Reopening of assessment - Validity of approval granted by the CIT - earlier Revision u/s 263 dropped - Subsequently Reopening of assessment u/s 147 initiated on two grounds, first fair value of land/transferable development rights relating to 24,872.83 sq. mtrs. of land and the second one is the diminution in the value of investment in a subsidiary and debit by petitioner from the profit and loss account - HELD THAT:- The second point in the reasons for reopening has already been considered by the Principal Commissioner of Income Tax - 14 when he wished to review the assessment order under Section 263 of the said Act and the Principal Commissioner of Income Tax - 14 has also passed an order directing the proceedings initiated under Section 263 of the said Act to be dropped and the Revenue Audit to be accordingly informed that the objectio....... + More

Revision u/s 263 by CIT - Eligibility of benefit of exemption to assessee Trust on its income being charitable Trust - As per CIT no verification or enquiry was made by the AO even on reasons for scrutiny selection and exemption was allowed without verification of charitable nature of activities of trust? - HELD THAT:- The respondent Trust is a registered charitable trust. AO for the assessment year 2016-17 accepted the return filed by the trust and granted exemption as applicable under law - CIT took the said order in revision u/s 263 and held that the activities of the trust were not charitable in nature but were commercial activities and therefore denied the exemption. This order was carried in appeal and Tribunal by the impugned judgment reversed the judgment of the Commissioner primarily on the ground that the registration of the Tru....... + More

Reopening of assessment u/s 147 - eligibility of reasons to believe - valuation of shares of petitioner which was issued to its parent company Zoetis Pharmaceutical Research P. Ltd. and expenses as cost of samples under the head Advertisement and Business Promotion - HELD THAT:- Valuation of shares as per discounted cash flow method and addition under Section 56(2)(viib) of the Act, in our view it is nothing but change of opinion Petitioner has annexed to the petition a letter dated 23rd December, 2016 and another letter dated 26th December, 2016 where petitioner has given details of the shares issued by the company, provided valuation report issued by Deloitte Haskins & Sells and also explained why the provisions of Section 56(2)(viib) of the Act was not applicable. After considering these points the assessment order dated 28th Decem....... + More

Validity of Reopening of assessment u/s 147 - Existence of reason to believe - eligibility of reasons to believe - allowability of expenses under the head ‘Employee Cost’ - HELD THAT:- There can be no duality of opinion that it is the assessee’s duty to disclose all primary facts. Once the assessee discloses all the primary facts, the inferences to be drawn thereon is a matter within the exclusive province of authority of the Assessing Officer. This duty of assessee does not extend beyond disclosure of primary facts. The assessee is not expected to suggest an inference on those facts, correct or otherwise. In a given case, the fact that the assessee had suggested a particular inference, which upon reconsideration, does not find favour with the Assessing Officer subsequently, may not furnish a justifable ground to hold th....... + More

Disallowance of interest u/s 36(1)(iii) - interest paid on loans borrowed for the purpose of acquisition of fixed assets were not put to use - Assessee failed to produce the proofs of the machinery put to use - onus was on the assessee to prove that the borrowed capital was actually put to use and there is commencement of a business from the installed machineries and asset as well as the working capital is also poured into the business - CIT-A deleted the addition - HELD THAT:- It is an admitted fact that the assessee company had commenced operation, worked at 20% of its capacity which clearly denotes that the assets were put to use and the fact that there is no outstanding capital in working progress as on 31.03.2012 also goes to prove this fact. Thus, there is no evidence on record to say that the assets were not put to use. The mere fa....... + More

Income from house property - assessability of notional income from the unsold flats held as ‘stock in trade’ in the case of the assessee whose business is construction and sale of residential properties - Addition u/s 22 r.w.s. 23(4) on account of deemed rent in respect of unsold units held as stock in trade by the appellant company - as argued the appellant company had held these unsold units as stock in trade and hence, as these units were occupied by the assessee for its business purpose, there was no reason to tax the annual value of such unsold units u/s 22 - HELD THAT:- No change in facts and law subsequent to the decision of Kumar Properties and Real Estate [2021 (4) TMI 1163 - ITAT PUNE] was brought to our notice. Hence, we have no reason to take a different view from the view taken by the Coordinate Bench of this Trib....... + More

Penalty u/s. 271(1)(c) - bogus purchases - as during the survey assessee had admitted to disclose additional income on account of bogus purchases - survey was included in the return of income filed by the assessee in response to notice u/s 148 - HELD THAT:- As decided in own case [2019 (8) TMI 991 - ITAT PUNE] perusal of statement recorded during the course of survey also reveals that it was stated that assessee firm had made actual purchases from the market for which it had received the bills from the parties and had also made payments through account payee cheques but since assessee was unable to prove the genuineness of the purchases to the extent required by the Revenue, and in order to avoid litigation and buy peace of mind, the income was offered by the assessee. It is a fact that the income declared during the course of survey was ....... + More

Exemption u/s 11 - rejecting the application filed under Form No. 10A seeking registration u/s. 12AA - HELD THAT:- This Tribunal in the case of Sant Zolebaba Sansthan Chikhali [2021 (1) TMI 999 - ITAT PUNE] held the issue of grant of registration and the assessment of income of trust are distinct and separate, by placing reliance in the case of Ananda Social and Educational Trust [2020 (2) TMI 1293 - SUPREME COURT] which held the mandate of the provisions u/s. 12AA of the Act is to examine whether objects of the trust are charitable in nature or not and the activities of the trust are genuine. In the present case as discussed above the CIT(Exemption) did not point out anything against the objects and genuineness of the activities of the trust but however rejected the registration on the basis of incorrect finding that no returns of income....... + More

Reopening of assessment u/s 147 - Addition u/s 68 - AO not accepting the agricultural income shown by the assessee - HELD THAT:- Since Assessing Officer failed to provide the reasons for reopening of assessment to the assessee, respectfully following the above decision in the case of CIT v. Videsh Sanchar Nigam Ltd., [2011 (7) TMI 715 - BOMBAY HIGH COURT] to hold that reassessment is bad in law and accordingly the re-assessment order passed u/s. 143(3) r.w.s. 147 of the Act is quashed as bad in law. The additional ground raised by the assessee is allowed. Borrowed satisfaction - A.Y. 2010-11 - Reasons recorded are based on borrowed satisfaction and not on any satisfaction of the Assessing Officer. This is clear from the fact that the Assessing Officer has in the reasons recorded stated that the agricultural land is transferred in the name....... + More

Exemption u/s 11 - rejecting approval u/s 12AA - assessee trust while filing the online application for grant of registration u/s 12A had on account of a bonafide mistake, inadvertently stated at Column 5a of its application in “Form No. 10A” that its case was that of registration under clause (ab) of sub-section (1) of Sec. 12A - HELD THAT:- We concur with the ld. A.R that the assessee trust which had filed an application seeking grant of registration u/s 12A of the Act, had inadvertently, on account of a bonafide mistake stated in its application in “Form No. 10A” that the same was filed under clause (ab) of sub-section (1) to Sec. 12A of the Act. Backed by the aforesaid facts, we are of the considered view, that in all fairness the matter requires to be restored to the file of the ld. CIT(Exemption) for de novo ....... + More

Revision u/s 263 by CIT- Taxability of shares received by way of Gift - Assessee claims that it is not chargeable to tax under section 56(2) (viia) - PCIT held that there is a lack of enquiry by the assessing officer - HELD THAT:- Provisions of section 56 (2) (viia) itself provides about taxability of receipts of assets without consideration or with inadequate consideration in the hands of certain companies. Therefore, the finding of the ld PCIT that a company cannot make gift is devoid of any merit and we are not shown that it is supported with any provisions of law. In view of overwhelming judicial precedents cited before us, we are of the view that there is no bar against the company giving its properties as Gift. The provisions of section 56(2)(viia) specifically deals with receipt by a firm or a private company of any property being ....... + More

Unexplained investment u/s 69 - stock was not recorded in the books of account of the assessee and acquired out of unaccounted income - admission of undisclosed income - whether the provision of section 115BBE of the Act are applicable on the surrendered income? - HELD THAT:- CIT(A) on examination of the fact, settled judicial precedence, also appreciating that the alleged income is business income earned by the assessee during the normal course of its business and was part of the total business stock available at the business premises and also observing that provisions of section 115BBE of the Act are applicable from 01.04.2017 and are thus not applicable on the case of assessee as the search was carried out on 15.12.2016 CIT(A) find that the alleged excess stock was not kept separately at any other place and was part of the total busine....... + More

Revision u/s 263 - As per CIT action of the A.O. in granting depreciation and interest expenditure as deduction is not in accordance with provisions of section 44AD(2) - PCIT has also expressed the view that the dropping of penalty u/s 271A of the Act was clearly on a wrong appreciation - HELD THAT:- Assessee furnished a reply dated 27.8.2018 contending that the CBDT has not prescribed books of accounts required to be maintained for the purpose of section 44AA read with Rule 6F(1) for civil contract works. The assessee also placed reliance on case of Sammurai Techno Trading Company Pvt. Ltd.[2009 (11) TMI 938 - KERALA HIGH COURT] wherein it was held that even where books of accounts are not maintained, section 44AD percentage of 8 can be guideline for estimation of income from civil works though the section 44AD is not applicable A.O. aga....... + More

Suppressed production of pan masala (containing tobacco) - HELD THAT:- Lower authorities had rightly worked out the suppressed production of the assessee company at 3,44,85,310 pouches by adopting the deemed production on the basis of which excise duty was charged on it. In fact, as observed by us hereinabove, in case the assessee had any reason with him as to why the suppressed production was not to be determined on the aforesaid basis, as was specifically brought to his notice by the A.O, then, it was open for him to have come forth with an explanation as regards the same, which we are afraid he had not done. On the basis of the aforesaid facts, we are of a strong conviction that the CIT(A) had rightly upheld the suppressed production as had been determined by the A.O. We, uphold the order of the CIT(A) who in our considered view had ri....... + More

Disallowance u/s 14A r.w Rule 8D - suo moto disallowance made by assessee - Whether disallowance u/s 14A be restricted to the extent of the exempt dividend income? - HELD THAT:- We are principally in agreement with the claim of the ld. A.R that the amount of disallowance u/s 14A cannot exceed the amount of the exempt income - the disallowance u/s 14A be restricted to the amount of the exempt dividend income that was received by the assessee during the year, therein, direct the A.O accordingly. Amount paid by an assessee towards “Education Cess” or any “Other cess” viz. the Secondary and Higher Education Cess - Whether disallowable expenditure u/s 40(a)(ii) ? - HELD THAT:- We find that the said issue is squarely covered by the recent order of the Hon’ble High Court of Bombay in the case of Sesa Goa Limited [20....... + More

TP Adjustment - TPO has applied benefit test in dealing with the issue of ALP of payment for SAP license - HELD THAT:- Discussions by the TPO are not at all sustainable in the context of determination of ALP in Transfer Pricing Adjustment. This has been held by Hon’ble jurisdictional High Court in several case laws as referred by the Ld. Counsel of the assesse in the submissions as above. Furthermore, determination of ALP as nil by applying the benefit test without resorting to the methodology of determining ALP as per the methodology set out in Chapter X of the Act and the relevant Rules has also been held to unsustainable. In these circumstances, the determination of ALP as nil has been held to be not sustainable in the case laws from Hon’ble Bombay High Court as above including CIT vs.Lever India Exports Ltd. [2017 (2) TMI ....... + More

Addition u/s 14A r.w.r 8D - disallowance made by invoking Rule 8D(2)(iii) of the I.T. Rules is for administrative and common expenses when the assessee derives exempted income - HELD THAT:- In the instant case, in each of the assessment year’s huge investments are made which is given rise to exempted dividend income. Investment decisions are very complex and strategic which requires administrative support. Assessee would have incurred administrative expenses such as salary, wages, general expenses, stationery etc. Therefore, it cannot be said that no expenditure was incurred for making the said investments. Hence, we confirm the disallowance made by the AO by invoking provisions of section 14A of the I.T. Act r.w. Rule 8D(2)(iii) of the I.T. Rules. Disallowance of indirect interest expenditure by invoking the provisions of section 1....... + More

Adjustment made u/s.143(1) - incorrect computation of allowable MAT credit u/s 115JAA - set off of MAT credit inclusive of surcharge and education cess and recompute the tax payable by the assessee for the year under consideration - HELD THAT:- Format ITR-6 was amended from A.Y. 2012-13 wherein the tax liability in Part-B -TTI both under normal provisions and under MAT provisions computed including surcharge and cess. MAT credit is computed automatically using the prescribed algorithm which is nothing but the balancing figure i.e. different between tax liability and MAT liability including surcharge and cess. Therefore, post A.Y. 2012-13 as the format of ITR-6 is so designed to compute MAT credit automatically using the prescribed algorithm i.e. difference between tax liability and MAT liability including surcharge and cess is a balancing....... + More

Disallowance of interest expenses under the provisions of section 36(1)(iii) - Whether the land acquired by the assessee on deferred payment basis and interest paid on the outstanding amount of purchase consideration, does the outstanding amount represent the borrowed fund? - HELD THAT:- A perusal of the above provisions reveals that the entire interest cost has to be capitalized if it was incurred in connection with the capital asset. Thus, without going into the provisions whether it relates to the expansion/extension of the business, interest cost cannot be allowed as revenue expenses in the given facts and circumstances. Accordingly, we do not find any infirmity in the order of the authorities below. Thus we uphold the same. Hence the ground of appeal of the assessee is dismissed. Rectification of mistake u/s 154 - Accrual of income -....... + More

Reopening of assessment u/s 147 - unaccounted investment in the land was based on the documents seized from the premises of 3rd party - Use of materials seized and the statement furnished by the third parties against the assessee - HELD THAT:- The answer stands in affirmative. It is for the reason that the opportunity for the rebuttal to the assessee for the seized documents and the statements recorded under section 132(4) of the Act are sine qua non in order to meet the principles of natural justice. This requirement has to be complied with by the revenue even in a situation where the assessee does not demand for the seized materials/statements recorded under section 132(4) of the Act if revenue seeks to make the addition on the basis of such material and statement. It is for the simple reason that the documents which have been relied up....... + More

Late payments towards EPF and ESI u/s 36(1)(va) - Payment before furnishing the return of income under section 139(1) - HELD THAT:- Since the facts involved in the present case are identical to the facts involved in the case of Mohangarh Engineers and Construction Company Vs. DCIT [2021 (9) TMI 1319 - ITAT JODHPUR] and in the case of Bikaner Ceramics Private Limited, Bikaner [2021 (9) TMI 1319 - ITAT JODHPUR] - So respectfully following the aforesaid referred to order, the disallowances sustained by the Ld. CIT(A) are deleted - Decided in favour of assessee.

Addition on account of client code modification done by the broker to shift the profit - whether such client codes were modified at the instance of the assessee or there was some punching error at the end of the share broker? - HELD THAT:- Admittedly client codes were modified of the assessee as per the information received from the investigation wing - It is because the stock exchange permits the share broker to rectify the mistakes occurred while punching the data. If that be so, then there cannot be any fault which can be attributed to the assessee for the mistakes committed by the share broker. The client code modifications give rise to the doubt/ suspicion which requires detailed investigations from the parties concerned to reveal the truth. Merely, there were client codes modifications carried out by the broker cannot the basis to d....... + More

Violation of the scheme of faceless assessment u/s 144B - requirement of giving an assessee a reasonable opportunity of personal hearing - HELD THAT:- A quasi judicial body must normally grant a personal hearing as no assessee or litigant should get a feeling that he never got an opportunity or was deprived of an opportunity to clarify the doubts of the assessing officer/decision maker. After all confidence and faith of the public in the justness of the decision making process which has serious civil consequences is very important and that too in an authority/forum that is the first point of contact between the assessee and the Income Tax Department. The identity of the assessing officer can be hidden/protected while granting personal hearing by either creating a blank screen or by decreasing the pixel/density/resolution. Consequently, th....... + More

Entitlement to have the amount released u/s 451 of the Cr.PC - claim was made by the petitioner by relying upon Section 132-A(i)(c) of the Income Tax Act - interim custody of the article or asset produced before the learned Magistrate during the course of investigation in a crime - petitioner as sent a notice to the Sub Inspector of Police, Thirunelly in this regard, but by the time the notice was served upon the Sub Inspector of Police, who has seized the amount from the 2nd respondent, the amount was already deposited before the Judicial First Class Magistrate Court, Mananthavady - who is the proper person with whom the amount can be entrusted? - HELD THAT:- Even if the amount which is the subject matter of the dispute in this case is released to the petitioner herein, there is a specific procedure contemplated for getting the amount re....... + More

Unexplained income - petitioner was asked instructions as to whether the petitioner was willing to deposit any amount as a condition for setting aside the impugned order and to remit the case back to the respondents to pass a fresh de novo order - respondents submits that the petitioner has been negligent in not responding to any of the notices and the information sought for and that repeated notices remained unanswered - HELD THAT:- The petitioner has made out a case for interference as the impugned order has been passed based on the assumption that the amount urging in the petitioner's account during the period were “an unexplained income” of the petitioner. The fact remains that the two officers had left the petitioner and thus the petitioner could not reply to notice. The fact that the petitioner will have to be wound ....... + More

Refund of IGST - refund has been declined for the reason that the writ applicant had availed drawback at the rate of 1.10% - HELD THAT:- The Special Leave Petitions are accordingly dismissed.

Rejection of refund application - Validity of Rule 90(3) of Central Goods and Services Tax Rules, 2017 and paragraph 12 of the impugned Circular dated 18th November, 2019 - ultra-vires of Section 54 of the CGST Act or not - seeking a direction to consider the application for refund filed by the petitioner - rejection of refund solely on the ground that the refund application filed after removal of deficiencies was beyond the prescribed period of two years - HELD THAT:- Mr. Sahid Hanief, learned counsel accepts notice on behalf of the respondents No.2 to 4. Mr. Satish Kumar, learned counsel accepts notice on behalf of the respondent No.5. List on 17th January, 2022.

Maintainability of petition - availability of alternative remedy of appeal - It is submitted that the petitioner has already deposited the tax and by not accepting the submissions and explanations, it amounts to double taxation which is not permissible - HELD THAT:- The petitioner has a remedy of filing an appeal before the GST Tribunal in terms of Section 112 of the U.P. GST Act, however, till date the Tribunal has yet not been constituted in the State of Uttar Pradesh and in this view of the matter, the petitioner is constrained to file the present writ petition before this Court. The matter requires consideration - the instant petition is admitted. List this matter on 28.02.2022.

Unblocking of Electronic Credit Ledger - period of one year as prescribed under sub-rule 3 of Rule 86A of the CGST/GGST Rules has elapsed from the date of order of blocking of the Electronic Credit Ledger - HELD THAT:- Sub-rule 3 of Rule 86A of the CGST Rules, 2017 and GGST Rules, 2017 itself has provided that the Electronic Credit Ledger can be blocked for a period of one year. On expiry of a period of one year, it would automatically get unblocked. In fact, it was the duty of the authority concerned to permit the assessee, i.e. the writ-applicant, to avail the input credit available in his ledger. Once the statutory period comes to an end, the authority has no further discretion in the matter, unless a fresh order is passed. In the case on hand, it is very unfortunate to note that despite the fact that the period of one year elapsed, th....... + More

Input tax credit - claim and availment of bogus ITC on the basis of fake invoices by creating and operating 13 fictitious firms - offences under Sections 132(1)(b),(c)&(l) of the OGST Act - HELD THAT:- As per the materials on record, the petitioner allegedly obtained GST registration vis-à-vis the fake business concerns in collusion with other accused persons by utilizing and forging the personal identity documents of the so called proprietors. The nature and extent of involvement of the petitioner with regard to the alleged transactions is clearly evident and figured out from the materials on record. In so far as the offence under Section 132 OGST Act is concerned, it is in relation to GST fraud alleged to be for an amount of ₹ 319.64 crore, wherein, the petitioner is said to be involved by creating and operating fictiti....... + More

Validity of Show cause notice - jurisdiction - Inadmissible transitional credit - Education Cess (E Cess) - Secondary & Higher Education Cess (SHE Cess) - Krishi Kalyan Cess (KK Cess) - HELD THAT:- Division Bench decision of the Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. Vs. Union of India & Ors., [2021 (11) TMI 157 - BOMBAY HIGH COURT] to contend that the issue raised herein is no more res integra and, therefore, approaching the appellate authority under the statute would be an exercise in futility. Learned counsel for the Revenue is directed to seek instructions as to whether the Bombay High Court decision continues to hold the field or has been challenged further by the Revenue so that this Court may decide the question of alternative statutory remedy available under the Act. Let the case be taken up on 25.01.2022.

Lifting of provisional attachment levied by the Respondents on 11 October 2019 under Section 83(2) of the CGST Act - Period beyond one year - HELD THAT:- The Hon’ble Supreme Court in case of M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT] has dealt with this issue in detail and has approved the decision taken by Gujarat High Court in case of VALERIUS INDUSTRIES VERSUS UNION OF INDIA [2019 (9) TMI 618 - GUJARAT HIGH COURT]. It is held by the Hon’ble Supreme Court that the power to order a provisional attachment is entrusted during pendency of the proceedings under any of the specified provisions under Sections 63, 64, 67, 73 or 74. It is when a proceeding under any of these provisions is pending that a provisional attachment can be ordered. It is held that under sub-se....... + More

Maintainability of appeal to present petition - uploading of appeal on the appropriate portal or not - HELD THAT:- It appears that the petitioner also filed a hard copy before the respondent Appellate authority but the Appellate authority under Annexure-7 refused to accept the same as an appeal purportedly since on verification of the portal of the State GST no such appeal was found thereon. This Court need not enter into the niceties of law in this respect. Factually, the petitioner had uploaded an appeal may be before the wrong portal but it is obligatory on the part of the authorities concerned in such an event to bring it to the notice of the appellant that the appeal has been filed before the wrong authority so that the appellant can take necessary action in the said regard. It appears from the record that the appellant was unaware t....... + More

Seeking condonation of delay in filing Refund claim - both appeals filed on 14-12-2020, being delay of 18 days and 20 days from the normal period prescribed under Section 107(1) of the CGST Act, 2017 - HELD THAT:- On going through the Appeal Memo, it has been observed that the said orders were communicated to the appellant on 26-8-2020 and 24-8-2020 and appeal filed in the instant matter to this office on 14-12-2020 which is delayed by 18 days and 20 days from the prescribed time limit as provided under Section 107(1) of the CGST Act. However, considering the unavoidable circumstances, the delay is condoned in accordance with Section 107(4) of the CGST Act, 2017 - appeal is now proceeded on merits of the case. Whether amount for which refund was filed, is in the nature of Pre-deposit or Tax? - HELD THAT:- In the instant case rather contes....... + More

Refund of input used in exported goods by Sea - rejection of refund claim mainly on the ground of being time barred - Section 54(1) of CGST Act, 2017 - N/N. 35/2020-C.T., dated 3-4-2020 as amended vide N/N. 55/2020-C.T., dated 27-6-2020 - HELD THAT:- Initially the appellant has filed the refund application on 27-8-2020 for the period April, 2018 to August, 2018 in category of Rule 89[4(4B)] of CGST Rules, 2017 of inputs used in exported goods. In the instant matter the EGMs have been filed for the said export consignments are on or before 31-8-2018 the meaning thereby the export goods leaves India on or before 31-8-2018. As per customs procedure EGM means (Export Goods Manifest) a document which are filed by the carrier of the export consignment before the departure of the carrier (shipments, airlines, etc.,) and it is considered as proof....... + More

Maintainability of petition - availability of alternative remedy - ex-parte order - sufficient opportunity of hearing provided or not - violation of principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, an opinion is formed that the order is bad in law. This we say so, for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. The impugned order is set aside - petition allowed.

Levy of GST on services provided by Head Office to its Branch Offices/Units - Valuation - input tax credit - common input supplies on behalf of other unit/units registered as distinct person, and further allocation of the cost incurred for same to such other units - necessity of obtaining registration as an ISD - determination of assessable value for facilitation of common input services - HELD THAT:- The GST Law has provided a very wide connotation for services, which will cover any activity other than those, which involves goods, money and securities. In view of this wide scope and coverage of the term “services”, it is adequately evident that the impugned activities of providing facilitation services to their branch offices/units by way of availment of the common input services by the Appellant' Head office on behalf of....... + More

Classification of supply - supply of goods or supply of services - sale of plots - valuation of supply - rate of tax - whether mere value addition done to land will change the nature of land from immovable property and to goods taxable under the cover of supply? - HELD THAT:- Firstly, that the roads, poles or drainages constructed by seller of land are at no time transferred to the purchaser of sub divided developed plot. These amenities will be available for use to every plot holder without any title to it. Further, these amenities in turn will be gifted to the local authority as mentioned by applicant and thereafter, the local authority will be the owner of such road and/ or electricity poles - Secondly, the sub divided plots sold will be merely on the basis of rate per sq. mts. of land being the actual land area of the plot and not on ....... + More

Levy of GST - amount of Royalty and District Mineral Fund Contribution paid by them to the State of Jharkhand in respect of minor mineral lease - reverse charge mechanism - HELD THAT:- Apex Court in M/S. LAKHWINDER SINGH VERSUS UNION OF INDIA & ORS. [2021 (11) TMI 336 - SC ORDER], that the petitioners herein, lessee of minor mineral, also raised similar issues of levy of GST on royalty and District Mineral Fund Contribution, we deem it proper to grant similar interim relief (s) to the petitioners herein. Learned counsel for the Respondent CGST and State of Jharkhand are allowed three weeks' time to file counter affidavit in the matter. One week time thereafter is allowed to the learned counsel for the petitioners to file reply, if so advised. Petition disposed off.

Transition of Input tax credit - mistake in filing Tran 1 - It is the case of the petitioner that instead of making a proper entry against 7(a) of Tran 1, the petitioner has made an entry in 7(d) - HELD THAT:- In this case, the petitioner had filed the Tran 1 in time with certain mistakes and the petitioner had also made an another attempt to rectify the mistake on 27.12.2017. Thereafter, the petitioner had also filed a writ petition before this Court but withdraw the same under bonafide relief with the issue would be resolved before the IT Grievance Redressal Committee (IT-GRC) constituted by the GST Counsil and pursuant to an interim order of this Court dated 26.03.2019. The petitioner having made a mistake in filing the GST returns on 10.11.2017 was entitled to revise such declaration and submit a revised declaration in GST electronica....... + More

Territorial Jurisdiction - Search and seizure - multiple agencies have carried out search operations - centralisation of investigation with DGGI, AZU - HELD THAT:- In the present set of writ petitions, the respondents have explained that to bring investigation under one umbrella, the DGGI AZU sought transfer of investigations being carried out by different Commissionerate(s) to itself. This was acceded to by each Commissionerate in both the writ petitions. We have not been shown any prohibition in the CGST Act or the SGST Act to such transfer of investigation. Neither it has been contended that the DGGI, AZU, would otherwise lack jurisdiction to carry out an investigation against the petitioners. It is not denied by the petitioners that the DGGI, AZU has a pan-India jurisdiction. DGGI, AZU would, as Central Tax Officer and in compliance w....... + More

Seeking grant of Bail - bogus ITC was claimed on the strength of fake invoices without physical receipt and supply of goods - Section 132(1)(c) of CGST Act, 2017 - HELD THAT:- In the instant case, the petitioner was arrested on 05.08.2021 for an offence punishable under Section 132(1)(c) CGST Act, 2017 having availed fake ITC by the firm M/s. Arshee Ventures during the period from July, 2017 to March, 2019. As is made to understand, the business premises of the firm was searched and inspected in the year 2018 by CGST Intelligence Wing and the petitioner’s statement was recorded and was further examined on couple of times once in the year 2019 and soon before his arrest in the month of August, 2021 and in the meantime, final PR was submitted on 5th October, 2021. The petitioner is claimed to be the authorized agent of M/s. Arshee Ven....... + More

Seeking set aside the summons issued to Ms. Tanuja Gomes - seeking direction to the Respondents to conduct an enquiry without initiating summons and interrogation unless found extremely necessary and only by due adherence of the law - HELD THAT:- A perusal of the reply to the question 34 of FAQs dated 15 December 2018, issued by GST Department would clearly indicate that issuance of summons is a last resort and are not issued in a casual manner. There are no allegations made by the Respondents alleging non-cooperation on the part of the Petitioner - A perusal of the averments in para 7.1 indicates the said summons was issued only in view of the statement made by Shri Piyush Patel which was recorded under Section 70 of the CGST Act 2017, that the decision regarding payment of taxes and claiming of exemption was taken by the director Ms. Ta....... + More

Issuance of pre-consultation notice - writ applicant was asked to remain present for the purpose of pre-consultation, the writ applicant was not in a position to respond in a short period of time - HELD THAT:- Our attention has been drawn to a recent pronouncement of this High Court in the case of DHARAMSHIL AGENCIES VERSUS UNION OF INDIA [2021 (7) TMI 1064 - GUJARAT HIGH COURT] wherein a Co-ordinate Bench of this Court observed that the exercise of pre-consultation should not be a mere eye-wash. Pre-consulation should be meaningful. Let Notice be issued to the respondents, returnable on 23.02.2022.

Principles of natural Justice - No sufficient time was afforded to the petitioner - ex parte order - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This is for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. Impugned order is set aside - petition allowed.

Classification of imported goods - Echo 4th Generation - Echo Dot 4th Generation - Echo Dot 4th Generation with Clock - Echo Show 5 - Echo Show 8 -Echo Show 10 - Echo Flex - Echo Studio - Echo Auto - Echo Link) - Echo Link Amp - classifiable under Customs Tariff Item 8517 62 90 or not - effective rate of duty - benefit of Serial Number 20 of Notification No. 57/2017-Cus., dated 30-6-2017, as amended by Notification No. 3/2021-Cus., dated 1-2-2021 on import of Echo Show 5, Echo Auto, Echo Flex, Echo Dot 4th Generation and Echo Dot 4th Generation with Clock. Echo 4th Generation - Echo Dot 4th Generation - Echo Dot 4th Generation with Clock - HELD THAT:- The principal function of the three devices, namely, Echo 4th Generation, Echo Dot 4th Generation and Echo Dot 4th Generation with Clock is to reproduce sound and act as speaker. Admittedly,....... + More

Classification of import goods - preparation of betel nut commonly known as Supari - API supari, Chikni supari, unflavoured supari, boiled supari and boiled & cut supari together - whether or not containing added ingredients such as food starch spices, mulethi. menthol (flavours), perfume etc. - not containing lime or katha (catechu) or tobacco - goods classifiable under Chapter/Heading 2106 90 30 as Food Preparation or not - HELD THAT:- It is admitted that boiling is an irreversible process, a boiled betel nut would be distinct from unboiled betel nut, and a boiled betel nut cannot be “unboiled” in reverse. However, it is equally obvious that boiling per se does not result in obtaining a preparation of betel nut. Speaking more generally, in view of the design of the Schedule to the CTA, HSN and plethora of judgments, besi....... + More

Valuation of imported goods - Rejection of transaction value - enhancement of transaction value of imported goods by 20% instead of 77% for the years 2013-14 to 2016-17 - re-determination of adjustment, in the transaction value on the basis of deductive value and computed value of the goods imported by the respondent-dealer - HELD THAT:- The contentions remain untenable because the Tribunal has dealt with the matter in meticulous details and has pointed out substantial basis for its findings that the transaction value shown by the respondent and that of the ASD cannot be treated as comparable at commercial level and quantitative level; and has also pointed out that the promotion activity was undertaken only by the respondent for which, it was earning higher discount. The Tribunal has also found that the difference gradually decreased from....... + More

Cancellation of bail granted - Smuggling of Wrist Watches - burden to prove under Section 123 of the Customs Act, 1962 - offences under sections 132 and 135 of Customs Act, 1962 - HELD THAT:- It is settled that once bail granted should not be cancelled in a mechanical manner without there being any supervening circumstances which are not conducive to fair trial. It cannot be cancelled on a request from the side of the complainant/investigating agency unless and until it is established that the same is being misused and it is no longer conducive in the interest of justice to allow the accused any further to remain on bail. No doubt, the bail can be cancelled only in those discerning few cases where it is established that a person to whom the concession of bail has been granted is misusing the same. In the instant case, there are no allegat....... + More

Smuggling - illegal export through Saurashtra coastal area - silver - scooter - car - HELD THAT:- Adjudication proceedings undertaken for attempted export has ended in favour of the applicant and silver is ordered to be returned back to the applicant by the appellate authority against the order of adjudicating authority - These proceedings remained pending for about 31 years from the date of filing of the aforesaid revision application as also for nearly about 38 years from the date of commission of an offence. Much water might have flown thereafter and the applicant might have settled in his life, no useful purpose would be served asking him to undergo further sentence of nearly 19 months, if at all, he has to undergo the same - Though adjudication proceedings were initiated for an attempted export which was not believed because goods we....... + More

Classification of imported goods - plastic bubble toy or plastic toy - Request for waiver of demurrage/storage/warehouse charges - HELD THAT:- The Bill of Entry is pending assessment since 19.10.2021. Whether the imported goods are parts of plastic bubble toy or plastic toy, is to be determined by the Assessing Officer. In fact, the nature of product which has been described in the Bill of Entry does not require a certificate of the Chartered Engineer. However, a sample was referred by the second respondent to a Chartered Engineer who has given a report on 02.12.2021. Thus, adequate materials are available before the first respondent (Assessing Officer) to decide the correct classifications and whether the imported goods are restricted/prohibited - Considering the fact that, the impugned Bill of Entry has not assessed for a very long peri....... + More

Seeking refund of deposit - the amount is deposit or duty? - provisional assessment as a security to the bond executed by the appellant - time limitation - unjust enrichment - Section 27 of Customs Act, 1962 - HELD THAT:- Under the Head of Account it is a customs duty which was paid under account heading No.0037 and also in the description coloumn it is clearly mentioned that the deposit of amount is equal to 20% of provisional duty therefore, the amount of ₹ 16,39,458/- has been paid as customs duty only therefore it is not a deposit as has been claimed by the appellant but it is a custom duty. Since in view of the documentary evidence, it is established that the amount for which refund was sought for by the appellant is not a deposit but it is a duty. Therefore, the refund is clearly governed by Section 27 of the Customs Act, 1962 therefore, all the provision of limitation and unjust enrichment, etc is clearly applicable. Appeal is dismissed.

Jurisdiction - power of DRI authorities to issue SCN - goods imported by the assessee should be rejected or not - show-cause notice proceedings have lingered on for unduly long time - Section 28 of the Customs Act, 1962 - HELD THAT:- In the present case, the question of lack of jurisdiction of the DRI authorities issuing the impugned show-cause notice is squarely covered by the decision of the Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT]. In the said case, this issue came up for consideration and was decided that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands ....... + More

Benefit of Exemption - Rig trident imported in April 1988 - benefit of Notification No. 516/86 dated 30.12.1986 on the strength of the essentiality certificate issued on 21.12.2011 much after the validity of the notification - HELD THAT:- In the instant case, the impugned goods were imported in 1988 and the goods were seized and such seizure was upheld by this Bench and was affirmed by the Apex Court. The appellants were not in the possession of the essentiality certificate at the time of import or at the time of filing of Bill of Entry; the essentiality certificate was applied and issued at a much later date after the expiry of the Notification and there too by a different authority which was not prescribed under the Notification claimed. Therefore, the facts of the cases referred are different and therefore any reliance placed upon them....... + More

Quantum of penalty levied under Section 114 (iii) of the Customs Act, 1962 - fraudulent export as goods were grossly undervalued - rejection of declared value - appellant’s alleged offence is that he has submitted the Shipping Bill duly signed by him wherein, the value was declared exorbitantly higher side - confiscation of goods - HELD THAT:- The valuation was not done by the appellant, the appellant have signed the shipping Bill only on the authorisation of his employer firm M/s. MAZDA GLOBAL, the value was taken from the invoice which was prepared and signed by the Proprietor of M/s. MAZDA GLOBAL Smt. Bharti J Gandhi which was sent to the appellant by Shri Amish Gandhi. The appellant being an employee of the M/s. MAZDA GLOBAL has no reason to dispute the valuation as the original valuation was finalized by his employer M/s. MAZDA....... + More

Smuggling - yellow material found in the baggage - applicability of proviso contained to Section 129 A (1) of the Customs Act - HELD THAT:- The proviso clearly stipulates that no appeal shall lie to the appellate tribunal and the appellate tribunal shall not have jurisdiction to decide any appeal in respect of an order referred to in Clause (b) of Section 129 A (1) if such order relates to goods imported or exported as baggage. In fact, a perusal of the Section 129DD indicates that a revision may lie before the Central Government. As the Tribunal does not have the jurisdiction to decide the appeal, it stands dismissed.

Classification of group of goods - measuring devices, namely flowmeters - to be classified under CTH 90.26 or not - benefit of Notification No. 24/2005-Customs, dated 1-3-2005 (Sl. No. 31). HELD THAT:- The applicant has explained the basis of grouping of the instruments/devices and each group of products are intended for different applications/industries. For example, the Cubemass group of products are for chemical/petrochemical industries while Dosimass are for personal care/F&B industries. Two expert opinions, from Fluid Control Research Institute, Palakkad. Kerala; and Institute of Chemical Technology, Mumbai arc also confirming the applicant’s stand in respect of the instruments manufactured by their Aurangabad plant. In this case, there are two different possible headings for classification of the impugned devices/instrumen....... + More

Benefit of concessional rate of duty - import of stainless-steel scarp - Entry No. 333 of the Notification No. 12/2012-Cus., dated 17-3-2012, as amended vide Notification No. 25/2013-Cus., dated 8-5-2013 - HELD THAT:- A perusal of the tariff shows that Notification No. 12/2012-Cus., dated 17-3-2021, as amended was superseded vide Notification No. 50/2017-Cus., dated 30-6-2017. Therefore, the applicant’s initial contention that there has been no factual change in respect of the application since its original filing doesn’t appear to be correct - the said notification has been amended several times since and the amendments carried out vide Notification No. 2/2021-Cus., dated 1-2-2021 are significant in the context of the present advance ruling application. The effect of the amendments carried out w.e.f. 1-2-2021 is that the bene....... + More

100% EOU - Process amounting to manufacture or not - labelling and repacking of the imported goods - inter-unit transfer - Chartered Accountants Certification is sufficient proof for co-relating to the transfer and receipt of goods or not - applicability of CBEC Circular No.314/30/97/CE dated 06.05.1997 - HELD THAT:- There is considerable force in the arguments advanced by the learned counsel for the respondent inasmuch as the goods said to have been diverted from Bengaluru unit to Venkatapur unit, both being 100% EOUs. On this inter-unit transfer of the raw material, the issue is squarely covered by COMMISSIONER VERSUS SUNIL KUMAR JAIN [2015 (9) TMI 1687 - SC ORDER] confirmed by the Hon'ble Apex Court. The finding of the Tribunal is based on this judgment and the same cannot be faulted with - Similarly, no exception can be found with....... + More

Import of Antique item - idol/statue - baggage rules - confiscation of a four headed and eight “armed metal idol” imported by the petitioner from Bangkok - goods declared as a non-Antique in the Baggage Declaration form - HELD THAT:- The petitioner has no objection if the said idols/statutes in question are handed over to Archaeological Survey of India free of charge for disposal in accordance with Point No.17.9 of Disposal Manual 2019 issued by the CBIC. The petitioner will neither claim ownership of the said idol/statute nor release of the same. Statement is accepted. In this backdrop, since the petitioner agreed not to claim ownership of the said idol/statute and in view of the Revenue agreeing to hand over the possession of the said statue to Archaeological Survey of India under the provisions of Disposal Manual 2019 issue....... + More

Jurisdiction - power to issue SCN - It is the case of the petitioner that the respondent no.5 has no jurisdiction to issue any notices of demand which are impugned in this writ petition - HELD THAT:- The respondent nos.4 and 5 and their subordinate Officers are directed not to proceed with the impugned demand notices dated 18th August, 2021 and 30th August, 2021 annexed at Exhibits ‘O’ and ‘Q’ respectively and not to proceed with the investigation proposed by them pursuant to the impugned demand notices against the petitioner in respect of 13 vessels which are already assessed by the respondent no.3 at Mumbai till 31st March, 2022. The respondents are at liberty to apply for vacating the order in the event of any order passed in their favour by the Hon’ble Supreme Court in the review petition thereby reviewin....... + More

Service of SCN - It is the case of the petitioner that the notice itself was received at the first date fixed for personal hearing - Violation of principles of natural justice - Board Circular dated 10.03.2017 bearing Circular No.1053/2/2017-CX (F.No.96/1/2017-CX.I) - HELD THAT:- The procedure adopted in fixing the personal hearing immediately after issuance of the show cause notice without giving adequate time to the petitioner to reply, itself shows that the respondent was in a hurry to pass orders mechanically. Indeed the order passed by the respondent is mechanical as there is no discussion - the procedure adopted by the respondent is clearly contrary to the circular issued by Central Board of Excise & Customs vide Circular No.1053/2/2017-CX, dated 10.03.2017. The case is remitted back to the respondent to pass speaking order within a period of four week from the date of receipt of a copy of this order - Petition allowed by way of remand.

Intermediate products - staple fibers - expansion of meaning of the term staple fiber at Sl.No.10 of Notification No.30/2004 dated 09.07.2004 to include tow in total disregard to meaning of staple fibers as is understood in the trade parlance - benefit of captive consumption in notification no.67/95 dated 16.03.1995 - rule 6 of CENVAT Credit Rules 2004 - Staple Fiber at Sl.No.10 of the Notification No.30/2004 dated 09.07.2004 is applicable in respect of the polyester top falling under the head 5506/5507 or not - interpretation of notification no.30/2004 CE dated 09.07.2004 which clearly provides at Sl.No.10 exemption is available if goods falling under the tariff hearing 5506/5507 are manufactured from staple fibers procured from outside subjected to carding, combing or any other process required for spinning by the manufacturer who does ....... + More

100% EOU - Inter-unit transfer of goods - main ground urged by the Revenue that the condition of the notification for not using the capital goods on inter unit transfer was not complied with, cannot be countenanced since the said imported goods were undisputedly used by the importer M/s Verifone India Pvt. Ltd., from 1990-2001 till the merger of the respondent - company with M/s Verifone India Pvt. Ltd. - time limitation - HELD THAT:- It is well settled that all notifications are prospective in nature, in the absence of giving any retrospective effect specifically, no retrospective effect could be given to the exemption notifications - Secondly, the assertion of the department that no warehousing period was extended for the goods in consideration is also held to be unjustifiable, warehousing licence granted to the respondent is examined b....... + More

Levy of Anti-Dumping Duty - Dumped Articles imported by the petitioner - case of the petitioner is that prior to the issue of the impugned Notification No.48 /2014 dated 11.12.2014, the petitioner had contracted with the overseas supplier for the import of the goods from Saudi Arabia - HELD THAT:- Anti Dumping Duty was sought to be imposed on Clear Float Glass imported from Saudi Arabia, UAL & Pakistan. The petitioner approached this Court after filing the Bill of Entry when the 2nd respondent insisted that the petitioner should pay Anti Dumping Duty in terms of the above notification. The goods were allowed to be cleared after an interim order came to be passed by this Court on 09.01.2015. It is the case of the petitioner that the petitioner is not liable to pay Anti Dumping Duty in terms of Notification No.48/2014 -Customs (ADD) dat....... + More

Sanction of Scheme of Amalgamation - Section 230-232 of Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with reagrd to issuance of various notices also issued. The scheme is approved - application allowed.

Seeking restoration of name of company in Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The Company has been active for the period of two years preceding the date of strike off and carrying on its business for the purpose of which it was incorporated. Taking into consideration the provisions of Section 252(3) of the Companies Act, 2013 which vests this Tribunal with a discretion where the Company whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when the name was struck off and also keeping in consideration that it is just to do so can restore the name of the Company in the register. The Registrar of Companies, Chennai is ordered to restore the original status of the Petitioner Company viz. M/s. Ezhil Blue Metals Pvt. Ltd. as if the name o....... + More

Alleged removal/resignation of the 1st petitioner - validity of resolutions passed at the Board Meetings/General Meetings which have been manipulated by the respondents with respect to shareholding/directorship/vesting themselves with authority - alleged amendment to the Articles of Association - discontinuation of as Director of the first Respondent Company on account of the gross breach of fiduciary duty - validity of appointment of Respondents second, four to nine as Directors - seeking permanent injunction restraining respondent 2 to 9 from functioning or acting as directors of the first respondent company or holding themselves out as directors of the first respondent company - validity of manipulation in the shareholding of the first respondent - shifting of Registered Office from Sanghinagar to the Corporate office at Hyderabad. HEL....... + More

Sanction of scheme of arrangement and amalgamation - section 230-232 of Companies Act - HELD THAT:- In view of the fact that all the unsecured creditors of all the applicant- companies have given their consent affidavits, the meetings of the unsecured creditors of all the applicant-companies are hereby dispensed with. Various directions with regard to holding and convening of various meetings issued - directions with regard to issuance of various notices issued. The scheme is approved - application allowed.

Winding up of the respondent-Company - failure to pay the debt of the petitioner under sections 433, 434 and 439 of the Companies Act, 1956 - Transfer of winding up petitions from the Company Court to be tried by the NCLT - HELD THAT:- It appears that after the order of admission and advertisement of the petition, no further orders are passed by the Court with regard to order of winding up of the company nor the Court has appointed the provisional Liquidator. In view of the following observations of the Apex Court in case of ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [2020 (12) TMI 535 - SUPREME COURT], this petition is required to be transferred to the NCLT, Ahmedabad. The Company Petition No. 102 of 2006 is accordingly transferred to the National Company Law Tribunal, Ahmedabad Bench. Registry to forward the papers to the Tribunal within a period of Eight weeks from today along with order - Application allowed.

Revival of petition - wilful breach - settlement of disputes between the parties - HELD THAT:- It is seen from the records that the present Application for revival of the main Company Petition was filed before this Tribunal on 10.07.2018 and from thereon the Corporate Debtor has sought numerous adjournments by paying a paltry sum towards the dues of the Operational Creditor in each and every hearing. Further, it is seen from the Order of this Tribunal dated 17.09.2020, a last opportunity was given to the Corporate Debtor to pay a sum of 17.5 million Japanese Yen to the Operational Creditor within a period of four weeks thereof. However, it is seen that the Corporate Debtor was also not able to adhere to the said timeline even after expiry of a period of one year. All these facts would go on to show that the Corporate Debtor has violated t....... + More

Oppression and Mismanagement - reconstitution of shareholders at a meeting of the shareholders of the Company to be convened by and conducted under the supervision of this Tribunal - direction to place for consideration or the shareholders all related party transactions for the years 2015-16, 2016-2017 and 2017-18 in a meeting of the shareholders of the Company to be convened by and conducted under the supervision of this Tribunal - direction to refund to the Company all amounts in related party transactions which do not obtain the approval or the shareholders in a meeting of the shareholders of the Company to be convened by and conducted under the supervision of this Tribunal - reopening of financial statements - HELD THAT:- When a company enters into a related party transaction, covered under Section 188 of the act, this requires the co....... + More

Sanction of the Scheme of Amalgamation - Section 230(6) read with Section 232(3) of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regards to issuance of various notices also issued. The scheme is approved - Application allowed.

Sanction of Scheme of Amalgamation - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- The Scheme contemplated between the petitioner companies, appears to be prima facie in compliance with all the requirements stipulated under the relevant Sections of the Companies Act, 2013. In the absence of any objections before us and since all the requisite statutory compliance have been fulfilled, this Tribunal sanctions the scheme of amalgamation appended as Annexure-A1 with the company petition. Notwithstanding the submission that no investigation is pending against the petitioner companies, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners. The scheme is approved - application allowed.

Seeking the convening of a general meeting of the Respondent Company - Seeking to appoint an Independent Chairman for the meeting so ordered to conduct the meeting in a professional and impartial manner - HELD THAT:- The Board Meeting and AGM may not proceed without creation of hurdles by either side and therefore it is directed that an independent Chairperson shall chair the aforesaid Board Meeting and AGM, supported by a Scrutinizer, assisting in Secretarial tasks inter-alia for attendance, proxy, polling, etc., and they shall jointly file a report before this Bench on the proceedings of the Board Meeting and AGM. Though the Scrutinizer shall mainly assist the Chairperson in the AGM, he shall also assist in the Board meeting for contextual continuity. The Agenda for AGM shall be limited to the presentation/finalisation of the accounts f....... + More

Seeking removal from the Director Board of Kerala Chamber of Commerce and Industry - seeking direction for continuation as Director even after knowing the office of director held by them is vacant - validity of resignation of director - supersession of Board of Directors of the R1 Company by the NCLT appointed Chairman - HELD THAT:- If the office of any Director appointed by the Company in General Meeting is vacated before his term of office expires in the normal course, the resulting vacancy may, in default of and subject to any regulations in the Articles of the company, be filled by the Board of Directors at a meeting of the Board which shall be subsequently approved by members in the immediate next General Meeting. Any person so appointed shall hold office only up to the date up to which the Director in whose place he is appointed wou....... + More

Seeking direction to 1st Respondent to furnish the copies of the Minutes Book of the Annual General Meetings held since incorporation - denial of the representation twice as per Section 119 (3) of the Company's Act, 2013 - Petitioner's claim is that to the request made by him, no reply is received - HELD THAT:- The minutes book has to be maintained by the Company at their registered office and it shall be made available for inspection to the members on their request. The petitioner itself stated that he made a request through post but the same was returned by the postal authorities - The Respondent is a public Company incorporated on 15.03.1937. The company is required to admit the request made by a shareholder by way of an application to the company specifically stating the reason for refusal of the request within the stipulated ....... + More

Reduction of Share Capital of Company - Section 66 of Companies Act - HELD THAT:- The present position of law, while dealing with the provisions of Section 66 is that if none of the shareholders are objecting for the proposed reduction, then after considering the merits of the case as also connected facts and circumstances such petition normally deserves to be admitted. In the case of Elpro International Limited [2007 (6) TMI 292 - HIGH COURT OF BOMBAY], Hon'ble Bombay High Court has expressed that the question of reduction of share capital is the matter of domestic concern of the company. Further observed that decision for reduction is based on commercial consideration undertaken by the businessmen who are in the best position to know of the necessities and interests of the company concerned, in the absence of serious allegations as ....... + More

Sanction of scheme of Amalgamation - section 230(1) read with section 232(1) of the Companies Act, 2013 - HELD THAT:- Various direction with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Oppression and mismanagement - Seeking to declare the petitioners as directors of the said company and allow the petitioners to take charge as the directors of the company - seeking direction to respondents not to restrain the petitioners from the company premises - seeking direction to 2nd and 3rd respondents not to take any action restraining petitioners taking charge as directors of the said company - seeking direction that the appointment of respondents 2nd and 3rd as null and void - seeking to allow the petitioners to perform all the duties as directors of the said company - Section 241 &242 of the Companies Act, 2013. HELD THAT:- The majority shareholders are expected to exercise their voting powers to self-remedy, before relying on any statutory provisions to protect themselves from oppression by the minorities. The statutory r....... + More

Sanction of Scheme of Arrangement - Section 230-232 of Companies Act. 2013 and other applicable provisions of the Act read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- This Bench holds that depending on the facts and circumstances of each case, the NCLT has the powers to dispense with the meetings of shareholders and others by using judicial discretion. Various directions with regard to holding, convening and dispensing with various meetings issued - directions regarding issuance of various notices also issued - the scheme is approved. Application allowed.

Seeking revival of the Rajasthan State Agro Industries Corporation Limited. - Sections 391 & 443 of the Companies Act, 1956 read with Sections 230 and 273 of the Companies Act, 2013 - voluntary winding up was sought earlier - HELD THAT:- This Court finds that though Sub-clause (c) of Section 434 of the Act, 2013, speaks of transfer of certain proceedings to the National Company Law Tribunal including the proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of the Companies pending before the High Court, however, in the present case, since the order of winding up has already been passed of a Government Company and the State files an application for recalling the order passed by this Court of winding up, the same can be done by the High Court. The application filed by the State of Rajasthan des....... + More

Scope of 'deposits" - advances received towards sale consideration of immovable property - alleged violation of Section 73 of the Act read with Companies (Acceptance of Deposits) Rules, 2014 - HELD THAT:- Basing on the complaints lodged by one Guruzala Venkateswara Rao on various dates alleging that the 1st petitioner company has been collecting deposits through various schemes and has defaulted in refund of matured amounts to the depositors, the 1st respondent ordered inspection of the 1st petitioner Company - there are considerable force in the contention of the petitioners that the said Guruzala Venkateswara Rao foisted many false complaints against the 1st petitioner company in order to settle his personal scores with the 1st petitioner and the other group of companies. Further, the said Guruzala Venkateswara Rao is neither a....... + More

Seeking to register the transfer of shares - seeking rectification in the register of members to include the applicants herein - payment of dividends as applicable on the transferred shares to the applicants from the year 2012 till date - HELD THAT:- Section 58 of the Companies Act, 2013 deals with the Refusal of Registration and appeal against the Refusal, whereas Section 59 of the Companies Act, 2013 deals with Rectification in the Register of Member. It is evident from the records that the alleged shares were purchased by the petitioner in the year 2012 itself. As per section 58(4), the application has been filed within limitation period i.e. within 60 days from the intimation from the 2nd Respondent as RTA agent of the 1st Respondent is dated 18.01.2020 and was received by the applicants on 28.01.2020, The applicants filed an appeal b....... + More

Approval for the Scheme of Amalgamation - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- After analysing the Scheme in detail, this Tribunal is of the considered view that the scheme as contemplated amongst the petitioner companies seems to be prima facie beneficial to the Company and will not be in any way detrimental to the interest of the shareholders of the Company. In view of the absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal sanctions the Scheme of Arrangement commonly appended as Annexure "5" with the Company Petitions as well as the prayers made therein. The scheme is approved - application allowed.

Validity of resolution passed at the 12th COC Meeting - CoC had rejected the Applicant’s request for extension of time to submit the Resolution Plan - HELD THAT:- The Minutes of the 12th COC Meeting established that the CoC offered to the Appellant to continue to be a part of the ongoing process so that it may have an opportunity at any later stage. The Appellant had sought 15 minutes time for discussion and thereafter decided not to participate in the open bidding process and exited the Meeting. Thereafter the CoC went on to approve the Resolution Plan submitted by M/s. Om Logistics Ltd./R-8. We find force in the contention of the Learned Counsels for the Respondent that if one of the Directors of the Appellant Company Mr. Naresh Agarwal had tested Covid positive, there are no substantial reasons given for any of the other five Dir....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Since the application filed by the Applicant fulfilled all the conditions required under Section 7 of the Code, this Tribunal ordered issue of notice to the Respondent by all modes. No one has represented on behalf of the Respondent. Despite service of notice by all modes, none appeared on behalf of the Respondent and as a result the Respondent was proceeded ex-parte by order dated 12.10.2021. The Applicant has established the existence of debt and default on the part of the Respondent and the Respondent has not availed the opportunities provided by this Tribunal to defend the arguments made by the Applicant. In view of the above situation, this Tribunal admits this petition and initiates CIRP on the Respondent with immediate effect. Application admitted - moratorium declared.

Seeking a permission for conducting the Private Sale of the Assets of the Corporate Debtor - Regulation 33(2) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- Since, the Applicant is in the process of selling the said property under private sale to a related party of the Corporate Debtor, not barred under Section 29A of the IBC, 2016. Where is no objection and multiple attempts of public auction by the Liquidator, this bench is of the view that this is a fit case for granting the permission for private sale of said property as the proposed buyer is related party as under Regulation 33(2) of the Regulations - the present Application is allowed by permitting private sale of said property as under Regulation 33(2) of the Regulations.

Seeking approval of Resolution Plan - Seeking consideration of its application on priority before approval of resolution plan - resolution professional has failed to discharge his obligation to assess the applicability of section 29A of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- For secured financial creditors, unsecured financial creditors and employees, 100 per cent. payment is given whereas to operational creditors, only 2 per cent. of the admitted amount is given. The fair value and liquidation value of the corporate debtor are ₹ 5,643.26 lakhs and ₹ 4,561.66 lakhs respectively. The amount given to the operational creditor is more than liquidation value. In form H in column No. 2 of clause 7, payment to unsecured financial creditors who voted in favour of the resolution plan has been mentioned as ₹ 4,17,7....... + More

Dissolution of the Corporate Debtor - Section 54 of the Insolvency and Bankruptcy Code, 2016 (1 & B Code'), r/w Regulations 44 and 45 of IBBI (Liquidation Process) Regulations, 2016 - HELD THAT:- The Applicant states that no distribution has been made to the stakeholders in the absence of assets available for sale. Further, no unsold property has been distributed to any stakeholder of the CD - the Applicant further states that on 12.05.2020, the applicant has submitted the Second Progress report of liquidation process of the CD, along with the asset memorandum of CD, copy of preliminary report and receipt of submission of preliminary report, copy of public announcement made in the newspapers and copy of progress report. In compliance with the applicable provisions of the Code, final report under Regulation 45 of the IBBI (Liquidat....... + More

Revival of Corporate Debtor - Seeking direction to allow the Applicants a fair opportunity to submit their Resolution Plan and participate in the CIRP - registration as MSME was obtained by the employee - HELD THAT:- It is admitted that MSME Certification was obtained behind the back of the RP and the person who applied for the said registration was never authorised either of board of directors or by the RP. Nowhere in the response, the RP has questioned the basic criteria based on which an enterprise can be registered as an MSME unit and whether the Company is eligible to be registered as MSME Unit at all. Admittedly it is not in dispute that the CIRP in relation to the Corporate Debtor was ordered by this Tribunal vide order dated 13.11.2020 and the Applicant through its employees have obtained the MSME Certificate on 02.12.2020 i.e. mu....... + More

Preferential transaction - Maintainability of the Avoidance Application - ‘Corporate Debtor’ constitute ‘preferential transaction’ as per Section 43 of the I&B Code or not - no contention can be raised that the shares are an asset of the ‘Corporate Debtor’ and that they were taken over by the Resolution Plan - HELD THAT:- This ‘Tribunal’ opines that there shall be ‘no interim order’ and that the contentious factual and legal issues/controversies (centring around the Appeals), require a detailed final hearing, of course, after providing due opportunities to all the parties (including unserved Respondents) to complete the pleadings, in the instant Appeals, like filing of ‘Replies, Rejoinders’, etc. Let notice be issued to Respondent No.4 to 11 in Comp Appeal (AT)((C....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- Since the Corporate Debtor has not responded to the said notice and has not given any proof of existence of any dispute or payment made to the Operational Creditor within 10 days, the Corporate Debtor has lost the golden opportunity provided to the Corporate Debtor under the Code. The Corporate Debtor, however, filed reply to the petition and in the reply also all the vague grounds and averments have been mentioned in its defence. None of the grounds mentioned in the application or submitted by the Ld. Counsel appearing for the Corporate Debtor satisfies to grant any relief to the Corporate Debtor. Corporate Debtor has failed to make the payment of the outs....... + More

Seeking liquidation of the Corporate Debtor - CIRP period has expired and no resolution plan was received by the Committee of Creditors - HELD THAT:- Section 33(1) of the Code enjoins the Adjudicating Authority to pass an order for liquidation of the Corporate Debtor where before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution process the Adjudicating Authority does not receive a resolution plan under sub-section (6) of section 30. The Corporate Debtor is allowed to be liquidated - application allowed.

Liquidation of the Corporate Debtor - non-receipt of resolution plan - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It would appear that despite all possible steps as required under the Code taken during the CIRP. The CoC in its wisdom has resolved in favour of the liquidation of the Company. This Authority has no reason before it to take a contrary view in terms of Section 33(2) of the Code. Therefore, there are no option than to pass an order of liquidation of the Company in the manner laid down in Chapter-Ill of the Code. The Corporate Debtor i.e., M/s. Tejaswini Engineering Private limited shall be liquidated in the manner laid down in Chapter-Ill of the Code - Application allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- In the instant case there is no dispute that the Corporate Debtor had initially made part-payment of ₹ 6,79,680/- towards the goods purchased. The Corporate Debtor could not pay the remainder amount of ₹ 24,42,203/-. However, the said outstanding amount of ₹ 24,42,203/- has been paid by the Corporate Debtor, the details of which were furnished by the Corporate Debtor in its Memo dated 08.11.2021. Such payment has been confirmed by the Operational Creditor. The Corporate Debtor could not substantiate its claim of interest with any documentary proof, it is satidfying that before admission of an application under Section 9 of the I&B Code, 2016, the Corporate Debtor paid the total debt - application dismissed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- A pre-existing dispute regarding the material supplied by the operational creditor has been in existence, even before the reply to the demand notice has been issued remain unsubstantiated. Further we also observed from the record before us that even though the representatives of operational creditor and the corporate debtor have participated with Sintex in the triparty meeting the record does not show any dispute being raised by corporate debtor in any of the meetings. In fact for the first time a dispute has been raised in reply to the demand notice. Hence we find no force at all in the plea of the corporate debtor that there was a pre-existing dispute. Th....... + More

Initiation of CIRP Proceedings against the Personal Guarantor - Personal Guarantor has defaulted in payment of the dues within the statutory period of 14 days from the service of the demand notice - application has been filed through the Resolution Professional - HELD THAT:- It is clear that from the date of filing of this application i.e., 23.09.2021 by the Applicant, Interim Moratorium commences as stipulated under Section 96(1) of the Code in relation to all the debts of the Personal Guarantor. During the Interim Moratorium period: (i) any pending legal action or proceedings in respect of any debt shall be deemed to have been stayed; and (ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt. As per Section 96(3) of the Code, the provisions of sub-section 96(1) shall not apply to such....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Doctrine of stare decisis - existence of debt and dispute or not - HELD THAT:- Section 7 of the ‘I&B Code’ is special remedy provided to Financial Creditors. The Financial Creditor can take recourse to Section 7 when a default has occurred. Present is a case where Application under Section 7 has been filed when a default has occurred. The remedy under Section 7 is special remedy and the provision of ‘I&B Code’ has been given overriding effect from any other law or instrument. A reading of Section 238 indicates that provisions of the Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument ha....... + More

Maintainability of application - Actionable claim - vested right in respect of a ‘Fora’, albeit he has a ‘Actionable Right’ - Section 7 or 9 of of I&B Code - HELD THAT:- This ‘Tribunal’ aptly points out that a change in Law is undoubtedly a procedural one. A party is to resort to the change under the I&B Code, despite the fact that his/its actionable right of ‘cause of action’ had arisen earlier to an amendment that has been brought about, increasing the threshold limit to ₹ 1 Crore (vide Notification dated 24.03.2020) issued by the ‘Ministry of Corporate Affairs’ in S.O.1205€) for considering the Application filed under Section 7 or 9 of of I&B Code on after 24.03.2020, even if the ‘Debt’ is of a date prior to 24.03.2020. In law, a Party has no....... + More

Liquidation of Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Despite all possible steps as required under the Code taken during the CJRP, the CoC did not receive any viable resolution plan/proposal for revival of the Company. The CoC in its wisdom has resolved in favour of the liquidation of the Corporate Debtor. This Authority has no reason before it to take a contrary view in terms of Section 33 of the Code. Therefore, it has no option than to pass an order for liquidation of the Corporate Debtor to sale as going concern in the manner laid down in Chapter III of the Code. The Corporate Debtor, Belgium Aluminum & Glass Industries Private Limited, shall be liquidated - Application allowed.

Liquidation of Corporate Debtor - Section 33(2) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- In the present case, the Resolution Professional has published the Form G inviting the Expression of Interest (EOI) on 03.09.2020. Thereafter, few prospective Resolution Applicants have come forward showing their interest. However, both of the PRA(s) have withdrawn their EOI before submission of resolution plans. In the 7th meeting of CoC held on 30.12.2020, the CoC has decided to liquidate the Corporate Debtor by passing a resolution in the aforesaid meeting and further resolved to appoint Resolution Professional as Liquidator. In view of the satisfaction of the conditions provided under Section 33 of the Code, the Corporate Debtor i.e. M/s. Sainsons Pulp and Papers Limited is directed to be liquidated in the manner as laid down in....... + More

Rejection of interest amount claimed by the Applicant/Operational Creditor - Section 42 of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- It was the duty of the Applicant to produce the documents or evidence or clarification sought by the Liquidator in order to verify his claim for interest. In this case, even though the Applicant sought interest from the Liquidator, he could not produce any document that there was an agreement with the Corporate Debtor for charging interest on the delayed payments before they started purchasing materials from the Applicant. Moreover, even though the impugned order was passed by the Liquidator on 17.03.2021, this Application has been filed on 20.10.2021 beyond the period of 14 days for appeals under Section 42 of IBC. There are no error in the order passed by the Liquidator rejecting the interest claimed by the Operational Creditor, warranting interference by this Tribunal - application dismissed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - it is alleged that Appellant failed to produce proper authorisation for initiation of CIRP and has filed the Petition with false and fabricated documents - HELD THAT:- Keeping in view the definition of ‘Financial Debt’ as defined under Section 5(8) of the Code; the nature of transactions entered into between both the parties; that there are several transactions some executed on the same day, between ‘Satra Realty and Builders Limited’ and ‘Satra Properties Development Limited’ together with the admitted fact that the Respondent Company was a part of the ‘Satra Group’; that the Directorship is common in all the ‘Satra Companies’; it was only on 09.04........ + More

Approval of the Sale as a ‘Going Concern’ - Whether sale of Corporate Debtor as a ‘Going Concern, in Liquidation Proceedings includes its liabilities - Whether the Appellant herein can withdraw from the Bid after payment of the EMD and seek for refund of the amount paid on the ground that the offer made by the Bidder was a ‘conditional offer’ - HELD THAT:- Regulation 32 A of the IBBI (Liquidation Process) Regulations, 2016 states that Sale as a ‘Going Concern’ means sale of assets as well as liabilities and not assets sans liabilities. Paragraphs 3.2.1 and 4.2.1 of the afore-noted discussion paper amply specified that all assets and liabilities, which constitute an integral business of the Corporate Debtor Company would be transferred together and the consideration paid must be for the business of....... + More

Seeking grant of Anticipatory Bail - Money Laundering - ordinary offence under the Indian Penal Code - predicate offences - mandate of Section 45 of the PMLA Act coming into play or not - HELD THAT:- It is not a question of taking objection but the duty of court to examine the jurisdictional facts including the mandate of Section 45 of the PMLA Act, which must be kept in mind. It is deemed appropriate to set aside the impugned judgment and order and relegate the parties before the High Court for reconsideration of Criminal Petition afresh for grant of anticipatory bail filed under Section 438 of the Code of Criminal Procedure in connection with stated PMLA offence - The High Court may hear the remanded proceedings expeditiously, preferably within four weeks from the date of receipt of copy of this order. Appeal disposed off.

Seeking grant of Bail - Jurisdiction - predicate offence under Official Secrets Act - petitioner contends that the offences punishable under the Official Secrets Act not being the Scheduled Offences under the PMLA, ECIR recorded by the respondent and the arrest made pursuant to that as also the complaint filed is without any jurisdiction - Proviso to Section 45 of the PMLA - HELD THAT:- Indubitably, offences punishable under the Official Secrets Act are not in the list of Scheduled Offences under the PMLA. Whether the charge sheet filed in the predicate offence is for offences punishable under Sections 3/4/5 of Official Secrets Act read with 120B IPC or for Section 120B IPC substantively or whether in the absence of any charge sheet under Section 411 IPC having been filed by the Special Cell, Delhi Police, the respondent/Enforcement Direc....... + More

Money Laundering - proceeds of crime - Seeking default or Statutory bail - fraud and misappropriation of money - filing of the complaint by ED and also reserving the right to carry on further investigation and to file subsequent complaint as empowered u/s 44 Explanation (ii) of PML Act - incomplete investigation or filing of the complaint would be considered to be complete investigation for offence of money laundering - HELD THAT:- No doubt the investigation in the offence of money laundering involves tracing of different evidence of layering, padding, fabrication of documents etc. and this process requires unearthing of evidence and documents, analyzing the same and to ascertain the laundering of the proceeds of crime but once the accused has been arrested the onus lies on the Directorate to complete the investigation within the time fra....... + More

Money Laundering - Provisional Attachment order - approval of a Resolution Plan with an order approving liquidation under Section 33 when the plain language of Section 32A(2) of the IBC - HELD THAT:- List on 24th January, 2022 for hearing.

Seeking grant of bail - money laundering - proceeds of crime - bail sought on the ground that wife of accused was slipped in bathroom and was seriously injured - HELD THAT:- It has to be noted that the temporary bail is prayed on humane ground. Situation mentioned in the application indicates that, applicant is in jail since 23.01.2021. His bail application was rejected. He has two children, son and daughter. Son is aged 16 year and daughter is aged 11 year. There is no to look after them as their mother is admitted in the hospital. Acquaintances, who shifted her to the hospital have certain limitations and this fact cannot be ignored. Apart from this, it has to be noted that, in other offences for example offence against human body, family members of accused involved in offences against human body know well the background, conduct of the....... + More

Money laundering - scheduled offence - Siphoning of funds - ED has jurisdiction to investigate the scheduled offence or not - forged documents - HELD THAT:- It is material to note that, there is absolutely on justification for withdrawal of ₹ 1 Crore, that too when accounts were freeze as a part of conversion process. Even there is nothing before the Court to indicate that, Deepak Kumar Prajapati is any legal entity or holding any legal character. Even there is absolutely nothing before the Court to indicate any jural relation between applicant and Deepak Kumar Prajapati. Also there is no explanation nor any justification how cash amount was given to Deepak Kumar Prajapati (A4) and the same came to the applicant by way of loan or otherwise - there is a clear case which prima-facie indicates all the material stages of process of mone....... + More

Seeking grant of Bail - Smuggling - rule of presumption of innocence - Section 45(1) of the PML Act - constitutional validity of the provision - HELD THAT:- This Court is of the opinion that the declaration by the Supreme Court in Nikesh Tarachand Shah's [2017 (11) TMI 1336 - SUPREME COURT] would render the twin conditions prescribed in Section 45(1) of the PML Act for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception. They cease to be law and are rendered inoperative to the extent that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under Section 45(1) of the PML Act as are now sought to be pressed into service by the ED cannot be considered to have revived or resurrected only on the prospective....... + More

Seeking grant of Anticipatory Bail - property relating on the creation of mortgage/security - fake/bogus loans - no assets were created - loan turned bad NPA in the name of non existing/pseudonymous borrowers without adhering to the prescribed norms and guidelines of the Bank and causing wrongful loss - overriding effect of PML Act over other acts - HELD THAT:- PML Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering. Being a special enactment it has overriding effect on general law. Section 71 of PML Act specially provides that provisions of PML Act shall have overriding effect on any other law time being in force. Thus, it is very clear that provisions of Code of Criminal Procedure will not be applicable until there is no specific provision is given in P....... + More

Maintainability of petition - availability of alternative remedy of appeal - Validity of Provisional Attachment order - HELD THAT:- The writ petition is partly allowed by directing that, subject to the petitioners filing a statutory appeal before the Appellate Tribunal within a period of two weeks from today, the parties will maintain status quo qua the subject matter of the impugned order till the petitioners’ appeal and stay application are taken up for consideration by the Tribunal as and when it becomes functional.

Money Laundering - seeking grant of anticipatory bail - creation of shell companies - bogus bank accounts - Section 50 of PMLA, 2002 - HELD THAT:- Applicants before this Court are employees of Union Bank of India, Raipur posted at Ramsagarpara and Pandri Branches respectively. Applicants No.1 & 2 were posted in Ramsagarpara Branch, applicant No.3 was posted in Pandri Branch and applicant No.2 is posted at Pandri Branch. Allegations against them are that they being officials got the 446 bank accounts (in both branches) opened without properly following procedure prescribed and without verifying documents annexed along with account opening application forms. Allegation against applicants is that they verified application forms for opening of bank accounts. There is specific submission by learned counsel for both sides that there is no r....... + More

Jurisdiction under PMLA vs IBC - power or authority to proceed against the properties of a corporate debtor once a liquidation measure has come to be approved in accordance with the provisions made in the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The resolution plan essentially must make provision for the payment of debts of the corporate debtor owed to financial and operational creditors, workmen and others specified in Section 53 of the IBC. The resolution plans which may be received by the RP are then placed before the Committee of Creditors for their consideration. In terms of Sub-Section (4) of Section 30, a resolution plan may be approved if it is passed by a vote of not less than sixty percent of the voting share of the financial creditors in a meeting of the Committee of Creditors. The resolution plan as approved by the C....... + More

Money Laundering - provisional attachment of property - proceeds of crime - scheduled offences - offences under Section 45 read with Sections 70 and 8(5) of the Prevention of Money-Laundering Act, 2002 - HELD THAT:- The complaint by the Authorised Officer is akin to a private complaint under Section 200 of Cr.P.C. and it is not a final report by Police Officer under Section 173(2) of Cr.P.C. It is clearly stated in the complaint that it is filed by the Officer, who is duly authorized by the Central Government to file complaint in writing in tune with the second proviso to Section 45(1) of the PMLA. Both the Sections 44 and 45 of the PMLA commence with the non-obstante clause, indicating the complaint in writing by a duly Authorised Officer to be taken cognizance by the learned Special Judge without the accused being committed, notwithstan....... + More

Money Laundering - Validity of search operation held in the premises of the petitioner - pendency of investigation relating to the proceedings - main grievance projected by the petitioners is that the motive behind the search of their premises is to implicate them in some false case under the provisions of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The FEMA Act, which is a legislation for regulating the economic aspect, has been passed to consolidate and maintain law relating to foreign exchange, external trade and payments and for promoting orderly development of foreign exchange. Concededly, the petitioners have knocked the doors of this court by filing these writ petitions, against the proceedings initiated under section 37 of the FEMA Act and consequential action of investigation conducted by the third respondent. As r....... + More

Grant of pre-arrest bail - laundering of proceeds of crime - economic offences or not - HELD THAT:- Economic offences constitute a class apart and need to be viewed with a different approach in the matter of bail, as such offences are normally sourced in deep-rooted conspiracies involving huge loss of public funds and need to be looked at seriously, being grave offences that affect national economy as a whole and posing a serious threat to the financial health of the country. The irrefutable fact is that the present case originated from FIR No.5(3) 2018 dated 24.03.2018 and the evidence seized in connection therewith is already in the custody of the authorities. The petitioner has also been granted anticipatory bail in relation to the said FIR in August, 2019. Documentary evidence, which would be the fulcrum of the case, having already be....... + More

Money Laundering - siphoning of funds - petitioner being vexed for two times - offences punishable under Sections 409, 420, 468, 471 and 477 IPC and Section 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act - HELD THAT:- Merely for the reason that clause (a) of Section 44(1) states that Special Court is constituted for trial of offence under Section 4; it cannot be construed that the case has to be committed to the Special Court in accordance with Section 209 Cr.P.C. In the expression, 'without the accused being committed, the word 'committed' does not take the meaning as can be ascribed to it in the context of Section 209 Cr.P.C. Here expression takes the meaning that even without production of accused before the court or even in the absence of the accused, the Special Court can take cognizance. The petitioner being ....... + More

Seeking grant of bail - smuggling of drugs - MDMA pills - possession of the contraband exceeding the permissible limit - generation of proceeds of crime by collecting money from their customers in exchange for supply of illegal Narcotic Drugs, Psychotropic Substances, Controlled Substances and Conveyances - HELD THAT:- There is huge difference of cash deposits and declaration of income by the petitioner in his income tax returns. There is suppression of fact regarding the amount transferred in favour of accused No. 1. The conduct of the petitioner in getting the loan by paying interest from the banks by mortgaging the property and transferring the said amount to accused No. 1 is also suspicious - information that are collected from accused No. 1, the petitioner and other witnesses disclose that there is regular and huge transfer of amount....... + More

Money Laundering - proceeds of crime - possession of movable and immovable properties and pecuniary resources, disproportionate to the known source of income - predicate offence - Sections 13(2) r/w 13(1)(b) of Prevention of Corruption Act and Section 109 of IPC - HELD THAT:- The writ petitioners presume the impugned summon is for provisional attachment. Through this summon, the documents and details are sought from the petitioners in connection with investigation and there is no indication in the said summon that the authorities has reason to believe that the writ petitioners are in possession of proceeds of crime and same if not attached immediately, it will likely to frustrate proceedings under the PMLA. Even otherwise by virtue of second proviso to Section 5(1)(b) of the PMLA, the respondent has the competency and jurisdiction to issu....... + More

Money laundering - Freezing of petitioner's bank account - grievance of the petitioners can be addressed in the proceedings for continuation of freezing orders or not - urgency in the matter as salaries and statutory benefits of the employees have not been paid and the employees would suffer hardship - HELD THAT:- This Court is inclined to grant interim order to the extent of payment of salary to the employees of the petitioners. There shall therefore, be a direction to the respondents to permit the petitioners to operate the bank accounts to the extent of ₹ 2 crores, subject to their furnishing bank guarantee for the said amount. The petitioners are permitted to operate the bank accounts with respect to the amounts deposited on or after 12.10.2021, forthwith. Both the learned counsel agree that in terms of this interim order, t....... + More

Seeking grant of Anticipatory Bail - commission of a serious economic offence of money laundering - offence punishable under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- Looking to the facts and circumstances of the case; specially, to the fact that the petitioner had not challenged the order dated 17.09.2021 passed by the trial court. Petitioner is involved in serious economic offence, the principle of law enunciated by Hon’ble Apex Court in P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (9) TMI 286 - SUPREME COURT], but without expressing any opinion on the merits of the case, it is not considered to be a fit case to enlarge the petitioner on anticipatory bail. The anticipatory bail application filed by the petitioner is dismissed.

Stay against Attachment/Freezing of Bank Account of petitioner - stay against the criminal investigation and prosecution - HELD THAT:- If we revert back to the operative portion of the impugned order of learned Single Judge which is reproduced in the earlier portion of this order, what it says is that the respondents (that is the present appellant) are restrained from taking any coercive steps against the petitioner “as directed by the Supreme Court.” Firstly, this direction preventing the department from taking coercive action against the petitioner nowhere includes stay against the order of attachment imposed by the Department. In any case the order of attachment has not been challenged and could not have been stayed. Question of stay against the criminal investigation and prosecution - HELD THAT:- In view of the clarificati....... + More

Principles of natural justice - Action under SEBI Act - Attachment and freezing the bank accounts both, savings and term deposits - appellant would contend that no notice was issued to the appellant before issuing the order of attachment of the bank accounts - availability of alternative remedy of appeal to petitioner - HELD THAT:- The appellant seeks to bring his case within the ambit of the exception which has been drawn by the Hon'ble Supreme Court in WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI & ORS. [1998 (10) TMI 510 - SUPREME COURT] to show that the order of attachment is in violation of principles of natural justice and this argument is sought to be buttressed by referring to Section 226(3)(iii) of the IT Act. Be it noted that Section 226 of the IT Act deals with other modes of recovery. Sub-Section (1) o....... + More

Collective investment scheme without registration and in violation of the SEBI (Collective Investment Schemes) Regulations 1999 - recovery proceedings - Attachment orders - HELD THAT:- Attachment notice which has been issued by SEBI on 1 March 2021 was in order to implement the directions which have been issued by this Court under Article 142 of the Constitution. SEBI in that sense, as an expert statutory body, is exercising powers in pursuance of the mandate of this Court in order to protect the interests of the investors. This Court has created a mechanism by virtue of which, third parties who have objections, including to orders of restraint or attachment are facilitated in having their objections heard through the auspices of an officer appointed by this Court. Shri R S Virk, former District Judge, has been entrusted with the task. Re....... + More

Collective Investment Schemes - Petitioners seeking quashing of the show cause notices issued to the petitioners calling upon them to adduce evidence and clarifications in support of their contentions - HELD THAT:- SAT condemned the conduct of the petitioners on several grounds. It was observed that the petitioners have made misleading statements in the information memorandum only to lure the small time investors to remain invested in the Scheme and the petitioners continue to operate its Collective Investment Schemes even after the SAT passing the interim order. The petitioners successfully dragged the matter regarding the submission of the information memorandum from 2006 to 2014. The contention that Annexures-H and H1 are the show cause notices deserve no merit on the apparent reading of those documents. After receiving Annexures-H and....... + More

Simulatnaous Adjudication proceedings and criminal Prosecution - exoneration in adjudication proceedings is on technical ground and not on merit - Applicants have been exonerated in the adjudication proceedings on the allegations for which, they have been prosecuted by the SEBI - HELD THAT:- In the case of K.C. Builders (2004 (1) TMI 7 - SUPREME COURT)the Hon’ble Apex Court had taken a view that when there is categorical finding in the adjudication proceedings exonerating the person, it is binding and conclusive and thus, the Prosecution cannot be allowed to stand. In case in hand, the Applicants have been exonerated in the adjudication proceedings on merits and not on technical ground, and therefore the Prosecution for identical violation shall continue, if the order passed by Securities Appellate Tribunal is quashed and set aside ....... + More

Recovery proceedings - Offence under SEBI Act - Denial of natural justice - whether the recovery notice is sustainable in law? - HELD THAT:- The order does not fix any particular liability to be discharged by the writ-applicants. If upon such order recovery is sought to be undertaken of an amount then it was expected of the concerned authority to at least issue a notice to the writ-applicants and give an opportunity of hearing before arriving at a particular figure. The impugned recovery notice is hereby quashed and set aside. The matter is remitted to the respondent No.2. The respondent No.2 shall issue notice to the writ-applicants and fix a particular date so as to give an opportunity of hearing to the writ-applicants and thereafter determine a particular amount to be paid by the writ-applicants to the depositors in accordance with law.

Compounding of offence under SEBI Act Rejected - guidelines for compounding under Section 24A - Whether accused/Company has wound up and refunded the entire amount collected under scheme to all their share holders/ creditors? - HELD THAT:- Indisputably, the learned Judge neither referred to wind up repayment report dated 22nd February, 2019, nor the orders passed by this Court in Company Petition; nor SEBIs’ circular dated 20th April, 2007, nor the Court obtained the views of SEBI before denying to compound the offence. The order dated 28th August, 2019 below Exhibit - 11 in SEBI Special Case passed by learned SEBI Special Judge is quash and set aside. As a consequence, learned Judge shall decide the application below Exhibit-11, in accordance with guidelines of the Hon’ble Apex Court set out in the case of Prakash Gupta [2021 (7) TMI 971 - SUPREME COURT]

Validity of appointment of Grant Thornton Bharat LLP (GTB) as a Forensic Auditor in respect of the financial statements of the respondent No.2/company - conflict of interest - violation of the principles of natural justice - absence of cause of action within the jurisdiction of this Court for maintaining the present petition - HELD THAT:- The “cause of action” is a bundle of facts which when taken together, with the law applicable to the said facts, gives a right to the plaintiff to seek relief against the defendant. In other words, cause of action is premised on the existence of a group of facts put together that would entitle a plaintiff to approach the court for a remedy against the defendant. In UNION OF INDIA VERSUS ADANI EXPORTS LTD. [2001 (10) TMI 321 - SUPREME COURT], it was held by the Supreme Court that in order to c....... + More

Fraudulent and Unfair Trade Practices - settlement in terms of SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 seeked - HELD THAT:- Petitioners are entitled to move application for settlement even at the appellate stage. However, for the said purpose, the petitioners would have to move appropriate application before the appellate forum. The said applications thereafter be rooted to the High Powered Advisory Committee which may examine the aspect keeping in view the fact that other similarly situated two companies (supra) have been allowed to get the matter settled and settlement orders have been passed in relation to the other similarly situated companies (supra). The issue with regard to the condition as laid down by the Internal Committee can also be examined by the High Powered Advisory Committee and it may ....... + More

Violation of the provisions of the SEBI Act - What exact violations raised - HELD THAT:- On going through Exhibit P3 show cause notice issued by the Deputy General manager of SEBI dated 13th March, 2020, we could not locate any such eventuality, apart from the same being explanatory in nature, enabling an aggrieved person to identify the exact violations raised against him and submit a reply understanding the gamut of the issues. Learned single Judge has rightly dismissed the writ petition holding that SEBI has power to initiate action against the appellant for violation of the provisions of the SEBI Act, 1992 - minute intricacies of the issues raised in regard to the power of the Deputy General Manager of SEBI, the question of limitation etc. are all aspects to be considered by the statutory authority in terms of the provisions of Act, 1....... + More

Compounding of offence - Price rigging and insider trading in the scrip of the Company - IPO issues - SEBI’s Investigation and the criminal complaint - HELD THAT:- The nature of the allegations against the appellant are such so as to preclude a decision to compound the offences. We have adverted, in a considerable amount of detail, to the circumstances which have been narrated in the counter affidavit filed by SEBI. We find merit in the submissions which has been urged before the Court by learned Senior Counsel who appeared on behalf of SEBI that the allegations in the present case involved serious acts which impinged upon the protection of investors and the stability of the securities’ market. The observation in the order of adjudication of the Chairperson of the SEBI dated 22 September 2000, that no loss has been caused to t....... + More

SEBI powers to issue directions and levy penalty - trustee’s decision to wind up a scheme of the mutual fund - Interpretation of the term ‘consent’ in Regulation 18(15)(c) - HELD THAT:- The quotation highlights that interpretation is sometimes a three-stage process. At first, the words being interpreted should be understood according to their grammatical meaning in their literal and popular sense. In the second stage, we consider whether in the given context the plain meaning is obscure as the text gives rise to choice of more than one interpretation, or the propositional interpretation fails to achieve the manifest purpose of the legislation, reduces it to futility, is practically unworkable or even illogical. In such cases at the third stage, the court applying interpretative tools selects or blue-pencils an interpreta....... + More

Modes of charging fees to clients by Investment Advisors - Constitutional validity and vires of Regulation 3(XII) of the Securities and Exchange Board of India (Investment Advisors) (Amendment) Regulations, 2020 (“Amendment Regulations”), by which Regulation 15A was inserted into the Securities and Exchange Board of India (Investment Advisors) Regulations, 2013 and Circular issued in pursuance thereof, being Circular Reference No. SEBI/HO/IMD/DF1/CIR/P/2020/ 182 dated 23.09.2020 challenged - whether the Board has the requisite authority under the SEBI Act, in the first place, to make regulations concerning charging of fees by Investment Advisors from their clients? - challenge is on the footing of both want of legislative power in SEBI (by delegated authority) to make a provision such as regulation 15A or to issue a Circular s....... + More

Diversion of funds - Show cause notice for violation of the PFUTP Regulations, 1995 and 2003 - WTM found that misleading statement was made by the appellant which was violative of Regulation 5 of the PFUTP Regulations, 1995 - HELD THAT:- We are of the opinion that there has been an inordinate delay in the issuance of the show cause notice. Even though there is no period of limitation prescribed in the Act and Regulations in the issuance of a show cause notice or for completion of the adjudication proceedings, the authority is required to exercise its powers within a reasonable period as held recently in Adjudicating Officer, Securities and Exchange Board of India vs. Bhavesh Pabari [2019 (3) TMI 197 - SUPREME COURT] In the instant case, we are of the opinion that the power to adjudicate has not been exercised within a reasonable period an....... + More

Investment Adviser entitled to charge fees for providing investment advice from a client in the manner as specified by the Board - Constitutional validity of Regulation 15A of the Securities and Exchange Board of India (Investment Advisers) Regulations, 2013 which was inserted by Regulation 3(XII) of the Securities and Exchange Board of India (Investment Advisers) (Amendment) Regulations, 2020, as also the consequential paragraph 2(iii) of the SEBI Circular dated 23 September 2020 - HELD THAT:- Under section 19 of the SEBI Act, the SEBI is empowered to delegate its powers and functions by general or special order in writing to any member, officer of the SEBI or any other person subject to such conditions as specified by SEBI. Accordingly, the SEBI had issued SEBI (Delegation of Statutory and Financial Powers) Order, 2019 dated 31-07-2019 ....... + More

Delay of 5 years or more in initiating action by the SEBI - HELD THAT:- Issue of delay can also be looked into by the appellant - SEBI while passing a final order keeping in view the various judgments. It is not a case where the show cause notice has not been issued by a competent authority and only on the point of delay, the notice could not have been quashed in the manner and method it has been done. See MR. MUKKARAM JAN VERSUS SECURITIES EXCHANGE BOARD OF INDIA [2021 (1) TMI 1174 - KARNATAKA HIGH COURT] Petition preferred by the respondent against the show cause notice dated 20.10.2016 and notice dated 20.8.2019, was certainly a premature writ petition and therefore, the writ appeal is allowed. The order passed by the learned Single Judge is hereby set aside. The appellant SEBI is directed to conclude the proceedings within a period of....... + More

Ex-parte adinterim order - Section 11 and 11B of the Securities and Exchange Board of India Act, 1992 - HELD THAT:- The appeals are disposed of in terms of the signed order.

Offence under SEBI - complainant foisting vicarious liability upon the accused No.1 - criminal breach of trust of the complainant and sold its shares to their own Company - HELD THAT:- After applying a ratio laid down by the Hon’ble Supreme Court in the case of Iridium India Telecom Ltd. [2010 (10) TMI 85 - SUPREME COURT] it is clear that, the accused No.1-Morgan is a necessary party for proper adjudication of the complaint. It is to be noted here that, the Letter of Pledge (Agreement) dated 7th March, 2000 is executed by the Authorized Signatory of the complaint on behalf of it, in favour of the accused No.1 company and therefore also impleadment of Morgan (A-No.1) is necessary for proper adjudication of the present complaint. The contention that, the accused No.1 is being foisted with vicarious liability, is the defence and a spec....... + More

Fraudulent collective investment scheme - HELD THAT:- The applicants company and their agents were engaged in promoting the scheme of the company by selling certificates with a promise of higher rate of interest on the eventuality of the plans of term, hence, it can be said that the activity of the applicants' company appears to be covered under Section 2 (c) of the Act, 1978 and therefore, promotion of such scheme, which is banned under Section 3 of the Act, 1978 is punishable under Section 4 of the same Act, 1978, regarding which, there is sufficient evidence present for framing of charge against the applicants. As regards framing of charge under Section 10 of Protection of Depositors Interest Act, 2005, report of the Competent Authority does not appear to be a condition precedent for lodging of FIR or framing of charge against the ....... + More

Offence under SEBI Act - Recovery proceedings - Attachment orders - whether recovery proceedings can be initiated straight away under section 28A of the SEBI Act without issuing notice for adjudicating a dispute between the regulator and the appellants and without giving an opportunity to the appellants to contend that they are not associated companies of PACL? - HELD THAT:- Assuming that the Recovery Officer does have the jurisdiction to initiate recovery proceedings under Section 28A is it not necessary for the Recovery Officer to issue notice before proceedings with the recovery of the amount and, further whether attachment order could be passed without issuing any notice especially when there is no evidence in the impugned order that there is a possibility that the appellants would run away with the money. Appellants is a running Comp....... + More

Proceedings in terms of section 16(1) r/w sec. 13 of the Foreign Exchange Management Act, 1999 - contravention of the provisions of sections 3(b), 5, 6(2)(a) & 10(6) of FEMA r/w. Regulations 3 & 4(a) of the Foreign Exchange Management (Permissible Capital Account Transactions) Regulation 2000 in relation to a foreign exchange - HELD THAT:- After service of notice, the respondents having entered appearance through the Central Govt. Counsel vehemently oppose the petitions making submission in justification of the impugned notice & the complaint and in support of the reasons on which they have been constructed. As these Writ Petitions being devoid of merits, are liable to be dismissed and accordingly, they are, all contentions having been kept open. Petitioners are granted a period of four weeks for submitting their reply to the ....... + More

Pre-deposit requirement qua the petitioner - As petitioner submit that he in no way concerned with the affairs of the company after his resignation on 6-5-2006 much less with the agreement dated 21-6-2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory - HELD THAT:- As in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh. Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this Court, after issuance of show cause notice.

Foreign contributions - Prior permission u/s 11 to receive foreign contributions in the form of life saving equipment/articles for COVID-19 insofar as to expedite the relief work in our country - exemption to registered associations, organisations or persons, defined under Section 2(1)(m) of the Foreign Contribution (Regulation) Act, 2010 to receive foreign contributions - HELD THAT:- As exemptions and relaxations under different Statutes are not a matter of right. It is the prerogative power of the Government to exempt or give relaxations with or without stringent conditions. It is not for the Court to direct the Government to exercise the power in a particular manner. It is evident from the pleadings and not denied by the Learned Counsel for the Petitioner during the course of hearing that before filing the present petition, Petitioner ....... + More

Extension of tenure of Director of Enforcement - extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation - fixing the tenure for a minimum period of two years - procedure prescribed under Section 25 of the Central Vigilance Commission Act, 2003 (‘CVC Act’) - Whether there can be extension of tenure of a person who has been appointed as a Director of Enforcement for a period of two years and who has attained the age of superannuation in the interregnum i.e. before the expiry of two years? - HELD THAT:- Government servant shall retire on attaining the age of 60 years. Posts for which there can be extension beyond 60 years have been specifically mentioned in the Rule and there is no dispute that the post of Director of Enforcement is not mentioned in the Rule fo....... + More

Intimation by recipients of foreign contributions - Foreign Contribution Regulation Act, 2010 (“FCRA”) - peculiarities in the FC-4 Form, whereunder returns, regarding contributions received by beneficiaries under the Foreign Contribution Regulation Act, 2010 (“FCRA”) are required to be filed - petitioners’ accounts wherein foreign contributions were received were not in the SBI, till 7th October, 2020. As a result, the petitioners submit that it has become impossible for them to submit the return under FC-4 Form for the year 2019-2020.HELD THAT:- To a query from the Court as to how this situation could be remedied, Mr. Farman Ali, learned Counsel for the respondent, seeks a short adjournment in order to enable him to obtain instructions specifically on this aspect. However, he submits that no stay ought to be....... + More

Offence under FEMA - Distinction between the two stages of the adjudication process - eligible reasons by the respondent no. 1 for the formation of opinion to proceed with the inquiry against the petitioner - HELD THAT:- The Adjudicating Authority, under the Scheme of the FEMA, performs a quasi-judicial function as opposed to a purely administrative function. The requirement of giving reasons therefore cannot be undermined and must be insisted upon from the Adjudicating Authority. The reasons to be given for its opinion under Rule 4(3) of the Adjudication Rules to proceed with the inquiry though need not be as elaborate as in a Court decision or let’s say an order passed by the Adjudicating Authority under Rule 4(8) of the Adjudication Rules, but have to be adequate, proper and intelligible, sufficiently clear and explicit. They mus....... + More

Applicant in respect of Section 31(1) of FERA - time-limit for cognizance of any offence under FERA - suit for specific performance for dismissal of the suit and rejection of the plaint under Order VII Rule 11 of The Code of Civil Procedure, 1908 (CPC) on the ground that the suit is barred by law - HELD THAT:- The statement in the plaint has been made with reference to the letter dated 14th December, 1989 from the lawyers of the plaintiff to Helen Wilson which reveals that Helen Wilson was a foreign national and hence came within the statutory requirement of Section 31(1) of FERA. This letter also reveals that Helen Wilson may not have had the permission of the RBI or communicated such permission to the plaintiff as on 14th December, 1989 which would be corroborated by the letter of 8th October, 1993 of the RBI granting permission to Hele....... + More

Rejection of permission to remit foreign exchange - FEMA ODI Regulations - approval on the basis of the reservations expressed by ED - as the wholly owned subsidiary of the respondent has already taken the credit of foreign exchange from various lenders and the foreign exchange has already come to the country. It is only this foreign currency which is now being repaid by the respondent - Writ of Mandamus, directing Respondent to permit Petitioner to make additional commitments and payments of USD 300 Million to its wholly owned subsidiary namely Jindal Steel and Power (Mauritius) Limited by way of equity subscription or loan or corporate guarantee or bank guarantee or through other permitted mode from Indian Bank for meeting its debt obligations - HELD THAT:- We are of the view that the order of denial of permission dated 30.12.2019 based....... + More

Excisable goods or not - Superior Kerosene Oil - falls under Fourth schedule or not - seeking restoration of SVLDRS-1 declaration filed by the Petitioner - opportunity of personal hearing not provided - gross violation of principles of natural justice - HELD THAT:- The principles laid down in THOUGHT BLURB VERSUS UNION OF INDIA AND ORS. [2020 (10) TMI 1135 - BOMBAY HIGH COURT] are to be considered by the Respondents while deciding the Petitioner’s case, as to, whether Superior Kerosene Oil which was the subject matter of the said declaration under the SVLDRS scheme, falls under Fourth schedule or not and whether the said product is at all excisable or not. The Petitioner had also relied upon the communication dated 26/11/2019 from Shri Navraj Goyal, OSD (CX) clarifying that only the Petroleum Crude, high speed diesel, motor spirit, ....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Seeking to call for the records and directing the respondents to quash the impugned order - seeking issuance of discharge certificate in form SVLDRS-4 in respect of the arrears payable by the petitioner within a specified time frame - HELD THAT:- In the case in hand, if the attempt made by the petitioner to make the payment on 30.06.2020, being the last date of making the payment has become successful, certainly, the petitioner would have been in a position to get the declaration under the scheme, but in that attempt, the petitioner has failed, even though genuinely that attempt was made by the petitioner. In order to show the bonafide, the next day also, such attempt had been made to make the payment and in fact, the payment has been debited from the account, only after 24 hours, t....... + More

Recovery of service tax - supply of tangible goods for use [STGU] service or not - supply of diesel generators to customers on hire basis - period 01.04.2011 to 30.06.2012 - declared service involving “transfer of goods by way of hiring, leasing, licensing, or in any such manner without transfer of right to use such goods” under section 66E(f) of the Finance Act for the period 01.07.2012 to 31.03.2015 - whether the transaction between the Appellant and its customers would involve the transfer of right of possession and effective control or a transfer of right to use? - extended period of limitation - HELD THAT:- It can safely be said that under Sales Tax, there is transfer of possession and effective control in goods, while there is no such transfer of possession and effective control under service tax - the transaction betwee....... + More

Condonation of delay of 210 days in filing the appeal before the learned Commissioner(Appeals) - time limitation as per sub-section (3) of Section 85 of the Finance Act, 1994 - HELD THAT:- On a conjoint reading of sub-section (3) of Section 85 and the proviso appended thereto, it transpires that beyond the period of 6 months, the Commissioner(Appeals) is not empowered under the statute to condone the delay in filing the appeal. Admittedly, in this case, since there was delay of 210 days in filing the appeal before the learned Commissioner(Appeals), in our considered opinion, he has correctly rejected the appeal on the ground of limitation. Since the Tribunal is created and governed under the statute, the time limit prescribed in the statute cannot also be relaxed by it. Hon’ble Supreme Court in the case of SINGH ENTERPRISES VERSUS C....... + More

Maintainability of writ petition - Validity of show-cause notice and pre-consultation notice which have been issued without application of mind - waiver of pre-deposit on merits to file appeal and stay on the impugned demand - HELD THAT:- The impugned order is appeal-able under Section-73 of the GST Act read with Section-84 of the Finance Act. There is no good ground made out to directly entertain this writ-application questioning the legality and validity of the order in original. It prima-facie appears from the reliefs prayed for that if an appeal is filed, then towards pre-deposit the writ-applicant is obliged to deposit 7.5% of the total demand. This may be a little difficult for the writ-applicant but that by itself is not sufficient for this Court to entertain this writ-application, more particularly, when there is an alternative re....... + More

Valuation - works contract service - whether the valuation mechanism as per Rule 2A of the Service tax (Determination of Value) Rules, 2006 provides for optional methods or not? - HELD THAT:- It is seen that the contract provides for separate values for supply of materials and there being transfer of property in goods from the Respondent to the intended beneficiary, the same cannot form part of value for the purposes of Works Contract Service and since the value is clearly determinable in the invoice raised by the Respondent, the same is to be allowed as deduction from the value of the entire contract leading to the conclusion that only the Erection and Commissioning job of the contract would be leviable to Service Tax at full rate, which has been paid by the Respondent and also accepted by the Revenue during the investigation proceedings....... + More

Levy of service tax - collection of toll - Business Auxiliary Service (BAS) or not - appellant was acting as an intermediary and was instrumental in the collection of toll from the vehicles - HELD THAT:- Learned coordinate Mumbai Bench in the case of COMMISSIONER OF SERVICE TAX, MUMBAI VERSUS M/S. IDEAL ROAD BUILDERS PVT. LTD., M/S. MEP TOLL ROAD PVT. LTD. [2017 (10) TMI 401 - CESTAT MUMBAI] where it was held that The toll collection is their own income and is not parted with NHAI/MSRDC as they are concerned only with the bid amount finalized in auction and therefore cannot be termed as activity of Business Auxiliary Service. The Civil Appeal admitted by the Hon’ble Apex Court against the above order of the Mumbai Bench was subsequently withdrawn by the Revenue. The assertions of the learned advocate to be acceptable that the issue ....... + More

Seeking direction to Respondents to accept the application Form SVLDRS-1 filed by the Petitioner and to issue discharge certificate - Petitioner also seeks an opportunity to put forth his case/submissions and for a direction that, a reasoned Order be passed thereafter - requirement of opportunity of personal hearing - principles of natural justice - HELD THAT:- The question, as to, whether the tax liabilities are already quantified or not as on 30th June 2019 itself is a matter of dispute raised by the Petitioner in Writ Petition and also in the application/declaration filed under the said Scheme by the Petitioner before the Authorities. If according to the Respondents the tax liabilities were not quantified and the Petitioner was not eligible, the Respondents ought to have given an opportunity of being heard to the Petitioner before pass....... + More

CENVAT Credit - Works contract service or Commercial or Industrial Construction Services - claim of the appellant is that period prior to 01.06.2007 the works contract services was not chargeable to service tax - HELD THAT:- CBEC in letter DOF No. 334/1/2008- TRU dated 29.02.2008, is of the view that if VAT is paid under the category of Works Contract then the service should be classified as works contract services. In the instant case while the appellant has submitted the challans under which VAT has been paid but it cannot be ascertained from the said challans if the VAT has been paid under category of “Works Contract”. While the registration document shows the appellant was registered under works contract with Sale tax authorities. The learned counsel could not establish from the said records that the sales tax or VAT was p....... + More

Seeking reversal of CENVAT Credit - amount written off as bad debts - advertisement & sales promotion services - appellant has written off certain amounts for consideration of services, they have not received - period April 2009 to March 2012 - Rule 3(5C) of Cenvat Credit Rules - HELD THAT:- Prior to 01.04.2011, the appellant was required to pay service tax on receipt of consideration for the service provided, which means that if the appellant is failed to received consideration qua service provided, the appellant is not required to pay service tax; which does not mean that the appellant has provided exempted/non-taxable service. Rule 3 of the Centvat Credit Rules, 2004 deals with the situation for entitlement of the cenvat credit, which prescribes that a provider of the output service shall be allowed to take cenvat credit of any inp....... + More

Utilization of CENVAT Credit - payment of service tax for the purpose other than the ones defined under Section 3(4)(e) of the Cenvat Credit Rules, 2004 - recipient of service who is liable to pay the service tax under Section 68(2) of the Finance Act, 1994 - Rule 3(4)(e) of the Cenvat Credit Rules, 2004 - HELD THAT:- In the case of COMMISSIONER OF SERVICE TAX VERSUS M/S ARAVIND FASHIONS LIMITED [2011 (9) TMI 852 - KARNATAKA HIGH COURT], the Coordinate Bench of this Court has considered the Cenvat Credit of input services utilized by the assessee towards the payment of service tax, it has been observed that the assessee therein was the recipient of service tax, the service provider was outside the country, in law he has been treated as a service provider and is levied tax, the liability to pay tax on the service which he has received was ....... + More

Export of service or not - Technical Testing and Analysis Services have been delivered outside India & used outside India - fulfilment of all the condition under Rule 3[1] of the Export rules or not - clinical tests were performed on volunteers in India - credit on Catering Services when the same do not have any nexus with the output services provided by them, viz., ‘Technical Testing and Analysis Service' - rent received by them for the period July 2007 to May 2008 - HELD THAT:- The adjudication of the dispute, whether the services provided by the volunteers [human beings] in India could be treated as export of services and is liable to tax on consideration received for providing such services would not come within the jurisdiction of this High Court. The appeal is dismissed as not maintainable.

Levy of service tax - construction service or not - commercial service rendered by the appellant for construction of Paryatak Bhavan of the Andhra Pradesh Tourism Development Corporation Ltd. - suppression of facts or not - penalty - whether service tax could be levied for the period prior to 01.06.2007? - HELD THAT:- Service tax could only have been demanded on ‘works contract’ services after introduction of a charge on a ‘works contract’ service and not under any other head. This is what was observed by the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. The Supreme Court examined as to whether ‘works contract’ service can be classified under section 65(105)(zzzh) as ‘construction of complex’ ser....... + More

Levy of service tax - Construction of multi-level car parking adjacent to Airport - forming part of the Airport or not - HELD THAT:- The appeal stands dismissed as not maintainable with liberty to present the appeal before the Hon'ble Apex Court under Section 35L of the Central Excise Act, 1944.

Levy of service tax - Toll Plaza - Lay-bys - Pedestrian/Cattle Crossing - Highway traffic management Systems - Administrative, operation and maintenance of Base camp - Highway lighting, landscaping road furniture and facility road side, as part of the road construction having no separate existence and are meant only for the purpose of road - extended period of limitation - works contract service - construction service - penalties - HELD THAT:- In COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, MYSORE PRESENTLY COMMISSIONER OF CUSTOMS NEW CUSTOMS MANGALORE VERSUS M/S. SUCH SILK INTERNATIONAL LTD., [2021 (10) TMI 1134 - KARNATAKA HIGH COURT], the Co-ordinate Bench of this Court (where one of us, the Hon’ble SSJ was a member) having considered this ruling of the Hon'ble Apex Court as well as the other judgments holding t....... + More

Refund of service tax - rejection on the ground that services were not exported, no nexus between services availed vis a vis services rendered as well as missing/ ineligible invoices - time limitation - HELD THAT:- The relevant Circular No. 141/10/2011-TRU dated 13.05.2011 on which learned Commissioner (Appeals) had placed heavy reliance but a comparison at his order at page 11 & 12 vis-avis the content of para 3 & 4 of the said Circular dated 13.05.2011 would clearly indicate that he had applied the provisions partly without thoroughly examining the clarification made in that Circular in its entirety. It is needless to mention here that appellant’s claim is to be supposed to be determined in terms of Circular No. 111/05/2009 dated 24.02.2009. Basing on which this Tribunal has passed several orders including in the case of t....... + More

Levy of Service Tax - Life Insurance Services - agency processing fees (examination fees, license fees) - back dating, altering charges - lapse charges - look in charges - policy reinstatement charges - HELD THAT:- From the analysis of the definitions of the Life Insurance Services as per Section 65 (105) (zx) and various clarifications issued by the Board it is quite evident that the charges which are towards the risk cover and managing investment for the policy holders, are part of the value of such taxable services provided by the appellant. The argument advanced by the revenue that the scope of definition of taxable service as defined by the Section 65 (105) (zx), do not limit the provision of the taxable service under the said category to the policy holder but is applicable to the services provided by the appellant to the applicant f....... + More

Valuation of service tax - wharfage charges under Port Service - when GMB charged wharfage charges at the rate of 20% of the notified rate to EBTL and the same was charged on actual by M/s. EBTL to M/s. ESTL, the EBTL on the transaction between EBTL and ESTL required to charge the service tax on 100% of the notified rate including 80% rebate given by GMB to EBTL or on the 20% of the notified rate on which the service tax was discharged is correct or otherwise? - invocation of extended period of limitation. HELD THAT:- In the present case, admittedly the respondent raised invoices for services charge for wharfage charges under Port Service at the rate of 20% of the notified rate as per GMB, however, other than this there is no other amount flowing in the form of money or in any form from ESTL to EBTL therefore, the case of the respondent d....... + More

Levy of service tax - Consulting Engineers Services - reimbursement of expenses - export of service or not - HELD THAT:- The amounts incurred by the head office towards the salaries etc. of the employees working in their branches can by no stretch of imagination be equated to any service rendered to them by the respective branches. In the case of M/S. KUSUM HEALTHCARE PVT. LTD. VERSUS C.C.E., ALWAR [2018 (7) TMI 919 - CESTAT NEW DELHI], it was held that the legal fiction created in proviso to Section 66A for consideration of branch as a separate establishment is certainly not for the purposes of demanding service tax on the services alleged to have been rendered by the branch to the head office. In fact, going through the records of the case, it is found that the payments made by the appellants are none other than the recurring expenses l....... + More

100% EOU - Levy of service tax - export of services - Scientific and Technical Consultancy Service - Technical Testing and Analysis Service - bundled pre-production services - Rule 3 of Place of Provision of Service Rules, 2012 (POP) - HELD THAT:- Reliance placed in the case of COMMISSIONER OF SERVICE TAX VERSUS BA RESEARCH INDIA LTD. [2009 (11) TMI 213 - CESTAT, AHMEDABAD] where it was held that the said services came under rule 3(1)(2) of the Rules. It is very much clear that the performance of the service is not complete until the testing and analysis report is delivered to its client. In the present case, when such reports were delivered to the clients outside India it amounts to taxable service partly performed outside India. The performance of testing and analyzing has no value unless and until it is delivered to its client and the ....... + More

MODVAT Credit - credit on goods used in erection of Captive Power Plant by two other Divisions of respondent No.1’s group - Rule 57Q(6) of the erstwhile Central Excise Rules, 1944 - non-filing the declaration under Rule 57G - procedures required under rule 57(T)(7) not followed - registration certificate as required under Rule 174 (4) of the erstwhile Central Excise Rules, 1944 not obtained - HELD THAT:- The respondent No.1-M/s. Larsen & Toubro Ltd. is a legal entity. The respondent No.1 has single Central Excise Registration for the entire factory and for manufacture of excisable goods. The registered ground plan of the respondent No.1’s factory covers the area where the captive power plant has been erected. It is undisputed that the power plant is within the approved ground plan of the factory. It is further pertinent to....... + More

Refund of education cess and higher education cess - whether the education cess and higher education cess which were paid along with the excise duty was also liable to be refunded along with the central excise duty in terms of exemption notifications? - HELD THAT:- Whereas it is the case of the applicant that issue is covered in view of the earlier judgment of this Court in the case of Modi Rubber Ltd. [1986 (8) TMI 60 - SUPREME COURT] which is rendered by three-Judge Bench of this Court, which is followed in the case of M/s. Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT ] by this Court, on the very same issue in this batch of appeals this Court has held that when the duty is exempted the cess which is notified by subsequent Finance Act which is leviable on excise duty also stands exempted. In view of the fact that the earlier jud....... + More

Clandestine removal - M.S. Ingot - Confiscation of excess found stock - quantum of redemption fine and penalty - HELD THAT:- The excess stock found during the physical stock taking for which a panchnama was drawn in the presence of authorised signatory Shri D K Shrivastava. No objection was raised at the time of drawing the panchnama by Shri D K Shrivastava however, in the panchnama he submitted that the excess stock accumulated over a period of time therefore, in my view, there is no dispute about the excess stock found. However, no mala fide intention can be attributed to the appellant such has any attempt to clear the goods clandestinely but in terms of Rule 10 of Central Excise Rules, 2002 it is the bounden duty of the assessee to record stock of finished goods. In the present case, it is admitted fact that the excess stock was not ac....... + More

Refund - amount paid during the investigation is under protest - main thrust of the ld. A.R. is that the amount deposited by the appellants during the course of investigation has taken the shape of pre-deposit - HELD THAT:- This Tribunal has observed that the amount deposited by the appellant is sufficient for the purpose of Section 35, therefore, this Tribunal dispensed with the condition of pre-deposit of balance amount of dues. From going through the observations of this Tribunal, it is found that the observation of the Tribunal does not say that the amount paid during the course of investigation has taken the shape of pre-deposit. This Tribunal only found that it’s sufficient for the purpose of Section 35 of the Act. Further from the facts, it is clear from the order-in-original that the course of investigation, the cheques of &....... + More

Excisable goods or not - Bagasse/press-mud - Section 2(d) of the Central Excise Act, 1944 - manufacturing activity is involved in the manufacture of bagasse/press-mud or not - Section 2(f) of the Central Excise Act, 1944 - bagasse/press-mud can be considered as final products in terms of CENVAT Credit Rules, 2004 or not - common inputs/input services were used for the manufacture of both dutiable goods(sugar and molasses) and exempted goods (bagasse/ press-mud) - non-maintenance of separate records - requirement to pay an amount equal to 5% of the value of the exempted goods i.e. bagasse/press-mud, as pre Rule 6(3) of CENVAT Credit Rules, 2004 - penalty under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. HELD THAT:- The issue is no more res integra as the question as to whether bagasse is ....... + More

CENVAT Credit - Exempt service or not - employee either provided accommodation in their residential colony and in some cases where the employees are residing outside the factory, house rent allowance given - deemed consideration under Rule 6 (3) of Cenvat Credit Rules, 2004 or not - HELD THAT:- As per Rule 6 for demanding 6%/7% it can be charged only on the value of exempted services. In the present case the appellant are not receiving any value by providing the rental house to their employee within the premises. Since no value is flowing from employee to the appellant there is no question of calculating 6%/7% on the value which does not exist - since the house was provided to the employee which are engaged in the manufacture of the final product hence ultimately all the activities get absorbed in the manufacture of the final product i.e ....... + More

Process amounting to manufacture or not - re-packing from the bulk of imported chemical to a smaller packing and re-labeling thereof - whether the process amounts to manufacture or is merely a trading activity? - extended period of limitation - HELD THAT:- It is observed that sub-clause (5) of Rule 3 of Cenvat Credit Rules, 2004, which has been relied upon by the adjudicating authority below while confirming the demand against the appellant, comes into picture only when the inputs on which Cenvat Credit has been taken, are removed, “as such‟, from the premises of the importer/ manufacturer. As already discussed above, the imported inputs have undergone such changes at the end of the appellant that may be called as manufacture prior those inputs were cleared by the appellant. It becomes abundantly clear that clearance of inputs....... + More

Seeking refund of excess duty paid - Section 3A of the Central Excise Act, 1944 - HELD THAT:- Section 3 A(4) of of the Central Excise Act, 1944 is followed as the commissioner has decided the issue in principle and remanded the matter simply, only for the purposes of calculation of the duty payable. He exercised the quasi-judicial powers in terms of Section 3 A (4) and administratively, directed his subordinate to calculate the duty. In the circumstances, it is found that there is no infirmity in the order passed and directions given by the Commissioner. It is found that the interest of justice is not in jeopardy if the directions of the learned Commissioner are sustained. However, since the matter pertains to the period September, 1997 to March, 2000 and redetermination of duty has been directed, vide M/S RHL PROFILES LTD. VERSUS COMMISS....... + More

Principles of natural justice - credit denied without following the precedential decision passed by it in the Appellant’s own case - denial of substantial benefit of credit on the basis of appreciation of incorrect facts which were never set up by the Department in the impugned proceedings - denial of credit even after holding that the Job Worker had no facility to manufacture Crown Corks by using Tin Sheets which were in fact received by the Job Worker for printing and sent back to the Appellant after printing - denial of credit without appreciating the fact that denial of substantial benefit to the Appellant amounts to doubt taxation - invocation of longer period of limitation - HELD THAT:- The dispute is relating to the MODVAT credit availed on 88.637 metric tons of Tin Sheets during the period 1991-92 to 1993-94 by the appellant....... + More

Supporting manufacturer or not - Procurement of inputs under Advance licence Scheme - appellant has not disclosed the facts to the department - suppression of facts or Mis-declaration - extended period of limitation - Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 - HELD THAT:- The present case can be decided on limitation itself therefore, the issue on merit is not decided. In the present case demand involved is for the year 2008 whereas Show cause notice has been issued in June 2013 therefore, the entire demand is under extended period. The Show cause notice as well as the Order-In- Original alleged that the appellant has not disclosed the facts to the department that they have procured the duty free material from the M/s Sterlite Industries (I) Ltd against invalidation of a....... + More

Refund claim of the pre-deposit - Rejection on the ground of time bar in as much as the appellant has filed the refund claim on 25.05.2018 after the final order was passed by the Commissioner (Appeals) on 24.04.2009 - HELD THAT:- The amount paid by the appellant is clearly a pre-deposit, as per the stay order passed by the Commissioner (Appeals) dated 20.06.2008. It is found from Board Circulars, Circular dated 02.01.2002 and Circular dated 16.09.2014, which are binding on the departmental Officer, the time limit of one year prescribed under Section 11B particularly in respect of pre-deposit which is by an order of the appellate forum, shall not apply. Moreover there is a reason for filing appeal on 25.05.2018 by the appellant that the departments appeal before the CESTAT was pending and appellant had filed the refund claim immediately af....... + More

CENVAT Credit - input service or not - commission paid to an overseas agent - reverse charge mechanism - HELD THAT:- Since there were conflicting judgments of various High Courts on the admissibility of CENVAT credit on the commission paid, a Notification No 2/2016-ST dated 03/02/2016 was issued inserting an explanation allowing CENVAT credit of such commission. In the matter of M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD], a Division Bench of the Tribunal has held that this explanation has retrospective effect and applies even to cases prior to the insertion of this explanation. Relying on this order of the Tribunal, the Assistant Commissioner has dropped the show-cause notice and allowed CENVAT credit to the appellant. The Commissioner (Appeals) has not given a....... + More

Benefit of area based exemption - Industrial Oxygen, Liquid Nitrogen and Nitrogen Gas are ‘Industrial Gases’ based on atmospheric fraction - benefit of exemption under N/N. 49-50/2003-CE dt. 10.06.2003 denied on account of the fact that gases manufactured by the appellants are ‘Inorganic Chemicals’ falling under Chapter 28 and are covered under the entry at S.No. 4 of the Annexure to the Notification No. 49/2003-CE dt. 10.06.2003 in negative list. For unit no. I - HELD THAT:- To find that the product which is manufactured by the appellant is industrial gas, manufactured by way of atmospheric fraction, which specifically covers at S.No. 16 of the schedule, therefore, it is to be seen that whether the appellant is entitled for benefit under notification or not that product qualifies at S.No. 16 of the schedule of not....... + More

Classification of goods - Biozyme - classifiable under tariff entry 31051000 or under tariff entry 31010099 - suppression of facts - intent to evade duty or not - penalty - extended period of limitation - HELD THAT:- The fact remains that the appellant is clearing Biozyme in the packages of less than 10 litres or more than 10 litre cleared under chapter heading 31051000 was accepted by the department. With regard to the goods which are less than 10 litres, the Revenue wants to classify under chapter 31051000 of chapter heading of the tariff which described he goods should be in tablet form or similar form or packages or packages goods weight not exceeding 10 kgs. Therefore, intent of the said entry is clear that the goods should be in solid form i.e. in the form of tablet or powder and not in weight. Admittedly, kilogram and kilo litre ha....... + More

Reversal of CENVAT Credit - input service - Modernization, Renovation and repair of the factory or not - construction of water tank and pump room - HELD THAT:- Interest and penalty will arise only when there is a short payment and non payment of duty or wrong availment of Cenvat Credit. In the present case the appellant had availed the Cenvat Credit in respect of construction of water tank and pump room. Since this construction was done in the existing factory to expand the facility of the existing factory therefore, it will clearly fall under the Modernization and Renovation of the factory. This is not a case where a new factory was set up which excluded from the definition of input service. Since nature of construction done in the factory is of Renovation and Modernization of the existing factory which is clearly covered under inclusion....... + More

Refund claim - deduction of net excise duty paid or total amount of duty paid, from the sale value of goods - deduction of freight outward from the sale Value - as per explanation given in Para 6 (5) of N/N. 1/2010-CE dared 6.2.2010, only excise duty, value Added Tax and other indirect taxes are required to be excluded - HELD THAT:- In appellant’s own case for earlier period in KANGARO INDUSTRIES LIMITED VERSUS CCE, JAMMU [2017 (11) TMI 90 - CESTAT CHANDIGARH], this Tribunal after considering the issue in detail held that when an amount of duty is refunded to the assessee, under N/N. 1/2002-CE, the same has to be deducted from the excise duty paid by the appellant while arriving at actual value addition - regarding deduction of outward freight it was held that It is settled law that in the context of Section 4(3)(C) when the goods a....... + More

Entitlement to Interest - Reversal of CENVAT Credit under protest - case of appellant is that amount reversed has to be treated as deposit and the appellant is entitled for interest from the date of debit till the date of its realisation under Section 35FF of Central Excise Act - HELD THAT:- There is mistake of law in the impugned order-in-appeal dated 28.08.2020, as the applicable section for interest is Section 35FF and not Section 11BB. Accordingly, taking noticed that Division Bench of this Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD], wherein interest on pre-deposit (made during investigation) have been enhanced from 6% to 12%, following the ruling of the Apex Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHE....... + More

CENVAT Credit - scope of definition of input service - outward transportation of the goods - place of removal - place of buyer or factory of the appellant or not - supply of goods to buyers on FOR basis - HELD THAT:- From the definition of Input Service it becomes clear that all services received by the manufacturer directly or indirectly in relation to the manufacture of final products upto the place of removal are admissible for availment of Cenvat Credit on the Service Tax paid for such services. Accordingly, the definition of place of removal acquires importance. The Hon'ble Apex Court in the case of ESCORTS JCB LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-II [2002 (10) TMI 96 - SUPREME COURT] has held that the place of removal has to be determined with reference to the point of “sale‟. Section 19 of Sale of Goods....... + More

Lapse of CENVAT Credit - balance credit after reversing the Cenvat credit lying in balance on inputs, WIP and contained in the final product - benefit of N/N. 30/2004-CE as amended availed - When the notification which prescribed the nil rate of duty but bearing condition that no Cenvat credit should be availed whether Cenvat credit lying in balance after reversal on inputs, WIP and inputs contained finished goods, shall lapse in terms of Rule 11(3)? - HELD THAT:- Since the Notification No. 30/2004-CE dated 09.04.2007 contains the above condition the notification is not absolutely therefore, the situation of the appellant is covered under Rule 11(3)(i) according to which the appellant is required to pay an amount equivalent to Cenvat Credit, if any taken by him in respect of inputs received for used in the manufacture of said final produc....... + More

Clandestine removal - MS Ingots - demand confirmed merely on the basis of assumption and presumptions - no corroboration to the statement - demand has been confirmed based upon the documents/ ledger maintained by the third party - authenticated and reliable evidences or not - Application for settlement under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - discharge certificate has not been issued in their favour for want of requisite payments to be made prior to issue of discharge certificate - HELD THAT:- The Department conducted investigation in this case with the search in the premises of M/s. Monu Steels. The appellant, Shri S K Pansari, proprietor of said propriety concern who apparently and admittedly was working as commission agent between the sellers and buyers of iron and steel products and used to get commission from ei....... + More

Principles of natural justice - petitioner was not given reasonable opportunity to show cause before the impugned orders were made - alleged mismatch qua ITC (Input Tax Credit) - non-verification of dealer at the other end by Assessing Officer-respondent - HELD THAT:- This Court having set out the reasons for not acceding to the prayer of the writ petitioner now sets out infra the conclusion and that is the captioned writ petition fails. It is made clear that if the writ petitioner chooses to file statutory appeal under Section 51 of TNVAT Act, it will be open to the Appellate Authority to consider the same (subject to limitation and subject to pre-deposit condition, if any) on its own merits and in accordance with law uninfluenced by any observation made in this order. Petition dismissed.

Recovery of dues - Attachment of Bank Accounts - petitioner neither charged Value Added Tax nor remitted the tax on the sales effected under the provisions of the Tamil Nadu Value Added Tax Act, 2006 - Section 22(6) of the TNVAT Act, 2006 - HELD THAT:- Though the petitioner has been both negligent in neither filing the returns nor by filing reply to the notices which preceded passing of the first mentioned impugned order dated 28.10.2016 of the first respondent and failed to answer the subsequent notices issued by the first respondent asking the petitioner to pay the arrears of tax, the facts on record also indicates that the petitioner had filed a petition under Section 22(6) of the TNVAT Act, 2006 for revision of the order dated 28.09.2016 in time. Since the petition has not been disposed, the impugned recovery cannot be proceeded immed....... + More

Validity of assessment order - copies of documents relied upon by the respondent/Appellate Authority was not furnished despite a specific request, by the appellant - violation of principles of natural justice - HELD THAT:- The grievance of the appellant that failure to furnish the documents relied upon would result in violation of natural justice is well-founded. It has been consistently held that whenever an assessment is made on the basis of certain documents and if a request is made by the assessee, it is incumbent on the Assessing Officer to furnish such copies to enable the assessee to respond to the allegations. The order of assessment dated 28.08.2014 is set aside and the respondent is directed to communicate to the appellant the list of documents available and furnish the copies of such documents which form the basis / relied upon in the order of assessment, at the cost of the appellant - appeal disposed off.

Validity of Assessment order - Non-furnishing of necessary documents as sought by petitioner - HELD THAT:- By seeking certain documents, without ascertaining the availability or non-availability of such documents, an assessee cannot be permitted to prolong and protract the issues with reference to the Assessment Orders. In this regard, seeking certain clarifications of documents in a calculated manner, there is a possibility of collusion. In such circumstances, all these aspects cannot be gone into by this Court in writ proceedings. However, the fact remains that the petitioner has received four documents, pursuant to the orders of this Court and the said facts are admitted by the petitioner. Thus, certain documents were already furnished and the petitioner is of an opinion that some other documents are also required for the purpose of su....... + More

Levy of Assam VAT - Nature of activity - sale or service or both - denting and painting job on a vehicle - levy of VAT on paints by treating the nature of works as works contract - transfer of property in paints during the restoration and reconditioning work or not - HELD THAT:- If a new vehicle is considered, a vehicle is made of thousands of components, each having its unique character. Nonetheless, though a vehicle is a composition of numerous unique components, it is impermissible for the taxing authority to tax individual item of the vehicle. Similarly, in the composite work of denting and painting contract, the combination would be a composite contract of labour and service and as in the present case, the petitioner is liable for and is paying service tax as imposed on the work of denting and painting, being a service provided by a ....... + More

Validity of assessment order - input tax credit - failure to disclose the turnover in the return on the part of supplier - opportunity of personal hearing - case remitted back to the Assessing Officer to re-do the assessment once again after giving an opportunity of hearing to the petitioner - HELD THAT:- It is noticed that Principal Secretary / Commissioner of Commercial Taxes has now issued the Circular No.5/2021, dated 24.02.2021. Ultimately, the purpose of remanding the case back to the respondent was to pass appropriate orders after ascertaining whether the petitioner was indeed entitled to Input Tax Credit or whether the respondent was justified in demanding the tax. There cannot be any embargo on the respondent from passing orders even though the time specified had lapsed and merely because the respondent either failed to approach ....... + More

Revision of assessment order - tax on inter-state sales transactions - denial of benefit of concession under Section 3 of the Central Sales Tax Act, 1956 - C Forms were lost - petitioner had filed the xerox/photo copies of C-forms - Section 84 of the TNVAT Act, 2006 - HELD THAT:- As far as the production of C Forms is concerned, Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 makes it very clear that it is for the petitioner to approach the selling dealer and obtain appropriate Forms from the Sales Tax Department from the other states. It is not open for the petitioner to shift the burden on the Assessing Officer to verify from the data from the website of the Sales Tax Department from the supplier's end. To that extent, there is no merits in the present writ petition. The petitioner is bound to obtain certifi....... + More

Validity of assessment order - input tax credit - mismatch in Returns filed by the dealers and information captured by the department - opportunity for personal hearing not provided - violation of the natural justice - HELD THAT:- Though the petitioner failed to come and collect the document after notice was issued to the petitioner on 05.08.2021 for the assessment year 2009-2010 and on 29.07.2021 for the assessment year 2014- 15, it was incumbent on the part of the respondent to call upon the petitioner to come for a personal hearing before passing the impugned orders. That apart, the petitioner had already filed W.P.Nos.18107 and 18109 of 2017 before this Court wherein the respective pre-assessment notices issued to the petitioner dated 05.08.2021 and 29.07.2021 were challenged. Since the impugned orders have been passed without calling....... + More

Seeking restoration of cancelled registration of petitioner - blocking of input tax credit - except the show-cause notice, nothing else was furnished or nothing was attached to such show-cause notice. - HELD THAT:- The whole object of issuing a show-cause notice is to make the recipient of the notice understand what the authority is trying to convey and what are the nature of the allegations. In the case on hand, when there are allegations of bogus billing, it was expected of the authority to at least furnish some information about such bogus billing. At this stage, Mr. Sharma submitted that along with the show-cause notice, there is always few documents attached which would indicate what the authority wants to convey about the bogus billing. It has been stated on oath not only in the memorandum of the writ application but even in the rep....... + More

Levy of penalty under Section 53(12) of Karnataka Value Added Tax Act, 2003 for breach of Section 53(2) of the Act - transporter has carried the scrap of Copper, Aluminium and Brass in vehicle bearing No. HR-61-A-4041 which was alleged to be robbed and the police had found the same in vehicle Nos.KA-05-AC-7002 and KA-13-8671 before a godown at Madanayakanahalli, Bengaluru, intercepted the vehicle - HELD THAT:- The appellate authority came to a conclusion that the original documents tendered at the HRCP (in), Attibele, which is the border entry check post of Karnataka were not traceable on account of theft and since the enforcement authority had only an access to verify the duplicate set of documents, could not have arrived at a conclusion that the consignor M/s Bhagawathi Enterprises is from Salem, Tamil Nadu, and the Cosignee being at Ne....... + More

Validity of re-assessment order - denial of input tax credit claimed on the basis of tax invoices issued by such selling dealers, who did not furnish tax compliance - burden of prove - fake/bogus transaction - HELD THAT:- The burden of proof certainly lies on the appellant -assessee to prove the transaction whether is genuine or not. Merely for the reason that the selling dealers have not filed the return and failed to discharge the tax liability by remitting the tax collected, could not be a ground to disallow the input tax credit claimed by the assessee unless such transaction is found to be not genuine and is a fictitious document/invoice created to claim input tax credit i.e., a bogus transaction. In the absence of such analysis made by the authorities, merely for the reasons as aforesaid, input tax credit could not be denied. It is a....... + More

Levy of Entertainment tax - Valuation - consideration towards the services excluding the service tax component or on both - entertainment tax can be levied on the transaction of service which is so characterized under the Finance Act, 1994 or not? - legislative competence of State of Karnataka to levy tax under KET Act, 1958 on the transaction which is exclusively reserve for Union Parliament for the purposes of service tax under Entry 92C of the List I of Schedule VII of the Constitution of India - prohibition under constitutional discipline of Article 246 to adopt the sources of revenue which are exclusive received for the Union Parliament - applicability of judgement of ANAND SWARUP MAHESH KUMAR VERSUS THE COMMISSIONER OF SALES TAX [1980 (9) TMI 238 - SUPREME COURT] - validity to proceed with the appeals while the question of legislati....... + More

Levy of CST - inter-state sales effected without C-Form declarations - amount claimed as deduction by the petitioner to be in the nature of discount requiring compliance of Rule 3(2)(c) of the Karnataka Value Added Tax Rules, 2005 or not - levy of CST on the notional value adopted in compliance of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - HELD THAT:- It is not in dispute that the tax invoices were raised by the petitioner and subsequently credit notes were issued, whereby in the credit note, value is shown as ₹ 3/-, whereas ₹ 6/- is shown in the invoice. The authorities referring to Rule 3(2)(c) of the Rules and Section 30 of the Act as it stood during the relevant period proceeded to reject the claim of the assessee i.e., the value of goods sold to any related parties in terms of Rule ....... + More

Erroneous exercise of Jurisdiction - issue raised in these writ petitions is that the Assessing Officer has erroneously applied the provisions of the TNVAT Act and passed the assessment orders which resulted exercise of jurisdiction erroneously - violation of principles of natural justice - HELD THAT:- Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated. The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting t....... + More

Defreezing of current bank accounts - Entry No.58 A of the Schedule II of the VAT Act - HELD THAT:- Noticing the fact that the petitioner is already before the statutory authority filing two Revision Application Nos.54 & 55 of 2021, let the same be decided within a period of two weeks from the date of receipt of a copy of this order. In the event of the petitioner making a request of defreezing the Bank Accounts and the authority acceding to such request, the final adjudication also can come thereafter within a period of eight weeks. The present petition stands disposed off.

Principles of natural justice - opportunity of hearing was provided or not - petitioner by a letter requested the respondent to give further time for personal hearing - HELD THAT:- Considering the fact that the order has been passed without hearing the petitioner in respect of the issue which has been pending considerably for a long period of time, the respondent should have awaited and given an opportunity to the petitioner to appear and make submissions. The case is remitted back to the respondent to pass a fresh order by 17.01.2022. The petitioner is therefore directed to appear before the respondent for a personal hearing on 23.12.2021 at 11.30 AM. - Petition allowed by way of remand.

Classification of goods - Whip Topping - taxable under the residuary provision when Sl. No.4 of the Notification dated 30.04.2005 or not - industrial inputs or not - HELD THAT:- It is discernable that in identical circumstances in the assessee's own case in STA No.118/2013 and allied matters referred to above, the coordinate bench of this Court having considered the applicability of the clarification issued by the Commissioner, has set aside the order of the Tribunal as to whether it is prospective or retrospective in nature and restored the matter to the file of the assessing authority to examine this aspect keeping open the rights and contentions of the parties. The matter is restored to the file of the assessing authority for examining the matter - revision petition is allowed in part.

Validity of assessment order - Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The issue decided in the case of M/S. ALL INDIA METAL AND ALLOYS VERSUS THE ASSISTANT COMMISSIONER HARBOUR-IV ASSESSMENT CIRCLE CHENNAI. [2021 (9) TMI 1144 - MADRAS HIGH COURT] were it was held that there have been gross violation of principles of natural justice, which would justify that the Appellant is entitled to invoke the extraordinary jurisdiction of this Court. The matter is remitted to the Assessing Officer and the Assessing Officer is directed to issue notice to the Appellant to appear in-person - Petition allowed by way of remand.

Levy of excise duty on the liquor destroyed in fire - Demand raised against the writ petitioner company (respondent herein) towards loss of excise revenue because of destruction of liquor in fire - fire incident that took place in a godown of the distillery of the respondent company - whether demand of excise duty on the liquor lost in fire is authorised by law and has rightly been raised as per the applicable provisions of the Act of 1910, the Excise Manual and the Rules of 1969? - HELD THAT:- A comprehensive look at the relevant provisions of law makes it clear that so far as IMFL is concerned, no provision is made in the Excise Manual for any wastage allowance in relation to the bottled sprit, but, in terms of Rule 7(11) of the Rules of 1969, an allowance up to 1% on the total quantity of spirit stored during a month may be allowed for....... + More

Validity of Arbitral Award - neglected to furnish the Form-Cs within the time prescribed resulting in a sales tax assessment - penalty imposed under the ‘Take or Pay/Supply or Pay’ Clause - award of amount claimed by DSM on account of sales tax paid to the Sales Tax Authorities - whether the impugned award is vitiated by patent illegality as the Arbitral Tribunal has entered into an award in favour of HPCL for recovery of the amounts of penalty claimed in terms of Clause 3 of the Initial Agreements (Take or Pay/Supply or Pay Clause) and, in favour of DSM under a similarly worded clause in the Fifth Agreement? - HELD THAT:- An amount equivalent to 10% of the basic rate would be payable for undelivered quantity, which falls short of the threshold of 90% of the ordered quantity. DSM was also entitled to receive penalty at the sam....... + More

Dishonor of Cheque - insufficient funds - rebuttal of presumption - legally enforceable debt or liability or not - complainant has failed to establish the transaction and outstanding and inspite of the same, both the courts have not appreciated the said material on record - exercise of revisional jurisdiction - HELD THAT:- The petitioner cannot find fault with the continuation of the transactions of the accused even for the month of September-2008 also. It is also important to note that the ledger extract is also marked as Ex. P.8 and counsel referring this Ex. P.8 certified copy which is produced before him also submits that even subsequent to the issuance of cheque also transactions have taken place in the month of August and September-2008 and hence, it is clear that Ex. P.7 corroborates that the transactions were continued till Septem....... + More

Dishonor of Cheque - existence of legally enforceable debt or not - service of statutory legal notice - allegation is that the impugned cheque was stolen by the respondent when he was working as Supervisor under the petitioner - HELD THAT:- Admittedly, no action has been taken by the petitioner on the allegation that the respondent had stolen any of his cheques. Such an action has not been taken even after the filing of his complaint. Though it is correct that the rebuttal proof can be through preponderance of probability, the probability cannot be presumed from mere suggestion put by the accused during his cross examination, PW1. Even if the accused does not subject himself for examination, the improbabilities can also be explored from the evidence and materials of the complainant. The simple contention of the complainant is that he had ....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - acquittal of the accused - sufficiency of service of notice or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- In the instant case, the postal receipt has been filed by the appellant and information received under the Right to Information Act, 2005 has also been filed by the appellant relating to postal receipts, by which the Postal Department had informed that the item had been delivered on the respondent. In his affidavit given in the examination-in-chief, the appellant has deposed about these facts. It categorically establishes that, in fact, service had been sufficient on the respondent. There is no doubt about it. While referring to the complaint and the statement of the appellant, learned counsel for the respondent submits that nowhere, the....... + More

Arbitration award - Validity of appointment of sole arbitrator - Termination of contract - Jurisdiction of High Court while deciding the appeal under Section 37 of the Arbitration Act - HELD THAT:- As per settled position of law laid down by this Court in a catena of decisions, an award can be set aside only if the award is against the public policy of India. The award can be set aside under Sections 34/37 of the Arbitration Act, if the award is found to be contrary to, (a) fundamental policy of Indian Law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. None of the aforesaid exceptions shall be applicable to the facts of the case on hand. The High Court has entered into the merits of the claim and has decided the appeal under Section 37 of the Arbitration Act as if the High Court was deciding t....... + More

Dishonor of Cheque - discharge of legal enforcement debt or not - rebuttal of presumption - section 138 of NI Act - HELD THAT:- This Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power - Having scanned entire evidence available on record, this cour....... + More

Dishonor of Cheque - discharge of lawful liability - rebuttal of presumption - Section 138 of NI Act - HELD THAT:- This Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. This Court finds no ille....... + More

Maintenance of status quo with regard to SARFAESI action - Nonperforming Asset - creation of equitable mortgage by way of deposit of title deeds over the immovable properties with respect to the mortgaged properties - HELD THAT:- In the present case, the respondents - borrowers whose accounts have been declared as NPA in the year 2013 have filed the writ petitions before the High Court challenging the communication dated 13.08.2015 purporting it to be a notice under Section 13(4) of the SARFAESI Act. It is required to be noted that as per the appellant - assignor approximately ₹ 117 crores is due and payable to the Bank. While passing the ex-parte interim order on 26.08.2015 and while entertaining the writ petitions against the communication dated 13.08.2015, the High Court has directed to maintain status quo with respect to the pos....... + More

Dishonor of Cheque - amicable settlement between parties - compounding of offence - requirement to deposit 15% of the amount of the cheque with the Gujarat State Legal Services Authority - the applicant has submitted that the cheque amount is more than ₹ 1 crore and it is difficult for the applicant to deposit 15% amount of the cheque with the Gujarat State Legal Services Authority. It is further submitted that the applicant is in jail since 7.9.2021 - HELD THAT:- The applicant is permitted to deposit 10% of the said cheque amount with the Gujarat State Legal Services Authority, out of which the applicant shall deposit 5% of the said cheque amount within a period of one month and deposit the remaining amount of 5% of the said cheque amount within a period of five months thereafter with the Gujarat State Legal Services Authority. Application disposed off.

Dishonor of Cheque - seeking amendment in the cheque number - cheque number is 054285 and that in the statutory notice the respondent/complainant had mentioned the cheque number as 024337 and he had also given the same number in the complaint and proof affidavit - HELD THAT:- This Court finds it to be a genuine and bonafide error by the respondent/complainant based on the return memorandum issued by the Bank. The Hon'ble Apex Court in S.R. Kumar vs. Sunaad Raghuram [2015 (7) TMI 1260 - SUPREME COURT], has held that though there is no specific provision in Cr.P.C. to amend the complaint or petition filed under Cr.P.C., if amendment sought to be made relates to a simple infirmity which is curable by means of formal application for amendment and by allowing such amendment, no prejudice would be caused to either side, such amendment could....... + More

Dishonor of Cheque - application praying for deposit of diet money - Section 138 of N I Act - HELD THAT:- This Court is of the considered view that herein there is lapse on the part of the accused but the Court below has also contributed towards this lapse by not undertaking the exercise of going through its orders and ascertaining the fate of the process undertaken by the Court to summon the witnesses in terms of the list of witnesses filed by the accused and the diet money deposited by him. Therefore, in these peculiar circumstances, this Court is of the considered view that interest of justice demands that at least one more opportunity be granted to the accused to lead evidence with Court assistance so that justice is done to him. Parties through Counsel are directed to appear before the learned Court below on 06.01.2022, on which date....... + More

Suit for recovery of money against the respondent-defendant - breach of contract - seeking extension of period of limitation for filing written statement - HELD THAT:- The submission proceeds on a misconceived notion about concept of limitation. The limitation for filing written statement provided in Order VIII Rule 1 Proviso is thirty days and not one hundred twenty days. The additional period of ninety days is allowed to be utilized for filing the written statement on showing sufficient cause as grace period. It is not the limitation per se. The ninety days additional period allowed to the defendant, it comes into play, if the defendant had failed to file written statement within the prescribed period of thirty days. The ninety days are the additional window following the prescribed limitation in which the defendant may show the suffici....... + More

Dishonor of Cheque - preponderance of probabilities - legally enforceable debt or not - acquittal of the accused - rebuttal of presumption - Whether the judgment of the learned Sessions Judge in acquitting the accused from the offence under section 138 of the Negotiable Instruments Act basing on the materials available on record is fair and proper? - HELD THAT:- The standard of rebuttal proof that need to be produced by the accuses is not necessarily strict proof beyond reasonable doubt. It is sufficient if the probabilities are proved through preponderance. Hence, the accused need not necessarily get into the box and subject himself for examination or produce any records of his own. And it is sufficient that he could bring out the improbable facts and circumstances from the case of the complainant. Because the object of punishment contem....... + More

Dishonor of Cheque - insufficiency of funds - requirement to issue separate notice to manager or not - main contention of petitioner is that the Manager, who is in charge of the petitioner company, was not issued individual statutory notice under Section 138 and hence, he is not responsible for the alleged dishonour of cheques - HELD THAT:- The contention raised by the learned counsel for the petitioner that the present Manager of the petitioner company was not issued individual statutory notice under Section 138, cannot be countenanced for the reason that, in the decision relied on by the learned counsel for the respondent, the Hon'ble Supreme Court in KIRSHNA TEXPORT & CAPITAL MARKETS LTD. VERSUS ILA A. AGRAWAL & ORS. [2015 (6) TMI 344 - SUPREME COURT] has specifically held that if the person committing an offence under Sect....... + More

COVID - Seeking extension of the period of limitation in all proceedings before Courts/Tribunals including this Court w.e.f. 15.03.2020 till further orders - drastic surge in the number of COVID cases across the country - HELD THAT:- The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasijudicial proceedings - Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the a....... + More

Dishonor of Cheque - compounding of offences - Acquittal of the accused - whether at this stage of the proceedings i.e. when the petitioner has already been convicted by the trial Magistrate and his conviction has been upheld by the Appellate Court, the offence under Section 138 of NI Act can be compounded? - HELD THAT:- The issue is no longer res integra. In DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], the Supreme Court while laying down guidelines as to the levy of costs depending upon stage of the compromise arrived at between the parties, held that conviction of an accused in proceedings under Section 138 of NI Act can be set aside even at appellate stage and the accused can be acquitted on the basis of a compromise with the complainant. Even though the parties have arrived at a settlement after the Ap....... + More

Dishonor of Cheque - time limitation - applicant has advanced argument that opposite party no.2 filed the case beyond reasonable limitation - no reasonable cause for delay was provided - Sections 138 and 142 of the N.I. Act - HELD THAT:- The cause of action arose on 28.11.2005, therefore, the opposite party no.2 had sent legal notice on 13.12.2005 to the applicant. The time of one month notice expired on 11.01.2006 as per Sections 142 (1) (b) of the N.I. Act. If fifteen days’ further added, the same will expire on 26.01.2006. The opposite party no.2 filed the case under the N.I. Act on 21.03.2006, which is much beyond the time schedule prescribed under Sections 138 (c) and 142 (1) (b) of the N.I. Act. Reliance placed in the case of Sil Import, USA Vs. Exim Aides Silk Exporters, Bangalore [1999 (5) TMI 580 - SUPREME COURT] is also im....... + More

Validity of arbitration award - Implementation Agreement - Disallowance of the pre-claim interest i.e., interest from the date when expenses were incurred by UHL, till the date of lodging the claim - HELD THAT:- This Court is in agreement with the Appellate Court that Clause 1 of the Implementation Agreement could not have been read in isolation and when read in conjunction with the second recital and Clause 2.2 of the Implementation Agreement, it is apparent that the MoU was made a part and parcel of the Implementation Agreement. In view of the above, the view taken by the learned Sole Arbitrator that the MoU forms a part of the Implementation Agreement - All the points of dispute between the parties regarding performance of the contractual obligations including claims for damages and expenses incurred by UHL either arising from the MoU ....... + More

Disciplinary proceedings against the officer of CGST / Central excise department - trap/transaction - enquiry officer exonerated both of them against petitioners, employees of department of CGST and Central Excise - HELD THAT:- A careful reading of para 39 of RADHESHYAM KEJRIWAL VERSUS STATE OF WEST BENGAL [2011 (2) TMI 154 - SUPREME COURT], makes it clear that even as per the majority view, the Court opined that the question of contravention of provision of the Act is a relevant factor which needs to be considered while examining the claim of delinquent employee/accused that upon his exoneration in the departmental inquiry, criminal proceedings deserves to be jettisoned. It is important to note that the provisions of the Act for the instant case means provisions of P.C. Act. Indisputably, P.C. Act is a special enactment. A conjoint readi....... + More

Entitlement to claim suit - suit promissory note is a forged and fabricated document or not - HELD THAT:- Admittedly, Ex.A1 was prepared through computer. If really the suit promissory note had been executed by the defendant, as claimed by the plaintiff, absolutely there is no possibility of material contradictions creeping into the evidence of P.W.1 and P.W.2 with regard to execution of the suit promissory note. Further, admittedly, there was a civil dispute between the defendants father and P.W.2, it is hard to comprehend that the defendant would have brought P.W.2 for the purpose of making attestation in the suit promissory note and therefore, this Court is of the view that P.W.2 is not a trustworthy witness. The trite law is that the plaintiff cannot be permitted to pick holes in the defendants case and claim to have proved his case. ....... + More

Dishonor of cheque - Proceedings against the Joint Account Holder who is not the signatory of the cheque - the petitioner/A.2 is not a signatory to the subject cheques but contended that the petitioner/A.2 is aware of the money transactions and handing over of the subject cheques - HELD THAT:- As per the mandate given under Section 138 of N.I Act, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall ....... + More