raj [1963 (2) TMI 75 - PUNJAB HIGH COURT] was approved by this Court to further hold that such proprietary rights occasioned by the delivery of provisional possession creates an encumbrance on the property which can be the subject of acquisition under the LA Act. In the present case also the facts being identical, it is held that an encumbrance had been created in the subject property, which, as held in Saraswati Devi, could be acquired under the LA Act although the ownership in the land vested in the Central Government.
Thus, the judgment and order of the High Court under challenge in the present appeal is not sustainable in law and the same is set aside - appeal allowed.
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2015 (9) TMI 1755
Dishonour of Cheque - cheque in question had been issued qua a time barred debt or not - rebuttal of presumption - HELD THAT:- Complainant in support of his case, led his preliminary evidence and the petitioner has been summoned to face the trial by the Trial court. It is not the case of the petitioner that the cheque in question was not signed/issued by him. The fact that the cheque in question was issued by the petitioner leads to a presumption that there exists a legally enforceable debt or liability. However, the said presumption is rebuttable and the same can be rebutted by the petitioner by leading evidence. At this stage, without there being any evidence on record, it cannot be held that the cheque drawn by the petitioner was in respect of a debt or liability which was not legally enforceable.
The plea raised by the petitioner that the cheque in question was issued on account of a time barred debt can be gone into by the Trial Court after the parties lead their evidence with regard to their respective pleas. However, at this stage, it would not be just and expedient to quash the criminal proceedings at the very threshold by presuming that the cheque in question had been issued qua a time barred debt.
No ground for interference by this Court is made out - petition dismissed.
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2015 (9) TMI 1754
Dishonour of Cheque - time limitation - It is the contention of the counsel for the appellant- defendant that the suit of the respondent-plaintiff was barred by limitation - HELD THAT:- The assertion of the counsel for the appellant-defendant that the respondent-plaintiff has failed to establish that he was a Travel Agent and the money had exchanged hands, would not be of any consequence as there is no explanation on the part of the appellant-defendant with regard to the issuance of the cheque in question which has been duly proved. That apart, the denial of the signatures by the appellant-defendant on the cheque also cannot be accepted as the respondent-plaintiff has been able to prove on the basis of the evidence and in fact, admission that the cheque book and cheque leaf were of the account of the appellant-defendant. Since the appellant-defendant had denied his signatures, the onus was on him to prove that the cheque did not bear his signature but unfortunately, he did not produce any expert evidence in support of this assertion of his.
Further, the cheque has been returned by the bank not on the ground that the signature on the cheque is not of the appellant-defendant but because of insufficient funds. Signing and issuing cheque in favour of the respondent-plaintiff would amount to owing and acknowledging the liability by the appellant-defendant. All these go to prove beyond doubt that the appellant-defendant had acknowledged and accepted his debt.
No substantial question of law is involved in the present appeal which requires consideration of this Court - Appeal dismissed.
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2015 (9) TMI 1753
Correct head of income - gain on sale of shares - LTCG or Income from other sources - HELD THAT:- Looking to the facts and circumstances of the case, we find that the ld. CIT(A) has accepted that the long term capital gain on sale of shares of Hindustan Continentals limited as genuine long term capital gains as done through SEBI registered broker and De-mat account - dismiss the Departmental appeal on this ground.
Addition u/s 68 - assessee has made investment in the Lunkad group of companies providing entries of unsecured loan, share application money and investment in actual state of needy persons, who are beneficiaries and during the survey huge cash receipt and payments were found - HELD THAT:- We find that the CIT(A) in his order has deleted the addition on the ground that the I.T.A.T., Indore Bench has passed the order in the case of Narmada Extrusions Limited[2011 (12) TMI 702 - ITAT INDORE] and other family members of the Mittal Group and the assessee is also one of the beneficiaries of Mittal Group and in the appeal for assessment year 2003-04 and 2006-07, the Tribunal has decided the appeal and the Tribunal has analyzed all the documents. Thereafter, the matter was restored to the AO by the Tribunal and after that in set-aside proceedings, the ld. CIT(A) has accepted that these loans are genuine. Therefore, the ld. CIT(A) has deleted the addition on account of unsecured loans. In the result, the departmental appeal is dismissed.
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2015 (9) TMI 1752
Rectification of application u/s 154 - Set off the carried forward depreciation from earlier years - HELD THAT:- Assessee would be in a position to demonstrate before the AO in respect of the claim of depreciation. There is not dispute with regard to the fact. It has been held in case of CIT Vs. Virmani Industries Pvt. Ltd. [1995 (10) TMI 1 - SUPREME COURT] even if there is no activity being carried out by the assessee is a particular year, however, he would be entitled to set off the carried forward depreciation from earlier years.
Therefore, after considering the totality of the fact, we deem it proper to modify our order [2014 (6) TMI 1034 - ITAT AHMEDABAD] and restore the issue of claim of depreciation to the file of AO for decision afresh. We hereby modify our order accordingly.
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2015 (9) TMI 1751
Deduction u/s. 80P(2)(d) - interest on investments with the Co-operative bank - AO believed that interest income earned on the investments in any other Co-operative society is deductible but not from a Co-operative bank and the said income is also not allowable as deduction u/s. 80P(2)(a)(i) - HELD THAT:- CIT(A) correctly held since deduction u/s. 80P(2)(d) will be admissible only on the interest earned from Co-operative Societies irrespective of whether they are Co-operative banks or not, the AO is directed to verify the same and allow the deduction on interest earned from other Co-operative societies including Co-operative banks. The interest earned on investment with other banks will not be eligible for deduction u/s. 80P(2)(d). AO is directed accordingly. Appeal filed by the Revenue is dismissed.
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