Rajiv Kochar Vs. R.S. Sharma and anr. - Court Judgment

Excerpt:
- delhi sales tax act, 1975 -- sections 2(g) &(1), 3 & 4; [b.n.agrawal, g.s.singhvi & aftab alam,jj] import licences called replenishment licences (rep licences) were granted under the import and export policy for the period april 1988 to march 1991 issued under the imports and exports (control) act, 1947 - those were replaced by duty entitlement passbook (depb) provided for in the exim policy 1997-2002 under the foreign trade (development and regulation) act, 1992 - question (i) whether the three-judge decision in vikas sales corporation v c.c.t., 1996 (4) scc 433 holding that the transfer/sale of rep licence granted under the 1992-1997 exim policy was exigible to sales tax stood impliedly overruled by the constitution bench decision in sunrise associates v government of nct of delhi, 2006 (5) scc 603 which held that lottery tickets were actionable claims and were, therefore, the sale of lottery tickets was not subject to sales tax, and (ii) whether the earlier two-judge decision in h. anraj v government of t.n. 1986 (1) scc 414 holding otherwise had not laid down the correct law? held, in h.anraj case, 1986 (1) scc 414 it was held that a sale of a lottery ticket conferred on the purchaser thereof two rights (a) a right to participate in the draw, and (b) a right to claim a prize contingent upon his being successful in the draw. both would be beneficial interests in movable property, the former in praesenti, the latter in futuro depending on a contingency. that lottery tickets to the extent they comprised the entitlement to participate in the draw were goods properly so-called, squarely falling within the definition of that expression as given in the t.n. general sales tax act, 1959 and the bengal finance (sales tax) act, 1941, that to that extent they were not actionable claims and that in every sale thereof a transfer of property in the goods was involved. later, the question of taxability of rep licence under the sales tax enactments of tamil nadu, kerala and karnataka came up for consideration in vikas case, 1996 (4) scc 433. holding that the ratio of the decision in h. anraj case, 1986 (1) scc 414 fully supported the contention of the states, it was held that the content of rep licence/exim scrip was far more substantial and real than that of a lottery ticket. if lottery tickets were goods, there was no reason why the said licences/scrips were not goods. the supreme court had rejected that submission that rep licence was in the nature of an actionable claim and was, therefore, expressly excluded from the definition of goods in the sales tax acts. the decision in sunrise associates case, 2006 (5) scc 603 cannot be said to alter the position in regard to the sale of rep licences as held by the earlier decision in vikas case. it is indeed true that the constitution bench in sunrise did not approve the decision in vikas case insofar as it gave their free marketability as an additional reason to hold that rep licences were not actionable claim but goods properly so called. but that did not in any way change the position insofar as rep licences were concerned. in vikas case, the court first came to hold that rep licence/exim scrip fell within the definition of goods quite independently. the court found and held that rep licences had their own value; they were freely bought and sold in the market for their intrinsic value and for that reason alone those were goods. thus, the decision in sunrise case, 2006 (5) scc 603 in no way affected the position in so far as rep licences were concerned and the legal position in regard to their sale was concluded by the decision in vikas case. hence, the constitution bench decision in sunrise case did not alter the position in regard to levy of tax on sale of rep licence and on that issue the three-judge bench decision in vikas case continues to hold the field.orderc.a. no. 5094/981. the appellant and respondents had entered into a partnership amongst themselves and were practising as advocates. the arrangement was to share fees between themselves. the partnership had started functioning somewhere in 1988, but in about five years, some disputes and differences appear to have arisen between them, with the result that the respondents are alleged to have removed some files from the chamber where they used to practice together into their own chamber without consent of or information to the appellant. even the clients were not informed. the appellant filed a complaint before the bar council of delhi making various allegations, which ultimately got transferred to the bar council of india and was decided by it. the parties led no oral evidence before the bar council of india. the disciplinary committee of the bar council of india, vide its order dated 11th december, 1997, while disposing of the appeal, issued the following directions:in the circumstances, we direct the complainant and the respondents to jointly inform the clients in the pending cases of the period during which the cases were booked i.e. the period from december 1988 to january 1993 and to and to obtain the clients' specific willingness within two months from the date of the order and to conduct the cases after obtaining their specific instructions in writing. the complainant or the respondents should not retain the briefs without the consent of the clients and .. no harassment should be caused to the clients.2. we are informed that these directions have been complied with by the parties.3. the disciplinary committee of the bar council of india after taking all facts and circumstances into consideration, reprimanded the conduct of the respondent-advocates for the act committed by them and in view of the time that had elapsed between the alleged removal of files etc. and the date when the bar council of india made the order, declined to pass any order of suspension of the respondents' license to practice. hence this appeal.4. we have heard learned counsel for the parties and examined the record.5. in the admitted facts of the case and keeping in view the peculiar circumstances of differences having arisen between the partners, who were practising together as advocates, it appears to us that the punishment of reprimand imposed by the bar council of india on the respondent-advocates, cannot be said to be so grossly perverse or unreasonable as to require our interference at this stage to enhance the punishment. we, consequently, uphold the order of the bar council of india dated 11th december, 1997 and dismiss this appeal. no costs.c.a. no. 6062/19996. this appeal is a cross appeal. it was filed 560 days beyond the period of limitation. in the application seeking condonation of delay, the explanation for delay is neither reasonable nor satisfactory. we, accordingly, do not condone the delay and dismiss the application seeking condonation of delay. consequently, this appeal stands dismissed as barred by time. no costs.

Judgment:
ORDER

C.A. No. 5094/98

1. The appellant and respondents had entered into a partnership amongst themselves and were practising as Advocates. The arrangement was to share fees between themselves. The partnership had started functioning somewhere in 1988, but in about five years, some disputes and differences appear to have arisen between them, with the result that the respondents are alleged to have removed some files from the chamber where they used to practice together into their own chamber without consent of or information to the appellant. Even the clients were not informed. The appellant filed a complaint before the Bar Council of Delhi making various allegations, which ultimately got transferred to the Bar Council of India and was decided by it. The parties led no oral evidence before the Bar Council of India. The Disciplinary Committee of the Bar Council of India, vide its order dated 11th December, 1997, while disposing of the appeal, issued the following directions:

In the circumstances, we direct the complainant and the respondents to jointly inform the clients in the pending cases of the period during which the cases were booked i.e. the period from December 1988 to January 1993 and to and to obtain the clients' specific willingness within two months from the date of the order and to conduct the cases after obtaining their specific instructions in writing. The complainant or the respondents should not retain the briefs without the consent of the clients and .. no harassment should be caused to the clients.

2. We are informed that these directions have been complied with by the parties.

3. The Disciplinary Committee of the Bar Council of India after taking all facts and circumstances into consideration, reprimanded the conduct of the respondent-Advocates for the act committed by them and in view of the time that had elapsed between the alleged removal of files etc. and the date when the Bar Council of India made the order, declined to pass any order of suspension of the respondents' license to practice. Hence this appeal.

4. We have heard learned Counsel for the parties and examined the record.

5. In the admitted facts of the case and keeping in view the peculiar circumstances of differences having arisen between the partners, who were practising together as advocates, it appears to us that the punishment of reprimand imposed by the Bar Council of India on the respondent-Advocates, cannot be said to be so grossly perverse or unreasonable as to require our interference at this stage to enhance the punishment. We, consequently, uphold the order of the Bar Council of India dated 11th December, 1997 and dismiss this appeal. No costs.

C.A. No. 6062/1999

6. This appeal is a cross appeal. It was filed 560 days beyond the period of limitation. In the application seeking condonation of delay, the explanation for delay is neither reasonable nor satisfactory. We, accordingly, do not condone the delay and dismiss the application seeking condonation of delay. Consequently, this appeal stands dismissed as barred by time. No costs.