Income accrued in India - Business Connection and Permanent Establishment - AO in conclusion held that the assessee has PE in India has a BC and PE in India - HELD THAT:- The issue of Appellant's PE/BC in India is covered against it by the above decisions of Hon'ble Delhi High Court [2014 (8) TMI 902 - DELHI HIGH COURT] and Hon'ble Delhi ITAT. [2011 (3) TMI 1819 - ITAT DELHI]in Appellant's predecessor's case. Excessive attribution to alleged PE of the Appellant in India - manner of attribution i.e. whether attribution is on sales or the net profits- HELD THAT:- PE attribution at 15% of gross revenue less the expenses (as already allowed by the Ld. AO and Ld. DRP), as per the decision of Galileo International Inc (GII) [2011 (3) TMI 1819 - ITAT DELHI] reduces the taxable income to Nil and thus, no income is taxable in India.

Illegal retention of seized money - petitioner is aggrieved by the failure of the respondents/revenue in not refunding sum retained illegally, after adjusting the tax and penalty due, out of the money seized by them - HELD THAT:- As revenue, says that, the petitioner, ordinarily, should have moved an application for rectification under Section 154 of the Income Tax Act, 1961 but having regard to the fact that, several years have passed since the adjustment was made, the best course would be to remit the matter to the AO with a direction to pass a speaking order, qua the grievances articulated by the petitioner in the writ petition. Given the circumstances obtaining in the case, that, indeed, would be the best way forward. Writ petition is disposed of with the following directions:- (i) The writ petition will be treated as the petitioner&r....... + More

Assessment u/s 153A - denial of natural justice - no opportunity of cross examination of the persons whose statements are relied upon by the respondent for making additions or disallowance - argument of violation of the principles of natural justice, arbitrary, mechanical and without any independent application of mind and also stating that the Income Tax Department has not discharged the burden of proof, proving that the income determined and sought to be taxed were not from the materials seized during the time of search - HELD THAT:- As petitioners have sought for copies of panchanamas in the 63 places searched, but however, the department had admittedly not given all the panchanamas to the petitioners even though they accepted that the petitioners are entitled to the same in the counter filed. The stand taken by the department now by w....... + More

Speculative business / transaction - Disallowance of loss suffered by the assessee on account of ‘Sauda Settlement’ - disallowance being in respect of a specific loss or expenditure, made on the basis of non-acceptance of the assessee’s explanation qua the same - HELD THAT:- The assessee shall not be, because of the transaction being open-ended and, in any case, unsupported by any materials, saved by section 43(5)(a). The same, being carried in the regular course of the assessee’s business, shall qualify for being set off only against the profits of a speculative business which, in terms of Explanation 2 to section 28, is to be regarded as a separate and distinct business. There is, thus, no question of it being set off against the assessee’s other, regular business of trading in food grains and oilseeds or, ....... + More

Reopening of assessment u/s 147 - genuineness of partnership deed - ascertainment of correct date of the deed - front page was signed - reason/s to believe escapement of income from assessment to tax based on an audit objection - HELD THAT:- As Auditor has only made the assessing authority aware of the law impinging on the matter, the same could not be disqualified inasmuch as it is not expression of opinion by him. In the facts of the case, all that the Revenue Audit has brought forth for the consideration of the Assessing Officer are some facts, which may have a bearing on the compliance or otherwise of s.147; s. 40(a)(ia); and s.184 (leading to the consequence of s.185). That the same appealed to the AO is another matter. The reasons recorded, thus, cannot be faulted with on this score i.e., for being based on an audit objection/s. The....... + More

Revision u/s 263 by CIT - unexplained share application money - HELD THAT:- We agree with the contentions advanced by the ld AR that the share transactions are duly reflected in the bank statement as well as in the balance sheet of the investor company and therefore, the same cannot form the basis for holding that the order passed by the Assessing officer was erroneous as he failed to consider such discrepancies. Regarding identity and creditworthiness of the investor company and genuineness of the transaction, we find that where the ld PCIT has himself accepted the fact that the share application money atleast to the extent of ₹ 20 lacs has been received through the banking channel from Maxius Ventures, the identity and nature of the transaction is very much accepted by him. Regarding creditworthiness, the assessee has submitted th....... + More

Rectification of mistake u/s 154 - restriction of the TDS credit - CIT(A) restored the issue to the A.O. for examination and grant of correct TDS credit - HELD THAT:- A.O. while giving effect to the CIT(A)’s order dated 05.12.2018 granted the TDS credit as originally claimed in the return of income. Therefore, the present proceedings, which arise out of 154 proceedings of the A.O. dated 28.03.2014 has been subsumed by the later proceedings of the CIT(A) dated 05.12.2018 and the order giving effect to the CIT(A) by the A.O. dated 25.10.2019. Therefore, this appeal of the Revenue in essence is rendered infructuous and the same is dismissed as such.

Rectification of mistake u/s 254 - issuance and service of notice U/s 148 - HELD THAT:- In the present case, there doesn’t exist any legal or factual mistake, apparent from record and the assessee has merely sought to rectify the impugned Tribunal’s order, on the basis of different view conceived by the assessee, in respect of the issue in question raised in the Miscellaneous Application. It is further added that this issue raised by the Revenue through the impugned Miscellaneous Application is debatable question, not mistake apparent from record and hence, is not amenable to rectification jurisdiction conferred on the Tribunal u/s. 254(2) of the Act. It is a settled legal proposition that in the garb of Miscellaneous Application for rectification, the assessee cannot be allowed to re-open the whole matter, which is beyond the....... + More

Addition u/s 68 - addition in Share Capital only by confirming the reference of RBI Inspection report - assessee submitted that alleged shareholders deposited the fund out of compensation received from Government Authorities for acquisition of the land - HELD THAT:- Addition has been made by the Assessing Officer not merely on the basis of the statement of the alleged shareholders but in view of failure on the part of the assessee in substantiating the ingredient of section 68 - assessee has failed to provide complete address and produce the two alleged shareholders namely Rakesh Kumar and Jagveer. The claim of source of fund in the hands of alleged share holders is also not been found correct as the assessee has not supported any documents in respect of the land compensation received by those alleged shareholders - Assessing Officer duly....... + More

Reopening of assessment u/s 147 - prior approval of the PCCIT/CCIT/CIT before issuance of notice u/s 148 obtained or not? - HELD THAT:- In the instant case, as against provisions of section 151(1) read with proviso thereto, the provisions of section 151(2) are applicable as no assessment has been completed earlier either u/s 143(3) or section 147 and in terms of mandatory condition prescribed u/s 151(2), the Assessing officer has duly sought and obtained approval from the JCIT who was the competent authority as so prescribed under law before issuance of notice u/s 148 - This is thus no oversight on part of the AO and no inherent lacunae affecting the very correctness of the notice issued under Section 148 - Therefore, the said decision is distinguishable on facts and doesn’t support the case of the assessee. Similar is the case with....... + More

Cancellation of registration u/s 12A - powers of CIT (Exemptions) when the matter is pending with the Settlement Commission - HELD THAT:- As due to search on the assessee, cash was found at the premises of the Trust as well as with the trustees and which the assessee claimed to have received as cash gifts from students, and the assessee for the purpose of bringing these donations to tax, filed application before Settlement Commission and learned CIT (Exemptions) proceeded to cancel the registration u/s 12A on the basis of these facts. We hold that issue of cancellation of registration u/s 12A arose from the search conducted on the assessee and there was no other reason to initiation of proceedings for cancellation of registration therefore, as per the provisions of section 245D read with order of Hon'ble Delhi High Court in the case o....... + More

Credit of tax paid in Japan - claim of foreign tax credit - Disallowing complete credit of taxes paid by appellant in Japan on income from sale of software under Article 23 of India-Japan Double Taxation Avoidance Agreement - HELD THAT:- We find that the India-Japan DTAA is worded in similar lines with that of India-USA DTAA. Therefore, the aforesaid decision quoted by this Tribunal in HCL COMNET SYSTEMS AND SERVICES LTD VERSUS THE DY. C.I.T CIRCLE - 12 (1) NEW DELHI [2020 (7) TMI 169 - ITAT DELHI] squarely applies on the facts of the case in hand. Therefore, we direct accordingly. Application of incorrect rate of MAT - We direct the Assessing Officer to consider the applicable rate of MAT for the year under consideration as per provisions of law.

Disallowance of Employee Stock Option Scheme Compensation - Addition on the ground expenditure was on account of issuance of share capital, which being in the nature of capital expenditure, was not allowed as business expenditure - CIT-A allowed the deduction - HELD THAT:- We find that learned CIT(A) has allowed the appeal of the assessee following the decision of the Special Bench of Tribunal in the case of Biocon Ltd.[2013 (8) TMI 629 - ITAT BANGALORE]and other decision of jurisdictional High Court. We do not find any infirmity in the order of the Learned CIT(A) in following binding precedents, and allowing employee stock option compensation as revenue expenditure. The ground of the appeal of the Revenue is, accordingly, dismissed. Disallowance u/ 14A r.w. Rule 8D - assessee claimed exempted income which included dividend income and pro....... + More

MAT Computation u/s 115JB - Amount of the provision for bad and doubtful debt to be taken for the purpose of computing book profit u/s 115JB - AO rejected the contention of the claim of bad debt on the ground that assessee had not placed anything on record to substantiate its claim - claim of bad debt written off under section 115JB for computation of the book profit was rejected by the learned CIT(A) - HELD THAT:- Under the provisions of the Act book profit is computed after making adjustment mentioned in the section 115JB of the Act. In view of the settled position in the case of Apollo Tyres Ltd. [2002 (5) TMI 5 - SUPREME COURT] and Malyalam Manorama [2008 (4) TMI 20 - SUPREME COURT], the assessee or the Assessing Officer is not permitted to make any adjustment to the book profit except which has been specifically provided therein and,....... + More

Characterization of income - non-compete fee on account of executing of negative covenant - whether consideration received by the assessee as non-compete fee was capital receipt not liable to tax - HELD THAT:- As evident from the aforesaid clauses of Sale and Purchase Agreement, the assessee was paid sum that assessee will not for a period of two years from the closing date, directly or indirectly or otherwise carry out any business or activity in any manner similar to the business which was transferred. Thus, there was a clear cut negative covenant for which assessee had received non-compete fee. Since the payment of non-compete fee has been made in assessment year 1998-99, therefore, same is prior to the amendment brought to section 28 (va). Hon’ble Supreme Court in the case of Shiv Raj Gupta vs. CIT [2020 (7) TMI 544 - SUPREME CO....... + More

Reopening of assessment u/s 147 - Eligibility of reason to believe - reason to believe” V/S “suspicion” - Independent opinion of assessee need to be recorded - Addition u/s 69A on unexplained money - AO has mentioned about section 40A(3) in the reasons of reopening, however, the AO deviated from his aforesaid stand and later on while framing the assessment, he added the said amount u/s 69A- HELD THAT:- It is mandatory that the opinion should be that of assessing officer for forming belief whereas in the instant case, he has relied upon the information received from the DCIT-Central for which he himself was not sure on the question of authenticity as perceived from the word “it appears” noted in the reasons u/s 148(2) wherein in the first line, the AO wrote that “it appears that payments to the tune of &....... + More

Unexplained credit u/s. 68 - addition has made by the AO owing to non-production of principle officer of the 9 entities who have lend the monies to the assessee - assessee argued for non issue of summons - HELD THAT:- We find that the assessee has given the new addresses and requested the AO to send the summons u/s. 131 to the new address which the AO failed to do. Having failed to issue the summons and making the enquiries at the new address despite having the information provided to the AO by the assessee, Assessing Officer made the addition, holding that the Directors of the companies have failed to attend for recording of the statement. CIT(A) issued summons which have been duly complied by the Principle Officer of the loan parties and duly recorded the statement. The facts of recording of the statement and the compliance made has als....... + More

TDS u/s 195 - IT support services - Fee for technical services or not - TDS on Admin and Network Support service charges paid by Hitachi Metglass India Pvt. Ltd. to Metglass INC USA, Hitachi Asia Ltd. Singapore and Hitachi Ltd. Japan - payments made for network and administrative support charges are characterized as FTS under section 9(1)(vii) of the Act and therefore the appellant is liable to deduct tax at source - HELD THAT:- We find that the services provided by the non-resident AEs to the Assessee are standard automated services. These services, as specified above, are provided to enable the assessee to send and receive data through the broadband network over the intranet and internet. All companies of the Hitachi group are provided with network services to exchange information through intranet and regulate use of internet through it....... + More

Income accrued in India - Business Connection and Permanent Establishment - Assessee is a company incorporated in The United Kingdom as providing electronic global distribution services in the 'rest of the world' territory (including the Indian region) for the travel industry, by utilizing a Computer Reservation System ('CRS'), which is an automated system which processes booking data - HELD THAT:- As relying on TRAVELPORT INTERNATIONAL OPERATIONS LTD. VERSUS ACIT, CIRCLE-3 (1) (1) , INTL. TAXATION, NEW DELHI [2021 (10) TMI 1023 - ITAT DELHI] the assessee has Business Connection and Permanent Establishment (PE) in India. Attribution to the PE in India - The correct attribution rate be taken at 15% of the gross booking fee for the years in appeal before us.As per the table above, Indian related expenses are more than attrib....... + More

Unexplained trade receivable - CIT-A deleted the addition for want of proper enquiry by the AO - HELD THAT:- When no evidence has been given by the assessee company during the assessment proceedings and no remand report has been called, and accepting the contentions of the assessee as a gospel truth without conducting any enquiry is not sustainable in the eyes of law. Findings returned by the ld. CIT(A) are cryptic and without any reasons, hence set aside. So, this issue is remitted back to the ld. CIT(A) to decide afresh after examining all the evidences brought on record by the assessee during the first appellate proceedings by passing a reasoned order. Consequently, grounds no. 1 & 2 are determined in favour of the Revenue for statistical purposes. Disallowance of depreciation - AO disallowed the depreciation on the ground that ass....... + More

Unexplained investments - unexplained investment being made in the shares of M/s. Gulmohar Towers Pvt. Ltd - incriminating material in the course of search or not? - cash payment over and above the investment recorded in the books - Whether CIT(A) erred in facts and law in not appreciating that there is no possibility that the appellant company could have generated unaccounted income in the year under consideration as it was just incorporated on 13-04-2010 and had not even commenced its business operations - HELD THAT:- We find that there is neither any incriminating material of any cash payment unearthed by the department during the course of survey/search conducted on the Patni group nor in this regard, any evidence has been brought on record even in the course of assessment proceedings. Even the reliance placed on statement of Shri Khi....... + More

Addition u/s 68 - unexplained cash credits - CIT-A deleted the addition - HELD THAT:- It is not the case that loan creditros refused to have advanced the amount of loan to the assessee rather the assessee through documentary evidences proved that the amount of loan was received through account payee cheques and income-tax returns of the loan creditors were also provided. Thus, source of loan was duly established by the assessee. The assessee had properly discharged the onus lying on it by furnishing various supporting documents moreso when the loan as recieved by the assessee was only related to the directors of the assessee. Thus, the Assessing Officer was not justified in adding the said amount of loan to the total income of the assessee. Further, the Revenue could not bring any contrary material on record to rebut the findings of the l....... + More

Revision u/s 263 by CIT - Whether non-enquiry also renders a particular order passed by the lower authorities as erroneous and prejudicial to the interest of Revenue? - HELD THAT:- The order passed by the ld. Assessing Officer does not suggest that non-reflection of working progress of ₹ 20,20,000/- in assets side of the balance sheet as on 31.03.2010 has been considered by the ld. Assessing Officer in its proper perspective. The clarification given by the assessee in support of his case, on this issue, before the ld. PCIT neither seems to be enquired nor explained by the assessee before the AO; no such deliberation is seen in the order passed by the ld. Assessing Officer. The order passed by the ld. Assessing Officer while completing the reassessment u/s 143(3) r.w. section 147, neither suggests that any such enquiry on the propose....... + More

Reopening of assessment u/s 147 - Unexplained purchase of immovable property - HELD THAT:- Going through the above submission shows that it is nothing but a reiteration of earlier argument and nothing afresh has been submitted by the assessee. In her submission, assessee stated only was paid by her and payment was made by her son Gaurav Parkar - statement of the assessee is not supported by any documentary evidence such as bank account statement correlating the payments made to the builder etc. Therefore the sources of investment made for purchase of aforementioned immovable property apart from the loan amount remains unsubstantiated. There is absolutely no whisper about petitioner’s request to grant time to get statement from ICICI Bank, Nariman Point Branch for the account of the son that has been close - we have no hesitation in ....... + More

Deduction u/s 80HHE - Substantial question of law or fact - whether Hon’ble ITAT was correct in confirming order of CIT(A) allowing deduction u/s 80HHE without considering the facts brought on records which clearly established that the assessee did not conduct any software development and the assessee failed to establish the genuineness of the software development charges so paid as evidence from the replies to the summons issued to the persons to whom the assessee purportedly paid software development charge and the assessee even failed to produce the source code of the purported software developed and exported ? - HELD THAT:- ITAT has come to the factual finding that on the basis of material on record the claim of respondent under Section 80HHE of the Act was in order. ITAT has also come to the factual finding that the source code....... + More

Seeking grant of Anticipatory Bail - availing input tax credit either using the invoices or bills or fraudulently availing such input tax credit without any invoice or bill - procedure for raid carried on, without following the procedure as contemplated under law - HELD THAT:- The main aim of the Act is to simplify the taxation mechanism, to reduce the burden of taxes and clarify conformity of the tax payment. It also aims at consolidation of all indirect tax levies into a single tax and to remove cascading effect of the taxes. It is to achieve the motive of one nation one tax and to reduce tax evasion, to have corruption free tax administration, to reduce complications, encourage technically driven procedures and to provide ease of operation for e-commerce. If the citizens understand the importance of payment of tax, achieving the aims a....... + More

Cancellation of GST registration of petitioner - captioned writ petition pertains to cancellation of registration, but the same has since been revoked is learned Revenue counsel's say - HELD THAT:- Cancellation of registration has already been revoked - The revocation order dated 16.09.2021 has been placed before this Court by the learned Revenue counsel. The captioned Writ Petition is disposed of as closed.

Correction / modification of the wrong order has been transcribed - Seeking grant of Bail - deposit of GST illegally - Section 132 (1) (b), 132 (1) (i) CGST Act - HELD THAT:- Having perused nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, [2018 (2) TMI 410 - SUPREME COURT] and without expressing any opinion on the merit of the case, this case is found fit to be a case of bail. Let the applicant involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to conditions imposed. Application allowed.

Validity of assessment order - rejection if input tax credit - each of the four clauses of sub-section (2) of Section 16 of the Act had been complied with by the petitioner - HELD THAT:- The matter requires consideration. Learned Standing Counsel has accepted notice on behalf of State-respondents. He prays for and is granted four weeks' time to file counter affidavit. Petitioner shall have two weeks thereafter to file rejoinder affidavit - List thereafter.

Seeking disposal of appeal filed under Section 107 of the Central Goods and Services Tax Ac, 2017 in a time bound manner - seeking to defer proceedings pursuant to Exts.P3 and P4 till the appeal preferred by the petitioner is considered - nature of activity - works contract service under Section 2(119) or a manufacture and sale of goods under the Act - HELD THAT:- The interest of justice could be subserved, if the appeal filed by the petitioner is considered in a time bound manner, while the proceedings proposed to be initiated as per Exts.P3 and P4 notices are kept pending till such consideration. If the proceedings pursuant to Exts.P3 and P4 are kept in abeyance till a decision is rendered by the appellate authority, unnecessary complications and proceedings could be avoided. Ultimately it will enure to the benefit of both parties. Ther....... + More

Seeking grant of permission to release the Truck - illegal transport of Gold Steef Cigarettes - tax evasion - HELD THAT:- From perusal of the records, it is quite clear that GST Department has already initiated proceedings for confiscation of the vehicle, which is evident from the letter dated 04.01.2021 written by the GST Officer, Mahasamund to the Police Station Komakhan. This factual matrix with regard to the request made by the GST Department to the SHO, Police Station Komakhan for confiscation of the vehicle has not been disputed by the Petitioner or he has not pointed out that the findings recorded by both the Courts below on this aspect of the matter are perverse or contrary to the record, as such, since the proceedings have already been initiated by the GST Department, therefore, the learned trial Magistrate has no jurisdiction to....... + More

Refund of Integrated Goods and Service Tax - export of goods on the date when the provisions for refund and calculation of IGST under the CGST Act and the Integrated Goods and Services Tax Act, 2017 had not been notified - HELD THAT:- At the beginning itself this court indicated to the Counsel that we are inclined to dispose the petition at this stage itself because respondent No.6 never attempted to resolve the problem of petitioner and no reply has been filed and directions of this court have not been complied with. Petition allowed.

Seeking release of detained goods alongwith conveyance - bogus purchases - opportunity of hearing provided to the petitioner or not - entire order replaced by new order - HELD THAT:- Note for speaking to minutes stands disposed of.

Seeking grant of Regular Bail - evidences not discussed on detail - principles of natural justice - HELD THAT:- In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the First Information Report, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. The applicant is ordered to be released on regular bail on executing a personal bond of ₹ 10,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions - application allowed.

Detention of goods alongwith conveyance - e-way bill could not be generated immediately - allegation also that the registration of the recipient was being shown as "suspended" and that the goods had been undervalued - Section 67(6) of the Central / Gujarat Goods and Service Tax Act - HELD THAT:- The petitioner herein is the owner of the goods and it is his case that his vehicle and goods both have been seized by the GST Authorities and when the goods were being transported in the alleged contravention of the Act and the Rules, order is passed of detention under the GST MOV 10 and as the matter is at the stage of GST MOV 10, this Court would not like to enter into the merits of the matter. However, we have taken note of the serious concern raised before us by the petitioner of provisional release of the goods and vehicle prior to....... + More

Blocking of input tax credit of the petitioner lying in the electronic credit ledger - opportunity of hearing not provided - also no order passed - Rule-86A of the Central Goods and Service Tax Rules, 2017 - HELD THAT:- Issue Notice returnable on 30th September, 2021.

Seeking provisional release of goods alongwith vehicle - discrepancy as per invoice and quantity loaded on conveyance - Section 67(6) of the Central / Gujarat Goods and Service Tax Act - HELD THAT:- Let a speaking order be passed by the authority / officer concerned in this regard on the issue of provisional release to enable the petitioner to take necessary legal course if in case there arises any need for challenge. The period of two weeks shall be allowed before the officer concerned chooses to pass the order of confiscation in the form of GST MOV 11. This writ application is disposed off with a direction to the respondent No.2 to look into the application and pass appropriate order in accordance with law. Since the hearing is scheduled tomorrow, we direct to first consider the application for release of the goods and vehicle in accordance with law. Let this exercise be undertaken without further loss of time - petition disposed off.

Validity of SCN - Jurisdiction to issue SCN - validity of proceeding initiated without service of FORM GST-ASMT-10 - Section 74 of the JGST Act, 2017 - violation of principles of natural justice - HELD THAT:- A bare perusal of the impugned show-case notice creates a clear impression that it is a notice issued in a format without even striking out any irrelevant portions and without stating the contraventions committed by the petitioner i.e. whether its actuated by reason of fraud or any willful misstatement or suppression of facts in order to evade tax. Needless to say that the proceedings under Section 74 have a serious connotation as they allege punitive consequences on account of fraud or any willful misstatement or suppression of facts employed by the person chargeable with tax. In absence of clear charges which the person so alleged ....... + More

Rejection of application of the petitioner for refund - contention of petitioner is that no Tribunal has been constituted by the Central Government as envisaged under Section 109 of the U.P.G.S.T. Act, and therefore, this writ petition is being filed - HELD THAT:- In their counter affidavit, the respondents shall specifically state what action has been taken by them in compliance of the directions aforesaid. It needs no iteration that the Appellate Tribunal is the last fact finding authority and the aggrieved persons are deprived of their valuable statutory right due to non-availability of that forum. It is being made clear that if no satisfactory reply/compliance to the aforesaid directions is reflected in the counter affidavit, this Court may be constrained to summon the authorities concerned. List after three weeks.

Levy of GST or not - royalty paid for grant of mining lease - HELD THAT:- Though, the learned Standing Counsel for the respondents has urged that in the matters before the Supreme Court, an issue regarding constitutionality of Section 174 of the Central Goods and Services Tax Act, 2017 has been raised, but no such pleading has been raised by the petitioner in this petition. The matter requires consideration - List this matter after two months.

Maintainability of review application - review applications came to be dismissed for non prosecution - non-compliance with the directions issued - HELD THAT:- We fail to understand that what is now left to be pointed out. We are disturbed by the fact that its been more than two years but our directions have not been complied with. All that is required to be done is to open the portal and allow the original writ applicants to file declaration in Form GST TRAN-1 and GST TRAN-2 so as to enable them to claim the transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140(3) of the Act. The Nodal Officer, D/5, E-Governance Branch, Rajyakar Bhavan, Ashram Road, Ahmedbad is directed to personally remain present before this Court on 27.10.2021 at 11:00 a.m. - Post these matters on 27.10.2021.

Refund of taxes paid under Central Goods and Services Tax as well as State Goods and Services Tax - evidence to prove the payment of tax by the petitioner, present or not - HELD THAT:- The conduct of respondents is not appreciable, still taking into consideration the transition phase of the new statute and the temporary glitches that are occurring as well as the fair submission made by the learned Government Pleader that, the amount shall be refunded, the respondents 2 and 3 are directed to refund the amount of ₹ 12,26,064/-, due to the petitioner as refund, within a period of 30 days from the date of receipt of a copy of this judgment. Petition allowed.

Validity of demand of GST - summary of show cause in Form GST-DRC-01 under Rule 142(1) - Violation of principles of natural justice - opportunity of personal hearing provided or not - Section 75(4) of the Tamil Nadu Goods and Services Tax Act, 2017 - HELD THAT:- The uploading or serving of summary of show cause in Form GST-DRC-01 under Rule 142(1) is not a mere formality, but it is mandated under the Rule, so that, the Assessee would have a chance of getting summary of show cause and to respond the same and without giving such a breathing time, on the very same day, that is, the date on which GST-DRC-01 notice, that is, summary of notice was uploaded, the impugned order was passed. This Court feel that the impugned order can not be sustained, accordingly, it is liable to be quashed - the matter is remitted back to the respondent for reconsideration - Petition allowed by way of remand.

Seeking grant of regular bail - registration on the basis of fake and forged documents - irregular availment and utilization of ITC - HELD THAT:- Keeping in view the facts and circumstances moreso, the fact that the Petitioner has been in custody since 27.11.2020 and there are as many as 23 witnesses, out of which none have been examined and the trial is likely to take time and the amount of GST said to have been evaded has already been recovered from Susheel Garg and Amit Garg and no amount of input tax credit has been credited in the account of the present petitioner and also since the petitioner was not named in the FIR and also since there are several debatable issues/arguments in the present case which have been elaborated hereinabove, and although the same would be finally adjudicated upon in the trial, this Court considers it fit t....... + More

Detention of goods - adjudication of ownership of goods - Section 129 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The department can claim at the most that there was a hidden transaction between the 5th respondent and the petitioner due to which the State lost the tax due to it. The transaction during which interception of the goods were carried out was between the petitioner and the consignee in Ext.P2. If the department's assumption is acceptable, it could be assumed that there was an evasion of tax in the transaction between the 5th respondent and petitioner. However that transaction could be only prior to Ext.P2 invoice. No doubt it is for that alleged hidden transaction that evasion of tax was suspected. Be that as it may after Ext.P2 invoice was generated, there is no case that there is any suspected evasion of....... + More

Import on concessional duty which provided Zero duty in case of CIF value of ₹ 20 crores or more and a custom duty of 10% in the other eventuality - conversion of Zero Duty EPCG licence - HELD THAT:- Learned Counsel for the appellant submits that thereafter the duty amount was deposited on 16-4-2014 and subsequently even interest was deposited on being called upon to do so on 30-3-2018 and duly communicated as such, on 31-3-2018 - the subject matter of dispute stands resolved in the aforesaid terms and thus no further directions are required in this appeal. Appeal disposed off.

Levy of penalty - belated reopening of the case - Violation of principles of natural justice - detailed discussion not made - Imposition of penalty - HELD THAT:- There is lack of discussion and in-depth examination in light of the defence raised, inter alia, referring to worldwide operations and that the employees were working under supervision of the joint venture partner. Keeping in mind the statement made on affidavit that the appellant(s) has withdrawn from Indian market and have no active business operations in India anymore and that the appellant(s) have already deposited ₹ 38 crores covering the principal amount and possibly the part of statutory interest component, we are inclined to set aside the order imposing penalty on the appellant(s) in the peculiar facts of the present case. This order shall not be treated as precedent in any other case. These appeals partly succeed and the order of penalty is set aside.

Investigation proceedings regarding the anti-dumping - all that the High Court has done is to issue notice in the writ petition and the interlocutory applications calling upon the parties to file responses. - Recalcitrant attitude of the Government in not appointing High Court Judges for years together even where the recommendations have been cleared by the Collegium - HELD THAT:- If we peruse the impugned order, all that the High Court has done is to issue notice in the writ petition and the interlocutory applications calling upon the parties to file responses. This can hardly be a stage of a proceeding where the Supreme Court of the country should be asked to step in. The factual matrix paints an even a sorrier picture of the Government’s conduct as the Court, conscious of the urgency of the matter, on 4-6-2021 while issuing notic....... + More

Valuation of imported goods - Classification of goods - whey protein - efficacy of Section 3 of the Customs Tariff Act, 1975 and Section 4A of the Central Excise Act, 1944 - HELD THAT:- The view taken by the Commissioner in respect of classification of product specified as ‘whey protein’, is the correct view, which does not require interference. The Tribunal has rightly endorsed that position. It is a different matter that the Tribunal in the impugned judgment ought to have elaborated on the aspects dealt with by the Commissioner, to take that view. That does not take the matter any further for the Appellant-Department. However, the only indulgence that needs to be shown in this appeal is in regard to the issue of valuation. For, the Tribunal has not adverted to the efficacy of Section 3 of the Customs Tariff Act, 1975 and Sec....... + More

Export Promotion Capital Goods Scheme (EPCG Scheme) - import of capital equipments either at nil or concessional rate of customs duty - authority calls upon the petitioner to produce various export documents to establish the discharge of export obligation under the scheme, within a stipulated time - violation of the terms of the Scheme disentitling the petitioner to the benefit claimed - HELD THAT:- In the present case, since the exports were under free shipping bills, it appears that authorities have not had no opportunity or avenue to undertake any examination in the matter. However, and fortunately for the petitioner, the matter is still at large, since the show cause notices issued by R2 in respect of the exports undertaken under two licenses, are still pending. The dispute in this matter can thus be resolved by directing the ADGFT to....... + More

Seeking appropriate direction for encashment of the fixed deposits made in respect of the sale proceeds received by selling the unclaimed/uncleared goods at the bonded warehouse - Also, seeking handing over the residual amount after adjusting the Customs duty payable in respect of the items sold - HELD THAT:- The application along with the writ petition can be disposed of if the concerned office who can look into the issue of the computation of the Customs duty to be adjusted from the sale proceeds in terms of provisions of Section 150(2)(c). The matter according to the applicants/writ petitioners can also be referred to the Chief Commissioner of Customs, being the overall head so that any one representing the Customs Authority will be subordinate to him - Let this matter appear on next Friday (5-3-2021) when the department shall inform t....... + More

Condonation of delay of 584 days in filing appeal - certificate cases - the appeal was allowed on 2-7-2018, by the time this order was examined, it was 19-11-2020, i.e., over two years have passed - HELD THAT:- This is one more case of what we have already categorized as “certificate cases” and we do not delve further, as the purpose seems just to bring the matter to the Courts to put a closure to the same without giving any cogent explanation for condonation of delay in terms of OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT]. A correct view has been taken by the Tribunal as the Department itself is treating the assessee in the same manner for subsequent years so far as classification is concerned - the appeal is not liable to be entertained - Appeal dismissed.

Territorial Jurisdiction - Transfer of appeal - seeking issuance of directions not to hear the appeal by the Technical member whose appointment was challenged by the Advocate of the petitioner in the Honourable Supreme Court - HELD THAT:- It is not feasible that Mr. Raju, Member (Technical) attached at Ahmedabad, who is perpetually on tour and the matter to be heard while sitting with the Member (Judicial), is also on tour, thus, it would most appropriate and suitable approach, would be, to direct the Ahmedabad Bench of CESTAT to decide the appeal through video conference, for the reason, that one of the technical Member i.e., Mr. Raju would be also technical Member of Bangalore Bench. The review petition is disposed of directing that the appeal pending before CESTAT, Bangalore shall be heard by Ahmedabad Bench through video conference as....... + More

Manufacturing process taking place or not - aluminium alloy ingots - affixation of brand name - exemption under N/N. 93/2004-Cus dated 10th September 2004 - HELD THAT:- The scheme has been designed in furtherance of export promotion strategy and require compliance with ‘actual user condition’ with any sale or transfer of the imported goods or the goods manufactured therefrom permissible only after completion of the ‘export obligation’ prescribed in the licence issued by the Director General of Foreign Trade. It is on record that the said obligations have not been fulfilled with and the sole issue pending before the licensing authority is the clubbing of the licences. Hence, by the clearance of the goods, the condition in N/N. 93/2004-Cus dated 10th September 2004 has been complied with in its breach for which the d....... + More

Levy of Penalty u/s 114 of the Customs Act, 1962 - Smuggling - prohibited goods or not - Export of Red Sander logs under cotton tufted floor mats- colour - ASTD - also the fasteners (rivets) found on the Customs Sealing Point (latches) and Steamer Agent‘s Sealing Point (latches) of the container were found tampered - illegal omissions - scope of Section 107 IPC - HELD THAT:- The appellants plead total ignorance about the attempted smuggling of red sanders. The contention of the appellants that they kept the blank signed letter heads in the vehicle at the time of sale is too fanciful to digest. It is admitted by Shri A. Mohamed Naseer that there was omission on his part by giving the signed blank letter heads to Shri Farooq Basha. There is also an admission on the part of Shri Farooq Basha that he committed a mistake by leaving the s....... + More

Valuation of imported goods - Tin Free Sheets (Secondary/Defective TFSSD) - enhancement of declared value - it is alleged that the entire consignment was Tin Sheets of width of 500 mm, whereas, the goods were declared by the importer as Tin Free Sheets - contemporaneous imports of identical goods were not available - applicability of Rule 5 of Customs Valuation Rules, 1998 - HELD THAT:- The Tribunal vide its earlier Final Order, dated 11.12.2006 [2006 (12) TMI 575 - CESTAT CHENNAI] had remanded the matter with specific direction to supply copies of the details regarding the contemporaneous imports of similar goods which has been made the basis for enhancing the value of the imported goods and for re-determining the duty. In spite of such specific direction, the department has not provided the evidence regarding contemporaneous imports. Un....... + More

Application for extension of interim bail granted to the petitioner - Extension sought on the ground of excessive illness of wife, who is on one's deathbed - HELD THAT:- At this stage without going into rival contentions of the parties, the prima facie look at the photograph can be made wherein, the wife of the petitioner is almost lying in unconscious condition at home. At this stage without embarking upon the merits of the case, it would be just and appropriate to extend the interim bail till the next date of hearing i.e. 16.11.2021. Appeal disposed off.

Grant of anticipatory bail - 39,60,000 Cigarettes - illegal clearance of consignment - consignment was cleared manually without making any entry by the Customs Department - HELD THAT:- This Court finds that it is very strange and surprising that 02 Departments i.e. Department of Customs, Customs Commissionerate, Ludhiana - respondent No.1 and Anti-Evasion Unit, Central Goods & Service Tax, Commissionerate, Ludhiana - respondent No.2, are fighting tooth and nail regarding fixing the liability as to how the consignment was cleared manually without making any entry by the Customs Department and as per stand of the Customs Department, there is a collusion of the official of the CGST Department with the petitioner and the other accused and in that process, the CGST Department is posing the petitioner as a Secret Informer/Source and has eve....... + More

Applicability of precedent judgements - Refund of SAD - rejection on the ground of time limitation - N/N. 102/2007-Cus dt. 14/09/2007 - HELD THAT:- Learned Representatives fairly agree that the issue in appeal is subject-matter of difference of opinion by Hon'ble non-jurisdictional High Courts and that we do not have the benefit of guidance by Hon'ble jurisdictional High Court. There can be no dispute on the proposition that irrespective of whether or not the judgments of Hon'ble non-jurisdictional High Courts are binding on me, these judgments deserve utmost respect which implies that, at the minimum, these judgments are to be considered reasonable interpretations of the related legal and factual situation. Doctrine of precedence only mandates that it is the ratio in the decision of higher courts to be followed, and not concl....... + More

Jurisdiction - power of DRI to issue SCN - section 28 of Customs Act - HELD THAT:- Since both sides agree that the case is covered by Cannon India, and that the SCN was issued by DRI, the impugned order arising out of the SCN cannot be sustained as per M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT], judgments of the Hon’ble Supreme Court in COMMISSIONER OF CUSTOMS, KANDLA VERSUS M/S. AGARWAL METALS AND ALLOYS [2021 (9) TMI 316 - SUPREME COURT], judgment of the Hon’ble High Court of Karnataka in SHRI MOHAN C. SUVARNA DIRECTOR (FINANCE AND ADMIN) M/S. GIVAUDAN INDIA PVT. LTD. VERSUS THE PRINCIPAL COMMISSIONER OF CUSTOMS, ADDITIONAL DIRECTOR GENERAL DIRECTORATE OF REVENUE INTELLIGENCE, BANGALORE [2021 (8) TMI 178 - KARNATAKA HIGH COURT]and judgment of the Hon’ble High Court....... + More

Valuation of imported goods - related party transaction - rejection of declared value - failure of the appellant to submit evidence of identical/contemporary imports - imports of Rexona antiperspirants, comprising 150 ml units of ‘Free Spirit’, ‘Cotton’, ‘Icecool’, ‘Ionic’ and 75 ml units ‘Icecool’ and ‘Power’ brands - HELD THAT:- The benchmark for ascertainment of assessment is the ‘rate of duty’ in section 12 of Customs Act, 1962 and, to the extent of ad valorem rate, to be governed by the valuation scheme of section 14 of Customs Act, 1962 - the order disputed before the first appellate authority, and now before us, bears no evidence of such procedural or substantive compliance. Nor is there anything on record to instill confidence in us that such final....... + More

Revocation of Customs Broker License - forfeiture of the security deposit - levy of penalty - imports of mobile phones - excess of quantity declared - lacking in mandatory BIS marks - HELD THAT:- The allegations pertaining to breach of obligations and lack of proper supervisory control over employees has been held as proved along with the allegation that the licence had been transferred to Hitesh Ajmera who, admittedly, had been handling of not only the consignments involved in the said investigations but of many other imports and exports for several years. The embargo, in Customs Brokers Licensing Regulations 2018, on transfer of licence and the vicarious responsibilities for acts of omission and commission by employees are intentionally segregated from the obligations that are the essence binding the licensor and licencee vis-à-v....... + More

Absolute confiscation - import of Peas (Pisum Satvium) including Yellow Peas, Green Peas, Dun Peas and Kaspa Peas - restricted item or not - N/N. 37/2015 - 2020 dated 18.12.2019 - permission to re-export the subject goods - levy of redemption fine levied for redeeming the goods for the purpose of re-export - HELD THAT:- Undisputably, the appellants were in the path of litigation when the judgment of the Hon'ble Supreme Court was rendered. Immediately on coming to know of the judgment of the Hon'ble Supreme Court in the case of Raj Grow Impex LLP [2021 (6) TMI 778 - SUPREME COURT], they have requested for permission to re-export on 18.6.2021. The request was rejected by department vide letter dated 25.6.2021 stating that the judgment is applicable only to the parties therein. Consequent to the judgment of Hon'ble Supreme Court ....... + More

Revocation of Customs Broker License - Forfeiture of security deposit - levy of penalty - mis-declaration on part of the Exporter - enquiry report was submitted holding that charges were ‘Not Proved’ - disagreement memo issued, alleging that the Enquiry officer has not properly appreciated the statements and gave report based on assumptions and presumptions - violation of Regulation 10(d) of CBLR, 2018 - HELD THAT:- While the investigation conducted may or may not lead to the confirmation of the offenses by the exporter (which is any way beyond the purview of the present appeal), it would not be a conclusive evidence to establish gross negligence or misconduct on the part of the appellants. No documents whatsoever have been produced by the Adjudicating Authority or the respondents to substantiate the allegation that the appell....... + More

Revocation of Customs Broker License - proceedings have taken place without supplying the relied upon documents to the appellant - violation of principles of natural justice - HELD THAT:- The documents neither have been seen by the adjudicating authority nor have been provided to the appellant. From the show-cause notice, it is apparent that reliance has been placed on these documents, however, these documents have not been included in the relied upon documents list. Only document included in the relied upon documents is a Self-contained note of the Crime Branch of Investigation, Anti-Corruption Branch, Chennai. A perusal of the Self-contained Note indicates that the findings in the note are based on these documents only. Under these circumstances, it is apparent that the principles of natural justice have not been followed and appellant ....... + More

Freezing of the assets and properties - Directions to Serious Fraud Investigation Office (SFIO) to conduct an investigation into the affairs of Videocon Industries Ltd. and its group companies - whether in the light of the petitioner’s plea that the proceedings before the NCLT, Mumbai Bench are without jurisdiction having been filed before a Bench whose jurisdiction has been specifically ousted by the proviso to Section 241(2), the writ petition ought to be entertained or the petitioner ought to be relegated to the NCLT/ NCLAT? HELD THAT:- The power of judicial review with which the High Court is vested under Article 226 of the Constitution cannot be taken away merely because an alternative statutory remedy of appeal is available. However, it cannot be denied that the power of the High Court to entertain a writ petition under Articl....... + More

Seeking extension of time to clear office objections with respect to Company Application - Section 10(F) of the Companies Act, 1956 - HELD THAT:- It must be borne in mind that the Appeals filed before us arise from the proceedings filed in Section 10(F) appeals and therefore the issue before the Company Court would be in respect of the management of Respondent No. 1 company. The Learned Single Judge has exercised his discretion in granting time to Respondent Nos. 1 and 2 to take steps to restore Company Application (L) No. 3 of 2017, which in our view is not perverse and does not warrant any interference. We are informed that Respondent Nos. 1 and 2 have filed Interim Application (L) No.15777 of 2021 in Company Application (L) No. 3 of 2017 for carrying out appropriate amendments since the form of Company Application (L) No. 3 of 2017 war....... + More

Seeking modification of the order of CLG - CLB directed the company appointment of two Government Directors/Government Nominee Directors - failure of the company in repaying the public deposits - Section 408 read with Section 397/398 of the Companies Act, 1956 - HELD THAT:- As rightly pointed out by the learned counsel appearing for the Union of India as against the claims of ₹ 156 Crores from the fixed deposit holders, even according to the company it has paid only a little more than ₹ 18 Crores and it cannot be said that either the original fixed deposit holders or any of the legal heirs or successors keep quiet without claiming their fixed deposits irrespective of issuance of any advertisements for this purpose. No valid reasons are shown. No details of the fixed deposit holders who have not claimed their deposits back are ....... + More

Approval of the Scheme of Amalgamation - Section 230 to 232 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions regarding holding, convening and dispensation with various meetings issued - directions regarding issuance of various notices also issued. The scheme is approved.

Freezing of Assets and ‘Bank Accounts’ of the Appellant - Opportunity of Hearing provided or not - principles of natural justice - HELD THAT:- It must be borne in mind that the ‘Rules of Natural Justice’ are not the edicts of a statute. As a matter of fact, the rudimentary requirement is that (i) Fair play (ii) a Determination/An Adjudication is to be made after ascribing necessary reasons in a fair, just, and objective manner of course, based on the relevant facts/materials in a given case - an opportunity of hearing is to be afforded to an ‘individual’ to air / put forward is point of view by either contradicting or raising objection, in regard to the claim which is ‘Detrimental’ to him. No wonder, the ‘Rules of Natural Justice’ do supplement the Law and they do not ‘Supp....... + More

Sanction of Scheme of Arrangement by way of Amalgamation - section 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013, read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions issued with respect to convening/holding or dispensing with the meetings of the Shareholders, Secured and Unsecured Creditors as well as issue of notices including by way of paper publication as follows - directions regarding issuance of various notices also issued. The scheme is approved - application allowed.

Sanction of Scheme of Merger by way of Absorption - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensation of various meeting issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

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

Seeking exemption to Applicant from servicing any loans to IL&FS in terms of the Corporate Debtor Restructuring dated 02.12.2011, pending disposal of application on the file of this Hon'ble Tribunal - HELD THAT:- It is a fact borne on record that the Appeal against the order passed by this Tribunal is pending adjudication before Hon'ble Supreme Court of India. Hence the prayer as sought for by the Applicant for early disposal of CA/32/2010 is premature, since the Hon'ble Supreme Court Is seized of the said matter and yet to pass a final order in CA/47/2011 and CA/101/2011 which is interconnected with CA/32/2010. Hence the prayer as sought for in (b) stands rejected. The Applicant ought not to have filed the present Application before this Tribunal seeking similar relief. It seems like the Applicant is indulging in forum sh....... + More

Composite Scheme of Amalgamation - seeking admission, fixing a date for hearing and final disposal of the Application as well as for a direction for publication to be effected and issuance of notices to the concerned authorities for objections, if any, to the Composite Scheme of Amalgamation contemplated between the Applicants - Section 230 to 232 of Companies Act, 2013 read with Rule 16 of the Companies (Compromise, Arrangements and Amalgamation) Rules, 2016 - condonation of delay of 72 days in filing the present petition - death of both the Counsels (being brothers) of the Applicant Companies due to Covid-19. HELD THAT:- The delay is condoned - the Petition stands Admitted - the date of hearing of the Petition filed by the Petitioner Companies for approval of the Scheme is fixed for 28.09.2021. Notice of the hearing shall be published i....... + More

Reduction of share capital - section 66 of the Companies Act, 2013 - HELD THAT:- The Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi, after receiving the report from the Registrar of Companies, has filed his report dated 12.03.2021. On perusal of the representation, the Regional Director has no objection to the extent of proposed scheme of reduction in share capital of the Applicant company - Notice was duly served on the Income Tax Department; despite several opportunities no one has appeared for the Income Tax Department. This tribunal vide order dated 26.07.2021 directed the applicant company to file an affidavit denoting that they are tax compliant and if any demand is raised by the Income Tax Department, with regard to any dues or arrears of Income Tax, the applicant company will make good the same as per....... + More

Sanction of Scheme of Arrangement - Sections 230 to 232 of the Companies Act, 2013, read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - HELD THAT:- Various directions 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.

Approval of the Scheme of Amalgamation - Section 230 to 232 of Companies Act, 2013 read with the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Considering the approval accorded by the Members and Creditors of all the Petitioner Companies to the proposed Scheme and no sustainable objections having been raised by the Office of the Regional Director, Income Tax Department or any other interested party, there does not appear to be any impediment in granting sanction to the Scheme. Accordingly, sanction is hereby granted to the Scheme of Amalgamation proposed by the Applicant Companies under Section 230 to 232 of the Companies Act, 2013. The scheme is approved - application allowed.

Seeking appointment of Company Liquidator - seeking direction to the directors and officers of the Company to submit to the Liquidator, within 30 days from the date of order, the books of accounts of the company completed and audited upto the date of the order - seeking direction to the directors and officers of the Company to submit the statement of affairs of the Company under Section 274(1) - service of notice to the petitioner to whom the order required to be served - seeking order to constitute a winding up committee under Section 277(4) to assist and monitor the progress of liquidation proceedings - seeking permission to the Company Liquidator to submit the report under Section 181(1) read with Rule 25(1) within 60 days from the date of the order in this IA - seeking order to fix the fee of the Provisional Liquidator and the Company....... + More

Maintainability of petition - availability of alternative remedy of appeal - Principles of natural justice - due service of notice to all Respondents present in India and overseas - HELD THAT:- It may not be necessary to delve into detail the submissions made by learned Counsel for the rival parties. Suffice it to say that while learned Counsel for the Petitioners submitted that the impugned order was passed without providing due opportunity of hearing to the Petitioners and thus violative of the principles of natural justice, learned Addl. Solicitor General of India pointed out that Petitioners have got efficacious alternative remedy by way of appeal and therefore Petitioners should be relegated to the appellate forum. Union of India had made all possible efforts to serve copies of the Petitions to the Respondents either by email or by d....... + More

Territorial Jurisdiction - Validity of continuation of EOCC.No.104/2016 now pending on the file of the learned Additional Chief Metropolitan Magistrate, Economic Offences Wing-1 at Egmore, Chennai - HELD THAT:- The privilege provided to the respondent/complainant of explaining why it was originally lodged in Chennai and if later lodged in Coimbatore, reasons for the same to be addressed to the said competent Court and the learned Magistrate may take a call on accepting or rejecting those reasons. It would be inappropriate for this Court to indicate to the respondent herein to prefer a complaint at Coimbatore. An obligation is placed on the respondent to explain the circumstances necessitating filing the complaint originally in Chennai and thereafter, shifting the said complaint to Coimbatore. Let those reasons be forwarded to the competen....... + More

Oppression and Mismanagement - Direction to Special Officer who had been earlier appointed in the petition to appoint valuer by taking names from the petitioners as well as the respondents of their choice - HELD THAT:- The learned National Company Law Tribunal is agreed upon that it is a situation of deadlock where in view of article 53 of the articles of association of company with original petitioners being on one side and the other three brothers being on the other quorum of two-third of the directors could not be achieved except with the attendance of one of the original petitioners and considering the various litigations between the parties, the learned National Company Law Tribunal was right in observation that there was a deadlock. When the record shows that the learned National Company Law Tribunal had earlier given directions to ....... + More

Sanction of scheme of Amalgamation - seeking directions with regard to meeting of Shareholders and Creditors in connection with the Scheme of Amalgamation - Section 230(1) read with Section 232(1) of the Companies Act, 2013 - HELD THAT:- Meetings of the Equity Shareholders & Unsecured Creditors of the Applicant No. 1 & Applicant No. 2 are dispensed with under section 230(1) read with Section 232(1) of the Act - Directions regarding issuance of various notices also issued. Application disposed off.

Principles of Natural Justice and fairness - Appellant's request for the grant of sufficient time to file its reply/counter to the Company Petition, rejected - grant of only short span of less than two days of filing reply, correct or not - HELD THAT:- It is pertinent to mention that Section 98 of the Companies Act, does not prescribe any time limit or limitation on the Learned NCLT to pass order within that time limit. Engrafting the provisions of Section 100(4) in Section 98 would be wholly misconceived and untenable. Undisputedly, the reliefs sought in the Company Petition are specifically under Section 98 of the Companies Act. Given that Section 98 does not prescribe any time limit, the Learned NCLT ought to have granted reasonable time to the Appellant to file a reply. It is clear that the Learned NCLT has committed an error in n....... + More

Seeking restoration of the name of the Appellant Company in the register maintained by the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- It is seen that the appellant has failed to produce the audited balance sheet to show the company had revenue from operation for the immediate two preceding financial years when the name of the company was struck off by the RoC. It is further seen that the Appellants in the Memo of Appeal admit this fact that there is no revenue from operation from financial Year 2014-15 to 2019-2020. Therefore, the appellant company has failed to produce any document to show that the appellant company had revenue from operation or carrying on business at the time when the name of the company was struck off by the Registrar of Companies or even prior to that. The action taken by the RoC under Section 560(5) of the Companies Act, 1956, to wind up the company is upheld - the name of the company could not be restored - appeal dismissed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Operational Creditor annexed the invoices dated 30.03.2019, 04.04.2019 and 02.05.2019 in the present application along with the Reminder Letter dated 23.07.2019 and a Reminder email dated 19.09.2019 requesting the Corporate Debtor to clear the dues. A Certificate dated 24.01.2020 Under Section 9(3)(c) of IBC, 2016 issued by the Axis Bank stating that no credits from Corporate Debtor were observed during the period from 13.07.2019 to 23.01.2020 in the account of Operational Creditor has also been filed. The Operational Creditor has clearly established the existence of debt and default on the part of the Corporate Debtor. The Corporate Debtor, on the othe....... + More

Seeking direction to Respondent, who is in possession of the movable properties of the CD, as the erstwhile landlord of the CD's old office, to cooperate with the company Liquidator, in collection of information about the movable assets which is in their physical possession and custody, so as to enable him to sell them in accordance with law - seeking permission to sell the movable assets of the CD as per the lists given in the Minutes of the 1st CoC meeting dated 25.04.2019 by private sale - scope of Liquidation Estate - HELD THAT:- This Tribunal already vide its order dated 11.03.2021 has directed the Respondent to hand over voluntarily forthwith the items as listed at Page No. 26 of the typed set filed along with the present Application within a period of two weeks' from the date of the order, failing which, the Liquidator was ....... + More

Maintainability of appeal before NCLAT - applicability of time limitation - Whether the appeal before the NCLAT under Section 61(1) of the IBC was barred by limitation? - HELD THAT:- The salient aspects of Section 29(2) of the Limitation Act are three fold- (i) prescription of a period of limitation under any special law or local law may differ from the period prescribed by the Schedule under the Limitation Act; (ii) in such a case, the period of limitation prescribed under the special or local law shall be deemed to be period prescribed for the purpose of Section 3 of the Limitation Act; and (iii) Section 3 of the Limitation Act shall apply accordingly. An appeal is a creature of statute, hence there is a fundamental distinction between the right to file a suit and the right to file an appeal. In terms of Section 9 of the Code of Civil P....... + More

Seeking Liquidation of FDR accounts - Section 10 of the IBC - HELD THAT:- The Appellant have taken objections, no special resolution in terms of Section 10(3)(c) of the Code have been filed by the Respondent No. 1 - Corporate Debtor which is evident at page 1097, Vol.- VI of the Appeal Paper Book. It is also an admitted fact that from the Status Report filed on behalf of the Respondent No. 2 it is crystal clear that the Appellant - RNY Healthcare Services Pvt. Ltd. have filed an Execution Petition against M/s Bourn Hall International India Pvt. Ltd. - Corporate Debtor before the District Judge, Gurgaon in view of Arbitration Award passed by Ld. Arbitrator Mr. R.S. Baswana, District & Session Judge (Retd.) on 06.02.2019 in Arbitration No. 87/2018 against M/s Bourn Hall International India Private Limited & Others and next date in t....... + More

Rejection of claim due to delay in filing - appeal filed by the Creditor against the decision of Liquidator - Section 42 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Liquidator in the present case rejected a time barred application for filing claim as he does not have any authority to entertain the same. However, Section 42 comes to the rescue of a claimant when his claim is rejected by the Liquidator. The claimant can file an appeal before the Adjudicating Authority against such decision of the Liquidator within fourteen days of the receipt of such decision. The present appeal can be filed within fourteen days from the date of receipt of decision of Rejection from the Liquidator; however, the appeal has been filed after 22 days (appeal filed on 31.12.20 while rejection was on 09.12.20) which is beyond the time provided i....... + 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:- Based upon the Loan Agreement dated 05.07.2013, the Financial Creditor has disbursed money to the Corporate Debtor at different intervals and the outstanding debt was also acknowledged by the Corporate Debtor at the end of each financial year. It is also seen from the said acknowledgment, the Corporate Debtor has expressly stated that they have outstanding balance in respect of 'unsecured loan amount'. All these documents go on to show that there is a 'financial debt' and the Corporate Debtor has committed 'default' in repayment of the said 'financial debt' to the Financial Creditor. It is also seen that the 'default' w....... + More

Seeking withdrawal of application filed under section 9 of IBC, 2016 by filing the FORM-FA which is not accepted - whether the constitution of the CoC by the IRP has been done in violation of the Orders passed by the this Tribunal and also by the Appellate Tribunal? - whether the Application filed under section 12A of IBC, 2016 is required to be allowed? - HELD THAT:- The Corporate Debtor has averred in the Application that since the account of the Corporate Debtor was under the control of the IRP, they could not do any transactions and the amount was settled to the Operational Creditor only through the associate entity of the Corporate Debtor - it is significant to point out here that even though the Corporate Debtor has filed an Application under section 12A of IBC, 2016 before this Tribunal, the same was not accompanied with Form-FA an....... + More

Violation of moratorium period consequent upon initiation of the CIRP - seeking issuance of necessary directions to the respondent No. 1 for illegal action under the provision of IBC, 2016 - HELD THAT:- The invocation of bank guarantee by NSIC in present case is not in consonance with provisions of code. While deciding this, aspect which needs to be looked into is whether present bank guarantee falls under the category of 'Performance Bank Guarantee' to qualify to exclude the same as per the provisions of section 3 (clause 31) of the I & B Code, 2016 and allow the invocation of such performance bank guarantee irrespective of the moratorium under section 14 of the code. The answer is No. The definition and categorization of bank guarantees as per RBI guidelines clearly demarcates the area while considering particular bank guara....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operator Creditors - existence of debt and dispute or not - issuance of demand notice - HELD THAT:- It is seen that CD in reply to the demand notice has not raised any dispute to the outstanding dues to OC and has rather admitted that on 30.03.19, it was communicated to the OC that due to financial difficulties payment could not be made by CD. It is further reiterated that the CD vide reply to the petition dated 06.02.20 has acknowledged that there is existence of commercial arrangement and on 30.03.19, payment of ₹ 1,00,000 was released against the outstanding. The applicant has placed sufficient evidence in support of its claim. Going by the above details, the OC has clearly established the existence of debt and default on....... + More

Dissolution of the Corporate Person - voluntary liquidation - Section 59(7) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- There are no assets in the Corporate Person, which is shown in the bank statement of the Corporate Person. On the Petition filed by the Liquidator under sub-section 7 of Section 59 of the Code for dissolution of this Corporate Person, it is noticed that the affairs of the Corporate Person have been completely wound up and its assets are liquidated. This Corporate Person, through its Liquidator, voluntarily liquidated itself so as to get dissolved, therefore, this Corporate Person is dissolved directing the Liquidator to file this order with concerned Registrar of Companies and IBBI within 14 days thereof. Petition allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - deduction of TDS also made - HELD THAT:- It is evident from the conduct of the Corporate Debtor that twenty (20) cheques of ₹ 5,00,000/- (Rupees Five Lakh only) each were given to the Operational Creditor by the Corporate Debtor. Ten (10) cheques were cleared by the Corporate Debtor. Two (2) cheques were dishonoured and Eight (8) cheques were returned by the Operational Creditor to the Corporate Debtor in good faith that the payment will be made by the Corporate Debtor to the Operational Creditor through RTGS - Further deducting TDS on all the invoices raised by the Operational Creditor on Corporate Debtor including unpaid invoices proves that the debt is due and....... + More

Seeking to condone the delay of 18 days in preferring the Appeal - Section 42 of IBC, 2016 - HELD THAT:- As against the rejection of the claim, Section 42 of I & B Code, 2016 provides for a time window of 14 days upon receipt of such decision to the creditor to file an appeal to the Adjudicating Authority against the said decision of the Liquidator - Filing of the claim with the Liquidator during the Liquidation process within the time period stipulated thereunder is a mandatory requirement under the IBC, 2016 and also it must be noted here that the mere entry of debt in the books of accounts of the Corporate Debtor is also not evidential enough for the claims to be admitted and considered by the Liquidator. The Liquidation is a time bound process and the Liquidator is being made accountable and required to explain, if there is any de....... + More

Seeking exclusion of time period from CIRP - section 12(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the facts of the present case, it is to be noted that this Tribunal already vide its order dated 16.04.2021, has granted exclusion of lockdown period starting from 25.03.2020 to 31.12.2020. However, the present application has been moved by the Applicant seeking further exclusion of the lockdown period from 10.05.2021 to 14.06.2021 - From the facts narrated, it is seen that the Resolution Plan is under consideration before the CoC members and as such it becomes necessary to extend the period of CIRP in order for the CoC to consider the Resolution Plan. It is also seen that the CoC is pondering on the Resolution submitted by the prospective Resolution Applicant as early as on 03.03.2021 and is yet to take a final call in ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existene of debt and dispute or not - Time Limitation - HELD THAT:- It is established that the outstanding was acknowledged and accepted by the Corporate Debtor and this itself shows that the Petition is filed well within the period of limitation. It is also observed by the Bench that on 24.09.2019, 15.10.2019, 06.11.2019 and 28.11.2019 the Corporate Debtor appeared but failed to file reply in the matter. On 28.11.2019, the Corporate Debtor filed Affidavit whereby it was submitted that the settlement talks were going on and time was sought to file consent terms. Despite several opportunities being granted, the Corporate Debtor neither appeared nor filed reply/consent terms in rebuttal. Therefore, there is n....... + More

Seeking an exclusion of 197 days on account of, inter-alia, delays caused as a result of restrictions and lockdowns imposed because of Covid-19 and time taken in replacement of the interim resolution professional - HELD THAT:- It is stated by the Applicant that homebuyers constitute 50.38% of the CoC, on account of being dissatisfied with the IRP, voted against his confirmation as RP during the 1st CoC meeting held on 02.12.2020. Only a minority of 45.35% of the CoC voted in favour of appointing the IRP as the RP of the Corporate Debtor, falling short of the 66% threshold. Subsequently, the confirmation of the Applicant as the RP was put for vote during the 5th CoC meeting held on 04.05.2021, which was duly approved by 68.87% of the CoC. The appointment of the Applicant as the RP was eventually confirmed by this Hon'ble Adjudicating A....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It was informed that the 2nd motion was pending wherein there are objections filed. The matter is listed in mid October. We were of the view that under the scheme the debt is also admitted. This bench if passes order of admission, it will not be prejudicial to any party. On the contrary all the Creditors will be taken care of. Even during CIRP and/or Liquidation, provision of arrangement and compromise of scheme can be invoked. Passing of this order will bring early resolution of the Corporate Debtor. As per Section 9(5)(i) of the Code. The Adjudicating Authority by an order admit the application if (a) the application made under sub-section (2) is complete....... + More

Issuance of directions to the NOIDA authority for granting the Occupation and Completion Certificate to the project "Victory Crossroads" developed by the CD - HELD THAT:- On perusal of the affidavit filed by the Vice President of RWO, it is observed that water and electricity are being availed by the persons who are residing and who have occupied the flats and society has opened a separate maintenance amount for the purpose of electricity and maintenance purposes. Further, no specific averment has been made by the Vice President of RWA, on the point of payment of water bills. Since, it is admitted facts that out of 291 flats, about 250 home buyers have occupied their flats and have been using the electricity and other facilities/including water facilities. Application disposed off.

Liquidation of the corporate debtor - Section 33(1) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The bench vide order dated 26.04.2021 observed that IRP/RP has a duty to complete the process of CIRP within 330 days for which no directions or orders are required. Hence, the application was dismissed with the cost of ₹ 5,000/- to RP for filing such frivolous application. The only option left with CoC to resolve for liquidation of corporate debtor. It was submitted while hearing of this application, by RP that due to second wave of Covid-19 pandemic lockdown from April 2021 to June 2021, the CoC could not meet to decide liquidation and only after unlock in June 2021, the lenders in their meeting held on 16.06.2021 decided and passed resolution and approached Adjudicating Authority for order of liquidation. Because no resolutio....... + More

Liquidation of Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the National Company Law Tribunal Rules 2016 - HELD THAT:- It would appear that despite all possible steps as required under the Code taken during the CIRP, the CoC did not receive any viable resolution plan/proposal for revival of the Company. The CoC in its wisdom has resolved with 99.78% voting share in favour of the liquidation of the Company. The Applicant RP has not given his consent to act as Liquidator. The CoC members recommends Ms. Vaishali Arun Patrikar to act as Liquidator of the Corporate Debtor. This Authority has no reason before it to take a contrary view in terms of Section 33(1)(a) of the Code. Therefore, it has no option than to pass an order for liquidation of the Company in the manner laid down in Chapter III of the Code. Corporate Debtor is ordered to be liquidated - application allowed.

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:- The corporate debtor did not chose to file any reply since January 2020. Thus, there is no dispute with regard to the existence of debt and default and the debt is also within limitation. The claim of the petitioner remained unchallenged. Since the company petition satisfies all the legal requirements, this bench did not find any grounds warranting the rejection of the above company petition. Petition admitted - moratorium declared.

Permission of the Court to go abroad and visit USA and Dubai was sought, which was rejected - HELD THAT:- Counsel for the petitioner could not dispute that vide order dated 19.08.2021 passed in CRM-M No.33804 of 2021 filed by the petitioner, the similar prayer has already been dismissed by this Court. There are no ground to entertain this petition and the same is accordingly, dismissed.

Money Laundering - predicate offence - irregularities in the loan disbursement by the City Co-operative Bank - only contention of the Petitioner is that since the Petitioner himself has filed the FIR, if it is to be used against the Petitioner on the premise that it is a predicate offence, then there must be material that the Respondent No. 1 must demonstrate - HELD THAT:- The contention of the Petitioner that without having copies of the ECIRs, the Petitioner cannot approach the competent court with a prayer for anticipatory bail under section 438 of Cr.P.C. is misplaced. The Petitioner apprehends his arrest, and section 438 of Cr.P.C. provides a statutory remedy for such a contingency. The learned ASG has shown the file containing the statements recorded in furtherance of ECIRs. Considering that the Petitioner has a statutory remedy und....... + More

Money Laundering - procedure being followed by the AA for serving the Relied Upon Documents (RUDs) on the parties concerned - HELD THAT:- List for further hearing and for conclusion of submissions on behalf of all counsels, on 13th September, 2021 at 2:30 P.M.

Money Laundering - Provisional attachment of amounts that were frozen - substantive offence under Section 3 r/w Section 4 of the PMLA - HELD THAT:- Coming to Rule 3A of the Prevention of Money-Laundering (Restoration of Property) Rules 2016, this Rule is undoubtedly sequel to the inclusion of the second proviso to Section 8(8) of the PMLA. However, both the second proviso to Section 8(8) and Rule 3A use the expression "may" and not "shall". Where in a given case, the Special Court decides to proceed under the second proviso to Section 8(8), then Rule 3A prescribes a procedure for proceeding with the matter further and not otherwise. It is gainsaid that it is public money which, as narrated supra, had transcended into the hands of the accused and the respondent bank is justified in laying its claim for restoration of th....... + More

Money Laundering - reasons to believe possession of proceeds of crime or not - attachment of residential properties - sub-section (1) of section 5 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- We have refrained from delving into the factual narrative as stated in the impugned order of provisional attachment. This is so because we are of the opinion that when the matter is at the stage of adjudication under section 8 of the PMLA Act and adjudication hearing is fixed on 27th October, 2021, we should allow the statutory authority to deal with the matter in accordance with the statute. Of course the point of law raised by Mr.Nankani without adverting to the facts of the present case is an important one and as held by the Punjab and Haryana High Court in Seema Garg [2020 (3) TMI 460 - PUNJAB & HARYANA HIGH COURT] is certain....... + More

Seeking grant of Anticipatory Bail - Money Laundering - siphoning of funds - fake transactions - shell/dummy entities incorporated to perpetuate the fraud - HELD THAT:- Both the petitioners are said to be erstwhile directors of M/s. VMC Systems Limited, which was in the business of manufacture and sale of electronic products, with specific focus on AC-DC power convertors and communication products. A huge amount of about ₹ 1747.45 crores has been laundered/siphoned and that lead to registration of subject FIR No.15 of 2018 on the file of CBI, BS & FC, Bangalore. There are serious and grave allegations against the petitioners that they have indulged in money laundering offences by resorting to various dubious transactions in between the companies, involving the shell/dummy entities incorporated to perpetuate the fraud and siphone....... + More

Validity of Provisional Attachment of Bank Accounts - provisions for automatic or deemed extension of the Provisional Attachment Order under Section 5 (1) of PMLA Act present or not - HELD THAT:- The Adjudicating authority/Respondent No. 2 cannot be called a litigant or advocate or a quasi-judicial authority and cannot take the benefit of the order of the Hon’ble Supreme court passed in Suo moto Writ Petition (Civil) No. 3 of 2020 [2020 (5) TMI 418 - SC ORDER] by taking the stand that on the expiry of validity of the said provisional attachment order after 180 days under Section 5 (3) of the aforesaid Act, the same would be deemed to have been extended automatically by virtue of the aforesaid order of the Hon’ble Supreme Court when he was not required to pass any formal order of extension of the same under Section 8 (3) of the....... + More

Seeking grant of Bail - money laundering - scheduled offences - enjoying proceeds of crime in personal benefits - Section 120-B/294/341/406/409/420/467/ 468/471/ 506/34 of the Indian Penal Code and Sections 3/4/5 of the Pries Cheat and Money Circulation Scheme (Banning) Act, 1976 - Section 45 of PML Act - HELD THAT:- In the instant case the Petitioner is inside custody since 16th October, 2017 which means he has already incarcerated more than three years and 10 months. Apart from this, admittedly, the Petitioner is languishing in custody from 30th May, 2013 in connection with Kharavela Nagar P.S. Case No.44 of 2013 and subsequent registration of the CBI case. The instant case is concerning offences under the PMLA Act. So keeping in view the restrictions contained in Section 45 of the PMLA Act for grant of bail as well as the nature of all....... + More

Legality of arrest - validity in terms of A. 22 (2) of Constitution of India r/w s. 57 CrPC - application moved by the petitioner herein to declare the arrest of the petitioner as illegal was dismissed without any reason - what is the time of arrest of petitioner is 8:30 PM of 03.08.2021 or 7:55 PM of 03.08.2021? - HELD THAT:- Admittedly, the search started on 03.08.2021 in the premises of the petitioner at 8:30 AM and it continued till afternoon uptil 3 o’clock and thereafter the petitioner was taken to office of respondent for recording of his statement. It was recorded till 7.55 PM when he was arrested. He was then produced on 04.08.2021 at about 4 PM before the learned Court. The question is whether he was produced before Court within 24 hours of his arrest. Deepak Mahajan [1994 (1) TMI 87 - SUPREME COURT], Roshan Biwi [1983 (11....... + More

Acute shortage of staff members as also vacancies at the level of the Chairperson, Member (Administration) and Member (Law) - HELD THAT:- Considering the fact that benches of the Adjudicating Authority hold hearings, and the quantum of cases is considerable, it is not sufficient to merely fill up the vacancies as they exist today, but there is also a need to increase the manpower within the Adjudicating Authority, in order to enable the authority to function in an efficient manner. Insofar as the Chairperson is concerned, it is submitted by Mr. Mahajan, ld. CGSC, under instructions from Mr. Pandey, that the selection for the Chairperson is underway and is likely to conclude shortly - For the positions of Member (Administration) and Member (Law), the proposal for issuance of vacancy circulars is stated to be under consideration. Since thes....... + More

Seeking grant of stay on arrest warrants - Money Laundering - non-speaking order - issuance of non-bailable warrants for the appearance of petitioners - offence punishable under Section 3 read with Section 4 of the PML Act - HELD THAT:- Without commenting upon detailed merits of the cognizance order, it would suffice to hold that the petitioners have not been able to demonstrate any prima facie case for staying the impugned order by which cognizance has been taken against them. Looking to the various pronouncements of Hon’ble Supreme Court in which it has been held that severity of the offence for which a cognizance has been taken against the petitioners and other relevant factors, the trial court has discretion to issue non-bailable warrants. Keeping in mind that the cognizance has been taken for offences punishable under the PML A....... + More

Revival of twin conditions for bail under Section 45 of PMLA after having been declared as unconstitutional - parallel provision to Section 482 Cr.P.C. or not - limitation imposed on civil powers existed in Section 482 Cr.P.C. by Section 362 Cr.P.C. - HELD THAT:- The reliance placed by the applicant/petitioner on the decisions of the Hon’ble Supreme Court in cases of NEW INDIA ASSURANCE CO. LTD. VERSUS KRISHNA KUMAR PANDEY [2019 (12) TMI 1509 - SUPREME COURT] as well as STATE OF PUNJAB AND SUMEDH SINGH SAINI VERSUS DAVINDER PAL SINGH BHULLAR & ORS. ETC. [2011 (12) TMI 656 - SUPREME COURT] is to state that inherent powers of the Court u/s 482 of Cr.P.C. are saved by Section 362 of Cr.P.C. but in NEW INDIA ASSURANCE CO. LTD. VERSUS KRISHNA KUMAR PANDEY [2019 (12) TMI 1509 - SUPREME COURT] the petitioner was ex parte/not heard and ....... + More

Money Laundering - seeking grant of regular bail - conspiracy - creating false and forged documents for the purpose of cheating and used the said false documents as genuine knowing fully well as false and made transactions in various banks fraudulently - satisfaction of condition of twin limitation for grant of bail u/s 45 (1) of PMLA Act - HELD THAT:- This Court without going into merits of the case, taking into consideration the factors that the petitioner has been languishing in jail from the last 360 days, petitioner himself voluntarily surrendered before the Court below in the year 2019, other accused were already enlarged on bail and the health condition of petitioner, this Court deems it appropriate to grant interim bail to the petitioner for a period one month on certain conditions. The petitioner shall be enlarged on interim bail....... + More

Applicability of application u/s 439(2) of the Cr.P.C. - accused is released from the ‘custody’ or not - decision in Nikesh Tarachand Shah [2017 (11) TMI 1336 - SUPREME COURT] has lost its significance because of amendment in Section 45(1) of the PMLA Act or not - irrelevant material acted upon or not - relevant material ignored or not? Whether Section 439(2) of the Cr.P.C. can have no application unless accused is released from the ‘custody’? - HELD THAT:- The instant application filed by the prosecution under Section 439(2) is maintainable, although the accused actually has not been released. Primary objection as to the maintainability is overruled. Whether decision in Nikesh Tarachand Shah [2017 (11) TMI 1336 - SUPREME COURT] has lost its significance because of amendment in Section 45(1) of the PMLA Act? - HELD....... + More

Provisional attachment of immovable properties - scheduled offences under para ‘A’ of the schedule to the PML Act - proceeds of crime - recovery of cash amount form residential premises - equitable relief under the writ jurisdiction of this Court - Section 5(1) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The petitioners have not challenged the show-cause notice and are only seeking to challenge the provisional attachment order. The reason assigned by the petitioners is that the present challenge was filed before this Court on 28th April, 2021 i.e. much prior to the show-cause notice dated 17th June, 2021 and thus, the same will remains alive inspite of the show-cause notice. The petitioners cannot thwart the due process of law and halt the investigation under the guise of raising insignificant things. We have....... + More

Seeking grant of anticipatory bail - predicate offence - alleged irregularities in the utilization of funds of Government of India - pre-trial detention of the accused-applicant - Sections 120-B r/w Sections 420, 409 of IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act against several persons - HELD THAT:- The twin conditions as imposed by Section 45 of PMLA cannot be looked into while deciding the bail/anticipatory bail application as the same are violative of Articles 14 and 21 of Constitution of India. The Hon'ble Supreme Court in different decisions held that economic offences constitute a class apart, the Court need to visit the same with a different approach in the matter of bail/anticipatory bail and should be loathed while extending the benefit of bail/pre-arrest bail to a person accused of such of....... + More

Attachment of property - proceeds of crime - first right or claim over the properties - HELD THAT:- The finding recorded is that the attached properties are not proceeds of crime. Mr. Vyas, the learned ASG is prima facie right in his submission that this particular finding recorded by the Appellate Tribunal would put an end to the criminal complaint filed by the appellant under the PMLA. It can be suggested that the Bank and the appellant may jointly put the properties to auction and try to fetch a good price. If successful in this exercise, then the amount shall neither go to the Bank nor shall go to the appellant, but we may ask them to deposit the entire amount with the Registry of this Court or we may ask them to open an Escrow Bank Account and deposit the same. We shall decide above the precedence once the auction is successful. Post this matter on 06.09.2021.

Money Laundering - proceeds of crime - power of Directorate of Enforcement to declare any property acquired by proceeds of crime - Section 5(4) of the PMLA, 2002 - HELD THAT:- A person who is interested relating to any immovable property or is claiming or is entitled to claim any interest in the property would be free to enjoy the said immovable property even if the same is attached. If the property is confiscated by the Central Government, such claimant with legitimate interest in the property or who may have suffered a quantifiable loss as a result of offence of money laundering may move appropriate application for restoration of such confiscated property or a part thereof - so far as interested person or any claimant is concerned, they did not have any locus to challenge the attachment order at all. While the statute protects them in s....... + More

Money Laundering - scheduled offences - hearing on charges and trial proceedings in subject Sessions Cases registered for the offences under PML Act before commencement of hearing on charges and trial proceedings in the subject Calendar Cases registered for the predicate/scheduled offences - conduct of trial proceedings of predicate/scheduled offences and offences under PML Act simultaneously or not - HELD THAT:- A bare reading of Sections 2(1)(u), 3 and 44(1)(d) of PML Act along with explanations thereof makes it clear that the offence of money laundering is a stand-alone offence and the trial proceedings are completely different to that of the scheduled offence. Trial of money laundering offence is independent trial and it is governed by its own provisions, it will not meddle with the trial of scheduled offence. Similar question came up....... + More

Cheating - proceeds of crime - accused induced gullible victims to invest in a bike and receive monthly pay back, including principle and rental income on that bike for one year under the scheme - accused absconded with the money - accused was not registered as a NBFC with the RBI and hence it was not authorized to initiate any collective investment scheme - HELD THAT:- The purpose of enacting the PMLA was to prevent money laundering and to prevent confiscation of property derived from or involved in money-laundering. The purpose of investigation under the PMLA is to unearth the proceeds of crime and attach the same and to punish the offenders who are involved in committing the offence of money-laundering. Section 45 (1A) mandates that no Police Officer shall investigate into an offence under the PMLA unless specifically authorised by a g....... + 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

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

SEBI seeking information from the petitioner regarding alleged deemed public issue - HELD THAT:- Awareness Programme conducted by the SEBI during the year 2017, a few investors reported that the petitioner Company has been mobilising funds from the public and have issued bonus shares. As alleged that the petitioner subsequently stopped buying back the shares - A preliminary enquiry made by the SEBI, it was noticed that the petitioner-Company has passed resolutions authorising issue of equity shares to any person including existing members of the Company in any manner the board may deem fit. The language of the resolution indicated that what was intended by the Company was not strictly private placement. It was under the said circumstances that the SEBI issued notices to the petitioner-Company. Though the information sought for were expect....... + More

Debenture Trustees liability in default - Violation of SEBI Act - Company issued Debentures which are deemed public issues, without complying with the statutory requirements for public issue - Company failed to provide the details as to whether the consent of the Debenture holders has been obtained, for extending the tenure of the Debentures - whether by acting as Debenture Trustees of the Company without having registration as required under Section 12 of the Securities and Exchange Board of India Act, 1992 read with Regulation 7 of SEBI (Debenture Trustees) Regulations, 1993, they have violated law. Section 12(1) of the SEBI Act, 1992? - HELD THAT: - No Debenture Trustee can deal in securities except under, and in accordance with, the conditions of registration obtained from the SEBI, in accordance with the SEBI (Debenture Trustees) Reg....... + More

Winding up of mutual fund scheme - Procedure and manner of winding up - Consent of the unitholders for winding up of mutual fund schemes - Rights and obligations of the trustees - objections to poll results - SEBI propounds that clause (a) of sub-regulation (2) to Regulation 39 is a standalone provision and the unitholders’ consent is not required when the trustees upon happening of an event form an opinion that the mutual fund scheme is to be wound up - SEBI (Mutual Funds) Regulations, 1996 framed by the Securities and Exchange Board of India (‘SEBI’) to hold that clause (c) to subregulation (15) of Regulation 18 mandates consent of the unitholders for winding up of mutual fund schemes even when the trustees form an opinion that the scheme is required to be wound up in terms of clause (a) to sub-regulation (2) of Regula....... + More

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- As learned senior counsel appearing for some of the objectors, who prays for some time to place on record the new facts, which have come to their knowledge today, by way of an application. She is permitted to file an application within three days. Response/reply thereto, if any, could be filed within three days thereafter. List on 01.02.2021 at 2:00 p.m. - on the said date we would first examine the objections to the e-voting results and the issue/question whether or not disbursal/payment to the unit holders should be made. Interpretation of the Regulations and other aspects would be be examined and decided thereafter.

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- E-voting results have been recorded in paragraph 36 of the said report and have been read out. The Registry would scan the report of the observer and make e-copy available to the counsel for the parties, including Advocates on Record who have filed application for intervention/impalement. Objections, if any, to the observer’s report/e-voting/result would be filed within three days. Response/reply of the same could be filed within three days hereinafter. On the next date of hearing, we would decide on the objections, if any; further procedure to be followed, and whether procedure under Regulation 41(1) in the facts of the present case is mandated. List the matters on 25.01.2021 at 2:00 p.m.

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

Search and seizure operation carried out by the officers of the Enforcement Directorate under FEMA - excess jewellery seized - HELD THAT:- With regard to the search and seizure of the excess jewellery that has been seized by the Enforcement Directorate, it is to be noted that in the writ petition, the petitioner has relied on several documents to indicate that this “excess jewellery” was duly accounted for and had been sent for job work. In my view, the Enforcement Directorate should look into the documents filed in the writ petition and pass a reasoned order on whether these goods are stock-in-trade or not. In the event, the Enforcement Directorate finds that the same are duly accounted for, the same should be released in favour of the petitioner in accordance with law. The above enquiry and the reasoned order should be passe....... + More

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

Transaction entered into by a foreign citizen of “Indian origin”, to deal with real estate in India on certain conditions - transaction (specified in Section 31 of the 1973 Act) entered into in contravention of that provision is void or is only voidable and it can be voided at whose instance - Mandation to get general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India - HELD THAT:- Foreigners should not be permitted/allowed to deal with real estate in India; the peremptory condition of seeking previous permission of the RBI before engaging in transactions specified in Section 31 of the 1973 Act and the consequences of penalty in case of contravention, the transfer of immovable property situated in India by a person, wh....... + More

Offence under FEMA - Review Petition - Correction of clerical errors - respondent Sakunthala had received payment unauthorisedly in her residential premises - respondent Sakunthala that her husband Muthupal Chettiar was a partner in Kumaran and Co in Malaysia - The Appellate Board had found that there was a accidental slip and held in paragraph No.7 that ''After giving careful thought to the contentions of the parties, I find this to be a fit case where benefit of doubt should be given to the appellant at S.No.1 and 2 and therefore, hold that the charge against her have not been established'' - HELD THAT:- Appellate Board upon satisfying that the accidental slip had occurred in the order attributable to an over-sight that the non-receipt of ₹ 75,000/- by the appellant at S.No.2 in the order conflicting with the concl....... + More

Offence under COFEPOSA ACT - detention order - respondents desired to unlock the mobile phone instrument of the petitioner to retrieve the materials/ documents therefrom but petitioner did not co-operate in the opening/ unlocking of his mobile phone instrument - HELD THAT:- As timeline satisfactorily explains and justifies the time taken by the Respondents in undertaking investigation, which finally culminated in passing of the impugned Detention Order. The initial proposal sent by the Sponsoring Authority in February, 2019 was not found sufficient to justify the petitioner’s detention under Section 3 of the COFEPOSA Act. The Sponsoring Authority, therefore, continued with its efforts to conduct further investigation and, for that purpose, retrieval of the contents of the mobile phone of the petitioner was crucial. Vide his letter d....... + More

Rejection of declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - It is submitted that the quantification was communicated to the petitioner for the first time only on September 4, 2019, which is after the cut-off date - whether the e-mail dated March 22, 2018, further correspondence of the respondents vide communication dated April 4, 2018, letter dated September 4, 2018 and the e-mail dated October 31, 2018 is an ‘intimation’ or ‘written communication’ for quantification to be eligible for the benefit of the Scheme? HELD THAT:- There is nothing reflected from the communications to indicate that duty demand was quantified. There are force in the submission of learned counsel for the respondents that the correspondence/mails referred to by the petitioner prior to the cut-off date are meant....... + More

Rejection of application under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - the quantification made as per the Audit Report has been indicated as 04.12.2019, whereas the relevant date is 30.06.2019 - HELD THAT:- It comes out from SVLDRS, 2019 that as per Section 123(c) that tax dues would be the amount of duty payable under any of the indirect tax enactment which has been quantified on or before 30.06.2019. A perusal of Annexure-B would clearly indicate undisputedly that there has been quantification as per the Audit Report dated 04.06.2019. Said aspect has not been controverted by learned counsel appearing for the respondent Department. In light of the same, clearly the petitioner's case prima facie falls within the requirement of quantification before 30.06.2019 The respondent No.3 to reconsider the application of the petitioner in Form SVLDRS-1 at Annexure-E afresh - Petition disposed off.

SVLDRS - Quantification of value of tax in relation to settlement of service tax arrears - Sabka Vishwas (Legacy Dispute Resolution Scheme), 2019 - according to the petitioner, this amount has been unilaterally quantified by the Central Excise Department - HELD THAT:- The quantification of the demand under cover of its compilation of documents dated 12.08.2021 is not valid because, even according to the Department, a substantial portion of that demand was barred by limitation. That apart, the impugned order is clearly non-speaking and does not set out any alternate demand. This cannot be set right by way of counter or additional note - To quote the Hon'ble Supreme Court in the celebrated case of MOHINDER SINGH GILL & ANR. VERSUS THE CHIIEF ELECTION COMMISSIONER, NEW DELHI & ORS. [1977 (12) TMI 138 - SUPREME COURT], orders are ....... + More

Refund of CENVAT Credit - failure to furnish to furnish any evidence that they have recredited to their cenvat credit account - applicability of time limitation - claim filed for the present period July 2016 to September 2016 after a time lapse of 2 years and is barred - period April 2014 to June 2014 - HELD THAT:- In the subsequent refund claim, the appellant has maintained that the differential amount was recredited to the cenvat account vide general voucher No.611 dt. 30.09.2016. But it appears that the appellant has not supported its claim with any documentary evidence. In the impugned order, the Commissioner (Appeals) has therefore observed that the appellant had failed to furnish any evidence. The only way out is therefore for the appellant to establish its case before the adjudicating authority with duly supporting documents. The a....... + More

Levy of service tax - Business Support services - services to distributors/producers in the nature of infrastructure support services - revenue sharing arrangement - Circular dated 13.12.2011 - section 65(104c) of the Finance Act - HELD THAT:- It would be seen from the agreement that the SPE Films is a producer/distributor engaged in the business of production and distribution of films, while the appellant is an exhibitor engaged in the business of exhibition of films and owns/operates a chain of multiplex theatres under the brand name “Inox” - The distributor/producer had granted the exhibitor the non exclusive license to exploit the theatrical rights of a motion picture and each party was entitled to conduct its business in its absolute and sole discretion. It was further made clear in the Agreement that either of the party ....... + More

Refund of the pre-deposit - Conflict with transitional provisions or not - dispute for the period prior to 30.06.2017 (i.e. prior to GST regime) - HELD THAT:- Appreciating that order of Commissioner (Appeals)/(Audit) dated 9.3.2018 is in conflict with the transitional provisions, as contained in Section 142 of CGST Act, wherein it has been provided that on or after 1.7.2017, any adjustment regarding refund of the duty or liability on the assessee has to be adjusted in cash. The Adjudicating Authority directed to disburse refund of ₹ 41,94,304/- in cash. It is further held that the appellant/assessee is entitled to interest on the said amount from the date of reversal (03.11.2015) till the amount of refund in cash, @12% p.a., as held by the Hon’ble Supreme Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT]. Appeal allowed - decided in favor of appellant.

Levy of service tax - postal charges/courier charges - reimbursable expenses - period is from 12/2004 to 3/2009 - HELD THAT:- During the relevant period, reimbursable expenses were not includible in the taxable value for determining the tax liability. The amendment in this regard so as to include reimbursable expenses also in the gross amount came to be introduced only w.e.f. 14th May, 2015. The issue stands decided by the judgment of the Hon’ble Supreme Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] where it was held that only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax. Appeal allowed - decided in favor of appellant.

CENVAT Credit - providing of taxable as well as exempt service - exempted service/ job work - non-maintenance of separate record - Rule 6(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- N/N. 214/86-CE (NT) though was effective from April 1996 has been amended extensively vide N/N. 49/2002 dated 16.09.2002 so as to make the manufacturer accountable for discharging his obligation in respect of goods under Rule 6 of the Cenvat Credit Rules, 2002. As such when the notification was made service was not treated as an taxable incident in India and the said notification has clearly excluded job workers from the purview of payment of excise duty if ultimate manufacturer was to pay the duty at the time of clearance. Therefore, this amendment of 2005 since has only fixed manufacturer liable to comply with Rule 6 of Cenvat Credit Rules, 2004, to my....... + More

Rejection of declaration for Tax Relief under the provisions of Sabka Vikas [Legacy Dispute Resolution) Scheme, 2019 - mistake apparent on record or sufficient reasons for review - misconception of fact or not - Whether this Court, in exercise of the jurisdiction under section 114 and Order XLVII Rule 1 of CPC, must review the order on the ground that the learned counsel for the petitioner in not arguing the grounds (now urged) has made a mistake apparent on record in misconstruing the facts, or such circumstances would constitute sufficient reasons for review? HELD THAT:- The provisions of Section 73(1B) of the Finance Act, 2019 or Section 121(r) of the Scheme substantiate the petitioner’s case that it’s liability was ‘quantified’ for the purposes of Tax Relief under Section 124(c) of the Scheme. Even otherwise, t....... + More

Refund of unutilized CENVAT Credit - rejection on the ground that the appellant did not debit the amount of refund claimed at the time of fling the refund claim, but have debited such amount subsequent to the filing of the refund claim but before adjudication - Rule 5 of Cenvat Credit Rules read with N/N. 27/2012-CE (NT) - HELD THAT:- The debit of the amount of refund claim in the cenvat credit account suo moto before the adjudication, is sufficient compliance Condition No.2(h) of the Notification No.27/2012-CE. Further relying on the ruling of the Hon’ble Supreme Court in the case of CCE VERSUS M/S HARI CHAND SHRI GOPAL [2010 (11) TMI 13 - SUPREME COURT] it is further held that the Commissioner (Appeals) have mis-conceived and mis-directed himself by ignoring the ruling of the Hon’ble Supreme Court, which is both judicial ind....... + More

Dispute mitigation scheme by enactment of chapter VI in Finance Act, 2013 and notification of Service Tax Voluntary Compliance Encouragement Rules, 2013 - computation of liability undertaken by the competent authority on submission of their declaration dated 13th December 2013 was in error - incorrect disqualification attached to ‘substantially false’ declarations for denying the privileges of escapement from interest and penal detriments appended to non-payment/short-payment of tax liability - coverage of exclusion/exemption to ‘maintenance’ of lifts - HELD THAT:- The catena of decisions cited by Learned Counsel lead to a conclusion that are not in consonance with the findings of the adjudicating authority in the impugned order. Every authority empowered under Finance Act, 1994 is bound by, and required to adhere ....... + More

Levy of service tax - service to financial institutions in relation to selling of their loan products to their customers - taxability of commission as received by the appellant in terms of sub section 19 of 65 of Finance Act or not - imposition and quantum of penalty - HELD THAT:- The services being rendered by the appellant are defined under section 65(19) of Finance Act, 1994. When the provision is read with section 68 thereof, it becomes clear that service was taxable and the appellant was liable to pay the service tax. There has been a major change in Finance Act with effect from 01.07.2012 by virtue of negative list under section 66B of the Act was provided. It was held that the services which are not covered under the said list are taxable. Apparently, the services of DSA to Financial institute is not mentioned in the said negative ....... + More

SEZ units - refund of service tax paid on input services used in the authorized operations - rejection of claim on the ground that the refund claim is filed beyond the time-limit of one year from the date of payment of Service Tax - Chartered Accountant certificate not signed by the statutory auditor - services included in the specified list of services or not - original invoices have not been submitted - applicability of N/N. 09/2009-ST dated 03.03.2009, as amended vide N/N. 15/2009-ST dated 20.05.2009 superseded by N/N. 17/2011-ST dated 01.03.2011. Rejection on the ground of time limitation - HELD THAT:- It is not disputed that all claims had been filed on or before the last date for filing the refund claims. These were returned by issuing Deficiency Memo since the appellant had not furnished necessary documents - It can be seen from th....... + More

Refund of service tax paid - Export of services or not - intermediary - services provided by the appellant to its parent company in Hong Kong - Period Oct 2015 to March 2016 and April 2016 to Sept 2016 - HELD THAT:- Admittedly, the appellant have received the charges for their services in convertible foreign exchange. Rule 2(f) read with Rule 9 of Place of provision of Service Rules, 2012, clearly provides that ‘intermediary’ which means one who procure or an agent, does not include a person who provides the main service or supply of goods on his account. The appellant have provided the services to their holding company located India outside India, on their own account. Thus, the appellant have exported their services. The appellant is entitled to refund of the service tax paid under mistake. Further, the tax has been paid und....... + More

Classification of service - Franchise Service or not - one stop painting solution to the customers - respondent recovered certain income under the head Home Solutions Operations - Revenue was of the view that these services will fall under a category of franchisee service as defined under Section 65(105)(zze) of the Finance Act, 1994 - HELD THAT:- It is not settled law that unless and until representational rights have been actually transferred to the franchisee, the service tax could not have been levied under the category of franchisee services. The terms of the agreement clearly provide that home solution service provider is barred from making any statement on behalf of the company or in any manner how to represent the respondent. When there is a specific clause in the agreement which bars the home solution service provider from repres....... + More

Principles of natural justice - seeking directions to the Respondent No. '4' to give an opportunity of hearing to the Petitioner to present its case in relation to the Second Declaration - HELD THAT:- The Respondent vide its letter dated 08th August, 2019 had pointed out that, even according to the Petitioner’s own calculation, service tax liability was due and outstanding. The Petitioner was asked to deposit the balance service tax liability as calculated by the Petitioner vide the said letter. In fact, from the summons dated 20th May, 2019, it is apparent that the case was under investigation under Sections 70 and 174 of the CGST Act and the Petitioner has been asked to furnish a large number of documents including copies of challans showing its service tax liability deposited after the date of service - the said communica....... + More

Refund of service tax paid as pre-deposit - duty paid under protest - applicability of time limitation - HELD THAT:- Hon’ble High Court of judicature at Madras in one of its decisions in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT] has considered an almost identical issue and, has, after considering decisions of the Hon’ble Apex Court as well as other High Courts, held that application under Section 11B for refund cannot be rejected on the ground that it is barred by limitation. On merits, the adjudicating authority has observed that the appellant’s claim was not supported by any documentary evidences. Further, also the Chartered Accountant certificate furnished by the appellant is given in 2019 ....... + More

Short payment of service tax - Business Auxiliary Services - Share Transfer Agent services - Registrar to an Issue services rendered by them - appropriation of amount paid towards the demand of tax - demand of tax on Intellectual Property services” received by them from foreign service providers - Manpower Recruitment or Supply agency services received by them from foreign service provider - demand of interest alongwith penalty - HELD THAT:- Undisputedly, the appellant is rendering the service of ‘Registrar to Issue’ services and ‘Share transfer agent’ services, both of which became chargeable to service tax w.e.f. 01 May 2006 and it has been paying service tax from that date. Reimbursable expenses recovered by the appellant from its clients - HELD THAT:- It has now been settled by the Supreme Court in UNION ....... + More

Classification of services - Repair & Maintenance or Commercial or Industrial Construction Service or Works Contract Service? - eligibility of abatement available for commercial or industrial construction service under N/N. 18/2005-ST - HELD THAT:- Reliance placed in the earlier appeal of the appellant this tribunal in M/S H KANT & CO. VERSUS C.C.E. & S.T. VADODARA-I [2019 (2) TMI 1304 - CESTAT AHMEDABAD] where Tribunal remanded the matter for verifying the fact of execution of work with material and whether the same falls under works contract. In the present case also the same fact is involved therefore, this matter also needs to be remanded for denovo adjudication to the Adjudicating Authority - Appeal is allowed by way of remand.

Permission for withdrawal of appeal - Principles of natural justice - maintainability of appeal filed by the Department without considering the plea as to the necessity of possessing a registration certificate for availing CENVAT credit of service tax paid on input services for the purpose of claiming refund - HELD THAT:- The learned Senior Standing Counsel appearing for the appellant sent a letter dated 28.9.2021 to the Registry seeking to list the above appeal for withdrawal. Hence, the matter is listed today under the caption 'for withdrawal'. Today, when the case is called, a similar request is made to that effect. The appeal is dismissed as withdrawn.

Vires of Rule 17(2) of the Pan Masala Rules as ultra vires to the provisions of Section 3A of the Central Excise Act - HELD THAT:- It is true that, the High Court has observed that, in the facts of the case, challenge to the vires of Rule 17(2) of the Pan Masala Rules is rather without substance, however, the High Court has not at all addressed the issue on vires on merits in detail. The question of vires cannot be decided by the Appellate Authority/Tribunal in an appeal against the order-in-original. Under the circumstances, the High Court has not at all addressed on merits on the question with respect to vires of Rule 17(2) of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, the impugned order passed by the High Court is set aside and matter remanded to the High Court for its fresh decision - appeal allowed by way of remand.

Maintainability of appeal - appropriate forum - different Commissionerate was being established and in that process inefficiency occurred - remedy to file an appeal within a particular time limit - HELD THAT:- We consider this hardly a proper justification except that it is a result of inefficiency of the working of the Department and lack of knowledge of legal remedy. Since some similar matters are stated to be pending consideration, we are inclined to condone the delay, subject to deposit of ₹ 10,000/- as costs in each of the special leave petitions with the Supreme Court Group ‘C’ (Non-Clerical Employees Welfare Association) within three weeks. The applications for condonation of delay are accordingly allowed.

Process amounting to manufacture or not - duty paid cigarettes - affixing brand name, repacked in new pack - non-payment of duty on removal of competitor’s cigarettes - period from 2004-05 to 2008-09 - HELD THAT:- The term “manufacture” has been defined under Section 2(f) inter alia, to include any process, incidental or ancillary to the completion of a manufactured product. In this case, the competitor’s cigarettes procured by the appellant were masked, covering the manufacturer’s brand name, repacked in new pack by putting only a code number for testing purpose to select panel of the smokers. The product emerged after carrying out the activity of masking, putting code number etc. for identification, remained cigarettes only, which were procured by the appellant on payment of appropriate Central Excise duty........ + More

Demand u/s 11D - Collection of amount in the name of duty - Cash recovery of Money Credit Scheme - applicability of Section 11D of the Central Excise Act, 1944 - HELD THAT:- Much emphasis was placed on the last sentence appearing in the said circular, which predicates that the manufacturer is utilized to pay duty on any finished excisable product and which duty is collected from the buyer. This expression, though, wide enough but cannot travel beyond Section 11D of the Act and in reference to the Board Circular Bearing No. 216/50/96-CS, dated 4-6-1996, referred to in the stated circular dated 7-8-2002. Besides this, nothing more is required to be said. The claim set up in the Writ Petition, therefore, has been rightly negated by the High Court. SLP disposed off.

Violation of principles of natural justice - Scope of SCN - benefit of deemed credit to the rerollers whose value of clearances have crossed ₹ 75 lakhs in a particular financial year - whatever interpretation was put on Notification No. 1/93 would affect the availment of the benefit of the deemed credit order No.TS/36/94TRU dated 1.3.1994 or not - HELD THAT:- The questions raised in this appeal are identical to what have been decided in case of VINUBHAI STEEL CO. PVT. LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (3) TMI 746 - GUJARAT HIGH COURT] where it was held that to the extent M/s Sonthalia Steel Re-Rolling Mills had availed the benefit of the order dated 1st March, 1994 after it came to be rescinded with effect from 1st April, 1995, it was not entitled to such benefit. Questions are answered in favour of the assessee - appeal allowed.

Principles of natural justice - legality and validity of ex-parte order - levy of personal penalty on the petitioner without service of show cause notice and without service of notices of personal hearing - HELD THAT:- From the reply of the respondent department, it can be deduced unequivocally that the show cause notice and the personal hearing notices have not been served upon the petitioner. It has a reference of the first show cause notice served upon the company and therefore, it assumed that the show cause notice and the personal hearing notices have been served upon the present petitioner also. This stand on the part of the respondent of not having known the changed address of petitioner on his having failed to put to the notice of department is wholly unacceptable. Failure to send the show cause notice and the notices of personal ....... + More

Valuation - inclusion of value of software in the assessable value during clearances of telecom equipment or not - want of necessary evidences - period involved is from March 2005 to January 2006 - HELD THAT:- The Commissioner (Appeals) has not gone into the details as to whether the software is only an operational / application software, as contended by the respondent, whether the software is an integral part of the telecom equipment/hardware without which the telecom equipment cannot function. In paragraph 4.2 of the impugned order, it is merely stated that “the telecom equipment can function without the usage of said Network Management Software”. This finding is not seen supported by discussion of necessary evidence. If the software is operational / application software, the decision in COMMISSIONER OF CENTRAL EXCISE, PONDI....... + More

Delay in sanction of interest on interest - Applicability of time limitation - whether the delay in sanction of interest on interest beyond the three months, comes within the purview of section 11BB? - HELD THAT:- It is apparent that the issue has been decided by Hon’ble High Court of Gujarat in favour of the assessee. The issue is no more res integra and stand settled by the Apex Court in the case of Ranbaxy Laboratories Ltd. [2011 (10) TMI 16 - SUPREME COURT]. Perusal of the decision makes it abundantly clear that what is payable under section 11AB is the interest on the expiry of period of three months from the date of receipt of application for the refund the amount which is still not refunded. The sanction of refund of interest on the interest amount has been allowed for this decision only for the reason that the demand has cau....... + More

Refund claim against reversal of CENVAT Credit - input services or not - sales commission - refund rejected on the ground that sales commission is not input service and also on the ground that the appellant have admittedly reversed the amount without under protest - HELD THAT:- It is found that the reversal was made on the objection of the audit party. Though the reversal was not made under protest but the appellant has right to claim refund within one year as mandated under section 11B of Central Excise Act,1944., therefore only on the ground that the appellant has not filed under protest letter while reversing the credit refund cannot be rejected on this ground. As regard the merit that whether the sales commission is admissible input service or otherwise the issue is subjudice before the Hon’ble High Court of Gujarat in the case ....... + More

CENVAT Credit - Job-work - exempted service - credit claimed on taxable as well as exempt goods - non-maintenance of separate records - demand of an amount equal to 6% of the value of exempted service - Rule 6(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- Notification No. 214/86-CE (NT) though was effective from April 1996 has been amended extensively vide Notification No. 49/2002 dated 16.09.2002 so as to make the manufacturer accountable for discharging his obligation in respect of goods under Rule 6 of the Cenvat Credit Rules, 2002. As such when the notification was made service was not treated as an taxable incident in India and the said notification has clearly excluded job workers from the purview of payment of excise duty if ultimate manufacturer was to pay the duty at the time of clearance. Therefore, this amendment of 2005 si....... + More

CENVAT Credit - Additional duty of Customs (SAD) - credit as per the amount shown in the ‘Bill of Entry, correct or not - excess receipt of raw material -volatile in nature - amount of CVD in the bill of entry, is a lower amount - extended period of limitation - HELD THAT:- The appellant is registered with the Department and have maintained proper books of accounts and registers. The issue involved herein is wholly interpretational in nature. Further, the show cause notice is also erroneous, as revenue have sought to recover an amount of ₹ 1,04, 890 + ₹ 7,18,818/- which are been finally dropped by the court below. Further, this Tribunal found that the demand of ₹ 25,705/- is not sustainable and the same have been raised by misconception, as regards treatment of normal loss. Taking of lesser credit due to normal los....... + More

CENVAT Credit - availment of wrong cenvat credit of the same amount twice - returned goods - HELD THAT:- The appellant have not taken wrong credit but rather have rectified the wrong debit made at the time of sales return, instead of taking credit, and accordingly the two entries of cenvat credit made by them on 31.12.2016 are in consonance and the accepted accounting principles. Hence, the impugned order is unsustainable and against the provisions of law. Appeal allowed - decided in favor of appellant.

Maintainability of appeal - being two units of the appellants involved in this case, whether only one appeal is sufficient or one more appeal is required to be filed? - interpretation of various notifications and availability of exemption - HELD THAT:- This issue was not disputed by the revenue in earlier two round of appeals, which attained finality, therefore at this stage the objection of the revenue is not tenable. Moreover, even though there are two units i.e. Twisting unit and other is Dyeing unit but both the units belongs to one company, hence only one consolidated appeal is sufficient, particularly when Order-In-Original is one common order in respect of both the units. Hence, the revenue’s objection on this point is not sustained. Exemption under N/N. 5/1998-CE, N/N. 5/1999-CE, N/N. 6/2000-CE, N/N. 3/2001-CE, N/N. 6/2002-C....... + More

Valuation - Nature of amount received - Recovery of Central excise duty with interest and penalty - amount received by the appellant from M/s. Honda Siel Car India Ltd. [Honda India], for the loss suffered by the appellant on account of the cancellation of the contract for supply of auto parts used in the manufacture of vehicles - HELD THAT:- Section 4(1) of the Excise Act deals with valuation of excisable goods for purposes of charging of duty of excise. It provides that where the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall be, if the assessee and the buyer of goods are not related and the price is the sole consideration for the sale, be the transaction value. Transaction value has been defined under section 4(1)(d) of the Excise Act to mean the p....... + More

Refund - Applicability of doctrine of unjust enrichment - provisional assessments - applicability of N/N. 45/99 CE dated 25.06.1999 - refund of duty governed by the provisions contained in proviso [d] & [e] of Section 11B [2] of the Central Excise Act, 1944 or not - presumption contained in Section 12B of the Central Excise Act, 1944 applies or not in case of Provisional Assessments also - HELD THAT:- Rule 9B[5] has to be read with the proviso which provides that if an assessee is entitled to refund, such refund shall not be made to him except in accordance with the procedure established under Subsection [2] of Section 11B of the Act as inserted with effect from 25.07.1999. Rule 7[6] read with the proviso provides that the duty of excise paid by the manufacturer, if he had not passed an incidence of such duty to any other person be pa....... + More

Clandestine Removal - threshold limit of SSI Exemption - third party evidences reliable or not - cross-examination of witnesses - entire case was made out mainly on the basis of diaries which is marked as A/2 &A/3, said to have been recovered from the appellant’s factory - Department’s case is that the appellant have clandestinely removed the goods consequently the value of SSI exemption limit has exceeded and appellant is not entitle for the SSI exemption - penalty - HELD THAT:- The entries in the diaries include the entries of removal in respect of which the invoices were issued. The investigation agency have also recovered certain documents from the transporters, various statements were recorded mainly of Mr. Ashuram, Director of the appellant company and also of transporters and dealers, documents from weighbridge also....... + More

CENVAT Credit - import of copper scrap, brass scrap, zinc scrap, aluminum scrap as shown received in their factories - goods was diverted in the market but availed the Cenvat Credit thereon on the strength of bills of entry - principles of natural justice - HELD THAT:- It is not only the correspondence between the appellant and DGCEI and the adjudicating authority but there are also number of letters written by the office of the adjudication authority to the DGCEI for supplying the required documents. This itself shows that the appellant have not been given all the relied upon documents at any point of time. Since, there is no dispute that the appellant were not supplied the relied upon document as mentioned by them, the adjudication should not have taken place in absence of providing the said documents to the appellant. In this fact whic....... + More

CENVAT Credit - time limitation - denial of credit on the ground that appellant has not availed the Cenvat credit immediately on receipt of inputs therefore, it becomes time bar - period of 2009-2010 and 2010-11 in July 2013 - HELD THAT:- This issue has been considered by the Honb’le Punjab and Haryana High Court in the case of INDUSTRIAL CABLES VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2009 (1) TMI 281 - HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH] wherein the same issue of limitation for availing the Cenvat credit was considered and it was held that The interpretation of Rule 57G adopted by the Tribunal is incorrect and unjust and, therefore, the period of limitation of six months imported by the Tribunal in Rule 57G is unsustainable as the Tribunal or the Courts are not competent to import any specific period of lim....... + More

Seeking refund to Large Taxpayer Unit (Mumbai) of Cenvat Credit reversed/paid for LPG - LPG removed without payment of duty under Domestic LPG Subsidy Scheme - LPG, Exempt goods or not - requirement to maintain separate account in terms of Rule 6 (2) - Rules 6(3) of Cenvat Credit Rules, 2004 - HELD THAT:- As per the above Rule 6 (1) Cenvat Credit shall not be allowed on such quantity of input or input services used in or in relation to manufacture of exempted goods however, the exception is provided in the circumstances mention in sub rule 6 (2). In the present case the respondents have used input and input services in the manufacture of dutiable goods i.e. motor sprit (MS), High Speed Diesel Oil, aviation Turbine fuel (ATF), Naphtha, Fuel oil etc. the LPG is generated as one of the product which also dutiable but under the said scheme of....... + More

Classification of goods - Nimbooz - to be classified under CETH 2202 10 20 of the First Schedule to the Central Excise Tariff Act, 1985 or under CETH 2202 90 20 under the category of ‘fruit pulp or fruit juice based drinks’? - extended period of limitation - HELD THAT:- A Larger Bench of the Tribunal in M/S BRINDAVAN BEVERAGES PRIVATE LIMITED, KRANTI KUMAR CHANDRAKAR, M/S PEPSICO INDIA HOLDINGS PRIVATE LIMITED VERSUS COMMISSIONER CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, HAPUR AND BAREILLY [2019 (10) TMI 762 - CESTAT ALLAHABAD (LB)] has held that ‘Nimbooz’ would be classifiable under CETH 2202 10 20 of the First Schedule to the Central Excise Tariff Act. Extended period of limitation - HELD THAT:- The issue as to whether the Department was justified in invoking the extended period of limitation does not arise. The o....... + More

Reversal of input tax credit (ITC) - alternate remedy to file an appeal - lone pivotal contention of the learned counsel for writ petitioner is that reversal of ITC should be in excess of 5% of tax or in other words, upto 5%, there cannot be reversal - HELD THAT:- In the instant case, as would be evident from the trajectory which lead to the impugned order has been captured, it is clear that more than reasonable i.e., adequate and ample opportunity has been given to the writ petitioner for showing cause against the impugned order. So there can be no grievance in this regard. Though there can be no disputation or disagreement on the aforesaid rule, what is of relevance is Honourable Supreme Court in a catena and series of judgments i.e., a long line of case laws commencing from ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DU....... + More

Grant of exemption on second sale - sale of food and drinks to the canteen as claimed by the assessee - whether the sale will fall under Entry 6(a) of the Fifth Schedule to the KST Act - reimbursement of ESI, PF, Bonus is taxable under the KST Act or not - competency of the Advance Ruling Authority in issuing the clarification when the matter was pending before the Revisional Authority - HELD THAT:- It is ex-facie apparent that the Tribunal having given a finding on the sales of food and drinks made by the assessee to the canteens would not fall under Entry 6(a) of Fifth Schedule, remanded the matter to the revisional authority only to examine the exemption of second sales with respect to bakery products sold by the assessee. The review petition was filed by the assessee against the order of the Tribunal which also came to be dismissed an....... + More

Validity of Tax Recovery Notice (TRN) - demand for Petrol and Diesel suppression and cloth material suppression - levy of penalty u/s 43(2) of the OVAT Act - HELD THAT:- The fact of the matter is that the assessment order has remained unchallenged by the Petitioner, even assuming that it was without jurisdiction. Having not availed the remedy of an appeal, the Petitioner cannot question the assessment order at this stage i.e. after receiving the TRN. Consequently, the Court is not prepared to entertain at this stage a challenge to the assessment order or to the consequent TRN. Petition dismissed.

Input tax credit of VAT paid on the Mining Tippers (and its accessories) which were used in the activity of manufacture or production of iron ore - Restoration of reassessment order passed by the prescribed authority - tax periods July, 2009 to March, 2010 - Section 66(1) of the Karnataka Value Added Tax Act, 2003 - HELD THAT:- In the case of Suma Oil Agencies [2014 (4) TMI 545 - KARNATAKA HIGH COURT], the assessee had purchased a canter fitted with the tanker for the transportation of edible oil which is taxable goods from one place to another. Even in such context, the input tax credit was extended to the assessee in respect of the purchase of the said canter fitted with tanker. As such, the said judgment would be squarely applicable to the facts of the present case - Moreover, in the light of the judgment of the Hon’ble Apex Cour....... + More

Reversal of input tax credit - no “C” declaration form made available or filed by the petitioner for part of value - section 19(2)(5) read with section 19(5)(c) of the Tamil Nadu value Added Tax Act, 2006 and Rule 10(9)(a) of Tamil Nadu Value Added Tax Rules, 2007 - HELD THAT:- In the judgment in M/S. EVEREST INDUSTRIES LIMITED VERSUS THE STATE OF TAMIL NADU, THE DEPUTY COMMISSIONER (CT) (FAC) [2017 (3) TMI 279 - MADRAS HIGH COURT], the learned Judge has exactly confronted with the similar issue, where after having exhaustive discussion on the issue, the learned Judge has concluded that, if the manufacturer, who claimed that they have purchased inputs, which are referred to in first schedule of 2006 Act, in respect of them, if tax have been paid, and the tax suffered inputs have been used in manufacturing or processing of good....... + More

Levy of KST Act and KVAT Act on Liquor - right for disallowing the ITC claimed by the petitioner - tax can be levied on the entire sales turnover or not - eligibility for deduction under 3[2][f] of the KVAT Rules - levy of KVAT on the Value Addition or on the entire sales turnover - eligibility for tax deduction as per Rule-3 of the KST Rules - levy of entire sale value/total turnover and not on the value addition/taxable turnover - validity of conformation of order of the appellate authority and audit authority - violation of principles of natural justice - applicability of notification published in the Departmental Website - HELD THAT:- Rule 3 of the Rules deals with determination of turnover. As per Rule 3(1), the total turnover of a dealer has to be determined as set out in clauses (a) to (g) with explanations thereof. Sub-Rule (2) of....... + More

Deemed assessment - assessment of escaped turnover - Section 27 of TNVAT Act - HELD THAT:- The order made under Section 27 of TNVAT Act has been called in question inter alia on the ground that Narasus principle being ratio in NARASUS ROLLER FLOUR MILLS VERSUS THE COMMERCIAL TAX OFFICER [2015 (4) TMI 361 - MADRAS HIGH COURT] which inturn was made by following an earlier Hon'ble Division Bench judgment in Madras Granites Private Limited Vs. CTO., [2002 (10) TMI 767 - MADRAS HIGH COURT] has been given a go by; that it is to be noted that this principle is to the effect that the Assessing Authority exercising best judgment assessment qua alleged escaped assessment should not go solely / blindly by the report of the Enforcement Wing officials and should independently make an assessment. On the short point of Madras Granite and Narasus pri....... + More

Scope of SCN and the order passed - petitioner has a case that the notice issued, which is produced as Ext.P3, was under Section 25(1) of the KVAT Act. However, when the order was passed, it is seen to be passed under Section 25(A) of the KVAT Act - opportunity of hearing provided to the petitioner or not - HELD THAT:- It is found from Ext.P5 that there has been undue haste in issuing the said order, which, in the circumstances of the case, is not warranted. In a case, where tax liability imposed on the petitioner is large as can be seen from Ext.P5, strict compliance of law is essential. Rule of law demands that a proper opportunity of hearing ought to be given before passing orders of assessment. Fair submission of the Learned Government Pleader, is placed on record, who submitted that the assessment order does not reflect such an oppor....... + More

Warrant of arrest - willful defaulter - Recovery of arrears of sales tax dues - allegation is that the defaulter is willfully withholding payment of the arrears - dishonestly transferring the father's property to the name of his minor son - HELD THAT:- The 'will' by which the property has been bequeathed to the defaulter's son by the defaulter's father is produced as Ext. P6 and from a perusal of the same it can be seen that the property bequeathed is the balance extent available with Sri Johny from out of the property obtained by him as B schedule in the partition deed No. 1080/1965 of Oorakam SRO and purchase certificate No. 1480/1977 issued by the Land Tribunal, Thrissur. Therefore, the finding in Ext. P7 that the property involved is hereditarily acquired by Sri. Johny over which the defaulter has right cannot be s....... + More

Seeking restraint on respondent-State authorities from adopting coercive measures against the property purchased by the petitioner company - preferential rights of secured creditors - charge created over the ‘property-in- dispute’ - plea of alternative remedy - HELD THAT:- Undisputedly, the State Bank of India is a ‘banking company’ defined under the Banking Act. Therefore, it became open to it to raise a plea based on Section 34(2) of the Act. A plain reading of that provision brings out the existence of a non obstante clause created by the legislature. Thus, nothing contained in Section 34(1) of the Act, 1948 shall apply to (i) a charge created in favour of the State Bank of India or (ii) transfer made ‘in favour’ of the State Bank of India. In face of the charge (over the ‘property-in-dispute&r....... + More

Principles of natural justice - Assessment of escaped turnover - wrong availment of Input Tax Credit - reasonable opportunity to show cause given or not - Section 27 of TNVAT Act - HELD THAT:- Interestingly and intriguingly, the provision under which the impugned order has been made i.e., Section 27 of TNVAT Act talks about 'Best of its Judgment' for making re-assessment. This is all the more good ground to say that reasons even should be given and in the light of proviso to sub-sections(1) and (2) of Section 27 of TNVAT Act, it is imperative that the cause shown by writ petitioner is considered for re- assessment/revision by adopting Best Judgment Methodology. It follows as a sequitur that the reasons would therefore form the soul of a revision/re-assessment order and how the objections were considered should be set out and such ....... + More

Recovery of sales tax dues under The Gujarat Value Added Tax Act and Gujarat Sales Tax Act - Attachment of personal property - outstanding dues of the Company - section 135D of the Bombay Land Revenue Code - whether for the purpose of recovery of sales tax dues under The Gujarat Value Added Tax Act and Gujarat Sales Tax Act against Gujarat against a private limited company, the personal property belonging to the Managing Director of such company can be attached? - HELD THAT:- The Co-ordinate Bench while considering the similar issue, relying upon the decision of Division Bench of this Court rendered in Special Civil Application No.243 of 1991 with Special Civil Application No.3103 of 1991 and Special Civil Application No.7578 of 1991 in the case of Mr.Choksi Vs. State of Gujarat, [2012 (3) TMI 392 - GUJARAT HIGH COURT] has allowed the sai....... + More

Revision/reassessment order - escaped turnover / wrong availment of 'Input Tax Credit' (ITC) - Hans Chap Khaini - exempt from tax or not - Alternate remedy rule - HELD THAT:- The matter turns on facts and Hans Chap Khaini is only a brand and it is not a product. Whether the product would qualify as 'Tobacco' is a matter which turns on facts and in the considered view of this Court, the reasoned impugned order does consider the principles qua earlier orders and the same stand distinguished. Alternate remedy rule - HELD THAT:- In the case on hand, there is no disputation or disagreement that the impugned order is appealable. In other words, statutory appeal qua impugned order is available to the writ petitioner, which will be under Section 51 of TNVAT Act - the law is well settled that it is not an absolute rule and it is a ....... + More

Refusal to direct stay of collection of remainder of disputed tax - jurisdiction to entertain the stay application pending hearing of appeal before the Tribunal - Section 33 of the Andhra Pradesh Value Added Tax Act, 2005 - HELD THAT:- A plain reading of Section 33(6) of the Act would show that such power would be exercised by the 2nd respondent only when an appeal is preferred against an order or proceedings recorded by the Deputy Commissioner under Section 21 or 32 of the Act and not otherwise - In the present case, a second appeal has been preferred against an order passed by the first appellate authority under Section 31 of the Act and therefore, the 2nd respondent did not have jurisdiction to entertain an application for stay of collection of tax pending such appeal. When a litigant has a right to prefer a second appeal against an or....... + More

Quantum of pre-deposit - Seeking admission of Second Appeal and stay against the recovery of dues - Exemption for high seas sale transaction - HELD THAT:- The demand of the pre-deposit is to the tune of 20% of the tax liability for admission of the appeal vide impugned order dated 11.02.2020. As could be noticed from the pleadings for the other assessment year, the petitioner has been able to duly furnish the evidence for high seas sale transactions, which have been accepted also by the different assessment orders. Considering the justifiable grounds and the bona fide nature of the transaction, the First Appellate Authority when has already ordered the reverification of the document, which had not been complied with by the Assessing Authority, the VAT Tribunal could have considered this aspect, which instead has ordered the 20% of the pre....... + More

Rejection of concessional rate of tax applicable to sales made in favour of Lakshadweep Administration - Seeking declaration that Rule 12C(1) of the Rules as invalid - proviso to Section 6(1) of the Act, read with Rule 12C of Kerala Value Added Tax Rules, 2005 - rejection for want of proof of other requirements prescribed in Rule 12C, namely, shipping bill or similar document duly attested by the port authorities - HELD THAT:- The Courts strongly lean against any construction which tends to reduce a statutory requirement to futility. The requirement in legislation or subordinate legislation must be read/construed so as to make it effective, albeit such construction is not possible because of vagueness of language, the language is wholly interactable. The State legislature and the delegatee are having jurisdiction to make law/rules in rega....... + More

Maintainability of petition - availability of alternative efficacious remedy of appeal - petitioner contends that it filed Xerox copy of Form VAT 250 along with other records but the 1st respondent without considering the same, passed the impugned Assessment order - HELD THAT:- Whether the copy of Form VAT 250 produced by the petitioner is a genuine one or a fake one is a question of fact to be decided taking into consideration other relevant facts. Since the exercise is not possible in writ petition and as the provision for appeal is available to the petitioner and also considering that valuable contention of the petitioner is at stake, we deem it appropriate to direct the petitioner to file appeal before the appellate Deputy Commissioner within specified time and direct the said authority to admit the appeal and pass appropriate order. ....... + More

Levy of entertainment tax - charges collected from students by the petitioner for utilizing facilites of MARENA - transversal beyond the allegations made in the Entertainment Tax Notice, which proposed to levy tax on collections from MARENA treating the same as a 'recreation parlour' - MARENA qualifies as a place of entertainment and the petitioner is a 'proprietor', for the purposes of levying entertainment tax or not - levy of interest and penalty under Sections 9 and 12 of KET Act - HELD THAT:- It is evident that the Tribunal has dismissed the petitioner-University appeals upholding the orders of the First Appellate Authority and the Assessing Authority by holding that the facilities provided at MARENA qualify as 'entertainment' under Section 2(e)(iii) of the KET Act and fall under the definition of 'amuseme....... + More

Constitutional validity of levy of VAT on Extra Neutral Alcohol (ENA) - post GST regime - Legislative competence of State legislature (of Uttar Pradesh) - imposition or levy of tax on sale of Extra Neutral Alcohol (ENA), after enactment of the 101st Constitution Amendment, with effect from 01.07.2017 - validity of N/N. KA.NI-2-1793 dated 17 December 2019, issued under Section 74 read with Section 4(4) of the Uttar Pradesh Value Added Tax Act, 2008 - HELD THAT:- Insofar as the identity of the commodity is concerned, there is no dispute between the parties. It is Extra Neutral Alcohol (ENA). While the petitioners contend; the same is alcohol of high purity, above 90%, by volume, the State does not dispute the same. In its counter affidavit, the State also makes pleadings to the same effect. Besides the admission made by the State, it is too....... + More

Input Tax Credit - inter-state trade or commerce - credit reversed or not allowed by the respondent revenue / assessing authority on the ground of applying proviso to Section 19(2) (ii) & (vi) of the TNVAT Act - HELD THAT:- Where the issue has been settled as early as in the year 2017 in M/S. EVEREST INDUSTRIES LIMITED VERSUS THE STATE OF TAMIL NADU, THE DEPUTY COMMISSIONER (CT) (FAC) [2017 (3) TMI 279 - MADRAS HIGH COURT] that proviso in question cannot be made applicable to the category of dealers industries or manufacturers like the petitioners and therefore, they are entitled to get full credit of ITC. Therefore, such a reversal is not possible by applying the said proviso by deducting 3 percent. This Court feels that, all these impugned orders are liable to be interfered with, as that was passed only by making application applying the proviso to Section 19(2) (ii) & (vi) of the TNVAT Act - Petition allowed.

Interpretation of statute - Assignee of the decree holder in terms of Order XXI Rule 16 of the Code of Civil Procedure, 1908 - scope of Section 146 of the CPC read with Section 2(1)(g) of the Arbitration &Conciliation Act, 1996 - significant aspect is the addition of the explanation to Order XXI Rule 16 of the CPC, which was added pursuant to the recommendation made by the Law Commission of India in its 54th Report on the CPC in 1973, which in turn was a sequitur to the conflicting views of the High Courts on the matter in issue. HELD THAT:- It is an admitted position that the explanation was added to Order XXI Rule 16 which did not exist earlier, pursuant to the recommendations made by the Law Commission of India in its 54th Report on the Code of Civil Procedure, 1908. The Explanation was so added due to conflicting High Courts&rsquo....... + More

Dishonor of Cheque - legally enforceable debt or not - without giving an opportunity to the petitioners the ld. Court below has closed the cross-examination - Principles of natural justice - power to recall the witnesses under section 311 Cr.P.C - HELD THAT:- The ld. Court below, in the impugned order dated 03.05.2018, has noted that the case was posted for cross-examination of P.W.1 on 30.05.2017, and since then ample opportunities were afforded to the petitioners to complete cross-examination of P.W.1. But, the accused persons could not avail the opportunity. And on that day, i.e. 03.05.2018, also the petitioners have failed to cross-examine the P.W.1. Instead, on that day neither the accused nor his counsel remained present in the court, though the ld. Counsel has filed hazira in the court. Then being left with no option the ld. Court ....... + More

Vires of Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186(2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 - violation of principles of separation of powers and independence of judiciary - stipulation of a minimum age limit of 50 years for appointment - HELD THAT:- The challenge to the first proviso to Section 184, which prescribes the age qualification, has to be seen from several angles. First, the underlying parent statutes which created the Tribunals (ITAT, CESTAT, TDSAT, CAT) did not prescribe, as an eligibility criterion for selection of candidates as members, any minimum age. The prescription of 50 years as a minimum eligibility criterion, in the opinion of this Court, is without a....... + More

Smuggling - Methaqualone - contraband item - evidence of any independent witness or not - conscious possession of the contraband item or not - framing a charge against the accused - Section 50 of the NDPS Act - HELD THAT:- Before analyzing the oral evidence adduced by the appellant, it is apparent that the prosecution case itself stands vitiated on account of non compliance of section 42 (2) and section 50 of the NDPS Act - It is equally important to note that except officials of the NCB, there is no evidence of any independent witness except the owner of the tempo, P.W.8-Ankush Bhoite, who turned hostile. The appellant emphasized on the testimony of it’s witnesses coupled with statements of the accused recorded by them. There is no evidence in the complaint that the copy of the information received by the officer was forwarded to t....... + More

Dishonor of Cheque - insufficiency of funds - existence of debt or not - onus to prove - rebuttal of presumption of innocence - HELD THAT:- It is clear that Sita Ram Verma was not authorized as per the resolution of the Board of Directors' of the Company nor he was a Principal Officer of the Company and his title to maintain the present complaint was to be considered vis-à-vis. his capacity to depose in the Court of law. Though, this Court may proceed with the presumption that he was having authority to proceed with the complaint as he was working with the Company. Whether the onus which shifted on the complainant that the cheque was not issued for consideration and it was only a security amount has been discharged? - HELD THAT:- The answer is that onus was not discharged as the Company which is supposed to maintain the account....... + More

Dishonor of Cheque - insufficiency of funds - condition precedent for constituting an offence under Section 138 of N.I. Act has been satisfied or not - service of legal notice - HELD THAT:- From the case records, it appears that the prosecution had exhibited the cheques and also proved the postal receipt and successfully proved that the cheques were issued by the petitioner, which had bounced due to insufficient funds. Service of legal notice - HELD THAT:- Neither any date of dispatch of the legal notice has been mentioned in the evidence, nor the legal notice has been exhibited, much less, any evidence or finding regarding service of legal notice/deemed service of legal notice is on record. This court is of the considered view that mere bouncing of the cheque coupled with a further statement that legal notice was issued but in-spite of i....... + More

Dishonor of Cheque - discharge of existing liability - sufficient averments present or not - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- In the present case, both A2 and A3 are partners of A1/Firm. When a cheque is issued for a particular transaction on behalf of the Partnership Firm, then both have a co-existing liability with respect to ensuring that the cheque is honoured. If the cheque is dishonoured and the prosecution is launched, then both have a co-existing liability to face such prosecution unless the Partnership Deed specifically excludes a particular partner or includes a partner as a sleeping partner or a minor partner only for the benefit of the Partnership Firm. In all other circumstances, both partners sink together or survive together. With respect to the averments made, the respondent had specificall....... + More

Dishonor of Cheque - direct contractual or business relationship or transaction necessitating issuance of a cheque or not - Section 138 of Negotiable Instruments Act - HELD THAT:- In the instant case, the petitioner had not issued the cheque from an account in her name. She had issued the cheque from the account in the name of V.N. Krishnaswamy Naidu College of Arts and Science for Women, Mettupalayam. That institution has not been made as a party. The constitution of said institution is not known, but, still the cheque had been instituted by the petitioner in her capacity as Correspondent/Secretary of that institution. She had not issued the cheque in her personal capacity. The petitioner had not issued the cheque. She had signed the cheque only in her capacity as Correspondent/Secretary of a named college. The cheque had, obviously, bee....... + More

Dishonor of Cheque - insufficiency of funds - failure to lead any evidence despite of opportunity provided - locus standi to file the complaint under Section 138 of NI Act - offence punishable under Section 138 of NI Act - HELD THAT:- This Court is convinced and satisfied that complainant successfully proved on record that cheque in question was issued by the accused for discharge of his lawful liability and such cheque on its presentation was dishonoured on account of insufficient funds. Evidence led on record clearly reveals that complainant after having received memo from the bank concerned advised accused by way of legal notice to make the payment good within the stipulated period, but since he failed to do so, complainant had no option, but to file/institute complaint under Section 138 of the Act. In the case at hand bare perusal of ....... + More

Dishonor of Cheque - amicable settlement arrived or not - seeking exemption of compounding fee on the ground that due to poor financial condition, petitioner could not pay the amount well in time - HELD THAT:- After depositing compounding fee/cost, petitioner shall place a copy of receipt of deposit of compounding fee on record of this petition. In case of default in depositing compounding fee/cost with the H.P. State Legal Service Authority, Shimla within eight weeks from today, the judgments of conviction and sentence shall automatically revive. As an amount of ₹ 70,000/- has been deposited by the petitioner in the Registry of this High Court, therefore, Registry is directed to release the aforesaid amount in favour of complainant Subhadra Devi, along with interest, if any accrued thereon, without issuing notice to the accused-pet....... + More

Murder or death by falling in the well under the influence of liquor - giving threats for the offences under Sections 504 & 506 IPC - presumption of innocence - HELD THAT:- The order granting bail to the accused pending appeal lacks total clarity on which part of the judgment and order can be said to be submissions and which part can be said to be the findings/reasonings. It does not even reflect the submissions on behalf of the Public Prosecutor opposing the bail pending appeal. A detailed counter affidavit was filed on behalf of the State opposing the bail pending appeal which has not been even referred to by the High Court. The manner in which the High Court has disposed of the application under Section 389 Cr.P.C. and has disposed of the application for bail pending appeal cannot be approved. It is very unfortunate that by this ju....... + More

Removal of names of the petitioners from the list of wilful defaulters - whether the writ petitioners being the promoter / directors of a company as well as guarantors to the loan facility can be classified as wilful defaulters even after the company is absolved of its liability? - HELD THAT:- The Wilful Defaulters Review Committee in its meeting held on August 27, 2020, after considering the written representations submitted by the writ petitions and the department’s response thereto, passed an order that the promoters/ directors of TCL i.e. the petitioners herein are fit to be declared as wilful defaulters. It was specifically observed by the said Review Committee that despite the fact that operations of the committee were allowed through TRA account only, the borrower has routed substantial transactions through non TRA accounts w....... + More

Dishonor of Cheque - insufficiency of funds - conviction and sentence recorded by the courts - compounding of offences - section 147 of the Negotiable Instruments Act - HELD THAT:- Reliance placed in the case of K.M. Ibrahim vs. K.P. Mohammed and Another [2009 (12) TMI 903 - SUPREME COURT] where it was held that It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution. Keeping in view that in the present case, ....... + More

Imposition of electricity duty and penalty on the electricity - Maintainability of petition - alternate statutory remedy under Section 9A of the Act, present or not - appropriate forum - High Court declined to entertain the writ petition instituted by the appellant on the ground that the dispute between the parties is factual in nature and is suitable for adjudication in terms of the statutory remedy provided in the Bihar Electricity Duty Act 1948, Bihar Electricity Act or the Act - whether dispute involves questions of fact which are not amenable to the writ jurisdiction of the High Court? HELD THAT:- While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High C....... + More

Cancellation of granted Interim Bail - the conditions of interim bail was fulfilled or not - non-appearance of petitioner on assigned date - jurisdiction to adjudicate the matter placed - issuance of Look Out Circular - HELD THAT:- Without giving notice to the petitioner, interim order should not have been cancelled to issue warrant of arrest on the prayer of the respondent nos.3 and 4 merely on the ground of non-appearance made on behalf of the petitioner on the assigned date. It is made hereby clear that the petitioner has a fundamental right of movement and right to life as enshrined in Article 19(1)(b) of the Constitution of India. Therefore, he has a right to travel beyond the territory of India as held by the Hon’ble Supreme Court in Maneka Gandhi vs. Union of India [1978 (1) TMI 161 - SUPREME COURT] and in case of Satwant Sin....... + More

Seeking grant of Regular bail - Smuggling - contraband item - 4200 Tablets of Zolpidam (1.050 Kg) - 6000 Tablets of Alprazolam (1.200Kg) - offence under section 8(c) of NDPS Act, 1985, and punishable under section 22, 25 & 29 of NDPS Act - HELD THAT:- In the present case, there is a recovery of commercial quantity of medicines from co-accused Dipu Singh who is also found to be delivering the medicines illegally over the orders placed through the present petitioner/accused and both accused are found to be connected through WhatsApp chat messages as well as through mobile phones. The chat conversation between the petitioner/accused and Dipu Singh reveals that they were indulging in supply of the narcotic drugs. The conduct of petitioner/accused in destroying the SIM before being interrogated by the NCB officials points towards the guilt....... + More

Dishonor of Cheque - adjudgement of testimonial worth of prosecution evidence - Existence of sufficient ground to proceed with the matter or not - HELD THAT:- The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required. It is directed that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence....... + More

Jurisdiction - power of National Green Tribunal (NGT) to exercise Suo Motu jurisdiction in discharge of its functions under the National Green Tribunal Act, 2010 - HELD THAT:- The NGT Act, when read as a whole, gives much leeway to the NGT to go beyond a mere adjudicatory role. The Parliament’s intention is clearly discernible to create a multifunctional body, with the capacity to provide redressal for environmental exigencies. Accordingly, the principles of environmental justice and environmental equity must be explicitly acknowledged as pivotal threads of the NGT’s fabric. The NGT must be seen as a sui generis institution and not unus multorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this....... + More

Professional and/or other misconduct - removal of the name of the appellant from the membership of the respondent­Institute for a period of five years - wrong deposit of amount in local treasury unit of Income ­tax Department at Agra - further, allegation is that the appellant had interpolated assessees’ copies of challans to show higher figures and claimed the higher amount - HELD THAT:- The Institute of Chartered Accountants of India is a statutory body created by an Act of Parliament that is the Chartered Accountants Act, 1949. In accordance with Section 9 of the Act, the management of the affairs of the Institute are vested in the Central Council. The Council performs its function through three different standing committees constituted under Section 17 of the Act and various other committees. One of the standing committe....... + More

Dishonor of Cheque - insufficiency of funds - misuse of cheque issued as security for older transaction - acquittal of the accused - rebuttal of statutory presumption under Section 139 of the Negotiable Instruments Act - legally enforceable debt or not - HELD THAT:- The fact that there was an earlier transaction in the year 1995 and that liability had been settled by repayment is a factor which would lend credence to the case of the 2nd respondent/accused that Ext.P1 cheque was one issued as security in the discharge of that liability and such cheque was misused by the appellant/complainant to make it appear that there was a subsequent transaction. In the totality of the facts and circumstance of this case, this Court should not interfere with the findings rendered by the trial court. The 2nd respondent/accused has succeeded in showing th....... + More