Addition u/s 68 - investment in the form of share capital/share premium in the assessee had no resources of their own - whether the statement made by Mr Arpesh Garg, Managing Director of the assessee under Section 132(4) of the Act and the photocopies of the documents found during the search and seizure action constituted incriminating material? - HELD THAT:- In this case, insofar as the assessee is concerned, it placed the evidence on record, which established the trail of the money, the mode through which the money had travelled from the assessee to the investor entities and back to the assessee, and the fact that each of the investor entities was in existence. Therefore, once the assessee claimed (and it was found as a fact) that it was its own money which was routed back to it in the form of share capital/share premium, the traditiona....... + More

Rectification of mistake u/s 154 - debatable issue - apparent mistake for the assessing officer to exercise the jurisdiction u/s 154 - jurisdiction of AO u/s 154 to adjust the unabsorbed depreciation loss of earlier assessment years against the current year's business income, while computing deduction u/s 80HHC - HELD THAT:- Though appellant would agree that the issue, as to whether it is permissible to adjust unabsorbed depreciation loss of the earlier assessment year, while computing deduction under section 80HHC, stands decided against the appellant/assessee, he attempted to suggest that the said issue was debatable, when the assessing officer sought to invoke his power under section 15 on the premise that the said issue was finally resolved in favour of the Revenue in the case of Commissioner of Income Tax v. Shirke Construction E....... + More

Assessment solely on the basis of the statement recorded u/s 132(4) - admissibility, relevance and evidentiary value of the statement recorded at the time of search under Section 132(4) - HELD THAT:- On a careful reading of the findings rendered by the Tribunal, it could be seen that the assessing officer did not make assessment solely on the basis of the statement recorded u/s 132(4) but also placed reliance on the material evidence seized during the course of search as well as at the time of assessment. After having found that the appellant gave different explanations at different stages, none of which was supported by any cogent material evidence to dislodge the presumption u/s 132(4) and 132(4A)Tribunal rightly set aside the order of the First Appellate Authority and restored the order of the assessing officer. Therefore, the plea of ....... + More

Undisclosed income as assessable u/s 158 BC - Assessee submitted the amount was not received and waived as bad debts, accordingly should be excluded from income - Reliance on the documents seized during the search - Computation of undisclosed income of the block period - whether the plea of waiver raised by the appellant with respect to the amount as justified or it has to be added by treating it as undisclosed income, as contemplated u/s 158BC? - Tribunal confirming the addition as undisclosed income assessable under Section 158 BC - HELD THAT:- Undisclosed amount determined by the Assessing Officer has a direct nexus with the incriminating materials seized during the search. We also agree with the findings of the Tribunal that the three agreements that had been entered into by the assessee with the distributors clearly indicate that the....... + More

Validity of reopening of assessment u/s 147 - notices and proceedings initiated against a person who had died prior to the issuance of notice - HELD THAT:- The issue of validity of a notice and proceedings held subsequent thereto against a dead person is no longer res integra.See Savita Kapila case [2020 (7) TMI 441 - DELHI HIGH COURT] In the present case also, as the notice under Section 148 of the Act was issued against a dead person, the same is null and void and all consequent proceedings/orders, including the assessment order and the subsequent notices, being equally tainted, are liable to be set aside. - Decided in favour of assessee.

Exemption u/s 11 - cancellation of registration granted to the appellant trust u/s 12AA - anonymous donation within the meaning of Section 115BBC - Tribunal justification in holding that no proper opportunity was afforded to the assessee as required under section 12AA[3] of the Act ? - Whether the Commissioner of Income Tax, Central-III, Kolkata could have cancelled the registration granted to the appellant trust u/s 12AA on 31.10.2005 on grounds which were not contained in the show cause notice dated 30.12.2008? - HELD THAT:- The assessee stated that all the activities of the trust are in accordance with the objects of the trust as mentioned in the deed of trust dated 05.08.1999. The Commissioner while proceeding to pass the order dated 31.12.2008 and cancelling the registration took into account certain issues which were not subject mat....... + More

Validity of reopening of assessment u/s 147 - scope of mandatory procedure prescribed u/s 148A - relation between Relaxation Act, 2020 and Finance Act, 2021 - enhanced/reduced time limit specified in Section 149 - initiation of reassessment proceedings prior to coming into force of the Finance Act, 2021 - onset of Covid-19 pandemic followed by nationwide lockdown in March, 2020 - Relaxation of certain provision of specified Act - scope of declaration declaring Explanations A(a)(ii)/A(b) to the Notification No.20 [S.O.1432(E)] dated 31st March, 2021 and Notification No.38 [S.O.1703(E)] dated 27th April, 2021 to the extent that the same extend the applicability of the “provisions of Section 148, Section 149 and Section 151 of the Act, as the case may be, as they stood as on the 31st day of March, 2021, before the commencement of the F....... + More

TDS u/s 194H - Disallowing u/s 40(a)(ia) - amount of collection charges retained by the airlines on collection of passenger service fees amongst other disallowance - HELD THAT:- In the case of Additional Commissioner of Income Tax, Mumbai v. Mumbai International Airport (P) Ltd., [2017 (2) TMI 640 - ITAT MUMBAI] on which heavy reliance was placed by the learned counsel appearing for the appellant, the question that fell for consideration was with regard to PSF-(SC) which could not be characterized as income under Section 2(24) of the Act as the assessee merely acted in a fiduciary capacity for collection and disposal of the amount of PSF-(SC). The dispute herein is in a narrow compass with reference to 2.5% of PSF withheld by the Airlines Operators in terms of clause 1.4 of SOP. It is trite that no denial of allowance claimed under Sectio....... + More

TDS u/s 194C - Disallowance u/s 40(a)(ia) - payment of transportation contracts - whether the Tribunal was right in law in aggregating the payments on the basis of truck numbers for the purpose of determining the limit of ₹ 50,000/- under Section 194C (3) of the IT Act? - HELD THAT:- The action of the revenue in denying the deduction under Section 40 (a) (ia) of the Act on the premise that the aggregate of the truck amount paid by the assessee with the different truck drivers was exceeding ₹ 50,000/- cannot be countenanced as the contract cannot be with the trucks, it is with the personnel/driver of the truck/truck operators. The whole attempt made by the revenue to bring the assessee under the ambit of Section 194C to deny the deduction under Section 40(a) (ia) is not supported by the material evidence. The truck operators if....... + More

Addition of Interest portion waived under OTS - assessee has claimed that the interest portion has been added back u/s. 43B of the Act for A.Y.2007-08 and 2008-09 - Principal portion which is part of the waiver under one time settlement, the addition has been made by AO treating the same as revenue receipt - CIT-A deleted the addition - HELD THAT:- A perusal of the balance sheet of the assessee show that the said amount represents loan from Heavy Financial Corporation and SBI. The said loan was taken for the purchase of fixed assets as per exhibit 117 and 118 of the paper book. Whether this waiver becomes part of taxable income u/s. 28 (iv) of the Act r.w.s. 41 (1) is concerned, this issue has been decided by the Hon’ble Supreme Court in the case of Mahindra Mahindra [2018 (5) TMI 358 - SUPREME COURT] We decline to interfere with the findings of the CIT(A) in so far as this issue is concerned.

Deduction u/s 54 - investment in two residential property situated at different location - AO found that the assessee has invested in two residential houses to set off its LTCG - scope of amendment - HELD THAT:- We find that this controversy has been considered at length by Hon’ble High Court of Madras High Court in the case of Trilok Chand [2019 (4) TMI 713 - MADRAS HIGH COURT] T he definition of the word "Assessee" under Section 2(7) of the Act means a 'person' by whom any tax or sum of money is payable under the Act. Thus, the HUF is also a 'person' and a separate assessable entity under the Income Tax Act, 1961. If the word 'a' as employed under Section 54 prior to its amendment and substitution by the words 'one' with effect from 01.04.2015 could not include plural units of residential ....... + More

Disallowance of deduction claimed u/s. 54 - As per AO nature of the property sold is an industrial plot as is apparent from the contents of the sale deed - whether the assessee has transferred a residential house or not? - HELD THAT:- The parking area has been built in the basement floor covering 15000 sq.ft. having RCC framed structure, RCC retaining walls with Tremix flooring. The office area is built on the ground floor covering 18805 sq.ft. consisting of RCC framed structure, Aluminium windows, vitrified tile flooring. The residential area is on first floor with a covered area of 15304 sq.ft. having specification of masonry structure, granite flooring, ceramic tiles in the bathrooms, wooden doors and windows. If we look at the residential area, though it talks about masonry structure, granite flooring and ceramic tiles which is more a....... + More

Revision u/s 263 by CIT - Addition as income from other sources as the assessee had purchased the property at a cost less than the market value of the property and the property was received for inadequate consideration - HELD THAT:- AO has examined the entire issue during the course of assessment proceedings. It is very clear from the assessment order itself. That apart, the AO has issued a show-cause notice to the assessee and called for explanation. By considering the detailed explanation of the assessee, the AO was of the opinion that where the difference between the actual value and market value is less than 10%, the same is ignorable and does not warrant any taxation. In this case, the Assessing Officer has passed the assessment order after due verification and consideration of detailed written submissions filed by the assessee again....... + More

Penalty levied u/s 271B - delay in filing the audit report under section 44AB - reasonable cause of delay - HELD THAT:- We find that the Department has conducted a search under section 132 of the Act on 11.11.2010 and the search related assessments were completed in all the cases on 28.03.2013. Department has seized the books of account and other records of the assessee and all the firms at the time of search in the middle of financial year 31.03.2011. It is also a fact that the assessee filed the return of income belatedly only on 01.01.2015 for the assessment year 2013-14. It is also a fact that the assessee is also a partner in various firms, wherein, search was conducted and books of accounts were taken under the custody of the Department. The delay was caused due to search conducted by the Department and the books of accounts are not....... + More

Adjustment made in the intimation u/s. 143(1) - denying the benefit of deduction/exemption u/s 11 - CIT(A) upheld the adjustments made in the intimation stating that the assessee had not furnished the details of its registration u/s. 12A/12AA in the return of income and had in fact mentioned that it had not been registered under the said section and had in fact stated "no" against column in the return of income asking whether registered u/s. 12A/12AA of the Act - HELD THAT:- We find that the necessary details of registration u/s. 12A had been filed before the ld. CIT(A) and the assessee had also pointed out that in any case even if it is treated as not registered and assessed in status of AOP since its taxable income was below the limit prescribed for AOPs no tax liability arose in the case of the assessee. We have gone through ....... + More

Unexplained cash deposited in the bank account - contention of the assessee that his submissions were not considered while adjudicating the issue - HELD THAT:- Despite the assessee submitting to him that a reply justifying the source of cash deposit alongwith evidence was filed to the AO, and filing copy of the same to him also, the ld. CIT(A) has, we find, passed a cryptic order dismissing the contentions of the assessee without even dealing specifically with them. Ld. Counsel has pointed out that the source of cash deposited in bank had been explained as out of land sold, and withdrawals from the account itself as also tuition fees earned in cash by his wife who was joint holder of account. As evidence copy of sale deed of land and copy of bank account was filed. But we find and agree with the Ld. Counsel that these contentions were not....... + More

Validity of the reassessment proceedings u/s 147 - absence of issue of notice u/s 143(2) - Addition u/s 68 - HELD THAT:- A perusal of the assessment order as well as the order of the CIT(A) shows that no notice u/s 143(2) was ever issued to the assessee before completing the assessment u/s 143(3)/147 - it is mandatory to issue notice u/s 143(2) even in reassessment proceedings and non-issuance of the same makes the assessment order illegal and null. Hon’ble Delhi High Court in the case of PCIT vs. Shri Jai Shiv Shankar Traders Pvt. Ltd [2015 (10) TMI 1765 - DELHI HIGH COURT] has held that the failure of the AO in reassessment proceedings to issue notice u/s 143(2) prior to finalizing the reassessment order cannot be condoned by referring to section 292BB. We hold that the reassessment proceedings, in the instant case, completed u/s ....... + More

Rectification u/s 254 - Admission of additional evidence - HELD THAT:- In view of the additional evidences filed by the assessee which were never produced before the lower authorities and were filed for the first time before the Tribunal, therefore, the additional evidences were admitted and the issue was restored to the file of the AO to examine the documents and allow the deduction as per law after verification of the completion of the project prior to 31st March, 2008. It is clearly and categorically stated that the Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. Therefore, in our opinion, the apprehension of the ld. Counsel for the assessee that the Assessing Officer may not decide the issue as per law is without any merit. The Assessing Officer is bound to foll....... + More

Validity of Reopening of assessment u/s 147 - assessee's case was selected for scrutiny - eligibility of reason to believe - Case reopened on the basis of information received from the DDIT (Inv), Unit-IV(1), Kolkata - notice after the expiry of four (4) years from the end of the relevant assessment year - HELD THAT:- AO has to record his reason to believe escapement of income and if he intends to reopen an assessment which has been framed earlier u/s. 143(3) after the expiry of four (4) years from the end of the relevant assessment year, then he has to clearly record the additional condition precedent in the reasons recorded that the escapement of chargeable income was due to the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. And it is settled that when there is challenge ....... + More

Addition u/s 14A r.w.r. 8D - Suo moto addition made by assessee - CIT(A) held that the provision of Rule 8D(2)(ii) were applicable in the facts of the case - According to the Ld. AR, the assessee's investment in earning the dividend income is from interest free source meaning that assessee had its own fund for investment for earning the exempt income. Therefore, according to him, Rule 8D(2)(ii) will not be applicable - HELD THAT:- Facts as discerned from the records, we safely infer that since assessee had own fund which was sufficient to make investment fund which yielded exempt income, no disallowance of interest invoking Rule 8D(ii) of the Rules was warranted. For that we rely on case of Reliance Utilities & Powers Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] wherein held that when the assessee is possessed of mixed funds which in....... + More

Addition u/s 36(1)(va) - late deposit of PF & ESI - HELD THAT:- Issue decided in favour of assessee as relying on PRO INTERACTIVE SERVICE (INDIA) PVT. LTD. [2018 (9) TMI 2009 - DELHI HIGH COURT] and AIMIL LIMITED [2009 (12) TMI 38 - DELHI HIGH COURT] as held the amount paid is allowed as an expenditure only when payment is actually made. We do not think that the legislative intent and objective is to treat belated payment of Employee’s Provident Fund (EPD) and Employee’s State Insurance Scheme (ESI) as deemed income of the employer under section 2(23)(x) - Decided against revenue.

Addition u/s 68 - unexplained share capital - addition of share money regarded as undisclosed income - discharge of onus by assessee or not - HELD THAT:- Assessee has discharged burden cast upon it under section 68 of the Income-tax Act, 1961 in respect of share capital received from share capital subscribers - AO has not disputed the fact that the assessee has furnished various evidences to prove identity of the subscribers. The assessee has filed name and address of subscribers, their PAN numbers, details of amount received and allotment made to them, return of allotment filed with Registrar of companies, company master data as available on website of Ministry of Corporate Affairs, Certification of Incorporation along with Memorandum and Articles of Association, ITR acknowledgement, audited financial statements, copies of relevant bank ....... + More

Penalty u/s 271(1)(c) - Defected notice u/s 274 - non specification of charge - HELD THAT:- The penalty has been imposed by the AO u/s 271 (1)(c) without mentioning the specific charge in penalty order dated 21/03/2018, whether, it was levied on account of concealment of income or furnishing inaccurate particulars of income. AO has not levied the penalty on the specific charge as mandated u/s 271(1)(c) - In such facts and circumstance the Hon'ble Jurisdictional High Court in the case of Snita Transport Pvt. Ltd. Vs. Assistant Commissioner of Income Tax [2012 (12) TMI 981 - HIGH COURT OF GUJARAT] has held that penalty cannot be imposed without mentioning the specific charge. AO has not mentioned the specific charge in his penalty orders whether it was levied for concealment of income or for furnishing inaccurate particulars of income. ....... + More

Disallowance of depreciation - adjustments in the intimation under section 143(1) - Whether adjustments in the intimation under section 143(1) ? - HELD THAT:- In the case on hand, the disallowance of depreciation was made in the intimation processed under section 143(1) of the Act which is not a kind of adjustment as discussed above. The issue of depreciation being debatable cannot be subject matter of disallowance in the intimation under section 143(1) of the Act. In holding so we draw support and guidance from the judgment of CIT vs. Mahesh kumar Rathod [2006 (11) TMI 177 - GUJARAT HIGH COURT]. Also all the details of the assets viz a viz depreciation were duly furnished in the income tax return. The major part of the depreciation claimed by the assessee in the year under consideration was pertaining to the opening written down value wh....... + More

Assessment u/s 153A - Addition u/s 68 - Bogus share application money - CIT(A) deleted the addition - HELD THAT:- All the investor companies are group companies who were allotted shares by the assessee company during the relevant period under consideration. It is also an admitted fact that the assessee has filed the details of source of source i.e., the source of funds received by the investors. It is also an admitted fact that the assessee filed copies of bank statements and ledger accounts of the group companies which made the funds available to the investor companies which, in turn, invested such funds in the assessee company in the shape of share application money and share premium. So far as the allegation of the AO that certain funds were received in the form of accommodation entries in a layered structure and that the assessee has ....... + More

Refund of IGST - exports were declared as the “zero rated supplies” - Section 16 of the IGST Act - Simultaneous duty drawback claim - HELD THAT:- The Special Leave Petition under Article 136 of the Constitution, need not be entertained - SLP dismissed.

Vires of Circular No. 163/19/2021-GST dated 06th October, 2021 - scheme of classification as provided under the Notification No.1/2017-Central Tax (Rate) dated 28th June, 2017 and Notification No. 2/2017-Central Tax (Rate) dated 28th June, 2017 - jurisdiction of the Executive - seeking direction to respondent No. 2 to clarify that para 8 does not apply to DDGS/AFS, when prepared and sold as animal feed supplement - classification of 'Dried Distillers Grain with Soluble - Classified under heading 2309 or under heading 2303? - HELD THAT:- Issue notice. List on 13th April, 2022 along with W.P.(C) 13322/2021.

Seeking grant of Bail - illegal availment of input tax credits - compoundable offence or not - offence punishable under Section 132 (1) (b) & (c) of the Act of 2017 - HELD THAT:- The manner in which crime is committed reveals that applicants with cool mind and deliberate design with an eye on personal profit regardless of consequence of community affecting economy of the country as whole, have committed crime in question. Act of applicants is an attempt to destroy system of the Government of collecting taxes under GST scheme. Economic offences constitute a class apart and even bail matters are required to be decided with different approach as it involves huge loss of public funds. True it is that offence committed under Section 132 (1) of the Act of 2017 is made compoundable under Section 138 of the Act of 2017, subject to deposit of ....... + More

Seeking release of provisionally attachment of Bank Accounts - seeking to unblock the Petitioner’s Electronic Credit Ledger - Rule 86A(3) of the CGST Rules, 2017 - HELD THAT:- In rejoinder, learned counsel for the petitioner states that the petitioner has been cooperating with the Investigating Agencies and the relevant documents have been furnished. She assures and undertakes to this Court that the petitioner will continue to appear as and when directed by the Investigating Authorities and will supply the documents which may be asked for. . The present writ petition along with pending application is disposed of with the directions to the respondents to de-freeze the petitioner’s bank account as well as unblock the Electronic Credit Ledger within three working days

Permission for filing of declaration in form GST TRAN-1 and GST TRAN-2 - transitional credit - HELD THAT:- We are happy to learn from Mr. Shraff that the problem has been resolved. The respective applicants have received the credit. We must place on record our appreciation for the efforts put in by Mr. Devang Vyas, the learned Additional Solicitor General of India in resolving the problem. Nothing further requires to be adjudicated. All the applications are disposed of accordingly.

Service of proper show cause notice - Rule 142 (1) (a) of the Jharkhand Goods and Services Tax Rules, 2017 - HELD THAT:- Show Cause Notice has been issued in a format without striking out any irrelevant portions and without stating the specific contravention committed by the petitioner. The summary of show cause notice in FORM-GST-DRC- 01 is to be issued in an electronic form along with a notice for the purposes of intimation to the assesse and the same by its very nomenclature cannot be a substitute to the show cause notice which if lacks in the essential ingredients of a proper show cause notice. While the show cause notice does not even contain the brief facts of the case or the grounds alleged even the summary of the show cause notice does not contain specific facts and allegations showing evasion of payment of due tax to the Governme....... + More

Detention of goods alongwith vehicle - gold ornaments - confiscation of goods - proceedings initiated under Section 129 as well as under Section 130 of the Central Goods and Service Tax Act 2017 - HELD THAT:- It is noticed from Ext.P8, that the respondent has given a reason for initiating proceedings under Section 130. The correctness or otherwise of the said reason is not a matter which can be considered by this Court under Article 226 of the Constitution of India, especially in the light of the fact that, petitioner was not in possession of any documents contemplated under law. Whether the transport of gold was with an intention to evade tax or not is a matter which requires appreciation of disputed facts and hence the statutory authority will have to consider the same after appreciating the facts. This is not a fit case for invoking th....... + More

Classification of goods - HSN Code - Interactive Flat panel with Android - classified under the heading 8471 or otherwise? - HELD THAT:- The goods sold by the applicant has a Central processing unit, memory & storage with an onscreen display of output which is based on the input supply by the user. Therefore in view of the notes to Chapter 84 and also the HSN entries under 8471, the goods fall under HSN 8471.

Reopening of portal for filing of form TRAN-1 - denial of benefit of Input Tax Credit - HELD THAT:- The facts on record indicates that right from the beginning, the petitioner has been writing letters/representation to the respondents to allow the petitioner to file TRAN-1 and that the petitioner had experienced the difficulties on account of technical glitches in the GST web portal of the respondents. Since the issue is covered in favour of the petitioner, this writ petition is allowed. Decided in favor of petitioner.

Exemption form GST - Slaughter house fees - Fees on pay & use toilets - services rendered directly are covered under Twelfth Schedule to Article 243W of the Constitution and /or exempted under the Notfn. No mentioned against each SI No.? - HELD THAT:- The AAR has given a ruling that services by way of slaughtering of animals / fees on pay & use toilets is neither a supply of goods nor a supply of service as per notfn. No. 14/2017-CT(R) as amended by notfn. No. 16/2018-CT(R) being an activity in relation to a function entrusted to a Municipality under Article 243W of the constitution, in which they are engaged as public authority. However, the appellant is not satisfied and has sought to appeal seeking another ruling from the appellate authorities that the activity is also covered under Sl no. 56 /76 of the table in notfn. No. 12/2....... + More

Classification of supply - supply of ggods or supply of services - lease transaction or not - pallets, crates and containers (equipment) leased by CHEP India Private Limited (CIPL) located and registered in Tamil Nadu to its other GST registrations located across India - value on which GST has to be charged - lease charges or the value of equipment - Section 15 of the CGST Act and TNGST Act read with relevant Rules? - documents that should accompany the movement of the goods from CIPL, Tamil Nadu to CIPL. Kerala - mere movement of goods not amounting to a supply or not in terms of Section 7 of the CGST Act and TNGST Act - HELD THAT:- The business model proposed is in the stage of contemplation and has not attained finality with respect to merger, disposition of the assets and the following supply, in as much as the applicant could not pro....... + More

Provisional attachment of the bank(Cash Credit) account - provisions of Section 83 of the CGST Act, 2017 - HELD THAT:- The law is well-settled that a cash credit account of the assessee cannot be provisionally attached in exercise of powers under Section 83 of the CGST Act. This writ-application succeeds and is hereby allowed. The order of provisional attachment of the cash credit account of the writ-applicant is hereby quashed and set-aside.

Seeking grant of Bail - Input Tax Credit - issue of invoices and bills without physical supply of materials - Section 132(1)(b),(c)&(l) the OGST Act, 2017 - HELD THAT:- Grant of bail or refusal is always a discretionary exercise which is to be guided by judicial application of mind. No inexorable formula is in place for considering a plea of bail which depends on variety of factors as has been propounded by the Supreme Court on number of occasions. In so far as economic offences are concerned, definitely, a different approach is to be adopted but then, the basic principles of bail shall have to be borne in mind. It is well known that there is no straight jacket formula for considering the matters of bail which varies from individual case to case. In the instant case, the petitioner was arrested on 02.09.2021 for offences under Section....... + More

Input tax Credit - entitlement to avail and utilize ITC of GST Charged by IPL - supply or not - Air Separation Unit (ASU) - transfer of the leasehold rights for the remainder period of 72 years in respect of part of the property along with superstructures, for setting up of State of the art medical and industrial gases plant - restriction under Section 17(5)(d) of the GST Act 2017 - HELD THAT:- The explanation of 'Contraction' for the purposes of 'Construction' mentioned in Section 17(5)(c) and (d), is an inclusive definition and includes re-construction, renovation, additions or alterations or repairs to the extent of capitalisation to the immovable property. This inclusive explanation states specific activities covered under the term 'construction' apart from the 'Original' activity of 'Construction&#....... + More

Classification of goods - product Rodent Feed - classified under the HSN 2309 90 10 or not - exemption under the Serial Number 102 of N/N. 02/2017 - HELD THAT:- This exemption notification has grouped various tariff items under a single Serial no. 102 and has given an inclusive description for the same. Further neither the specific word ‘rodent feed’ nor the general words such as ‘animal feed’ are used. In this connection a reference need to be made to the law declared by the Hon’ble Supreme Court of India in the case of N.D.P. NAMBOODRIPAD VERSUS UNION OF INDIA & ORS. [2004 (4) TMI 583 - SUPREME COURT] wherein it has been held that the word ‘includes’ can be used to connote a specific meaning i.e., as in “means and includes or comprises or consists of”. Therefore the description i....... + More

Levy of GST - claim of expenses incurred to handle the Cost Free Distribution Sarees & Dhothies and Cost Free School Uniform Scheme - pure services or not - supply to Revenue Department/Social Welfare Department - taxable at 18% GST or not - functions entrusted to a Panchayat under Article 243G/ municipality under Article 243W of the constitution of India - whether the Handling Charges related to Pre-GST period 2015-16 and 2016-17 will also attract GST or not? - HELD THAT:- In the case at hand, it is seen that the applicant is entrusted with the work of undertaking quality check of the clothes, procurement, storage of the goods in warehouses and transport the uniforms/ sarees and dhothies for distribution to the designates places. For undertaking all these activities, they are paid 'Handling charges' as fixed by the Committee ....... + More

Levy of GST - marine engines pertaining to HS code 8407 and its spare parts - engine forms a part of fishing vessel or not - to be classified under HS code 8407 or HS code 8902? - engine forms a part of boats of HS code 8906 being supplied to defence department and other agencies used for patrolling/flood relief and rescue purposes or not - HELD THAT:- Applicant had not filed any documentary evidences along with the application to substantiate that the engines they supply are being used in fishing vessels or for boats used by defence departments. During the Personal Hearing held on 05.10.2021, they were called upon to submit Bills of entries, invoices, purchase orders for the products imported and Tax invoices issued by the applicant. Further to that they submitted bills of entries, invoices for purchase and not for sale made by them. Whe....... + More

Classification of goods - Fusible Interlining Fabrics of Cotton (FIFC) - to be classified under HSN Code 5903 or under Chapter 52(heading depending upon weightage of cotton in the fabrics)? - HELD THAT:- The applicant purchases Fusible Inter-lining Fabrics of cotton (FIFC) from various manufactures like Madura Coats Limited, Ruby Mills Lts, TALCO, etc. The said products are purchased under a Tax Invoice from the manufacturers, i.e., the goods stands assessed at the initial stage. However, the applicant has sought classification of the already assessed products stating that all these products are similar but is classified by the manufacturers under Chapter 52 or CTH 5903. Their concern is though at the manufacturer end, the products are classified differently, when they are dealing with such goods, they intend to know the correct classific....... + More

Carry forward of credit - Refund claim - Other Category of Cesses which was carry forwarded in TRAN-1 and later on, the said amount was reversed in GSTR-3B return - adjudicating authority has rejected the refund claim by taking the main ground that credit of cesses could not be carried forward as per amended explanation 3 of Section 140 of CGST Act, 2017 - Section 54(1) of the CGST Act, 2017 - HELD THAT:- There is no iota of doubt in the fact that after insertion of explanation 3 of Section 140 of CGST Act vide S. 28 of the CGST (Amendment) Act, 2018 (31 of 2018) which were made effective from 1-7-2017, accumulated credit of cesses could not be carry forwarded and also could not be utilized for payment of outward supply. The Hon’ble Madras High Court in ASSISTANT COMMISSIONER OF CGST AND CENTRAL EXCISE, COMMISSIONER CGST AND CENTRAL....... + More

Refund of excess payment of tax - export of goods on payment of IGST - zero-rated supplies or deemed export - Interpretation of Rule 86 of CGST Rules, 2017 read with Circular No. 135/05/2020, dated 31-3-2020 - whether the appeal has been filed within the prescribed time limit? - HELD THAT:- In the instant case, the appeal in the prescribed Form GST APL-01 has been filed by the appellant on 23-11-2020 i.e. the delay of 26 days from the normal period of three months as per Section 107(1) of CGST Act, 2017. The reason for delay has been mentioned by the appellant in their appeal memo that the office of the authorized representative of the appellant was closed due to COVID-19 cases, hence the appeal could not be prepared in time - Delay up to 30 days is condonable, hence condonation of delay is requested. In view of the reason given by the ap....... + More

Rejection of applications for issuance of Duty Credit Scrips under the Merchandise Export from India Scheme (MEIS) - rejection on the ground that the transaction was between the Petitioner and the FTWZ unit in an SEZ and thus ineligible for claiming benefit under MEIS - overriding effect of SEZ Act over all provisions of all other Acts as per Section 51 of the said Act - HELD THAT:- Paragraph 3.06 of the FTP 2015-20 refers to exported goods which shall be ineligible for Duty Credit Scrips under MEIS. Clause (vi) of paragraph 3.06 states that SEZ/FTWZ products exported through DTA units shall be ineligible for benefit under MEIS. Similarly clause (xix) states that the exports made by units in FTWZ shall be ineligible for benefit under MEIS. The Competent Authority / Respondents have denied benefit to the Petitioner under the aforesaid two ....... + More

Seeking provisional release of seized goods imported by the petitioner - ‘proper officers’ for the purpose of Section 110 of the Customs Act - It is the case of the petitioner that the respondent no.4 neither completed the assessment of the goods nor made any communication with the petitioner regarding those goods assessed for a period of 5.5 months from the date of filing of Bill of Entry - HELD THAT:- A perusal of the Affidavit-in-Reply filed by the Respondents clearly indicate that both the parties are ad-idem that the Public Notices dated 23rd October 2019 and 16th June 2021, had issued a list of goods mentioned under Chapter 8 and 21 which could not be analyzed/tested by DYCC. It is admitted by the Respondents that the goods in-question however were tested by the said DYCC Lab, which had no facility to carryout such testi....... + More

Valuation of imported goods - Black Pepper Sri Lankan origin - invoices qua said consignment have been overvalued so as to circumvent Minimum import price (MIP) of ₹ 500/- per kilogram - prohibited goods - import of Black Pepper up to the value of ₹ 500/- per kilogram is prohibited vide notification No.21/2015-2020 dated 25.07.2018 - HELD THAT:- Hon'ble Division Bench by way of an intra-court appeal is M/S. AL QAHIR INTERNATIONAL VERSUS THE COMMISSIONER OF CUSTOMS, THE DEPUTY DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE, TUTICORIN [2021 (9) TMI 369 - MADRAS HIGH COURT]. In Al Qahir case, learned Single Judge directed release of goods on execution of bank guarantee for interest, penalty or charges that may be charged. This is vide paragraph 38 (i) of the Single Judge's order. The importer carried the matter in appeal b....... + More

Validity of levy of detention charges and ground rent charges by customs cargo service provider - goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive Officer or Examining Officer - refund of the amount sought along with interest - HELD THAT:- The issue is no longer res integra in view of a recent decision of the Bombay High Court in the case of SAHAJ IMPEX VERSUS BALMER LAWRIE & CO. LTD. & ANR. [2021 (1) TMI 821 - BOMBAY HIGH COURT], wherein the Bombay High Court has held that It is not in dispute that respondent No. 1 is a Customs Cargo Service Provider as defined in Regulation 2(1) (b) of the Regulations. Being so, it is under a legal obligation to discharge the responsibilities as mandated under Regulation 6, more particularly in clause (l) thereof which cl....... + More

Levy of Anti- Dumping Duty - imports of Décor Paper originating in or exported from China PR - possibility of a final Notification being issued by the Central Government accepting the Final Findings of the Designated Authority and imposing Anti-Dumping Duty - seeking to amend the writ petition in terms of the Draft Amendment at Annexure E thereto - seeking for interim relief to stay the Notification dated 27.12.2021 - HELD THAT:- The draft amendment as prayed for in the Civil Application No.1 of 2022 as per Annexure E is granted subject to rights and contentions of the Respondents. Such amendment to be carried out within one week from today. Pending hearing and final disposal of the writ petition, the writ applicant shall be permitted to clear the subject products exported to India on payment of USD 110 per metric tonne and upon furnishing a bank guarantee for the differential amount of USD 432 per metric tonne. Application disposed off.

Seeking grant of bail - Smuggling - high value foreign origin black pepper abusing the facilities under the Indo-Nepal Treaty on Trade and Transit. - alleged fraudulent exports - live link between the incidents of alleged smuggling activities and the date on which the order of detention was issued or not - Subjective satisfaction for formation of opinion in issuing detention of order under Section 3(1) of the Act - Non-consideration of relevant materials by and/or non- disclosure of relevant materials before the Detaining Authority - refusal to supply additional documents and the legible copies of some relied upon documents thereby denying proper opportunity to the detenue to make effective representation - Cryptic and delayed consideration of representations of the detenue by the Central Government. HELD THAT:- The Hon’ble Supreme ....... + More

Revocation of Customs Broker License - forfeiture of the security deposit - penalty under Regulation 18 of the CBLR, 2018 - import of Cigarettes and Food Supplement/proteins - seeking clearance of goods declared as Food Stuff (Chocolate etc.) Cigarettes and Cosmetics - prohibited/restricted goods - benefit of N/N. 03/57-Cus. dated 08.01.1957 - Customs Circular No. 13/2007 dated 02.03.2007 - HELD THAT:- It is incorrectly held that the appellant have violated the provisions of Regulation 10(d) of CBLR, 2018. Further, the appellant has exercised due diligence in carrying out his duties. The appellant knew that in case of diplomatic consignment etc. cigarette are exempt from payment of customs duty under Notification No. 3/57-Cus. dated 08.01.1957, when the same are imported for their personal use or use in the Diplomatic Mission. In the inst....... + More

Valuation of imported goods - Halani Star - rejected of declared Cost, Insurance and Freight (CIF) value value - redetermination of value under rule 9 of the 2007 Valuation Rules - opportunity of cross examination - confiscation of goods - redemption fine - penalty - HELD THAT:- What has to be seen under section 14(1) of the Customs Act, as amended in 2007, is the transaction value of the goods imported or exported for the purpose of customs duty and transaction value is stated to be the price actually paid or payable for the goods when sold for export to India for delivery at that time and place of importation. Sub-section (1) of section 14 of the Customs Act also makes it clear that the price actually paid or payable for the goods will not be treated as ‘transaction value’ where the buyer and the seller are related to each o....... + More

DEEC Scheme - fraudulent export of polyester fabrics and duty-free import of Polyester Filament Yarn and other items - proceedings initiated, but was not completed during the 23 years - pendency of proceedings for such a long period can be construes as reasonable period or not - HELD THAT:- There are no justification to hold that the respondents have acted in the manner law requires them to act. It is not in dispute that after the show-cause notice was issued on 30th April 1997, the petitioners were called upon for a hearing in the year 2006. At least, till 2006, it can be inferred that the issue was live. However, why no final order was passed immediately after the hearing was granted to the petitioners is not disclosed in the affidavit-in-reply. The respondents seem to have slipped into deep slumber thereafter. While the respondents&rsq....... + More

Refund of excess amount deposited - Mandatory pre-deposit - Seeking closure of bonds and return of Bank Guarantee - Import of oxygen sensors and loud speakers for use and inputs in the manufacture of ICU ventilators without payment of customs duty - benefit of exemption Notification No.20/2020-CUS dated 09.04.2020 read with Customs (Import of goods at Concession rate of duty) Rules, 2017 availed - HELD THAT:- In the light of the undisputed fact that the Order-in-Original dated 10.03.2021 itself states that the petitioner had a period of 60 days to prefer an appeal under Section 128 of the said Act of 1962 coupled with the Circular dated 16.09.2014 and the decision of this Court in M/S ORACLE INDIA PVT. LTD. VERSUS UNION OF INDIA, NEW DELHI & OTHS. [2013 (7) TMI 720 - KARNATAKA HIGH COURT], the impugned letters dated 11.03.2021 and 16........ + More

Seeking payment of duty drawback claim, along with interest - HELD THAT:- The material on record indicates that it is an undisputed fact that vide Order dated 06.07.2019, the respondent No.1 had rejected the claim of the petitioner for duty drawback. However, by Order dated 06.03.2020, the Appellate Authority not only set aside the said order dated 06.07.2019 passed by respondent No.1, but has also come to the categorical conclusion that the petitioner is entitled to the duty drawback claim made by him as well as interest on the same under Section 27A of the Customs Act - the said Order dated 06.03.2020 was binding upon the respondent No.1 who had no other option than to give effect and implement the same thereby disbursing the duty drawback claim in favour of the petitioner together with applicable interest as directed in the Order dated....... + More

Classification of imported goods - Base Oil SN50 - classified under the CTH 27101960 or not - onus to establish the cargo as High-Speed Diesel discharged by Revenue or not - confiscation of prohibited goods - levy of penalty - maintainability of appeal for determination of any question having a relation to the rate of duty of Customs or to the value of goods for purposes of assessment - HELD THAT:- Application admitted on substantial questions of law. Notify all the three Tax Appeals for final hearing on 12th January 2022 on top of the Board.

100% EOU - demand of duty on wastage/ breakage, over and above the permissible limit, of raw materials imported duty free, during the course of manufacture of final products by the EOU - whether the appellants would be eligible for the higher norms fixed by Ministry in respect of wastage/ loss/ breakage of raw materials? - whether the demand is premature? - HELD THAT:- The appellants have represented to the Ministry to revise the SION norms in blanks imported by them. Ministry after considering the request of the appellants have communicated to the development commissioner that a wastage of 15 percent has been fixed and the development commissioner may take necessary action under para 6.7(e) of Hand Book of Procedures Volume-I. Thus, in view of the decisions dated 23/9/2008 and 26/11/2008 of the Commerce Ministry, in the appellant’s....... + More

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.

Oppression and mismanagement - seeking inter alia injunction against the Respondent from proceeding with the Rights Issue as it was being issued with a motive to dilute the shareholding of the Appellant in the Respondent Company - section 241 and 242 of Companies Act - HELD THAT:- It is seen that the matter was listed on 04.01.2022 and it is pertinent to mention that NCLT has recorded that the “Petitioner was heard in full‟. It is significant to mention that in all the aforenoted Orders passed by NCLT both sides were present and heard. The matter was listed for 06.12.2021 as “a specially ordered matter‟. There are force in the contention of the Learned Counsel for the Respondent that it could not be heard on 14.01.2022 on account of the pandemic and was hence posted to 18.02.2022 - Section 242(4) of the Act empower....... + More

Scope of Deposits - amounts collected by the petitioners for sale of immovable property as advance - would come under the purview of ‘deposits’ or would exempt from the purview of ‘deposits’ by virtue of Rule 2(1) (c) (xii) (b) of the Companies (Acceptance of Deposits) Rules, 2014? - HELD THAT:- The proviso to Rule 2 (1) (c) (xii) (b) makes it very clear that only when the amount becomes refundable (with or without interest) due to the reasons that the company accepting the money does not have necessary permission or approval wherever required, to deal in the goods or properties or services for which the money is taken, then the amount received shall be deemed to be a deposit under the respective rules. Admittedly, the 1st petitioner company had purchased the agricultural land and after obtaining the permission fro....... + More

Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Section 230(2)(a) of the Act read with Rule 6(3)(viii) of the Rules shows that the scope and intent is to require Companies to disclose all investigations/proceedings which are ‘material’ and relating to the Company. We are of the considered view that the wording of Section 230(2)(a) should be interpreted as “all material facts relating to the Companies, such as, pendency of any investigation of any proceeding against the Company” - as per Clause 6 of the Scheme upon this implementation, all proceedings in the name of the ‘Transferor Company’ shall be continued and enforced against the ‘Transferee Company’ and such proceedings shall not be discontinued or prejudicially affect anyone by reaso....... + 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

Eligibility of persons to be resolution applicant - Interpretation of Statute - Section 29A(h) of the Insolvency and Bankruptcy Code, 2016 - time limitation - HELD THAT:- Section 29A is a facet of the Code, and therefore, this provision has to be read with the main objective enshrined thereunder. The objective behind Section 29A of the Code is to avoid unwarranted and unscrupulous elements to get into the resolution process while preventing their personal interests to step in. Secondly, it consciously seeks to prevent certain categories of persons who may not be in a position to lend credence to the resolution process by virtue of their disqualification. Section 29A(h) of the Code creates one more category of persons not being eligible to be a resolution applicant. Other than the persons mentioned thereunder, there may not be any disquali....... + More

Review order - Maintainability of appeal - appeal maintainable against the orders challenged in the writ petition under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘the Code’) and not under Section 421(1) of the Companies Act, 2013 - HELD THAT:- There is no scope of review of the order merely on the basis of the finding that an appeal lay under Section 421(1) of the 2013 Act. It is well-settled that allegations on fact as to what transpired in Court on certain particular dates have to be levelled, for the ends of propriety, before the said Court itself, where the irregularity allegedly occurred, preferably before the same Presiding Officer. A challenge before a superior forum, including under Article 226 of the Constitution of India, is illusory in nature, since it is most appropriate tha....... + More

Validity of Winding up order - breach of the mandatory requirement of advertisement before ordering winding up - bar of time limitation - estoppel from pleading fraud - violation of the principles of natural justice due to the denial of permission for cross examination - erroneous findings of fact - application of incorrect standard of proof on the question of fraud - erroneous conclusions regarding the consequences of fraud, assuming that fraud was established - winding up under clause (c) of Section 271 (directly on the ground of fraud) by any person authorised by the Central Government by notification or winding up under clause (e) of Section 271 (on the ground that it is just and equitable to wind up) in terms of Section 224(2)(a) on the basis of a report of investigation under Section 213(b). Applicability of provisions of IBC - HELD....... + More

Validity of distribution made by the Appellant as per the provision of Insolvency and Bankruptcy Code 2016 - revival of Corporate Debtor - HELD THAT:- In the present case, there is an order of attachment under ‘Prevention of Money Laundering Act’. Though the Adjudicating Authority vide its order dated 22.07.2020 has allowed the Liquidator to proceed with the sale of the assets; but the operation of the said order has been stayed by the Hon’ble Calcutta High Court vide order dated 20.11.2020 in WP No. 7962/2020 filed by the ED. In view of the same, the sale of the assets of the CD is not possible at this stage and due to legal intricacies, it is absolutely uncertain as to when the Liquidator will be able to realise the assets of the CD by disposing the same as a going concern. In these circumstances, if the impugned order....... + More

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - Operational Creditors - time limitation - HELD THAT:- The present is a case where Corporate Debtor in spite of several notices issued by the Adjudicating Authority did not appear to contest the Application. The date of default having been specifically mentioned in the Demand Notice as well as in the Section 9 Application as 26.11.2018, there was no material with the Adjudicating Authority to take any contrary view regarding the date of default. The observations of the Adjudicating Authority that last invoice dated 08.07.2017 which does not appear to be correct which is in altogether different format as compared to other 9 invoices. The mere fact that the invoice dated 08.07.2017 was sent in different format was not any factor on w....... + More

Approval of the Resolution Plan along with the Scheme of Amalgamation - Section 30(6) read with Section 31 of Insolvency & Bankruptcy Code, 2016 (IBC, 2016) read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- It is noted that Form H has been filed by Resolution Professional wherein all information/details as regard to conduct of CIRP as well as process adopted for Resolution Plan has been given. The Resolution Applicant has proposed to pay the financial creditor ₹ 77,10,00,000/- against its total admitted claim of ₹ 95,03,71,082/-. The amount of ₹ 12,32,44,348/- has been proposed in the Resolution Plan to pay to the Operational Creditor against the total admitted claim of ₹ 12,32,44,348/- including the S....... + More

Seeking direction to Resolution Professional of Afcan Impex Private Limited and member of CoC to allow submission of the Resolution Plan by the applicant in the matter of Afcan Impex Private Limited - Section 60(5) read with Section 30 of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The respondent No. 1 published Form-G on 09.06.2021 inviting expression of interest for which the last date was 07.07.2021 and the last date for submission of the resolution plan was 16.08.2021 However, the applicant expressed its willingness to submit the resolution plan on 30.09.2021 which is much beyond the last date for submission of the resolution plan - It is further noted that the CoC approved the resolution plan with 100% voting on 01.10.2021 and the application before this Ad....... + More

Seeking sale as a going concern - Section 35(1) (f) & 60(5) of the Insolvency & Bankruptcy Code, 2016 r/w Reg. 32(f) and 32A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations & Rule 11 of the NCLT Rules, 2016 - HELD THAT:- Since the interests of all the stakeholders have been taken care of and the Secured Financial Creditor (Erstwhile CoC) has also approved, it was submitted that this Tribunal may be pleased to pass necessary orders for sale of the corporate debtor as going concern. IA/463/C HE/2021 is the amendment Application seeking modification in the prayers in IA/199/CHE/2021 and the same is hereby allowed. The Liquidator is permitted to sell the assets of the Corporate Debtor as a going concern to the Respondent as per Regulation 32A of Insolvency and Bankruptcy Board of India (Liquidatio....... + More

Appointment of the Liquidator or restraining the Liquidator from discharging the employees etc. - Section 61 of the ‘Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The CoC agreed to accept the EOI of SREI and further extended the date of submission of the Resolution Plan from 02.03.2019 to 25.03.2019. However, SREI submitted the Resolution Plan on 16.04.2019 which was rejected by the CoC on 07.05.2019 by approx.98% vote. SREI went on improving the proposal just by a minuscule amounts and finally CoC decided to put the resolution plan to vote on 24.07.2019. However, the Resolution Plan was rejected by the CoC by approx.71% of the vote and rejection was communicated to the SREI. On 25.07.2019, SREI further sent a standalone financial offer raising its proposal from ₹ 395 Crore to ₹ 401 Crore - The issue was why we are ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Non-performing assets - Financial Creditors - prohibition under the doctrine / principle of “Nullssuss Commodum Capere Postest De Injuria Sua Propria” - existence of debt and dispute or not - HELD THAT:- It is a settled law that default is committed first and second stage comes as NPA, if it is not regularized in between the period of default and within 90 days thereafter. The Code is a complete Act itself. What Section 7 of the Code requires that a Financial Creditor by filing an application in the requisite format can initiate CIRP against the CD when a Debt is due and payable in law and has not been paid and a default has occurred, the Adjudicating Authority is to initiate CIRP if, he finds default recorded in the I....... + More

Liquidation/sale proceedings under process - seeking to allow the Liquidator to keep windmill assets of the Corporate Debtor outside the sale purview of Liquidation Estate - seeking to allow the liquidator to distribute the sale proceeds from the sale of windmill - Liquidator also seeking to get himself impleaded as a party - Whether the title of windmill asset has passed to Appellants is sub-judice before the Calcutta High Court? - HELD THAT:- It is apparent that whether the title of windmill assets has been passed to the Appellants is to be decided in the Civil Suit which is pending before the HC. Thus, we are unable to convince with the argument of Ld. Sr. Counsel that the Adjudicating Authority has wrongly concluded that the Civil Suit is for determining rights of the parties over the windmill assets. Whether the order for keeping the....... + More

Seeking replacement of Liquidator - grounds pleaded in the appeal for replacing the liquidator are that the liquidator did not carryout the process of liquidation insofar as sale of assets through the e-auction is concerned, in a fair and transparent manner - it is also alleged that the liquidator did not discuss the process and details of liquidation with the stakeholders as well as Appellants, who are also stakeholders in the liquidation proceedings - HELD THAT:- In the present case, from third meeting of SCC onwards, it was decided that the Corporate Debtor or its business is not to be sold as a going concern. Hence, a period of prescribed time limit for completion of liquidation of 365 days should be counted from the date of 3rd meeting of SCC held on 9.11.2020. Since there was no “lockdown” enforced by the authorities in ....... + More

Seeking exclusion of 87 days from the calculation of 180 days (CIRP period) - requirement of approval of the CoC - Section 12 of Insolvency & Bankruptcy Code, 2016 - whether the approval of the CoC under Section 12(2) of the Code is mandatory for seeking ‘exclusion of time” even if it is sought on grounds of lockdown/time lost during the period of any ‘Stay’/Status Quo /or for any other reason? - HELD THAT:- Section 12(2) speaks about ‘extension of the time’; Regulation 40C of the Regulations speaks about ‘exclusion of time’; the fact that the Adjudicating Authority had exercised its Discretionary Powers under Rule 11 of the NCLT Rules, 2016, that the period sought for excluding the time period lost is based on the reasons mentioned in the table in para 10; the fact that had this period ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - rejection of Operational Debt - existence of debt and dispute or not - HELD THAT:- There is no dispute that before issuance of notice in the Company Petition filed by the Appellant, the principal amount as claimed by the Appellant of ₹ 18,07,373/- was paid on 15th December, 2018. The claim of interest was refuted in the reply filed before the Adjudicating Authority by the Respondent. It was specifically a case of the Respondent that there was no agreement between the parties to make any payment of interest and the claim of interest by the Appellant is mala-fide and without any basis. In the present case, when the Corporate Debtor in its reply to Section 9 Application has clearly and categorically deni....... + More

Seeking withdrawal of application for initiation of CIRP - maintainability of case in view of the settlement and in view of the provisions of section 10A of the IBC, 2016 - HELD THAT:- No application for initiation of CIRP of a Corporate Debtor under section 7,9 and 10 of IBC, 2016 shall be filed for any default arising on or after 25th March, 2020 along with that it was also clarified that provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020. Whereas, in the present case in hand the main matter has been filed under section 7 of IBC, 2016 and the default as well as the filing of the application under section 7 has taken place prior to 25th March 2020. The applicant's contention that as both the parties entered into a settlement therefore, there has been novation of the MOU....... + More

Implementation of approved Resolution Plan - delay because of the time for litigation and in making initial payments as required in the approved Resolution Plan - grant of more time for extension of CIRP for invitation of fresh EOIs or liquidation of the Corporate Debtor, in the event the Respondent No. 1 is found in default of implementation of the Resolution Plan - HELD THAT:- Effective implementation of the Successful Resolution Plan started only after 5.4.2019, when Hon’ble Supreme Court dismissed the appeal of former promoter/directors of the Corporate Debtor. It is quite apparent that the bank guarantee submitted by Respondent No. 1 was not enforced properly because it was not submitted in SWIFT mode. Respondent No. 1 has claimed that it is not responsible for non-enforceability of the Bank guarantee because it was due to the ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor committed default in making payment to the Financial Creditor in view of the term loan and working capital facilities availed by them - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The counsel for the Financial Creditor submits that since the debt is admitted, the defences taken by the Corporate Debtor cannot be appreciated. The counsel for the Corporate Debtor also does not raise any serious argument against the said contention. He only makes an attempt to submit that the inability to pay was due to the pandemic and due to the incidents mentioned in the counter. When debt is admitted, the reasons for the inability to pay, cannot help the Corporate Debtor however valid they are. It is for the Corporate Debtor to settle the matter with Financ....... + More

Release of retention money as per the Contract Agreement - Section 60(5) of Insolvency and Bankruptcy Code, 2016 Read with Rule 11 and 13 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- It is clear from the arguments made by the counsel for the Applicant that the contract that assigned to the Corporate Debtor was executed and certificate was issued to that effect with regard to defect liability period extended up to 30.06.2022. The counsel for the Applicant draws the attention of the Tribunal to the notification dated 03.06.2020 wherein it is notified that retention money from the period 3 months but paid to 6 months, may not be deducted from the raised bills. In view of the said notification the application is allowed and Applicant would be entitled for the refund of retention money. The Respondent No. 2 shall release the retention money of ₹ 2,62,74,514/- forthwith. Petition disposed off.

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 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

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 VCES scheme - rejection on the ground that the Voluntary Compliance Encouragement Scheme (VCES) did not have provision for a statutory appeal against the order of rejection of declaration under Section 106 (2) of the Finance Act by the Designated Authority - HELD THAT:- The Hon’ble jurisdictional High Court of Judicature at Madras in the case of THE NARASIMHA MILLS PRIVATE LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE (APPEALS) , THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE [2015 (6) TMI 787 - MADRAS HIGH COURT], has clearly held that an order of rejection of benefit under the impugned scheme is appealable under Section 85 of the Finance Act, 1994. The impugned communication by the Commissioner (Appeals) cannot sustain and therefore, the same is set aside. The Commissioner (Appeals) is directed to take up the appeal pr....... + More

Maintainability of appeal - monetary amount involved in the appeal - Mutuality of interest - donations/contributions by non-members would be less than rupees two crores - HELD THAT:- Appeal is disposed of in terms of Circular No. 17/2019 (F. No. 279/Misc.142/2007-ITJ(Pt.), dated 8th August, 2019 issued by the Department of Revenue, Ministry of Finance, leaving all questions of law open.

Levy of service tax - works contract services - taxable services or not - It is the case of the petitioner that the work carried out by the petitioner was not liable to tax during the period in dispute as the work involved "works contract" and was liable to service tax for the first time with effect from 01.07.2007 with the insertion of Section 65(105) (zzza) of the Finance Act, 1994 - HELD THAT:- The Tribunal, being the final fact finding authority, will determine the question of facts and arrive at a conclusion on law. In case the petitioner is aggrieved by any such order of the Tribunal, the petitioner has an alternate remedy before the High Courts and the Hon'ble Supreme Court under the provisions of the Finance Act, 1994 read with Central Excise Act, 1944. The authorities under the Acts overburdened with litigation and ....... + More

100% EOU - Refund claim of unutilised input service tax credit - Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012 - quarter April, 2017 to June, 2017 - HELD THAT:- A perusal of clause (g) of Notification No.27/2017 shows that it speaks of closing balance of credit available with assessee, and nowhere in entire notification, there is any mention that the closing balance is to be considered as the amount shown as closing balance in ER2 Return. The objection of department is solely on the basis of closing balance declared in ER2 Return. The stand of department that since the appellant did not opt for filing revised return within the given time, they could claim refund of the amount as declared in ER2 Return only. But, there has been no objection to the submissions made by the appellant from the ....... + More

Security service - Non-payment of service tax, inspite of collection of service Tax from its clients - suppression of facts - extended period of limitation - HELD THAT:- It is beyond comprehension as to what prevented the department to investigate in the year 2004 itself in contacting the end users on the service base so as to verify the authenticity of these invoice copies. It is trite that the deficiencies in the investigation or incorrect demand in the first show cause notice cannot be made good in the second show cause notice and subsequent show cause notice alleging suppression of facts again is not reasonable since repeated issuance of notices would result in revisiting the concluded proceedings and reopening of the proceedings at any point of time. The fact finding authority having taken cognizance of the facts has reached at a con....... + 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

Penalties under section 11AC of Customs Act, 1962 and rule 173Q of Central Excise Rules, 1944 - mandate for inclusion of amortized cost had not been complied with in computing the assessable value for discharge of duty liability - HELD THAT:- There is no doubt that the computations leading to the confirmation of demand during the first round of litigation were revised substantially during the second round indicating lack of certainty when proceedings were initiated by the central excise authorities. A higher measure of certainty cannot be expected of an assessee. It is also seen from the records that guidelines on proportionate allocation of costs were covered in circular no. 170/4/96-CX dated 23rd January 1996 of Central Board of Excise & Customs whereas the demand pertains to a period prior to that also. Reliance can be placed in th....... + More

Entitlement of interest on delayed refund of pre-deposit - appellant submitted that since the appellant is entitled to refund of pre-deposit, from the date of deposit till the date of its realisation under Section 35FF of Central Excise Act - HELD 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 OTHERS [2006 (1) TMI 55 - SUPREME COURT]. The impugned order is set aside. The Adjudicating Authority is directed to grant interest @ 12% per annum from the date of deposit till the date of refund. Such interest should be granted within a period of two months from the date of receipt or service of the copy of this order - appeal allowed - decided in favor of appellant.

CENVAT Credit - goods which are not in the nature of Capital Goods - inputs having been used in the fabrication of storage tanks - eligibility of Explanation 2 of Rule 2(k) of the Cenvat Credit Rules, 2004 - requirement of perusal of certificate of Chartered Accountants or not - corroborative evidence or not - argument of the assessee is that the items on which the credit was availed had been used for commissioning and fabrication of the storage tanks would get covered under sub clause (iii) of clause (a) of the definition of capital goods and these are necessarily required for the activities in the factory and for manufacture of the final products. HELD THAT:- Whether the assessee had produced supportive documents based on which the Chartered Accountant had certified in their favour. On going through the order passed by the tribunal as w....... + More

Condonation of delay of 376 days in filing appeal - sufficient cause for delay was shown or not - HELD THAT:- It is trite that there is no straight jacket formula for exercising the discretionary power in condoning the delay which necessarily depends on the facts and circumstances of the case. It is true that the explanation offered by the appellant for condoning the inordinate delay was not substantiated by the material evidence but in the interest of justice and equity, we deem it appropriate to provide an opportunity to the appellant to satisfactorily explain the cause for the delay in filing the appeal. The ends of justice would be sub-served in setting aside the order and remanding the matter to the CESTAT whereby an opportunity may be provided to the appellant to file a better affidavit for explaining the cause for the delay satisfa....... + More

Condonation of delay in filing appeal before the Commissioner (appeals) - Levy of excise duty - manufacture of concrete mix at project site for the purpose of construction - applicability of N/N. 4/1997-CE, dated 1.3.1997 - Applicability of similar Notification No.12/2012-CE, dated 17.3.2012 to the subject tax period - applicability of CBIC Circular bearing No.368/1/98, dated 6.1.1998 - HELD THAT:- It is not in dispute that the order in original was passed by the adjudicating authority on 14.6.2019 and the writ petition was filed by the appellants before this Court in the month of September 2020. The statute prescribes the limitation period of 60 days with the next 30 days as per the proviso i.e., totally 90 days in filing the appeal before the Commissioner of Central Excise (Appeals) against the order in original under Section 35 of the ....... + More

CENVAT Credit - inputs - inputs were received between November 1997 and December 1998 - denial of credit on the ground that under rule 3(1) of the 2004 Credit Rules, credit could be availed only in respect of the central excise duty paid on ‘inputs’ received in the factory of the manufacturer on or after 10.09.2004 - eligibility of the appellant to avail credit under rule3(2) of 2004 Credit Rules - failure on the part of appellant to produce documentary evidence in the form of relevant invoices/records showing receipt, issuance, consumption and proper accounts of inputs on which credit was availed - violation of rule 9(5) of the 2004 Credit Rules - interest - penalty - HELD THAT:- In the present case, it is seen that the appellant has explained as to why it could not immediately avail CENVAT credits on Tanks fabricated in the ....... + More

CENVAT Credit - Chemicals sent to the job workers for carrying out further process - inputs which were not received within 180 days - rule 4 (5)(a) Central Excise Rules,2004 - suppression of facts or not - time limitation - HELD THAT:- Admittedly the appellant has sent the inputs chemicals for job work in the water base. The entire processed goods have been returned within 180 days. The remaining quantity was subsequently returned back though after 180 days but the same was in the form of wastage. In fact the job worker is not required to return the wastage material which is predominantly the contaminated water therefore, it cannot be said that the appellant has not received back the processed goods within 180 days. In this fact the appellant has received back the processed goods within 180 days therefore, the demand on the ground that th....... + More

Refund of the amount Central Excise Duty - deemed exports or not - supplies made to ONGC and Oil India Limited against International Competitive Bidding - exemption under Serial No 336 of Notification No 12/2012-CE dated 17.03.2012 - when the goods are exempted and cleared on payment of duty whether subsequently refund can be claimed? - HELD THAT:- In the present case there is no dispute that the goods cleared by the appellant were indeed exempted in terms of Notification No. 12/2012-CE dated 17.03.2012. Therefore, the excise duty was not payable since the appellant has paid the excise duty which was otherwise not payable the same is refundable to the appellant. In the case of COMMISSIONER VERSUS SUNCITY ALLOYS PVT. LTD. [2007 (2) TMI 137 - HIGH COURT, RAJASTHAN], the Hon'ble Rajasthan High court held that if in respect of the goods e....... + More

Liability to pay interest on differential duty - goods cleared from depot - HELD THAT:- There is no dispute that differential duty and interest is payable in principal. However, the appellant have raised dispute about calculation of duty. It is their submission that if the cum-duty price is considered the duty amount will come to ₹ 12,95,181/- instead of total differential duty paid amounting to ₹ 15,01,214/-. This amount is sufficient to meet the differential duty of ₹ 12,95,181/- and ₹ 2,06,033/- towards interest. Accordingly, the duty of ₹ 15,01,214/- paid by them may be considered as interest and duty and there is no further interest liability. The cum-duty benefit is legally available to the assessee. Statue provides that whenever duty is calculated, it should be calculated considering cum-duty price. Ho....... + More

CENVAT Credit - duty paying documents - ISD invoices - management and repair services - clearance of waste and scrap (old empty soda bags), guddar, old PVC drum, old empty bags, etc. - scrap cleared by the appellant are not manufactured scrap or scrap arising in the course of manufacture of final products or bye-products - demand under the provisions of Rule 9 (6) of CCR - HELD THAT:- The disallowance by the Court Below is for vague reasons. The cenvat credit received by the appellant unit through ISD invoices is wholly allowable in respect of the repair and maintenance services received. Further, the Court Below have erred in allowing part of such services and have disallowed the part of amount for no ostensible reasons - the amount disallowed is bad and the ground is allowed in favour of the appellant. Demand of 6% on clearance of waste....... + More

CENVAT Credit - inputs - ingots - allegation of fake sales and transfer of inadmissible CENVAT credit, without actual transfer or delivery of goods - penalty - HELD THAT:- In the case of similarly situated co-appellant (arising from the common impugned order), the coordinate Bench of this Tribunal in the case of M/S ARYA ALLOYS PRIVATE LIMITED, ROMY BANSAL, DIRECTOR, RAJ KUMAR BANSAL, DIRECTOR (FORMER) , AMIT GUPTA VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, CUSTOMS & CENTRAL EXCISE, ALWAR [2020 (3) TMI 148 - CESTAT NEW DELHI] where it was held that In the absence of the inputs, it is not possible to manufacture final product, which the appellant have shown to have manufactured and cleared on payment of duty. Penalty also cannot be levied. Appeal allowed - decided in favor of appellant.

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

Input tax credit - Validity of assessment order - sale of goods without payment of tax on the strength of which the purchasing dealers availed Input Tax Credit under Section 19 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- It is noticed that the Principal Secretary/Commissioner of Commercial Taxes has issued the Circular No.05 of 2021, LW10/12521/2016 dated 24.02.2021. It has spelt out the manner in which the issue has to be addressed and the Input Tax Credit availed has to be reconciled on the strength of the information gathered from the website of the Government. Admittedly, in this case the respondent has not followed the procedure prescribed therein. Considering the same, the impugned Assessment Order is quashed by remitting back the case to the respondent to pass a speaking order in terms of the above-said circular/guidelines of the Principal Secretary/Commissioner of Commercial Taxes - petition allowed by way of remand.

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

Prayer for a decree of declaration for declaring his correct date of birth in service record - mandatory injunction against the defendants and their officers, employees, successors, and representatives, etc., to rectify and correct date of birth in the service record - decree of damages against defendants by directing the appellant / defendant No.1 to pay ₹ 3 Lacs as compensation on account of mental agony and harassment caused to him due to gross negligence and casual approach - whether the Trial Court is justified in decreeing the suit filed by the respondent No.1 / plaintiff granting relief in his favour by declaring his date of birth as October 02, 1962? HELD THAT:- The stand of the appellant / defendant No.1 is that the date of birth can be altered within five years of appointment but the said rule does not contemplate, if, an ....... + More

Dishonor of Cheque - funds insufficient - legally enforceable debt or not - rebuttable presumption or not - Section 139 of the Negotiable Instruments Act - HELD THAT:- It is a well settled position of law that, once the execution of the cheque is admitted, there is presumption under Section 139 of the Negotiable Instruments Act as to the existence of legally enforceable debt. However, the said presumption is a rebuttable presumption and if the accused is able to show from the evidence that the amount mentioned in the cheque does not reflect the actual amount legally due to the complainant, the said presumption shall stand rebutted. In such event, the burden to establish the existence of a legally enforceable debt shall stand shifted to the complainant. In this case, by virtue of the difference in the amount presumably due to the addition ....... + More

Dishonor of Cheque - suit barred by time limitation or not - suit promissory note Ex.A1 is materially altered or not - failure to to disprove the signature in the Ex.A1 or not? - Section 67 of the Indian Evidence Act - respondent/plaintiff has proved the fact of execution of promissory note Ex.A1 and the payment of consideration to the appellant or not? - existence of suspicious circumstances - HELD THAT:- It is trite law that if a suit has been filed on the basis of a Negotiable Instrument, it is for the plaintiff to prove the execution. Afterwards, under Section 118 of the Negotiable Instruments Act, the burden has been shifted on the shoulder of the defendant, to prove that the said instrument is not supported with consideration. Here it is a case, when at the time the plaintiff was examined as P.W.1, in her evidence, she has narrated ....... + More

Seeking grant of regular bail - smuggling - Pseudo-Ephedrine - Cocaine - whether rigors U/s 37 of the NDPS Act applies to the case of the petitioner or not? - Section 14 of Foreigner Act and 471 of IPC - HELD THAT:- The present petitioner is facing prosecution for charges U/s 9A and 25 A of the NDPS Act and hence obviously his case would not be covered U/s 37 of the NDPS Act. Moreover, as far as Section 9A which deals with controlled substance is concerned, there is no categorization of small quantity or commercial quantity. Therefore, concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substance. Section 9A of the NDPS Act deals with the power to control and regulate controlled substance. "Controlled substance" means any substance which the Central Government may....... + More

Dishonor of Cheque - CIRP under process - moratorium in effect - applicability of moratorium provisions on natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instrument Act - HELD THAT:- It is not in dispute that the cheques issued to the complainant's Company were dishonored with an endorsement "Payment Stopped by the Drawers". In that regard, the 1st petitioner Company had issued a letter to the respondent through their counsel stating about the initiation of insolvency process by National Company Law Tribunal (NCLT) against the 1st petitioner Company and due to which, the 2nd accused/2nd petitioner was unable to honor the post dated cheques issued in favour of the respondent Company. Inspite of the communication of the 1st petitioner Company regarding the inso....... + More

Dishonor of Cheque - insufficiency of funds - legally enforcement debt or not - Hire Purchase Agreement - petitioner alleges that respondent no.2 very conveniently did not produce copy of the Hire Purchase Agreement in the criminal complaint before the Judicial Magistrate - HELD THAT:- In the instant case, prior to the filing of the criminal complaint before the concerned Judicial Magistrate, the financial institution, Shriram Transport Finance Company Ltd., had admittedly got repossession of the vehicle, therefore, the agreement entered into between the parties would get determined ipso facto by such repossession - the remedy available to the owner would be in accordance to the terms and conditions decided. Thus, the Court thereby laid down that once financial institution/owner exercised option of seizure of the vehicle, the postdated Ch....... + More

Levy of penalty of dismissal from service - Fraud by the Bank Clerk - industrial dispute - Breach of duty as a custodian of public money - dishonesty, fraud or manipulation of documents - standards of proof of criminal proceedings to disciplinary proceedings as the misconduct by an employee in disciplinary proceedings - probabilities and preponderance of evidence - HELD THAT:- The High Court has fallen into an error in coming to the conclusion in the impugned judgment and directing, once again, the matter to be remitted to the Industrial Tribunal to now seek opinion of a hand writing expert. There are certain inherent legal limitations to the scrutiny of an award of a Tribunal by the High Court while exercising jurisdiction under Article 226 of the Constitution of India. If there is no jurisdictional error or violation of natural justice ....... + More

Validity of Arbitral Award - dishonor of cheque - legally enforceable debt or not - claimant having exercised the option under section 60 of the Indian Contract Act by adjusting the payment of ₹ 50 lakhs towards four earlier invoices, three invoices fully adjusted and one invoice partly adjusted - claimant not having made the claim in respect of those three fully paid invoices is estopped from raising the plea that the cheque of ₹ 50 lakhs issued by the respondent towards part payment having been dishonored - acknowledgment of liability in respect of all the outstanding invoices on the date of commencement of the arbitral proceedings or not. HELD THAT:- A perusal of the statement of claim indicates that the only averment regarding period of limitation is found in paragraph 26 of the statement of claim alleging that the cause o....... + More

Dishonor of Cheque - Suspension of order passed by the lower court - right ot appeal - insufficient funds - Section 148 of the N.I. Act, having retrospective effect or not - HELD THAT:- It is true that the right to appeal is an absolute right. However, in a case where a judgment and order of conviction and sentence is passed, the Court may order release of the accused on bail having regard to the nature of offence as also to other relevant factors, including its effect on society. In the present case, the cheques in question were issued in November - December 2013 and there is no quarrel on the issue that the amounts involved are the legal dues payable by the applicant-accused to the respondent-complainant. While allowing the application (Exhibit-5) filed under Section 389 of Cr.P.C., the Sessions Court has directed the applicant-appellan....... + More

Dishonor of Cheque - insufficient funds - Compounding of offences - seeking preponing the date of hearing of main case from 10.01.2022 to today itself - HELD THAT:- It is apparent that both the contesting parties are ad idem that the compromise has been duly effected between the parties without any pressure, threat or undue influence and the terms of the said compromise have been duly complied with. The compromise would go a long way in maintaining peace and harmony between the parties and thus, a prayer has been made before this Court for compounding the offence in terms of Section 147 of the Negotiable Instruments Act, 1881 read with Section 320 (6) Cr.P.C. Since the offence relating to dishonour of cheque has a compensatory profile and is required to have precedence over punitive mechanism, therefore, the present revision petition dese....... + More

Dishonor of Cheque - initiation of proceedings under Section 138 of the N.I. Act against petitioner, without joining the Partnership Firm - whether partnership firm has to be made a party to the proceedings, in view the provisions of Section 141 of the Act? - HELD THAT:- Undisputed facts are that the cheques were issued by the partnership firm, the present petitioner is the signatory to the cheque as an authorized partner and the transaction of purchase of land was for the firm. Section 141 of the N.I. Act provides for the constructive liability on the person responsible for the conduct of the business of the company or partnership firm. Section 141 describes about the offences by the Company. The explanation to Section 141 giving the meaning to ‘Company’ means any body corporate and includes a firm or other association of ind....... + More

Dishonor of Cheque - dispute is settled between the parties and the complainant has no objection if the complaint is set aside - HELD THAT:- Having gone through the material placed on record, it has emerged that the applicant has been convicted by the concerned Criminal Court for the offence punishable under Section 138 of the N.I. Act. However, now, the parties have amicably settled the dispute and, therefore, the complainant has filed an affidavit stating that if the order of conviction passed against the applicant is quashed and set aside, he has no objection. When the parties have settled the dispute amicably, compounding of the offence is required to be permitted - reliance can be placed in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT]. Respondent No.2 filed a complaint under Section 138 of ....... + More

Dishonor of Cheque - insufficiency of funds - discharge of legally enforceable debt or not - rebuttal of statutory presumption - HELD THAT:- Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the non-existence of the presumed fact. During cross-examination, it is noticed by this court that the complainant did not make any attempt to deny about the said factual aspects, as surfaced from the chief-examination of DW-2. During cross-examination, it has further come to light that the said amount of ....... + More

Dishonor of Cheque - It is the case of the petitioner that even though in Annexure- A4 order the petitioner was directed to remit the amount of fine in the trial court, the amount paid directly to the complainant who is the 2 nd respondent herein - HELD THAT:- Admittedly, there is substantial compliance of the direction issued by this Court in Annexure-A4 order in as much as the total amount of fine was directed to be paid as compensation to the complainant and in fact the complainant has received the amount also. An affidavit endorsing the said fact was also placed before this Court by the 2 nd respondent. The court is directed below to make necessary entry in the fine register recording the factum of settlement between the parties, as if fine is realised and paid to the complainant - petition disposed off. Application disposed off.

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