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Saiful Islam Jitu (Md.) Vs. State, 2012, 41 CLC (HCD)
Marsu Ltd and another Vs. Waliullah, FCA, Partner of M/s. Malek Siddique Wali Chartered Accountant and Receiver of Marsu Ltd, 2012, 41 CLC (HCD)
Grameen Telecom Vs. Commissioner of Taxes, 2012, 41 CLC (HCD)
Bengal Water Ways Ltd & Another
Companies Act (VII of 1913), Section 162.
Winding up of Private Company
It is well settled principle that a private limited company can, if circumstances so permit, be would up on the principles of dissolution of a partnership firm……………….(30)
Exclusion of director or deadlock in the management are grounds for dissolution of a company on equitable principles.
There cannot be any precise definition or inflexible formula of the principle of 'just or equitable' clause—
Whether or not there are equitable considerations for the application of the Principle must necessarily depend upon the facts and circumstances of each case and the judicial discretion of the court. The allegation made by respondent No. 1 and found to have been proved by the High Court Division on appeal are so glaring as to lead us to the only inescapable conclusion that it would be unjust and inequitable to allow the company to continue. It should be remembered that confidence in each other is of the essence of the relationship which sustains mutual confidence. Where there is lack of confidence in each other, the partnership cannot simply work and in that case it is desirable and expedient that the relationship should be ended………………..(43)
Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1981, 10 CLC (AD)
Md. Amjad Molla Vs. Syeduzzaman Molla & Others, 1981, 9 CLC (AD)
Penal Code (XLV of 1860), Section 464
Forgery
Anti-dating of a Kabala to show that it was executed earlier to defraud the holder of the earlier Kabala amounts to forgery.
Assessing Officer, Narayanganj Range, & Others Vs. Burmah Eastern Limited, 1981, 9 CLC (AD)
Urban Immovable Property Tax Rules, 1957, Rule 10
Rule 10 gives power to amend or alter the valuation only in cases where assessment is yet to be completed and tax is payable. It does not give power to re-open a closed assessment…………….(21-22)
Interpretation of statute--Retrospective operation
Ordinarily
a statutory provision is prospective in its operation and retrospective
effect cannot be given unless such effect is given to it in the statute
itself, either expressly or by necessary implication….. (15)
Constitution of Bangladesh (1972), Art, 102(2)
Alternative remedy / Writ
When the impugned action is without jurisdiction, the question of availing statutory alternative remedy does not arise…………. (25)
Kanak Chandra Das & Others Vs. Basiruddin Khan & Another, 1981, 9 CLC (AD)
Banking Companies Ordinance (LVII of 1962), Section 62
Banking Companies Ordinance - Winding up order made—
A matter pending before the High Court Division or Appellate Division on appeal cannot be transferred to the Company Judge.
Ahmad Ullah Vs. Md. Younus and Ors, 2016, 45 CLC (HCD)
Questions of Facts to be decided by the Trial Court—
Questions raised before this court by way of filing this application under section 561A are mainly questions of facts to be decided by the trial court upon taking evidence, which the complainant is entitled to adduce at the time of trial..…………...(9)
While Evidence is Given by the Accused in Support of His Defence
Defence material should be considered by the trial court, this should not be considered by court at the time of hearing the Rule issued under section 561A of the Code of Criminal Procedure, by the usurping function of a trial court. ……..(10)
A cheque, which is otherwise complete except the date, will be treated as an inchoate document handed over to the payee with implied authority (unless an express authority is annexed) to write the date on the said cheque. It is the choice and decision of the drawer of a cheque to hand over a dated, post-dated or undated cheque to the payee. He (drawer) cannot subsequently come with the plea that an undated or post-dated cheque handed over to the payee. In such case he is stopped by his conduct, called estoppels by conduct, and cannot be allowed to deny his obligation only on the excuse that an undated cheque was given to the payee………………(13)
If a drawer of the cheque is allowed to escape his liability under section 138(1) of the Negotiable Instruments Act, 1881, on any frivolous ground or on mere technicality then a lot of payee or beneficiary of the cheques and the financial institutions and the Bank will be at the verge of ruination and the resultant havoc in the transactions, done in ordinary course since long, based on cheques are bound to erode the prevailing practices. If the fraud and deception are allowed to function freely in the economic system and various economic transaction and the fraud and cheaters are allowed to let go with impunity on any of the grounds discussed herein, the financial institutions as well as the individual payees will be ruined………………(15)
ECOM Agroindustrial Corporation Ltd. & another Vs. Mosharaf Composite Textile Mills Ltd, 2014, 43 CLC (HCD)
Arbitrators have no Jurisdiction over the Court but Court has Jurisdiction over the Arbitration—
The decisions of the arbitration is subject to review by the Court, either at the time of mistake of some rules of the Court or on the application of any of the parties. There were arbitration proceeding which arrived in the contract by the parties by signing it in open eyes and there were no allegation of fraud practice upon the plaintiff.
As per section 10(2) of the Arbitration Act when it is found that there is arbitration proceeding, Court should keep its hands off from the proceeding pending before the Court………(50)
If a Party relies on the Contract he must rely on it for all Purposes—
A party cannot rely on a term of the contract to repudiate it and still say that the arbitration clause should not apply. Where the plaintiff sues to recover the price under the contract, as a valid and binding contract, he cannot repudiate the terms of the contract relating to arbitration, while seeking to rely on the contract in support of his claim………(41)
Hasina Ahmed Vs. State, 2015, 44 CLC (HCD)
Repeated Denial of Police—
In the backdrop of repeated denial of police that Salauddin Ahmed is under their custody, the Court has no scope under section 491 of the Code to direct the police to bring up and produce Salauddin Ahmed before this Court. But the Court opines that police cannot absolve their responsibility just by saying that Salauddin Ahmed is not under their custody.
The State has a responsibility to protect the life and liberty of its citizen. The reply of police that Salauddin Ahmed is not under their custody is not enough. In fact, Police should come up with some positive news about the whereabouts of Mr. Salauddin Ahmed.......(17)
Necessity to Form an Inquiry Committee—
Government may set up an inquiry committee in the interest of public, if they feel it expedient in the circumstances of the case. Government is at liberty to take independent decision about formation of any kind of inquiry committee/inquiry commission…........(21)
Anwarul Islam (Md.) Vs. Bangladesh, represented by the Secretary, Ministry of Education and Others. 2015, 44 CLC (HCD)
Violation of the Regulation and disobey the Source and Limitation of Authority—
Without
following the provisions of the concerned regulation, the then Board
Chairman has appointed Mr. Golam Sarwar as President and, as such, she
has made clear violation of the regulation and cared not at all about
the source and limitation of her authority. Hence, this is a fit case
where she (the then Chairman of Dhaka Board) should be fined with
exemplary amount, so that no one, by using his or her position makes
such order which is bound to erode the Rule of law, so
nakedly.
Aminul Karim (Md.) Vs. Government of Bangladesh and others, 2015, 44 CLC (HCD)
When Writ petition heard on merit without hearing the petitioner—
If in any particular case the ratio decidendl of Appellate Division applies directly or where the case in hand has already been decided by the same Division Bench, the writ petition can be heard on merit without hearing the petitioner. ...... (8)
When cases of Criminal and Civil proceeded concurrently—
The proposition of law which is consistent and no longer a resintegra is that a criminal case and civil case though arising out of the same transaction can proceed simultaneously….. .(9)
There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money. Both can stand together.......(12)
Recovery of Loan Amount—
A close reading of sub-section 1 of section 138 of the Act, shows that it has noting to do with the recovery of loan amount. The whole scheme of the law is to haul up the drawer of the unpaid/dishonoured cheque(s) for not arranging the funds against the issuance of such cheque(s) and then its/his failure to make the payment of the amount of the money of the unpaid/dishonoured cheque(s) on demand by the payee or, as the case be, by the holder in due course of the cheque(s) in writing within thirty days of the receipt of such notice as provided in clauses (b) and (c) respectively of subsection (1) of section 138 of the Act.......(13)
Abdul Monayem Lili Vs. Judge, Artha Rin Adalat & others, 2015, 44 CLC (HCD)
Timing for Inviting Tender for Auction—
Section 33(1) has allowed 15 days time for inviting tender for auction. Section 48 of the Ain clearly stipulates that for the purpose of counting days under Artha Rin Ain only the working days of the Court i.e. the days on which the Court functions (বিচারকের কার্যদিবস) should be taken into consideration. Even the Court in which the Judge-in-charge is sitting temporarily this section applies in verbatim, That is to say absolutely in terms of the law as it stands.
Provision of section 48 of the Ain mandates only to take into account the time for disposal of the case which relates only those days spent during the proceeding of the Court itself. No plausible deduction other than this can be given on this count....... (11-14)
Mahmudul Islam Vs. Anti-Corruption Commi¬ssion and others, 2015, 44 CLC (HCD)
Commissioner of Taxes Vs. Oriental Real Estate Ltd, 2008, 37 CLC (HCD)
Income Tax Ordinance, (XXXVI of 1984); Section 160
When any construction is stated to be the only business activity of the assessee then nobody else could be expected to supervise its construction. Moreover, under the PWD schedule of rates what PWD is entitled to for departmental supervision, how that can be claimed by the assessee is not understood. Secondly, the assessee is not entitled to any allowance on account of construction-cost that is not allowed by the Ordinance.
None of the appellate authorities is empowered to direct the Deputy Commissioner of Taxes to follow a system of calculation to estimate the sales, which is not sanctioned by the Ordinance or the Rules made thereunder. On behalf of the assessee, such illegal rebate was definitely obtained by misleading and misrepresenting the appellate authorities.
Star Vegetable Oils Limited, 195 Motijheel C/A, Dhaka Vs. The Commissioner of Taxes, Taxes Zone-03, Dhaka, 2015, 44 CLV (HCD)
The Income Tax Ordinance, 1984 (Ordinance No.XXXVI of 1984)
Sections 83(2), 177 and 154(3)
In the circumstances and facts whether the Taxes Appellate Tribunal Division Bench-03 Dhaka was justified maintaining the order of the Commissioner of Taxes (Appeal) without disposing the appeal on merit.
The Taxes Appellate Tribunal, being the highest appellate authority in the Taxes department, the Assessee-applicant has preferred the appeal before the first appellate authority against his grievance as to enhancement of his loss to a huge amount of income, which having prejudiced the Assessee-applicant, is entitled to file the appeal before the first appellate authority, which, as it appeared to the court that, considered the matter in a very whimsical manner and rejected the appeal as being time barred and hence upon consideration of section 83(2), 177, 154(3) of the Income Tax Ordinance 1984 and the assertion that no such assessment order was served upon him, it was required on the part of the first appellate authority to consider the same and to mention at least a single word as to non-cogency of the prayer for condonation of delay in the first appellate order, and since, this has not been done, the Taxes Appellate Tribunal was required to consider the same which also having failed prejudicing the Assessee-applicant, and so this court finds merit in this Income Tax Reference Application and allows it………………...( 16)
T.K. Gas & Gas Cylinder Limited, 83, Khatunganj, Chittagong Vs. The Commissioner of Taxes, Taxes Zone-1, Chittagong, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 35(4)
In order to invoke the power, available under the provision of section 35(4) of the Income Tax Ordinance 1984, the DCT concern has to raise dissatisfaction as to the method of accounting and also to pin point the defects in the item of expenditure for which he is unable to ascertain the actual and true income of the assessee.........(9)
Section 83(2)
The
provision of section 83(2) mandated the Deputy Commissioner of Taxes to
serve a further notice upon an assessee directing to submit particular
evidence as to any point which the Deputy Commissioner of Taxes
feels not adequately evidenced...........(15)
Salim Ullah, son of late M.A. Bari, House No. 27, Road No. 18, Block-B, Banani, Dhaka-1213 Vs. The Commissioner of Taxes, Taxes Zone-3, Dhaka, 35, Pioneer Road, Ayesha Manjil, Kakrail, Dhaka, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 159(2)
Sub-section (2) of section 159 of the Income Tax Ordinance 1984 is very clear on the point that the Taxes Appellate Tribunal, if required, may call for particulars respecting the matters raised in an appeal or cause further inquiry to be made by the Deputy Commissioner of Taxes. But when all the materials are available before it in respect of the cause, it cannot abdicate its burden to the Deputy Commissioner of Taxes...........(24)
Section 3
The Taxes Appellate Tribunal is duty bound to dispose of the cause brought to it by way of appeal, on merit and it can only direct the Deputy Commissioner of Taxes to comply the order as he disposed of, on merit, in the appeal, since the provision of section 3 of the Income Tax Ordinance 1984 has mandated the Taxes Appellate Tribunal to that effect................(25)
Section 160(1)
It cannot be treated that the legislature has only conferred a power upon the Taxes Appellate Tribunal to remand the case by setting aside the impugned order and not to dispose of the same on merit by the Taxes Appellate Tribunal itself, since the Taxes Appellate Tribunal is the highest and final appellate authority in the department subject to reference jurisdiction of the High Court Division under the provision of section 160(1) of the Income Tax Ordinance 1984...........(26)
Section 93
The Inspecting Joint Commissioner of Taxes meaning herein the Inspecting Additional Commissioner of Taxes, acting under the provision of section 2(36) of the Income Tax Ordinance 1984, being a higher authority of the Deputy Commissioner of Taxes under the provision of section 5(3) of the Income Tax Ordinance 1984, is empowered to approve the proceeding and assessment made under section 93 of the Income Tax Ordinance 1984 as provides under the provision of sub-section (2) of section 93 of the Income Tax Ordinance 1984..................(28)