Windows 8: the Inside out Microsoft is taking on Apple's iPad and Google tablets with its new-look Windows 8 screen layout. The Daily Telegraph's Matt Warman evaluates its features The new Windows 8 software includes an interface primarily for tablet computers, which Microsoft calls Metro, as well as an enhanced version of the existing Windows 7. Microsoft has described the update as its most radical, and is even producing its own range of computers, called Surface, to showcase it. It hopes to challenge Google and Apple for the dominance of the tablet category. The Metro interface borrows heavily from Microsoft's Windows Phone platform, while Microsoft has also redesigned the traditional 'Start' button, replacing it with a much more angular design that changes colour depending on which theme a user chooses. The Start menu has become an entire, customisable homescreen, and in desktop mode the Start button is no longer a permanent fixture. The latest trial version of the software, release Preview, expands on the Consumer Preview that Microsoft released in Barcelona earlier in the year, and is available free for users to download an d test. Users are warned, however, that the free test expires and will entirely replace the existing Windows operating system. The new software is designed to work as well on tablets as on traditional computers, and will replace Microsoft Windows 7, which has sold 525 million copies since it was released three years ago. Microsoft's Steve Ballmer has already talked of 500million machines running Windows 8 within a year. Writing on the official 'Blogging Windows' site, Microsoft's Brandon LeBlanc said that "Steven Sinofsky [Microsoft's head of Windows] announced at Microsoft's annual sales meeting that customers will be able to get Windows 8 - whether in upgrade fashion or on a new PC - starting on October 26". Discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice |
| Posted on 13 August 2012 by Apurba Ghosh | |
CourtSupreme Court of India BriefThe appellant is being prosecuted for offences punishable under Sections 7 & 13 (1) read with Section 13(1)(D) of Prevention of Corruption Act, 1988, before the Special Judge for CBI cases at Hyderabad. Around the time the prosecution concluded its evidence, the appellant filed Crl. Misc. Petitions No.18 and 19 of 2011 under Sections 242 and 311 Cr.P.C. for recall of prosecution witnesses No.1 and 2 for cross-examination. The appellant's case in the said Criminal Misc. Petition No.18 of 2011 was that cross-examination of PWs 1 and 2 had been deferred till such time the Trap Laying Officer (PW 11) was examined by the prosecution and since the said officer had been examined, PWs 1 and 2 need be recalled for cross examination by counsel for the accused-appellant. In Crl. Misc. Petition No.19 of 2011 the petitioner made a prayer for deferring the cross-examination of Investigating Officer (PW12) in the case till such time PWs 1 and 2 were cross examined. CitationP. Sanjeeva Rao …Appellant Versus The State of A.P. …Respondent Judgement REPORTABLE IN THE SUPREME COURT OF CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 874-875 OF 2012 (Arising out of S.L.P (Crl.) Nos.4286-87 OF 2011) P. Sanjeeva Rao …Appellant Versus The State of J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. These appeals arise out of an order dated 29th March, 2011, passed by the High Court of Judicature for Andhra Pradesh whereby Criminal Revision Petitions No.534 and 710 of 2011 filed by the appellant have been dismissed and order dated 22nd January, 2011 passed by the Special Judge for CBI cases at Hyderabad in Crl. M.P. Nos.18 and 19 of 2011 upheld. 3. The appellant is being prosecuted for offences punishable under Sections 7 & 13 (1) read with Section 13(1)(D) of Prevention of Corruption Act, 1988, before the Special Judge for CBI cases at 4. Both the applications mentioned above were opposed by the prosecution resulting in the dismissal of the said applications by the Trial Court in terms of its order dated "For what ever be the reasons the cross-examination of PWs 1 and 2 has been recorded as "nil". There is nothing to show on the record that the petitioner had reserved his right to cross examine the witnesses at a later point of time. The dockets of the Court do not reflect any such intention of the petitioner." 5. The Trial Court also held that recall of PWs 1 and 2 for cross-examination more than 3 and ½ years after they had been examined in relation to an incident that had taken place 7 years back, was bound to cause prejudice to the prosecution. The Trial Court was of the view that the appellant had adopted a casual and easy approach towards the trial procedure and that he could not ask for the recall of any witness without cogent reasons. 6. Aggrieved by the order passed by the Trial Court the appellant filed two revision petitions before the High Court which, as noticed earlier, have been dismissed by the High Court in terms of the order impugned in these appeals. The High Court took the view that PWs 1 and 2 had been examined on 7. Appearing for the appellant Mr. A.T.M Ranga Ramanujan, learned senior counsel, contended that the Trial Court as also the High Court had taken a hyper technical view of the matter without appreciating that grave prejudice will be caused to the appellant if the prayer for cross-examination of PWs. 1 and 2 was not granted and the recall of the witnesses for that purpose declined. He submitted that counsel for the appellant before the Trial Court was under a bona fide belief that the crossexamination of the prosecution witnesses PWs. 1 and 2, who happened to be the star witnesses, one of them being the complainant and the other a witness who allegedly heard the conversation and observed the passing of the bribe to the accused could be conducted after PW-11 had been examined. It was contended that the lawyer appearing before the Trial Court had also filed a personal affidavit stating that PWs. 1 and 2 had not been crossexamined by him under a bona fide impression that he could do so after the evidence of the Trap Laying Officer (PW-11) had been recorded. Mr. Ramanujan urged that while the lawyer may have committed a mistake in presuming that the prosecution witnesses No. 1 and 2 could be recalled for cross-examination at a later stage without the Trial Court granting to the accused the liberty to do so, such a mistake should not vitiate the trial by denying to the appellant a fair opportunity to cross-examine the said witnesses. Heavy reliance was placed by learned counsel on the decision of this Court in Rajendra Prasad Vs. Narcotic Cell [1999 SCC (Cri) 1062], in support of his submission that no party to a trial can be denied the opportunity to correct errors if any committed by it. If proper evidence was not adduced or the relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such a mistake to be rectified. 8. Appearing for the respondent Mr. H.P. Rawal, learned Additional Solicitor General, contended that while crossexamination of PWs. 1 and 2 could be deferred at the option of the accused to a later stage, the Court record does not show any such request having been made or any liberty being reserved to the accused. It was, according to Mr. Rawal, a case where an opportunity to cross-examine had been given to the accused and his counsel but they had chosen not to avail of the same, in which case a belated request for recall of the witnesses to exercise the right to cross-examine could and has been rightly rejected by the Trial Court and that rejection affirmed by the High Court. It was also submitted that the recall of the prosecution witnesses, who have gone without cross-examination at an earlier stage, is likely to prejudice the prosecution inasmuch as the incident in question is as old as of the year 2005, while the request for recall was made only in the year 2011, nearly four years after the framing of the charges against the appellant. 9. The appellant who was working as Sub Divisional Officer in the B.S.N.L., Karimnagar, is accused of having demanded and received a bribe of Rs.3,000/- from the complainant who was examined as PW1 at the trial. The trap led by the CBI in which PW2 was associated as an independent witness is said to have succeeded in catching the petitioner red-handed with the bribe money eventually leading to the filing of a charge-sheet against him before the Court of Special Judge for CBI cases at 10. The only question that arises in the above backdrop is whether the decision not to cross-examine PWs 1 and 2 was for the reasons stated by the petitioner or for any other reason. There is no dispute that no formal application was filed by the petitioner nor even an oral prayer made before the Trial Court to the effect that the exercise of the right to cross-examine the two witnesses was being reserved till such time the Trap Laying Officer was examined. This is precisely where counsel for the appellant has stepped in and filed a personal affidavit in which he has stated that even though there is no formal prayer made to that effect he intended to cross-examine the two witnesses only after the deposition of the Trap Laying Officer was recorded. In the peculiar circumstances of the case, we feel that the version given by the counsel may indeed be the true reason why two witnesses were not crossexamined on the conclusion of their examination-in-chief. We say so primarily because no lawyer worth his salt especially one who had sufficient experience at the Bar like the one appearing for the appellant would have let the opportunity to cross-examine go unavailed in a case where the witnesses had supported the prosecution version not only in regard to the demand of bribe but also its payment and the success of the trap laid for that purpose. There is no gainsaying that every prosecution witness need not be cross-examined by the defence. It all depends upon the nature of the deposition and whether the defence disputes the fact sought to be established thereby. Formal witnesses are not at times cross-examined if the defence does not dispute what is sought to be established by reference to his/her deposition. The decision to cross-examine is generally guided by the nature of the depositions and whether it incriminates the accused. In a case like the one at hand where the complainant examined as PW1 and the shadow witness examined as PW2 had clearly indicted the appellant and supported the prosecution version not only regarding demand of the bribe but also its receipt by the appellant there was no question of the defence not crossexamining them. The two witnesses doubtless provided the very basis of the case against the appellant and should their testimony have remained unchallenged, there was nothing much for the appellant to argue at the hearing. The depositions would then be taken to have been accepted as true hence relied upon. We may, in this connection, refer to the following passage from the decision of this Court in Sarwan Singh v. State of "It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted." 11. We are, therefore, inclined to believe that the two prosecution witnesses were not cross-examined by the counsel for the appellant not because there was nothing incriminating in their testimony against the appellant but because counsel for the appellant had indeed intended to cross-examine them after the Trap Laying Officer had been examined. The fact that the appellant did not make a formal application to this effect nor even an oral prayer to the Court to that effect at the time the cross-examination was deferred may be a mistake which could be avoided and which may have saved the appellant a lot of trouble in getting the witnesses recalled. But merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer. Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial. 12. The nature and extent of the power vested in the Courts under Section 311 Cr.P.C. to recall witnesses was examined by this Court in Hanuman Ram v. The State of "This is a supplementary provision enabling, and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 o f the Code is that there may not be failure o f justice on account o f mistake o f either party in bringing the valuable evidence on record or leaving ambiguity in the statements o f the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage o f inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." (emphasis supplied) 13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430. The following passage is in this regard apposite: "In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest o f justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 o f the Code. After al l the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible." (emphasis supplied) 14. The extent and the scope of the power of the Court to recall witnesses was examined by this Court in Mohanlal Shamji Soni v. "The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction o f the court must obviously be dictated by exigency o f the situation, and fair-play and good sense appear to be the only safe guides and that only the requirements o f justice command and examination o f any person which would depend on the facts and circumstances o f each case. " (emphasis supplied) 15. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder of that solemn duty was given, in the following words: "What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice." 16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. 17. In the result, we allow these appeals, set aside the orders passed by the Trial Court as also the High Court and direct that the prosecution witnesses No.1 and 2 shall be recalled by the Trial Court and an opportunity to crossexamine the said witnesses afforded to the appellant. In fairness to the counsel for the appellant, we must record that he assured us that given an opportunity to examine the witnesses the needful shall be done on two dates of hearing, one each for each witness without causing any unnecessary delay or procrastination. The Trial Court shall endeavour to conclude the examination of the two witnesses expeditiously and without unnecessary delay. The parties shall appear before the Trial Court on ……………………….……..……J. (T.S. THAKUR) ………………………….…..……J. (GYAN SUDHA MISRA) |
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 | AO can reassess issues other than the issues proceedings were initiated but he was not justified when the reasons for the initiation of those proceedings ceased to survive |
| Posted on 13 August 2012 by Apurba Ghosh | |
CourtINCOME TAX APPELLATE TRIBUNAL BriefOn the facts and in the circumstances of the case as well as in law the Ld. Commissioner of Income Tax (Appeals) grossly erred in upholding the action of ld. Assessing Officer in treating the loss on sale of shares as capital loss which is otherwise business loss and allowable under law. These action of Hon'ble Commissioner of Income Tax (Appeals)- IV, New Delhi, and ld. Assessing Officer being arbitrary, unjust, illegal and invalid in law liable to quashed and it is prayed to your honour that they please be quashed and/or any other relief just deem fit and proper please be directed CitationAggregate Finance & Investment Pvt. Ltd., 1117/12, 3rd Floor, Naiwala, Karol Bagh, New Delhi. PAN: AAACA6428R (Appellant) Vs. ITO,Ward 1 (2), New Delhi. (Respondent) Judgement IN THE INCOME TAX APPELLATE TRIBUNAL BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA No.4398/Del/2009 Assessment Year: 1999-2000 Aggregate Finance & Investment Pvt. Ltd., 1117/12, 3rd Floor, Naiwala, Karol Bagh, PAN: AAACA6428R (Appellant) Vs. ITO,Ward 1 (2), (Respondent) Assessee by: Shri R.C. Rai, CA Revenue by: Ms Anusha Khurana, Sr.DR ORDER PER A.D. JAIN, JUDICIAL MEMBER This is an appeal filed by the assessee for Assessment Year 1999-2000 against the order dated 14.09.2009 passed by the ld. CIT(A)-IV, New Delhi. The revised grounds of appeal filed are as follows:- "1. On the facts and in the circumstances of the case as well as in law the Ld. Commissioner of Income Tax (Appeals) grossly erred in upholding the re-opening of the case, which is otherwise bad in law and not tenable. 2. On the facts and in the circumstances of the case as well as in law the Ld. Commissioner of Income Tax (Appeals) grossly erred in upholding the disallowance of loss on sale of shares amounting to Rs.2,59,650/- " in spite of fact that reason & issue for initiation of re-assessment proceedings ceased to survive." 3. On the facts and in the circumstances of the case as well as in law the Ld. Commissioner of Income Tax (Appeals) grossly erred in upholding the action of ld. Assessing Officer in treating the loss on sale of shares as capital loss which is otherwise business loss and allowable under law. These action of Hon'ble Commissioner of Income Tax (Appeals)- IV, New Delhi, and ld. Assessing Officer being arbitrary, unjust, illegal and invalid in law liable to quashed and it is prayed to your honour that they please be quashed and/or any other relief just deem fit and proper please be directed." 2. Apropos ground No.1, the learned counsel says that no addition was made on the reasons recorded; that accordingly, the reasons cease to exist, as held in 'Ranbaxy Laboratories Ltd. vs. CIT', 336 ITR 136 (Del) and once the reasons recorded for reopening cease to exist, there remains no reason to reopen the completed assessment. 3. Per contra, the ld. DR submits that even if no addition has been made on reasons recorded, the reopening of the completed assessment on the basis of the reasons recorded is valid. In support of this contention, the learned DR has sought to place reliance on the following case laws:- i) "ITO vs. M.V. Balaji" (2011) 007 ITR (Trib) 795 (Chennai) ii) "CIT vs. Sun Engineering Works Pvt. Ltd." 198 ITR 297 (SC) iii) "CIT vs. N. Krishnan" 233 ITR 646 (Ker) iv) "V. Jaganmohan Rao vs. CIT" 75 ITR 373 (SC) v) "CIT vs. Standard Motor Products of India Ltd." 142 ITR 877 (Mad) vi) "CIT vs. B. Nagi Reddi" 144 ITR 62 (Mad) vii) "CIT vs. Ram Kishan Leela" 295 ITR 525 (Raj) viii) "ACIT vs. Asian Exim International 113 TTJ 427 (Asr.) 4. We have heard both the parties on this issue and have considered the material on record with regard thereto. The reasons recorded for reopening the completed assessment are as follows:- "Reasons recorded for issue of notice u/s 148 of the IT Act, 1961. The Directorate of Investigation-I, assessee during the financial year relevant to the A.Y. 1999- 2000. The value of these entries runs into several lacs of rupees. 2. In view of the above credible information received from the DIT (Inv.), I have reasons to believe that the amount and its transactions i.e., the entries provided by the assessee more than one lac rupees, which is chargeable to tax has escaped assessment, as per the provisions of Section 147 (a), (b) & (c) of the Income Tax Act, 1961. 3. I am therefore satisfied that the said income has escaped assessment, and accordingly after recording the above said reasons as laid down under the provisions of Section 148(2) of the Income Tax Act, propose to issue a notice to the above mentioned assessee u/s 148(1) of the IT Act, 1961. 4. The proposal is forwarded for your kind consideration and necessary approval in view of the fact that:- (i) The assessment year involved is A.Y. 99-00. In view of this, since 4 years has elapsed, but not more than 6 years, the proposal is forwarded as laid down under the provisions of Section 149(1)(b) of the IT Act, 1961. (ii) Kind approval for issue of notice u/s 148(i) is sought as per the procedure laid down under the provisions of Section 151, read with sub section (1) & (2) of the Income Tax Act, 1961." 5. In the computation of income contained in the order passed by the Assessing Officer in the reassessment proceedings, the Assessing Officer has recorded as follows:- "With the above remarks total income is computed as under:- Loss as per Profit and Loss a/c Rs. 3,349 Add Loss on sale of long term investments Not allowed as discussed above Rs.2,59,650 Net taxable income Rs.2,56,301 Rounded off to Rs.2,56,300" 6. It thus remains an undisputed fact that no addition has been made on the reasons recorded for reopening the completed assessment. Now, what is to be seen is as to whether, as contended by the assessee, since no addition has been made on the reasons recorded, no reasons for reopening the completed assessment survive and, consequently, the completed assessment could not have been reopened, or whether in spite of no addition having been made qua the reasons recorded, those reasons still survive and the reopening on the basis of those reasons is in order, as maintained by the department. 7. In 'Ranbaxy Laboratories' (supra) it has been held, inter alia, as follows:- "The very basis of initiation of proceedings for which reasons to believe were recorded was income escaping assessment in respect of items of club fees, gifts and presents, etc., but while these items were not disturbed, the Assessing Officer proceeded to reduce the claim of deduction under sections 80HH and 80-I which was not permissible. The Tribunal was right in holding that the Assessing Officer had the jurisdiction to reassess issues other than the issues in respect of which proceedings were initiated but he was not justified when the reasons for the initiation of those proceedings ceased to survive." 8. Thus, the ratio of 'Ranbaxy Laboratories' (supra) is that where the reasons for initiation of reopening proceedings cease to survive, the Assessing Officer is not justified to re-assess issues other than the issues in respect of which the reopening proceedings were initiated. 9. "Sun Engineering Works" (supra) and "Jaganmohan Rao" (supra), both rendered by the Hon'ble Supreme Court, it is seen, have been considered in "Ranbaxy Laboratories" (supra). 10. Whereas "Ranbaxy Laboratories" (supra) has been rendered by the Hon'ble jurisdictional High Court, the rest of the cases relied on by the Ld. DR are from other High Courts. Now, once the jurisdictional High Court has decided the issue in favour of the assessee, these case laws are not required to be gone into, the decision of the Hon'ble jurisdictional High Court being binding on us. 11. In the result, the appeal filed by the assessee is allowed, as indicated above. The order pronounced in the open court on 01.08.2012. Sd/- Sd/- [G.D. AGRAWAL] [A.D. JAIN] VICE PRESIDENT JUDICIAL MEMBER Dated, 01.08.2012. dk Copy forwarded to: - 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT Deputy Registrar, ITAT, |
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