The appellant is said to have entered into a lease agreement with the company-in-liquidation on 22-1-2000, for demised building of 8,400 sq.ft. along with adjacent vacant land (about 5.33 acres) for a lease rent of Rs. 5,000 per month for a period of 11 months, which expired on 21-12-2000. Again, the company-in-liquidation is said to have entered into a fresh lease agreement for a period of 30 years in respect of the said building of 8,400 sq.ft. and the adjacent vacant land at Rs. 5,000 per month with 20 per cent increase in rent on every five years, commencing from 22-12-2005 and so on. The terms of lease deed are heavily loaded in favour of the lessee. It is difficult to understand as to how such large extent of property with a spacious building has been rented out for a meagre sum of Rs. 5,000 per month with marginal increase once in 5 years.
When the defendant has alleged non-receipt of the said letter dated July 31, 2006 and urges the same for not taking steps, the reasons stated by the appellant do not appear to be false or frivolous. It must be remembered that in every case of delay, there is some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea. As held by the Supreme Court in N. Balakrishnan v. M. Krishnamurthy[1998] 7 SCC 123 if the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suito
Calcutta High Court decision in Exide Industries case (supra). The Calcutta High Court held that leave encashment is neither a statutory liability nor a contingent liability and it is a provision to be made for the entitlement of an employee achieved in a particular financial year. Testing clause (f) with the objects sought to be achieved by the introduction of Section 43 B, it was held that the same could not have any nexus with the object sought to be achieved by the original enactment. Section 43 B, it was held, was originally inserted to plug evasion of statutory liabilities and the introduction of clause (f) was found to be inconsistent with the said object.
There is no much substance in the first argument as to aspect of lack of jurisdiction of the Metropolitan Magistrate’s Court to entertain the criminal complaint of respondent No.2. This is so, in view of the factual position as to major transaction between the complainant and the accused took place at Mumbai though the complainant is resident of Rajkot, so also the accused Nos. 1 to 4, 8,9,13 to 18 are resident of Kolkata
The bank had provided credit facilities to the company. The private respondents in the two writ petitions were the guarantors to the said credit facilities provided by the bank. As there was default in payment of the bank dues, an application was filed before the DRT by the bank against the company and private respondents in these petitions. It transpires that the company was declared a sick company under section 3(1)(o) of the Sick Industrial Companies (Special Provisions) Act, 1985 by the Board for Industrial and Financial Reconstruction on 8-11-1994 and recommendation was made for it to be wound up. An appeal was filed which was also dismissed.
The second issue involved in the appeal is levy of service tax on tickets sold before 1.5.2006 and used after 1st May 2006. The appellant’s contention is that the appellant sold the tickets to the passenger prior to 1.5.2006 and at that time there was no provision under the law of charging service tax Therefore, the service tax cannot be demanded from them of tickets sold prior to 1.5.2006. On going through the definition of the taxable service under this category we find that Section 65(105) indicates that taxable service would mean the services provided by the service provider to the service recipient as well as would also mean the services to be provided at a later date. The appellant being a service provider is required to make payment of service tax on the taxable services which were required to be provided on and after 1.5.2006. The levy of Service Tax has no connection with the receipt of payment and the service tax is required to be paid when the service is provided.
On consideration, the contention raised by the appellants is found to have force. The Company Law Board, cannot issue injunction in implementing the decision to be taken by the shareholders in its meeting, unless the prima facie finding is recorded, that the decision is prejudicial to the public interest or the company at large.
The offence alleged in the complaint against the petitioner is not a ‘continuous wrong’ and, therefore, the bar to take cognizance as contemplated under section 468(2)(b) of the Code of Criminal Procedure applies to the complaint lodged in the present case and, therefore, taking cognizance of such an offence after more than 11 years is clearly beyond the period of limitation prescribed and is clearly barred in law. In the result, the instant petition is allowed and the order of cognizance and summons issued in aforesaid cases are set aside.
Under section 12AA, the Commissioner is empowered to grant or refuse the registration and after granting registration, would be empowered to cancel and that too, only on two conditions laid down under section 12AA(3) of the Act. Whether the income derived from such transaction would be assessed for tax and also whether the trust would be entitled to exemption under section 11 are entirely the matters left to the assessing officer to decide as to whether it should be assessed or exempted.
In the instant case, admittedly, sale deed was executed in favour of the respondent-director in the year 1989, while purchasing the land on behalf of the company. The property was mortgaged by the respondent-director in his individual capacity. The parties also came to know about the property being in the name of the respondent-director, when the suit was filed and got settled by respondent-director by redeeming the property.
