Legal Reference Library

In Anwar Basith v. ACIT, the Bangalore ITAT held that the income of minor beneficiaries can be clubbed to income of parents under section 64(1)(a) of Income Tax Act, 1961. Assessee was a partner of Firm, M/s. INJ Enterprises, along with her husband and three minor children with equal distribution of profit among the partners including the three beneficiaries. The partnership firm was dissolved in the year 1989 with a condition that all the 5 partners would possess the asset and the liability of the firm as coowners and tenants in common and have equal shares in land & building. One of the source of funds used by M/s. INJ Enterprises for construction and development of the aforesaid property was a loan from Dr. Nayeema Khan Trust for which the Firm was paying interest. The said Trust was formed by assessee and her husband, Mr. Maqsood Ahmed as a trustee and their children as beneficiaries of the trust. While completing assessment against the assessee, the AO noted that to Pay ...

In Gurnam Singh (D) Thr. Lrs. Vs. Gurbachan Kaur(D), Supreme Court of India held that On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is “dismissed as abated”.

The Supreme Court, in Union of India vs M/S Simplex Infrastructures, has reiterated that intra-court Letters Patent Appeal under clause 15 of the Letters Patent of High Court at Calcutta is not maintainable against an order passed by the single judge on an application for condonation of delay filed along with the petition for setting aside an arbitration award. A division bench of Calcutta High Court, holding that intra-court appeal is maintainable against single judge order condoning the delay, had reversed the order by invoking its jurisdiction under Letters Patent Appeal. Referring to the decision in Fuerst Day Lawson Limited vs Jindal Exports Limited, the bench comprising Justice Dipak Misra and Justice AM Khanwilkar held that the remedy of Letters Patent Appeal against that decision is unavailable and the question as to whether the single judge had rightly exercised the discretion or otherwise could be assailed before the apex court by way of special leave petition. “Even if...

In this instant matter, the plaintiff is a company that carries on business in retail sale of fabrics and other items. It issued refund vouchers to its customers and made arrangement for the same with the defendant bank on 14.1.1984. On 13.02.1997, the defendant bank asked the plaintiff to stop issuing refund vouchers. However, the defendant arbitrarily debited plaintiff’s account by Rs. 45,55,257.45. The plaintiff approached consumer courts, claiming that the bank was deficient in providing services. Allegations of deficiency of services against banks were not proved either before the state or national consumer redressal forum. Hence, the present suit was instituted before the high court for injunction directing the defendant to transfer wrongly debited sum. The primary question for consideration in this matter was whether state/national forums are courts and whether the decision or finding before the various fora under the said Act would attract the principles of res judi...

The Supreme Court, in Steel Authority of India Ltd vs Designated Authority, Directorate General Of Anti-Dumping & Allied Duties & Ors, has observed that the following conditions must be satisfied before admitting an appeal under Section 130 E (b) of the Customs Act against an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT): 1) The question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty. This is a sine qua non for the admission of the appeal before this Court under Section 130 E (b) of the Act. 2) The question raised must involve a substantial question of law, which has not been answered or, on which, there is a conflict of decisions necessitating a resolution. 3) If the tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible concl...

The Calcutta High Court, in PS Mitra vs Manor Travels Private Limited, has held that a judgment and order of conviction and sentence of imprisonment till the rising of the Court and an order of compensation imposed under Section 357(3) of the Code of Criminal Procedure with a direction to undergo imprisonment in default of payment of such compensation is appealable. The petitioner was convicted for commission of offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to suffer imprisonment till the rising of the Court and directed to pay compensation to the tune of Rs.4 lakhs within one month in default to suffer simple imprisonment for two years. Initially, the petitioner preferred a revision petition before the Additional Sessions Judge, Fast Track Court, Calcutta and thereafter made an application for converting such revision into an appeal on the premise that the imprisonment for two years prescribed in default of payment of compensation is appealab...

In R (on application of Hicks and others) v Commissioner of Police for the Metropolis-United Kingdom, four appellants were part of a larger group of claimants, but it was agreed before the Court of Appeal that their cases should be treated as test cases. They were arrested in separate incidents at various places in central London on the grounds that their arrest was reasonably believed by the arresting officers to be necessary to prevent an imminent breach of the peace. Administrative Court rejected the broad complaint that the police adopted an unlawful policy for the policing of the royal wedding. After close examination of the facts of the individual arrests, it also held that the arresting officers had good grounds to believe that the arrests were necessary in order to prevent the likelihood of an imminent breach of the peace. Claim that the police acted unlawfully as a matter of domestic law therefore failed. Court of Appeal also concluded that, Appellants were arrested and detain...

In Tej Bahadur Thapa Vs. Branch Manager of District Central Co-operative Bank Ltd., the Calcutta High Court held that under Article 227 of the constitution, the High Court has Power of superintendence over all courts and tribunals. Thus even though the Consumer Protection Act mentions appeal against order of the State Forum to be done before the National Forum, the the revisional application is very much maintainable before High Court, particularly, when the Court is, prima facie, satisfied on the merit of the case that the finding arrived at by the State Commission is perverse.

The Supreme Court in State Bank of Patiala vs. Mukesh Jain, has held that the Debt Recovery Tribunal (DRT) has jurisdiction to entertain an appeal as per Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, even if the amount involved is less than Rs 10 lakh. A bench comprising Justice Anil R Dave and Justice L Nageswara Rao, however, clarified that appellate jurisdiction need not be misunderstood with the original jurisdiction of the tribunal. The bench set aside an order by the trial court, which had rejected an application filed by debtor under Order VII Rule 11, wherein it had held that it was not open to the Debt Recovery Tribunal to entertain the matter as the amount claimed in the suit was less than Rs 10 lakh and that the suit was maintainable. The court observed that no civil court is having jurisdiction to entertain any suit or proceeding in respect of any matter which a Debt Recovery Tribunal or the appellate...

Commissioner of Service Tax, Mumbai-II Versus M/s. Kalpesh Transport Appeal against the assessee who has died / no more - transportation charges - loading and unloading charges - thappi charges - Held that: - the respondent was proprietorship firm under the Proprietor of Shri Arjun Chothani and now he is no more. Respondent being an individual dead person, the Revenue cannot file appeal against a dead person by making him respondent. Rule 22 of Customs Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 referred and held that if respondent dies, the appeal shall abate - merits of the case set aside - appeal disposed off - decided against Revenue.

Mr. Zameer Moon Versus The DCIT 12 (2) , Mumbai Disallowance of Club Membership Fees - Held that:- . On going through the order of the Ld. CIT(A), it is very clear that the expenses/club membership fee paid by the assessee cannot be allowed as business expenditure as it was not incurred wholly and exclusively for the purpose of business. The assessee could not prove with evidences that the amounts paid for club membership fee was incurred for the purpose of the business. None of the findings of the Ld. CIT(A) have been rebutted with evidences and therefore there is no valid reason to interfere with the findings/decision of the Ld. CIT(A) in upholding the disallowance made by the Assessing Officer. - Decided against assessee Article referred: Tax Management India.com

M/s. Countech Systems Poonam and A. Bhattacharya (Partners) , M/s. Glory Hi-tech and Sudhir Dingra Director Versus CC, Faridabad Valuation - related person u/s 4 (4) (c) of Central Excise Act, 1944 - assessable value - extended period of limitation - demand of duty with interest - imposition of penalty - constitution of firm referred - Held that: - constitutions of the firms states that the appellant M/s.Glory Hitech is company and M/s.Countech Systems is partnership firm and the trading company is also private limited company. From the constitution, it is clear that the appellants and the trading company are not related to each other in terms 4 (4) (c) of Central Excise Act, 1944. The decision in the case of Reliance Industries Products vs. CCE [2011 (3) TMI 704 - CESTAT, MUMBAI] relied upon where it was held that The three conditions are to be satisfied before it can be inferred the existing relationship namely, (i) there should be mutuality of interest, (ii) alleged related pers...

In Vivek Batra Vs. Union of India, the Hon'ble Supreme Court of India while dismissing the petition challenging the sanction dated 09.10.2012 for prosecution of the appellant under Section 13 of the Prevention of Corruption Act, 1988 irected against judgment and order dated 29.10.2013, passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 3654 of 2012, held that Sanction cannot be held invalid only for the reason that in the administrative notings different authorities have opined differently before the competent authority took the decision in the matter.

The Calcutta High Court, in M.K. Products vs. Blue Ocean Exports (P) Ltd. & Ors., has said that a complainant cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code of Criminal Procedure, in a case under Section 138 of the Negotiable Instruments Act. The judgement delivered by Justice Sankar Acharyya dealt with the question of whether an acquittal in a case of dishonour of cheque, instituted on a complaint, could be challenged at Sessions Court without the grant of special leave by the High Court. Relying on the Kerala High Court decision in Omana Jose vs. State of Kerala and Others (which in turn discusses the principles in case Subhash Chand vs. State (Delhi Administration), the court reached the decision to uphold the impugned order. The relevant observations from the Kerala High Court’s judgement in that matter which the Calcutta High Court relied upon were: After the introduction of the definition of ‘victim’ in Secti...

The tariff fixed in a power purchase agreement (PPA) is not sacrosanct and it could be reviewed by the State Electricity Regulatory Commission, which is the statutory authority for fixing tariff under the Electricity Act, the Supreme Court ruled last week in its judgment, Gujarat Urja Vikas Nigam Ltd vs Tarini Infrastructure Ltd. The state regulatory commission had declared that it had no such power to review. However, the appellate tribunal decided that the commission did have the power.

Rajeev B. Shah vs. ITO (ITAT Mumbai) S. 54F: If the assessee has made full payment to the builder for purchase/ construction of a new residential house but is not able to get the title of the flat registered in his name or is unable to get the possession of the flat within the prescribed period due to fault of the builder, the assessee cannot be denied deduction u/s 54F The assessee sold one plot of land for a consideration of Rs.19,35,325/- and claimed deduction of investment made in under construction flat in the month of March, 2010 amounting to Rs.18,60,000/- under the provisions of Section 54F of the Act. The AO disallowed the claim of the assessee for deduction u/s 54F of the Act for the reason that the assessee has not registered the document for his claim for purchase of property even after three years of the said investment of capital gains in property. He also made a passing reference that the genuineness of the investment in question is not proved. Accordingly, he disall...

The Madras High Court bench has refused to interfere in a cheque bounce case, saying private complainants cannot prefer appeals against acquittal of the accused directly before it without approaching the sessions court concerned. Justice P Devadoss dismissed the appeal by one K Sudhakar against acquittal of the accused, by a judicial magistrate in Tiruchirapalli, saying the criminal appeal against the acquittal of the proprietor of a Chennai-based company was not maintainable. He said a Full Bench (comprising three judges) had laid down norms relating to the rights of victims and complainants on the issue of preferring appeals and also procedures to be adopted in cases where the complainant was also the victim. A victim of the crime, who had prosecuted an accused, had the right of appeal before the court before which such appeal would normally lie under the Criminal Procedure Act, he said. In a private complaint, even if the victim was not a complainant, he had a right to appea...

A two Judge Bench of the Supreme Court has held that the Supreme Court cannot appreciate the entire evidence de novo in a routine manner while hearing Criminal Appeals, and that too when the conviction is based on concurrent findings of two courts. The Two Judge Bench of Justices Abhay Manohar Sapre and Ashok Bhushan has further held that It is only when the Court comes to a conclusion that the impugned finding though concurrent in nature is wholly arbitrary, unreasonable or/and perverse to the extent that no judicial mind of average capacity can ever record such conclusion, the Court may in appropriate case undertake the exercise of appreciating the evidence to the extent necessary to find out the error. The Bench has dismissed the Appeal filed by the Accused against the final judgment passed by the High Court of Punjab and Haryana at Chandigarh by which the High Court dismissed the appeal filed by the him and upheld the judgment of Trial Court convicting him for the offences punishab...

The Supreme Court, in State of Rajasthan vs. Firoz Khan @ Arif Khan, has reiterated that a High Court, while passing orders rejecting the application for leave to appeal before it under Section 378 (3) of the Code of Criminal Procedure, should assign reasons for such rejection. Allowing the appeal by State of Rajasthan against an High Court order refusing to grant leave to file appeal before it against an acquittal by Trial Courtin a murder case, the Apex court bench comprising of Justices Abhay Manohar Sapre and Ashok Bhushan observed that the instant case is a clear case of total non-application of mind to the case by High Court. The High Court had passed the following order ““Heard. No case for grant of leave is made out. Accordingly, the leave to appeal stands dismissed.” ASSIGN REASONS WHILE REFUSING LEAVE TO APPEAL Referring to State of Maharashtra vs. Sujay Mangesh Poyarekar, the Court said: We are constrained to observe that the High Court grossly erred in passing the impugned ...

When the order of Single Judge of High Court is not in exercise of ordinary original jurisdiction, but in exercise of writ jurisdiction, the principal question to be decided is whether the order of Single Judge is in substance one under Art. 226 of Constitution and not under Art. 227 of Constitution. If order of Single Judge is in substance one under Art. 226 of Constitution, regardless of nomenclature used by parties in the writ petition or by Single Judge in his order, then LPA to Division Bench is maintainable. What is important is to ascertain the true nature of order passed by the Single Judge. If order of Single Judge in substance is not under Art. 226, or cannot be one under Art. 226, but is one under Art. 227 of Constitution, again regardless of nomenclature, LPA to Division Bench is not maintainable. When order of Single Judge is under both Art. 226 and Art. 227 of Constitution, again regardless of nomenclature, LPA to Division Bench is maintainable. LPA not maintain...