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When a party is entitled to get long term capital gains even though no sale deed took place?


In addition to the fact that the term "transfer" has been
defined under Section 2(47) of the Act, even if looked at the
provisions of Section 54 of the Act which gives relief to a person
who has transferred his one residential house and is purchasing
another residential house either before one year of the transfer or
even two years after the transfer, the intention of the Legislature is to
give him relief in the matter of payment of tax on the long term
capital gain.
If a person, who gets some excess amount upon
transfer of his old residential premises and thereafter purchases or
constructs a new premises within the time stipulated under Section
54 of the Act, the Legislature does not want him to be burdened with
tax on the long term capital gain and therefore, relief has been given
to him in respect of paying income tax on the long term capital gain.
The intention of the Legislature or the purpose with which the said
provision has been incorporated in the Act, is also very clear that

the assessee should be given some relief. Though it has been very
often said that common sense is a stranger and an incompatible
partner to the Income Tax Act and it is also said that equity and tax
are strangers to each other, still this Court has often observed that
purposive interpretation should be given to the provisions of the Act.
In the case of Oxford University Press v. Commissioner of Income
Tax [(2001) 3 SCC 359] this Court has observed that a purposive
interpretation of the provisions of the Act should be given while
considering a claim for exemption from tax. It has also been said
that harmonious construction of the provisions which subserve the
object and purpose should also be made while construing any of the
provisions of the Act and more particularly when one is concerned
with exemption from payment of tax. Considering the aforestated
observations and the principles with regard to the interpretation of
Statute pertaining to the tax laws, one can very well interpret the
provisions of Section 54 read with Section 2(47) of the Act, i.e.
definition of "transfer", which would enable the appellants to get the
benefit under Section 54 of the Act.
Consequences of execution of the agreement to sell are also
very clear and they are to the effect that the appellants could not
have sold the property to someone else. In practical life, there are
events when a person, even after executing an agreement to sell an

immoveable property in favour of one person, tries to sell the
property to another. In our opinion, such an act would not be in
accordance with law because once an agreement to sell is executed
in favour of one person, the said person gets a right to get the
property transferred in his favour by filing a suit for specific
performance and therefore, without hesitation we can say that some
right, in respect of the said property, belonging to the appellants had
been extinguished and some right had been created in favour of the
vendee/transferee, when the agreement to sell had been executed.

Thus, a right in respect of the capital asset, viz. the property
in question had been transferred by the appellants in favour of the
vendee/transferee on 27th December, 2002. The sale deed could not
be executed for the reason that the appellants had been prevented
from dealing with the residential house by an order of a competent
court, which they could not have violated.
In view of the aforestated peculiar facts of the case and
looking at the definition of the term 'transfer" as defined under
Section 2(47) of the Act, we are of the view that the appellants were
entitled to relief under Section 54 of the Act in respect of the long
term capital gain which they had earned in pursuance of transfer of
their residential property being House No. 267, Sector 9-C, situated

in Chandigarh and used for purchase of a new asset/residential
house.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.5899-5900 OF 2014
(Arising out of SLP (c) Nos.16958-59 of 2013)
Sh. Sanjeev Lal Etc. Etc.
Appellants
Versus
Commissioner of Income Tax, Chandigarh & Anr. Respondents

ANIL R. DAVE, J.
Citation;(2015)5 SCC775
http://www.lawweb.in/2015/07/when-party-is-entitled-to-get-long-term.html

MEASURES TO CURB BLACK MONEY  Mode of taking or accepting certain loans, deposits and specified sums and mode of repayment of loans or deposits and specified advances The existing provisions contained in section 269SS of the Income-tax Act provide that no person shall take from any person any loan or deposit otherwise than by an account payee cheque or account payee bank draft or online transfer through a bank account, if the amount of such loan or deposit is twenty thousand rupees or more. However, certain exceptions have been provided in the section. Similarly, the existing provisions contained in section 269T of the Income-tax Act provide that any loan or deposit shall not be repaid, otherwise than by an account payee cheque or account payee bank draft or online transfer through a bank account, by the persons specified in the section if the amount of loan or deposit is twenty thousand rupees or more. In order to curb generation of black money by way of dealings in cash in immovable property transactions it is proposed to amend section 269SS, of the Income-tax Act so as to provide that no person shall accept from any person any loan or deposit or any sum of money, whether as advance or otherwise, in relation to transfer of an immovable property otherwise than by an account payee cheque or account payee bank draft or by electronic clearing system through a bank account, if the amount of such loan or deposit or such specified sum is twenty thousand rupees or more. http://www.lawweb.in/2015/03/budget-2015-payment-of-purchase-of.html

Exam papers for New york bar along with answers
http://www.nybarexam.org/ExamQuestions/ExamQuestions.htm
http://www.lawweb.in/2014/12/exam-papers-for-new-york-bar-along-with.html

Digital Evidence Investigation Manual issued by CBDT
https://drive.google.com/file/d/0B5vWGtQ14k1BaHdBdkl6T3hVLWs/view?usp=sharing
http://www.lawweb.in/2014/12/digital-evidence-investigation-manual.html

Advocates are liable to pay  professional tax up to which extent.Several advocates have not paid professional tax for so many years.whether now they are liable to pay lump sum professional tax.
Plz guide

please see this link; http://www.investmentyogi.com/tax-benefits-under-section-80d-80dd-and-80ddb/

CIC: Disclosure of Power of Attorney is Now Mandatory

In a bid to arrest property frauds, the Central Information Commission (CIC) has made it mandatory for the public authorities to disclose the copies of general power of attorney (GPA) in larger public interest.
GPA is a public document because the grantee has to use it to convince any prospective purchaser. There is no public interest in withholding it, the CIC observed.
Information Commissioner Madabhushi Sridhar passed these orders on September 2 this year while disposing of an appeal by RTI applicant Manish Bansal. Accordingly, the Registration Act 1908 can no more empower the registration department to hide certain documents from public.
As for facts of the case, Manish through his RTI application dated April 25, 2013, sought copies of documents regarding the GPAs relating to a property at Laxmi Nagar, executed by Krishan Lal in favour of Urmila Gupta etc.
The PIO concerned has given reply by his letter dated May 6 last year. The appellant made first appeal before the FAA, who, by his order dated July 17 upheld the information furnished by the PIO and disposed of the appeal, saying that the appellant cannot be issued the documents as the department of Delhi Archives is only custodian of records.
http://www.lawweb.in/2014/11/cic-disclosure-of-power-of-attorney-is.html

I am also of view that written test should be taken to avoid favouritism.

When court can take cognizance of offence committed by notary?
The learned Counsel also brought to my notice that under Section 13 of the Notaries Act, 1952 there is a legal bar for the Court to take cognizance of any offence committed by a Notary. The said provision reads thus :
"13. Cgnizance of offence.--(1) No Court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under this Act save upon complaint in writing made by an officer authorised by the Central Government or a State Government by general or special order in this behalf. (2) No Magistrate other than a presidency magistrate or a magistrate of the first class shall try an offence punishable under this Act".
On perusal of the above said provision, if the allegation is made against a Notary that while executing the functions of a Notary or purported exercise of the functions under the Act, if any offence is committed no Court shall take cognizance unless a complaint in writing made by an Officer authorised by the Central Government or State Government by general or special order in this behalf. Therefore, the above said provision is also a legal and specific bar to take cognizance of the offence. The charge sheet allegations is that, the accused No.3 - the petitioner has notarized the said General Power of Attorney. Except the said allegations nothing has been stated how she has taken part in cheating the complainant or any other person.
Karnataka High Court
Smt.Ratna Gouda D/O. ... vs The State Of Karnataka on 5 June, 2014
Author: K.N.Phaneendra
Citation;2014 (3) crimes 535 karnataka
http://www.lawweb.in/2014/10/when-court-can-take-cognizance-of.html

Whether advocate can ask judge to recuse from case?
Thus, neither English Law nor Indian Law nor the Patna High Court Rules nor even any precedent can come to rescue Mr. Giri as with regard to Hon‟ble the Chief Justice recusing herself from the Full Bench.

In my considered view, though the Judges are also mortal and human being and thus, not infallible but, then, it would be too naive to ask a judge to recuse himself or herself only because he/she may have decided some similar cases earlier. In this regard and on this aspect, I would not like to say anything more but to quote Justice Frankfurter who in the case of Public Utilities Commission of the District of Columbia Vs. Pillak reported in (1951) 343 US 451, had said as follows:- "The judicial process demands that a Judge may move within the framework of relevant legal rules and the court covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole Judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, Judges recuse themselves. They do not sit in judgment.....
Judge once expressed his/her opinion in matter -It can not be said that he or she gets biased and that judge shall not hear similar matter raising identical issue.

IN THE HIGH COURT OF JUDICATURE AT PATNA
Kalpana Rani, Versus  The State of Bihar, Mohiuddinpur,
Patna High Court LPA No.1569 of 2010 dt. 15-05-2014
CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE MIHIR KUMAR JHA And HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A. V. Judgment (Per: HONOURABLE THE CHIEF JUSTICE) Date 15th May 2014
Citation;AIR 2014 patna 173
http://www.lawweb.in/2014/10/whether-advocate-can-ask-judge-to.html

How to protect your private digital data by redaction?

In today's digital age, no person's private information is considered off limits by hackers. Recently, several celebrities, including Jennifer Lawrence and Kate Upton, had their iCloud storage accounts hacked and their private moments shared with the world.
Confidential data that gets in the wrong hands may cause many problems. The trick is to know how to send data electronically, without giving away crucial, private information. For example, if you are asked to provide a W-2 Form as proof of income, how do you send this without revealing your social security number to potential hackers? How do you remove the data you do not want disclosed?
One of the most common formats for providing electronic information is via a PDF (Portable Document Format) file. This is where PDF redaction programs come in handy.   Redaction is the process of removing data from a file.  There are many different programs available, such as PDF Escape, Foxit, and Adobe Acrobat Professional.  Redacting a file can be a very easy process, but you have to be careful.

Here are a few tips to help you keep your sensitive information secure:
http://www.lawweb.in/2014/09/how-to-protect-your-private-digital.html

Leading judgment of justice Chagla on jurisdiction of bench of HC and principal seat of HC to decide particular matter


In the case of State of Maharashtra vs. Narayan, reported in AIR
1983 SC 46 three Judges of the Apex Court in paragraph 26 relied on the ratio
of the decision rendered by Chagla, C.J. at the Bombay High Court.  It would
be appropriate to quote paragraph 26 in its entirety, which reads thus :

“26.As to the scope and effect of sub­s. (3) of s. 51 of the Act, 
the question came up for consideration before Chagla, C.J. and 
Badkas, J. in Seth Manji Dana v. Commissioner of Income­tax, 
Bombay, Civil Appeal No.995 of 1957(Bom),  decided on July 
22,   1958.  This  was   an  application  by which  the  validity of 
Rule 254 of the Appellate Side Rules was challenged insofar as 
it provided that all income­tax references presented at Nagpur 
should   be   heard   at   the   principal   seat   of   the   High   Court   at 
Bombay, and the contention was that the result of this rule 
was   that   it   excluded   income­tax   references   from   the 
jurisdiction   of   the   High   Court   functioning   at   Nagpur.   In
repelling the contention, Chagla, C. J. observed :

"Legally, the position is quite clear. Under section 51 (3)
of the States Reorganization Act, the Judges sitting at Nagpur 
constitute a part of the High Court of Bombay. They are as 
much a part of the High Court of Bombay, and if we might say
so distinguished part of the High Court of Bombay, as if they 
were sitting under the same roof under which Judges function
in Bombay. All that happens is that the Chief Justice, under 
the powers given to him under the Letters Patent distributes 
the   work   to   various   Judges   and   various   Divisional   Benches, 
and acting under that power he distributes certain work to the 
Judges sitting at Nagpur."
He then continued:
"All that rule 254 does is to permit as a matter of convenience 
certain   matters   to   be   presented   at   Nagpur   to   the   Deputy
Registrar. If rule 254 had not been enacted, all matters would 
have   to   be   presented   at   Bombay   and  then   the   Chief  Justice 
would   have   distributed   those   matters   to   different   Judges, 
whether sitting in Bombay or at Nagpur. It is out of regard and 
consideration   for   the   people   of   Vidarbha   and   for   their 
convenience that this rule is enacted, so that litigants should 
not be put to the inconvenience of going to Bombay to present 
certain   matters.   Therefore,   this   particular   rule   has   nothing
whatever   to   do   either   with   section   51   (3)   of   the   States 
Reorganisation Act or with the Constitution." With regard to 
Rule 254, he went on to say :
"Now, having disposed of the legal aspect of the matter, we turn 
to the practical aspect, and let us consider whether this rule 
inconveniences the people at Nagpur. If it does, it would certain
call for an amendment of that rule. Now, there is particular 
reason   why   all   Income   Tax   References   should   be   heard   in 
Bombay and that reason is this. The High Court of Bombay for 

He then concluded :
many   years,   rightly   or   wrongly,   has   followed   a   particular 
policy with regard to Income Tax References and that policy is 
that the  same   Bench  should   hear  Income   Tax References,   so 
that there should be a continuity with regard to the decisions 
given on these References. I know that other High Courts have 
referred to this policy with praise because they have realised 
that the result of this policy has been that Income Tax Law has 
been laid down in a manner which has received commendation 
from various sources. The other reason is and we hope we are 
not   mistaken   in   saying   so   that   the   number   of   Income   Tax 
References from Nagpur are very few. If the number was large, 
undoubtedly a very strong case would be made out for these 
cases to be heard at Nagpur."

"After all, Courts exist for the convenience of the litigants and 
not in order to maintain any particular system of law or any 
particular system of administration. Whenever a Court finds 
that   a   particular   rule   does   not   serve   the   convenience   of 
litigants, the Court should be always prepared to change the 
rule."
The ratio to be deduced from the decision of Chagla, C. J. is 
that the   Judges   and   Division   Courts   sitting   at  Nagpur   were 
functioning as if they were the Judges and Division Courts of
the High Court at Bombay.”



MISC. CIVIL APPLICATION NO.341 OF 2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
       

Mrs. Sayali wife of Swapnil Kuber,



// VERSUS //
Swapnil S/o. Harischandra Kuber,


CORAM  :   A.B.CHAUDHARI, J.
DATED    :   SEPTEMBER 19, 2013.
Citation; 2014(5) ALLMR97
http://www.lawweb.in/2014/09/leadding-judgment-of-justice-chagla-on.html

Guidelines to judges for writing judgments and orders
We, therefore, before proceeding
to decide the matter on merits, once
again would like to reiterate few
guidelines for the courts, while

writing orders and judgments to follow
the same. These guidelines are only
illustrative in nature, not exhaustive
and can further be elaborated looking
to the need and requirement of a given
case:
(a) It should always be kept
in mind that nothing should be
written in the judgment/order,
which may not be germane to the
facts of the case; it should have
a co-relation with the applicable
law and facts. The ratio decidendi
should be clearly spelt out from
the judgment/order.
(b) After preparing the
draft, it is necessary to go
through the same to find out, if
anything, essential to be
mentioned, has escaped discussion.
(c) The ultimate finished
judgment/order should have
sustained chronology, regard being
had to the concept that it has
readable, continued interest and
one does not feel like parting or
leaving it in the midway. To
elaborate, it should have flow and
perfect sequence of events, which
would continue to generate
interest in the reader.
(d) Appropriate care should
be taken not to load it with all
legal knowledge on the subject as

citation of too many judgments
creates more confusion rather than
clarity. The foremost requirement
is that leading judgments should
be mentioned and the evolution
that has taken place ever since
the same were pronounced and
thereafter, latest judgment, in
which all previous judgments have
been considered, should be
mentioned. While writing a
judgment, psychology of the reader
has also to be borne in mind, for
the perception on that score is
imperative.
(e) Language should not be
rhetoric and should not reflect a
contrived effort on the part of
the author.
(f) After arguments are
concluded, an endeavour should be
made to pronounce the judgment at
the earliest and in any case not
beyond a period of three months.
Keeping it pending for a long time
sends a wrong signal to the
litigants and the society.
(g) It should be avoided to
give instances, which are likely
to cause public agitation or to a
particular society. Nothing should
be reflected in the same which may
hurt the feelings or emotions of
any individual or society.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT NAGPUR.
Second Appeal No. 340 of 1999

M/s. Hindustan Petroleum Corporation
Ltd.,
Versus
Sau. Nivedita wife of
Pritamsingh Jain,

CORAM : A.B.CHAUDHARI, J.
Date : 20th March, 2014.
Citation; 2014(4) MHLJ 874 Bom
Read original judgment here; click here
http://www.lawweb.in/2014/09/guidelines-to-judges-for-writing.html

Whether "commercial transaction" include "professional transaction." for purpose of S34 of CPC?

In view of this, 'profession' will have to be treated as different from 'industry', 'trade', and 'business'. There is a clear distinction between the profession on one hand, and industry, trade and business on the other. While dealing with the 'commercial transactions" for the purpose of Section 34, C.P.C. the Legislature has not used the word 'profession' along with the words, 'industry' 'trade, or 'business'. The commercial transactions which are strictly connected with the industry, trade or business alone are included for the purposes of Section 34, C.P.C. as provided in Explanation II. Though the 'commercial transaction" is inclusive of "industry, trade and business", but it is exclusive of "profession". The fact that the Legislature has not included the word 'profession' along with the, words "industry, trade and business" to specify the "commercial transaction" cannot be igorned. The proviso to Section 34, C.P.C. will, therefore, not govern the cases where the
loan is advanced for the 'profession' or for "professional transactions".
In our opinion, the words "commercial transaction" do not include the "profession" or "professional transaction."
We, therefore, find that the learned trial Judge was right in holding in the absence of any evidence to that effect that the present loan is a professional loan, and cannot be termed as a commerical transaction. Awarding future interest at the rate of 6 p.c. p.a. cannot be said to be in contravention of the provisions of Section 34, C.P.C.

Bombay High Court
Dena Bank, Ahmednagar vs Prakash Birbhan Kataria And ... on 26 April, 1993
Equivalent citations: AIR 1994 Bom 343, 1994 (1) BomCR 537, 1994 (1) MhLj 198

http://www.lawweb.in/2014/09/whether-commercial-transaction-include.html

Dishonour of "AT PAR" Cheques,which court has jurisdiction to try case? Leading Bombay high court judgment


Giving huge relief to the Creditors, Bombay High Court held that Dis-honour of "AT PAR" Cheque cases can be filed to the Court within whose local jurisdiction the nearest available branch of bank of the drawer situated.

Dishonour of "AT PAR" Cheque; Complaint can be filed in the Court within whose local jurisdiction the nearest available branch of Drawer's bank situated. SC Judgment in Dashrath v. State is not applicable to "AT PAR" Cheques

It is thus clear that in the present case by issuing cheques payable at all branches, the drawer of the cheques had given an option to the banker of payee to get the cheques cleared from the nearest available branch of bank of the drawer. It, therefore, follows that the cheques have been dishonoured within the territorial jurisdiction of Court of Metropolitan Magistrate at Kurla. In view of judgment of Hon'ble Supreme Court in the matter of Dashrath v. State of Maharashtra, the learned Metropolitan Magistrate of Kurla Court has jurisdiction to entertain and decide the complaint in question".

Mr.Ramanbhai Mathurbhai Patel
V/s.
State of Maharashtra & Anr.

CRIMINAL WRIT PETITION NO. 2362 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE

CORAM : M.L.TAHALIYANI J.
DATED : 25TH AUGUST, 2014
http://www.lawweb.in/2014/08/dishonour-of-at-par-chequeswhich-court.html