Attachment of property passed under Section 24(3) of the Prohibition of Benami Property Transactions Act, 1988 - challenge, amongst others is violation of the procedure, including the requirement to arrive at a satisfaction before forming an opinion that the property in question may be alienated during the period specified in the notice - HELD THAT:- On a specific query as petitioners has submitted that apart from the lack of satisfaction, there is no intention on the part of the petitioners to alienate the property in question and in this regard, attention of this Court has been invited to an undertaking contained in paragraph 24 of the petition whereby the petitioners have undertaken not to alienate the said property and the averments have also been properly verified in the accompanying affidavit. Shri Goswami, learned Senior Counsel fu....... + More

Disallowance u/s. 43B - Electricity Duty deposited into designated bank Account as per direction of this Court - HELD THAT:- On the issue of electricity duty, there is merit in the contention of Mr. A.U. Senapati that the facts of the present case are different from the case of Indian Metal and Ferro Alloys Ltd. [2022 (3) TMI 390 - ORISSA HIGH COURT]. In that case the differential electricity duty paid in the loan lien account remained there and therefore, was inaccessible to the Government. In the present case, however, under the interim orders passed by this Court as much as nearly Rs.100 crores has been released to the State Government. In other words, the amount has not only been parted with by the Assessee but also has been received by the Government. Consequently, the deduction under Section 43B of the Act as claimed by the Assessee....... + More

Validity of Reopening of assessment u/s 147 - Mandation of considering objections raised by the writ applicant - HELD THAT:- We should remit the matter to the Assessing Officer for fresh consideration of the objections raised by the writ applicant. We are not convinced with the manner in which the Assessing Officer has dealt with the objections raised by the writ applicant - assessee. The writ applicant in so many words has tried to explain that the difference between the cash deposited and the sales shown is due to the VAT component in the cash deposited. According to the writ applicant, it is not a part of sales but shown separately as a liability. Whatever may be the worth of the explanation put forward by the writ applicant, it is expected of the Assessing Officer to apply his mind and decide the same accordingly. All that the Assessi....... + More

Revision u/s 263 - notice for demand made by the assessing officer against the assessee till the disposal of the appeal - HELD THAT:- As against the order under Section 263 of the Act, the appeal has been admittedly filed, which is pending before the ITAT, though attempt has been made to seek for a stay, that has been negated for the reasons stated. Be that as it may, once the appeal has been entertained and unless it is decided one way or other, if the Assessing Officer is permitted to go ahead pursuant to the order passed by the authority concerned under Section 263 of the Act, then that will make the very challenge in the appeal before the ITAT otiose. We are inclined to dispose this writ petition with the following orders: 1.That the assessing authority can go ahead with the assessment proceedings pursuant to the notice dated 26.03.20....... + More

Addition u/s 69A - unexplained investment in the bank account - best judgment assessment order u/s 144 - Scope of expression “may” used in Section 69A - whether the assessee has explained the source of such deposit with the help of reliable piece of evidence? - HELD THAT:- Assessee belongs to a non-organized sector of the society. The ld. Sr. D/R is expecting the maintenance of accounts and other details in a meticulous manner as are being maintained by the big business houses, but here it has to be appreciated that the assessee is running a small shop in a rural area. He has explained the source as contribution from his father and brother towards the marriage of his daughter as well as for purchase of some items for the shop. A sum of Rs.6,01,600/- was deposited in the bank account of the assessee on 21/12/2016 and a RTGS was....... + More

Legality of the assessment proceedings - assessee was not intimated about the notice issued for selection of scrutiny as to whether the case of the assessee falls under limited scrutiny or complete scrutiny and the notice issued u/s 143(2) of the Act is defective as observed by ld. CIT(A) in the impugned order - HELD THAT:- CIT(A) has himself mentioned in the impugned order that the notice u/s 143(2) of the Act is defective is devoid of any merit because in para 9.4 of the impugned order ld. CIT(A) has given his finding and before giving his finding he has mentioned the issue as the notice u/s 143(2) of the Act was defective. Nowhere ld. CIT(A) has stated that the notice u/s 143(2) of the Act was defective. Limited scrutiny or a complete scrutiny - We find that the ld. AO has specifically mentioned that the case of the assessee has been s....... + More

Addition made under section 68 - bogus long term capital gains claimed as exempt by the assessee - HELD THAT:- The sheer denial by the assessee, at the time of recording of his statement under section 131 about any of the information in respect of the transaction also does not provide any basis to allow the claim of exemption under section 10(38) of the Act, in view of the details furnished by various independent bodies about the conduct of the company in whose shares the assessee had transacted and earned long term capital gains. Further, submission of the assessee before lower authorities that the transaction was made through RTGS on the Recognised Stock Exchange also does not prove that the company, whose shares were purchased by the assessee and later on sold, was not engaged in providing bogus long term capital gains to its beneficia....... + More

Delayed payments of Employee’s contribution to ESI/Provident Fund - addition by way of adjustment and intimation u/s 143(1) - payments made after stipulated dates prescribed under relevant laws governing provident fund and ESI, but before due date of filing of return prescribed u/s 139(1) - HELD THAT:- It is well settled that any adjustments u/s 143(1) of Income Tax Act by way of intimation u/s 143(1) of Income Tax Act, on debatable and controversial issues, is beyond the scope of Section 143(1) Adjustments made by Revenue on 31.10.2018, whereby the aforesaid amount was added to assessee’s income, were unfair, unjust, and bad in law. For this view, we respectfully take support from the order of Agra Bench of ITAT, in the case of Mahadev Cold Storage [2021 (6) TMI 506 - ITAT AGRA] At the very least, Revenue should have given du....... + More

Deduction u/s. 80IA(4) (iii) - eligibility of interest on land premium for deduction under section 80IA - As per AO interest income shown by the assessee was the part of profit attributable to the business of the assessee and it was not ‘derived from’ eligible business activities - assessee submitted that the claim for deduction included interest on land premium on some industrial parks, in respect of which deduction under section 80IA had been claimed - CIT(A) deleted the addition - HELD THAT:- As the issue boils down to as to whether the receipts from the clients of the assessee who choose to make lumpsum upfront payment and who choose to make deferred installment payments along with interest are to be treated alike or not it is held that since the receipt of interest is intrinsically linked to the primary activity of allotm....... + More

Reopening of assessment u/s.147 r.w.s. 148 - non deduction of tds u/s 194C on loading / sorting expenses and towards container stuffing charges - Reopening beyond period of four years - Argument of violation of first proviso to section 147 of the Act as the original assessment was completed u/s.143(3) of the Act and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of the assessee for the relevant assessment year - HELD THAT:- AO in the reasons recorded noted that there is no evidence for deduction of TDS as per column 27(a) of the Form No.3CD i.e., audit report filed by the assessee along with the return of income. It means that the assessee has filed the complete details of particulars before the AO and from very return of income the AO has chosen these reasons. W....... + More

Disallowing excess directors remuneration - sum paid towards directors remuneration and that is to the extent of 80% of the net profit - HELD THAT:- We noted that the Tribunal in the case of The Bombay Samachar Pvt. Ltd. [2018 (11) TMI 1113 - ITAT MUMBAI] has considered the issue of applicability of provisions of section 40A(2)(b) of the Act to the directors remuneration and held that this provision will not apply to the directors payment for holding that the payment is excessive or unreasonable in the absence of any material brought on record to demonstrate that the payment is actually excessive or unreasonable having regard to market rate for the goods, services or facilities availed or the business need of the assessee or commensurate with the benefit derived by the assessee. In the present case before us also the AO has not carried ou....... + More

Nature of expenditure - Disallowing revenue expenditure on product testing prototyping and verification expenses - HELD THAT:- The true nature of the expenditure had not been doubted by the AO. Undisputedly, the appellant is in the business of manufacturing of automotive components since 1999. As result of this expenditure, no new asset has been created nor new product did actually materialize. The expenditure was only incurred for the purpose of facilitating the existing business of manufacturing of automotive components and enabling the management to conduct the business operations more efficiently and productively. The Hon'ble Supreme Court in the case of (i) Empire Jute Co. Ltd. [1980 (5) TMI 1 - SUPREME COURT] and (ii) Alembic Chemical Works Co. Ltd. [1980 (5) TMI 1 - SUPREME COURT] held that expenditure incurred on the existing ....... + More

Deduction u/s 80IB - Claim allowed for initial initial year - Whether once the deduction is allowed in the initial year then the revenue cannot deny the same in the subsequent years? - HELD THAT:- We note that that the appeal of the assessee has been allowed by ld CIT(A) by holding that Act on the ground that deduction was allowed in the initial year i.e. AY 2003-04 after carrying due verification and enquiry and similar deduction was allowed in AY 2004-05 & 2005-06. CIT(A) has also recorded a finding a fact that deduction allowed in AY 2003-04, 2004-05 and 2005-06 have not been disturbed and therefore the deduction claimed in the subsequent year cannot be rejected by following the ratio as laid down in decisions of various by various High Courts namely Paul Brothers [1992 (10) TMI 5 - BOMBAY HIGH COURT] Simple Food Product Pvt. Ltd. ....... + More

Revision u/s 263 - Validity of assessment orders completed u/s 143(3) r.w.s. 153A - eligibility of deduction u/s 80IB - HELD THAT:- Admittedly, there is no incriminating material found during the course of search u/s 132 and the assessment orders for the relevant assessment years, namely, A.Y. 2011-2012 and 2012-2013 had already been concluded as on the date of search. Hence, deduction u/s 80IB which is already allowed in the assessments completed u/s 143(3) (for assessment year 2011-2012 the assessment completed vide order dated 10.05.2013 and for assessment year 2012-2013, the assessment u/s 143(3) was concluded on 14.08.2014) cannot be denied unless incriminating material is found during the course of search, warranting disallowance. Therefore, on the fact of the instant case, in an assessment completed u/s 143(3) r.w.s. 153A pursuant ....... + More

LTCG - Co-ownership on land - ancestral property - whether Shri Bhagwan Pathare was the sole owner of the land or whether his sons, daughter-in-law, grandsons and grand-daughters were entitled for sales consideration? - HELD THAT:- As AR submitted ample evidences to demonstrate that the said land is an ancestral property where the assessee, along with his two sons has offered 1/3rd each in their returns of income. A.O in this case has added the entire capital gain in the hands of the assessee alone though the ideal course would have been that the income should have been taxed in the hands of HUF but in this case since 1/3rd has been declared in the respective return of the assessee and his two sons, it is not therefore, justified to include the entire capital gain in the hands of the assessee alone. We are of the considered view that the ....... + More

Rectification of mistake u/s 154 - Ex-parte appeal Decided by CIT-A - disallowances u/s 43B of the Act as well as under section 40A(7) - whether adjustment so made by the CPC cannot be taken up in appeal against the order passed by the CPC under section 154 as against 143(1) - As submitted assessee has deposited the employees contribution towards PF/ESI before the due date of filing of the return of income and provision of Gratuity disallowed under section 40A(7) of the Act while processing the return of income, the CPC has failed to take into consideration the fact that the assessee has suo moto disallowed the said sum under section 43B - HELD THAT:- Given the fact that the case of the assessee has been decided ex-parte qua the assessee and we do not have the benefit of findings of the ld. CIT (A) in this case, we deem it fit to set asid....... + More

Correct head of income - Characterization of income - rental income as 'business income' or 'income from house property' - HELD THAT:- Assessee is a company engaged in the business of real estate development. According to Memorandum of Association, main object of the assessee company is to acquire properties such as land and building lease hold or free hold and also to earn rental income from these properties and to develop them. This is contained in main objects of the company clause A (1). Further, in B (5) also the assessee is having incidental and ancillary object of renting out of the properties. Therefore, there is no doubt that assessee has object of renting out of the properties as per its object in Memorandum of Association. Honourable Bombay High court in principal commissioner of income tax v. City centre mall n....... + More

Assessment u/s. 44AD on presumptive basis - Estimation of profit - assessee before us made statement at bar that he has maintained books of account, which were produced before the AO during scrutiny assessment proceedings and even now he is ready to produce before the AO, in case the matter is remanded back to the file of the AO - HELD THAT:- As it is clear that the assessee can declare lower profit also in case the assessee has maintained books of account and in this case, as claimed by the assessee before Bench that he has maintained books of account, in that eventuality we are of the view that the orders of lower authorities needs set aside. Hence, the orders of lower authorities are set aside and matter remanded back to the file of the AO for making assessment on the basis of books of account. Accordingly, the AO will reframe the assessment after allowing reasonable opportunity of being hearing to the assessee. Appeal of the assessee is allowed for statistical purpose.

Disallowance u/s. 36(1)(va) in respect of Contribution made to PF & ESI - contribution before the filling of return - HELD THAT:- As relying on DEVENDER YADAV C/O PANKAJ MAHESH & CO [2021 (12) TMI 1251 - ITAT DELHI] AND RAJ KUMAR [2022 (2) TMI 1224 - ITAT DELHI] employees Contribution towards PF & ESI made before due date of filing the return u/s. 139(1) have to be allowed as deduction. - Decided in favour of assessee.

Gain on sale of plot - capital Income or business income - assessee is engaged in the business of real estate on part-time basis - HELD THAT:- By merely showing the aforesaid pieces of land as stock-in-trade in own books does not substantiate that the assessee is real estate agent, when the totality of facts gives a different picture. The assessee’s real estate business did not have a Firm Name, Proprietorship Name or business address, from where he has been conducting business after office hours. The assessee has not mentioned anything about his Firm name in the return of income nor is the Firm name mentioned in the letter dated 15/09/2007 addressed by SPIL to the assessee. Also, it is a commonly known facts that real estate agents normally earn ‘commission’ on purchase and sale of land and not ‘business income&rs....... + More

Dismissal of assessee appeal - none appeared for the assessee and application seeking adjournment is also not filed, and therefore, the Ld. CIT(A) dismissed the appeal - HELD THAT:- Since the Appeal before the CIT(A) has been decided without hearing the assessee and assessee has urged the said grievance in the present appeal, in the interest of justice and to render the substantial justice by looking to the facts and circumstances of the case, we are inclined provide an opportunity to the assessee to canvas the appeal before the CIT(A). Accordingly, we set aside the order of the Ld. CIT(A) dated 16-01-2017 and remit the matter to the file of the Ld. CIT(A) for fresh consideration of the Appeal. Needless to say that the assessee shall be provided sufficient and reasonable opportunity of being heard on the statement of facts and the grounds raised in the appeal and pass appropriate order in accordance with law. Appeal of the assessee is allowed for statistical purposes.

Revision u/s 263 - difference in cash in hand - AR filed copy of assessment order giving effect to the revision order and stated that the above subject matter was not added by the AO in the order giving effect to the order of revision passed by PCIT u/s.263 - HELD THAT:- As there is no addition made by AO in the order giving effect to the revision order passed by PCIT u/s.263 of the Act, the appeal filed against revision order of PCIT becomes academic and infructuous.

Reopening of assessment u/s 147 - pre-condition to initiate proceedings under Section 147 - Scope of notices under Section 148A of the Act, 1961 as substituted by the Finance Act, 2021 - Notice not issued within period of limitation - Additional Solicitor General of India has made a statement that as per Clause-7.1 of the Board’s circular dated 11.05.2022, the notices under Section 148 relating to the Assessment Years 2013-14, 2014-15 and 2015-16, shall not attract the judgment of Ashish Agarwal [2022 (5) TMI 240 - SUPREME COURT] and the impugned notice under Section 148 issued on 01.04.2021 for the Assessment Year 2014-15 is, therefore, clearly barred by limitation - HELD THAT:- As per Clauses 6.2 and 7.1 of the Board’s Circular dated 11.05.2022, if a case does not fall under Clause (b) of sub-Section (i) of Section 149 of th....... + More

Order u/s 119(2)(b) - condonation of delay in filing of Form No.10B - scope of expression 'genuine hardship' - HELD THAT:- As decided in G.V. INFOSUTIONS PVT. LTD. VERSUS DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 10 (2) , & ANR. [2019 (2) TMI 177 - DELHI HIGH COURT] the statute or period of limitation prescribed in provisions of law meant to attach finality, and in that sense are statutes of repose; however, wherever the legislature intends relief against hardship in cases where such statutes lead to hardships, the concerned authorities - including Revenue Authorities have to construe them in a reasonable manner. That was the effect and purport of this court's decision in Indglonal Investment & Finance Ltd. [2011 (6) TMI 229 - DELHI HIGH COURT]. This court is of the opinion that a similar approach is to be adopted in t....... + More

Denial of deduction u/s 80P(2)(a)(i) in respect of interest income earned from the deposits held by the assessee - HELD THAT:- As relying on M/S. PRATHAMIKA KRUSHI PATTINA SAHAKARI NIYAMITA [2022 (1) TMI 153 - ITAT BANGALORE] we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the AO with the direction to allow deduction u/s 80P(2)(a)(i) of the Act on the interest income earned from investments made with the banks in compliance with the requirements under the Karnataka Co-operative Societies Act and Rules. The assessee should be given adequate opportunity of being heard. Assessee appeal allowed for statistical purposes.

Seeking release of detained goods - appealable order or not - Section 129 (1)(b)/129 (3) of CGST Act, 2017 read with IGST Act - HELD THAT:- An order under Section 129 (1)(b)/129 (3) of CGST Act, 2017 read with IGST Act, has been passed on 14.05.2022, pursuant to the impugned notice. The order is appealable under Section 107 of the Act, 2017. The petition is dismissed.

Adjustment of unutilized input tax credit - modality in claiming adjustment of unutilized input tax credit is objected to by the Revenue on the premise that such a device to facilitate other units of JSW Steel Ltd. located in other States to claim input tax credit arising in the State of Odisha is contrary to the statutory mandate - HELD THAT:- It is apparent that JSW Steel Ltd., public limited company, has units located in different States including the State of Odisha with its Head Office at Mumbai. The Head Office at Mumbai is registered as ISD bearing GSTIN 27AAACJ4323N2ZF. It is also registered as normal taxpayer being GSTIN 27AAACJ4323N3ZE in the State of Maharashtra. No doubt JSW-Company from its Head Office at Bombay had applied and participated in the tender process, however it cannot be lost sight of that its JSW-Company, and no....... + More

Input Tax Credit - complete mismatch between the supplier and the petitioner - mismatch rectified or not - Section 42(3) of the GST Act - HELD THAT:- After receipt of the show cause notice, if at all the petitioner wants to rectify the mismatch between the petitioner and the supplying dealer, the supporting documents to substantiate that the output tax had been paid by the supplying dealer at their end should have been procured and filed along with the reply submitted by the petitioner, which they failed to do. Therefore, the technical reason that under Section 42(3) it should have been communicated at the earliest point of time and therefore the show cause notice cannot be treated as communication intimating the mismatch between the supplier and the petitioner, cannot be countenanced. Therefore, on that ground this Court feels that the i....... + More

Maintainability of appeal - condonation of delay in filing appeal - requirement of mandatory pre-deposit - HELD THAT:- Since this Court had directed the Appellate Authority to exclude the period spent by the petitioner in pursuing the litigation in W.P.(C) No.2963 of 2018, and the said judgment became final, the Appellate Authority was bound to abide by it. Failure to abide by the binding directions in the said judgment has rendered the impuned order perverse. Requirement of mandatory pre-deposit - HELD THAT:- As rightly pointed out by the learned counsel for the petitioner, since the bank guarantee furnished by the petitioner is alleged to have been invoked, the said matter ought to have been considered by the Appellate Authority. Once the entire tax and penalty imposed on the petitioner and secured by the Bank Guarantee was fully satisf....... + More

Classification of services - rate of GST - (Training Academy) Fire Prevention & Emergency Training and Awareness Programmes - Serial No.69 of the Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017 - HELD THAT:- As per entry No. 69 of Notification No. 12/2017, GST is exempt on any services provided by a training partner approved by the National Skill Development corporation or the Sector Skill Council in relation to- (i) the National Skill Development Programme implemented by the National Skill Development Corporation; or (ii) a vocational skill development course under the National Skill Certification and Monetary Reward Scheme; or (iii) any other Scheme implemented by the National Skill Development Corporation. However the applicant has not furnished any information whether they are a training partner approved by the N....... + More

Seeking grant of Bail - input tax credit - non-existent suppliers - non receipt of goods - cognizable and non-bailable or not - offence punishable under Section 132(1)(b)(c) (i)(3)(5) of the CGST Act, 2017 - HELD THAT:- The applicant-accused was arrested on 16.02.2022. The investigation is at a nascent stage. Allegedly, the accused availed input tax credit by creating fake bills and during the transaction no goods were actually supplied. When the chain of suppliers were explored, most of the premises were found either closed or their GST registration cancelled. The accused has no material to show physical movement of goods. As per the complaint, the applicant-accused was the proprietor and the master mind of the alleged crime. It was him who had orchestrated the crime to camouflage the fraud into the nexus of trusted accomplices who acted....... + More

Seeking grant of Bail - availment of input tax credit - floatation of bogus firms and by issuing bogus bills - HELD THAT:- The evidence collected during the course of investigation clearly points towards complicity of the petitioners, who have committed a colossal fraud of about Rs.1.80 crores. Such like huge loss is virtually an attempt to shatter the economy of the country. While noticing that the petitioners are habitual offenders, this Court does not find any ground for grant of bail to the petitioners at this stage. Both the petitions, as such, are dismissed.

Seeking grant of regular bail - availment of fraudulent input tax credit - bogus/fake firms - criminal conspiracy - HELD THAT:- Considering the above background and custody of the petitioners, this Court is of the opinion that the conclusion of trial is likely to consume considerable time, as only two prosecution witnesses have been examined out of total thirty four prosecution witnesses, therefore, further detention of the petitioners may not serve any useful purpose, who are presently confined in judicial custody after their arrest. Apart from it, the material witnesses are police officials and officials of Excise Department and presently, there does not seem to be any possibility of their being won over. Without meaning any expression of opinion on the merits of the case, it is ordered that the petitioners be released on regular bail i....... + More

Classification of goods - second hand or used 'Paintings' - determination of the liability to pay tax - applicability of Rule 32(5) of CGST & MGST Rules, 2017 - HELD THAT:- The provisions of Rule 32(5) of CGST & MSGST Rule, 2017 are applicable to sale of such 'Paintings' and tax shall be paid on the difference between the selling price and the purchase price and where the value of such supply is negative, it shall be ignored. On an application filed by IN RE: M/S. ASTAGURU AUCTION HOUSE PRIVATE LIMITED [2022 (3) TMI 572 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA] has held that Paintings classifiable under Heading 9701 and the applicant was liable to pay GST of 12%. In the said case also, as in the present case, the applicant was dealing amongst other goods, in second hand paintings and it was also held that the pr....... + More

Seeking grant of Bail - wrongful availment of Input Tax Credit - fake invoices - HELD THAT:- This Court is of the considered view that allegations levelled against the applicant/accused are that he issued fake invoices to the tune of Rs. 5.65 crore without the actual supply of goods and all this have been done by the applicant/accused in connivance with the other firms. It is further alleged that there are nearly 56 firms, among whom fake invoices have been exchanged in regard to the amount of Rs. 5.65 crore despite the fact that goods had never been supplied through those invoices. On the basis of said fake invoices tax to the tune of Rs. 5.65 crore has been allegedly evaded by way of claiming the Income Tax Credit. Considering the gravity and the nature of the allegations levelled against the applicant/accused and the fact that the inve....... + More

Refund of IGST - Separate application was not filed - treatment of shipping bill as refund application - export of goods - whether Circular No. 37/018-Cus dated 09.10.2018 is ultra virus the provisions of CGST Act, 2017 or not - Section 16(3)(b) of the IGST Act read with Section 54 of the CGST Act and Rule 96 of the CGST Rules - HELD THAT:- A separate application for refund was not required to be filed. - the shipping bills would operate as a refund application as envisaged under Section 54 of the CGST Act read with Section 16 of the IGST Act, as also Rule 96(1) of the CGST Rules. Interest on Delayed Refund - HELD THAT:- Once the petitioner had taken steps to move the Court and notice was issued in the writ petition, the respondents were, in a sense, forewarned that statutory interest would kick-in - notice in this petition was issued on ....... + More

Validity of SCN - show cause notice challenged on the ground that the mandatory requirement of pre-show cause notice consultation - Rule 142 (1A) of the Central Goods and Service Tax Rules, 2017 - HELD THAT:- The Court ruled that the requirement of pre-show cause notice consultation, as set forth in paragraph 5.0 of the master circular, was mandatory, as it was also in line with an earlier instruction dated 21.12.2015. It is noted that with effect from 15.10.2020 i.e., after the impugned show cause notice was issued, Rule 142(1A) has undergone a change, inasmuch as the word ‘shall’ has been replaced with ‘may’. As to what would be the impact of the amendment need not be considered by us in this case, as admittedly the show cause notice was issued prior to 15.10.2020 i.e., on 21.05.2020 - having regard to the positi....... + More

Refund on the exports made by the petitioner - Prescribed procedure - Mistake in GSTR-3B returns - details itself have not been received from GSTN portal to the designated system of the customs - input tax credit - zero rated supply - It is the specific case of the petitioner that though the petitioner had correctly declared the details in the monthly returns in Form GSTR-1 regarding the exports made by the petitioner on payment of tax by debiting the input tax credit, a mistake was committed by the petitioner in GSTR-3B under Rule 61(5) of the CGST Rules, 2017 - HELD THAT:- The refund of tax/duty paid on exports has been long recognized under the provisions of the Central Excise Act, 1944 r/w Central Excise Rules, 1944 and later under the provisions of the Central Excise Rules, 2002. These Rules have been incorporated under the GST regim....... + More

Benefit of exemption from GST - Supply or not - definition of business u/s 2(17) - activities carried out by the appellant to the plot holders in terms of provisions of GIDC Act, 1962 - charges collected for the same as may be notified from time to time amounts to supply under Section 7 of the CGST Act, 2017 or not - Government entity - Sr.No.4 of N/N. 12/2017-Central Tax (Rate) dated 28.06.2017 (as amended) - HELD THAT:- From the definition u/s 2(17) , it is seen that as per provision (a), activities mentioned therein would fall in category of business even if they are not for a pecuniary benefit. A transaction which is incidental or ancillary to sub-clause (a) falls under the scope of sub-clause (b) of Section 2(17) of CGST Act, 2017. Further, provision (i) which states any activity or transaction undertaken by Central Government, State....... + More

Input Tax Credit - Plant and Machinery or not - whether LNG jetties proposed to be built by the applicant can be said to be covered within expression ‘plant and machinery’ as foundation to equipment, apparatus, machinery to be installed on it? - input tax credit of GST paid on inputs, input services as well as capital goods procured for the purpose of building the LNG jetties - Section 16 read with Section 17 of CGST Act - HELD THAT:- As per Explanation provided under Section 17 of the CGST Act, 2017 ‘plant and machinery’ means apparatus, equipment and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both. Here the section 17 of CGST Act, 2017 provides for allowing input tax credit in respect of goods or services both received by a taxable ....... + More

Maintainability of appeal - period of limitation - case of the petitioner is that the order dated 26.11.2018 was uploaded on common GST portal and, therefore, in terms of the Removal of Difficulties order dated 25.6.2020, the date of service of the order shall be considered as 31.8.2020 and limitation shall start from the aforesaid date - HELD THAT:- The Standing Counsel does not dispute the fact that the issue involved in the present case is squarely covered by the judgment of this Court in M/S J.K. Infratech vs. Additional Commissioner & Anr. [2022 (3) TMI 909 - ALLAHABAD HIGH COURT]. In view of the Removal of Difficulties order dated 25.6.2020 and the fact that the order dated 26.11.2018 was uploaded on the common GST portal, the order dated 26.11.2018 would be deemed to have been served on the petitioner on 31.8.2020. The limitati....... + More

Levy of GST - royalty paid for undertaking mining operations in respect of minor minerals - HELD THAT:- The petitioner shall submit reply to the show cause notice dated 23.03.2022 which is under challenge herein and the proceedings pursuant to the said show cause notice shall go on, however, till the next date of listing no final orders shall be passed by the authority concerned. Two weeks' thereafter shall be available to learned counsel for the petitioner for filing rejoinder affidavit.

Revocation of cancellation of registration of petitioner - it is alleged that the appellant did not carry any business from the declared place and the documents filed by the appellant in support of the same are not correct - HELD THAT:- The procedure adopted by the authority while cancelling the registration was thoroughly flawed. Admittedly, when an inspection was conducted by the officers of the department, one of the person, who represented to be the receptionist of the building affirmed that one Mr. Dilip Kumar Agarwal, who was the power of attorney agent of the appellant, Mr. Rohit Varma, used to come to the premises and carried on certain business activities. Nevertheless, the said receptionist could not recognise Mr. Rohit Varma whose photograph appears to have been shown to the said receptionist - The proper course that should hav....... + More

Detention of goods alongwith the vehicle - breakdown of vehicle - non-extension of the validity of the e-way bill - intent to evade tax or not - according to the writ petitioner the vehicle transporting goods had broken down and on account of which, there was delay and there was no willful intention to evade payment of tax - HELD THAT:- In the instant case, the bona fides of the writ petitioner has to be tested on the documents, which were available on record. Firstly, it is found that the tax invoice has been raised by Bhaskar Steel and Ferro Alloy Pvt. Ltd. dated 7th September, 2019. There is no dispute as regards the quantity and description of the goods. The said vendor had raised the eway bill dated 7th September, 2019 as the goods were to be despatched from SRMB Srijan Pvt. Ltd. to the writ petitioner, who had its registered office ....... + More

Levy of penalty - rectification of mistake - input tax has been wrongly availed or utilized - Section 161 of the CGST Act - HELD THAT:- Section 127 of the Act which has some importance deals with power to impose penalty in certain cases. It states that where the proper officer is of the view that a person is liable to a penalty and the same is not covered under any proceedings under Section 62 or Section 63 or Section 64 or Section 73 or Section 74 or Section 129 or Section 130, he may issue an order levying such penalty after giving reasonable opportunity of hearing such person. In the instant case, Form GSTR-3A was issued on 21.07.2020 for not filing the returns within the time prescribed. On 13.08.2020, a notice came to be issued under Rule 100(1) of CGST and SGST Rules, 2017/APGST Rules, 2017 read with Section 62(1) of the GGST Act, 2....... + More

Revocation of customs broker license - Rule 16(1) of CBLR 2018 - HELD THAT:- In the present case continuance of suspension of license without examining the necessity of the same impinges on the fundamental right to work of the applicant. We are not going into the merits of the case and the nature of offence committed as the same needs to be examined when the appeal is heard and not at this stage where only the application of early hearing is being examined. The appeal of the applicant may be listed in the next available Division Bench in Chandigarh. The application is allowed

Levy of parallel penalties on Customs Broker and employees - allegation of abetting the importers - concealment and mis-declaration of goods - main contention raised by the appellant is that there is no allegation in the Show Cause Notice attracting ingredient of Section 112(a) and that the allegation would fall within the purview of the CBLR, 2018 (2013) for which penalty has already been imposed - HELD THAT:- The allegation is in the nature of violations falling under the Customs Brokers Licensing Regulations - it is held that the Department has failed to establish the ingredients under Section 112(a) of the Customs Act, 1962 against the appellant. The penalty imposed under Section 112(a) on the appellant, is not justified and requires to be set aside. Levy of penalty u/s Section 112(a) - appellant falsely introduced himself as the repr....... + More

Refund of SAD - only ground for rejection of refund given by the adjudicating authority is that the amount of SAD paid by the appellant by way of debiting in MEIS scrip and that no declaration was found on the sale invoice regarding non admissibility of cenvat credit of SAD - HELD THAT:- The issue that whether the refund is admissible when an assessee paid the SAD by debiting MEIS has been settled in the judgment of ALLEN DIESELS INDIA PVT. LTD. VERSUS UNION OF INDIA & ORS. [2016 (2) TMI 247 - DELHI HIGH COURT] where it is clear that even if the assessee does not pay the SAD amount in cash but the same is debited in any incentive scrip, in the aforesaid case the same was debited from DEPB, the refund of SAD cannot be denied - The same analogy is applicable in the present case as the amount of SAD was debited in MEIS scrip. Therefore, ....... + More

Seizure of exotic animal - Live Exotic Bird Macaw - summoning the appellant under Section 108 of the Customs Act, 1962 - evidence of production of legal documents - HELD THAT:- In the instant case the respondent no. 3 had seized Exotic Bird of the appellant but admittedly the Central Government has not notified the exotic bird and animals in question under section 11B of the Customs Act or in any of the Schedule of the Wild Life (Protection) Act, 1972 and thus mere surmises or merely on the basis of the statements recorded by the Custom or Wildlife authorities would be contrary to the provisions of the Customs Act, 1962 or even Wild Life Act. The appellant, by virtue of the Advisory had declared the stock of Exotic Live Spices on 15.11.2020 i.e. within six months from the issuance of the Advisory and thus in view of the judgments in DINES....... + More

Seeking release of seized goods - muddamal - base oil - prayer to release base oil has not been considered - offence under Sections 285, 278 and 114 IPC and Section 3, 7 and 11 of the Essential Commodities Act or not - HELD THAT:- Upon perusal of the findings of the Courts below, this court is of view that, it is settled law that, the articles seized by the police, may be released to the person, who in the opinion of the Court, is lawfully entitled to claim, after preparing detailed panchnama of such articles as well as photographs of such articles and security bond. In the facts of the present case, after following procedure, the seized base oil, imported by the petitioner herein and after clearance of the port authority, it was about to reach at the destination. Pursuant to the FIR, samples were taken from the seized oil. The petitioner....... + More

Jurisdiction - power of DRI to issue SCN - Proper Officer or not - Section 28 of the Customs Act 1962 - power of Tribunal to remand the case without deciding the issues raised therein on the ground that jurisdiction of the officer to issue show cause notice is under dispute - HELD THAT:- The issues involved herein have been considered and decided by a Co-ordinate Bench of this Court, in the case of THE COMMISSIONER OF CUSTOMS VERSUS M/S. BOX CORRUGATORS AND OFFSET PRINTERS [2020 (5) TMI 475 - MADRAS HIGH COURT] where it was held that in view of the fact that the learned Tribunal has clearly protected the interest of both the Revenue as well as the Assessee by directing the Assessing Authority to keep the matter pending and maintain status quo till the Hon'ble Supreme Court decides the appeal of the Revenue in the case of UNION OF INDI....... + More

Revocation of Customs Broker License - Forfeiture of security deposit - levy of penalty - Department has alleged that the appellant-Custom Broker has violated various provisions of the CBLR inasmuch as they did not verify the credentials of their client importers - retraction of statements - HELD THAT:- The appellant have not based their argument on as to how they have conformed to the KYC norms while interacting with their customers. They have not submitted any independent reliable documents to prove the genuineness of the where about of the clients. It is not their claim that they have produce so and so documents to defend their position. It is found that the appellants have also not submitted any cogent reasons as to how they permitted persons without “G” or “H” cards to handle the documents on their behalf. The....... + More

Levy of penalty u/s 112 of CA - Smuggling - Gold - cross-examination of witnesses - retraction of statements - HELD THAT:- Admittedly the gold in question was recovered from two Philippines nationals namely S.B. Taha & A.J. Macud, who in their respective statements have admitted the act of smuggling by them, as they have stated that they have brought this gold into India without declaring the same at the Customs check post when they arrived at New Delhi by air. This statement have never been retracted by the two Filipino nationals. Further, they have also not contested the show cause notice. Thus, the two Filipino national have admitted that act of smuggling for gain. So far these appellants are concerned, admittedly, none of them was found to be in possession of the seized gold nor there is any detail of any alleged conspiracy hatche....... + More

Validity of preventive detention order - allegation of smuggling activities - COFEPOSA - impugned Preventive Detention Order is yet to be served on the petitioner - firms alleged to be operated/controlled by the petitioner were placed in Denied Entry List (Blacklist), prior to passing of the detention order - diligent to serve the detention order on the petitioner at the earliest despite being available for service since the detention order was passed on 26.03.2019 and the petitioner had appeared before the Ld. CMM on 28.03.2019 and 05.04.2019 after the passing of the impugned detention order - whether petitioner is absconding or concealing himself to avoid execution of the impugned detention order or not - HELD THAT:- If a person against whom the preventive detention order is passed comes to the court at pre-execution stage and satisfies....... + More

Levy of penalty u/s 112(a) of the Customs Act, 1962 on the Customs Broker - wrongful availment of benefit of exemption under N/N. 69/2011-Cus. dated 29.07.2011, N/N. 46/2011-Cus. dated 01.06.2011 and N/N. 12/2012-Cus. dated 17.03.2013 dated, which was not available to the importer - HELD THAT:- The allegation levelled against this appellant in the Show Cause Notice is clearly the violation of Regulations 13(d) and (e) of the CBLR, no specific act or omission is attributed to this appellant. What is important is the act or omission that leads to the confiscation of improperly imported goods. Section 111 of the Customs Act, 1962 deals with confiscation of improperly imported goods, etc. and Section 112 prescribes penalty for improper importation of goods, etc. It becomes clear that both Section 111 and Section 112 are attracted only when th....... + More

Levy of penalty u/s 114(i) of the Customs Act, 1962 on Customs Broker - goods are not confiscated, as there is no such proposal in the Show Cause Notice - it is claimed that the question of imposing penalty under sec. 114(i) does not arise as the provision of section 114 will be invocable only when section 113 of the Customs Act, 1962 has been invoked - HELD THAT:- It is seen from the facts that the appellant had only filed the shipping bill and had not got registered or filed any KYC documents along with it to proceed with the export of the goods. It is submitted by the learned counsel that after filing the shipping bill, as they had not got documents from the exporter, they did not pursue the matter so as to get the shipping bill registered. On perusal of the records, there are no evidence established against the appellant to show that ....... + More

Classification of imported goods - Hexane Liquid Chemical - utilized for Industrial purpose as well as for Food Grade purpose or not - it is claimed that what has been imported in the name of Hexane Liquid Chemical, to be utilized for Industrial purpose, is actually Hexane Liquid Chemical for Food Grade purpose - HELD THAT:- First of all, it is needed to be understood whether these two products are different or distinct or is it the case that the Hexane Liquid Chemical can be used for Industrial purpose also as well as for Food Grade purpose. If this chemical can be used for both the purpose as aforesaid then the writ applicants undertake that they will use it only for the Industrial purpose - It is to be understood further on what basis the CRCL has said that the samples analyzed are not Hexane Liquid Chemical meant for Industrial purpos....... + More

MEIS scheme - denial of benefit of section 149 of the Customs Act, 1962 - non-complisance with the mandatory requirement of specifically mentioning the intention to avail benefit under the MEIS Scheme as per the Foreign Trade Policy - whether amendment sought was in nature of change which may require evidence to prove or not? - correctness of amendment in shipping bills after a period of about 2-3 years from the export of the concerned goods - HELD THAT:- The Tribunal took the view that the amendment claimed in the shipping bills cannot be said to be in the nature of changing the shipping bills, for which evidence may have to be led. According to the Tribunal, the assessee is not intending to change the description of the goods or quantity of the goods. The argument on behalf of the Revenue is that once the goods are exported, it is very ....... + More

Advance Authorization Scheme - import of duty-free goods (Raw Cashew Nuts) by the appellants under Advance Authorization licenses, diverted to other units which were not authorized by DGFT - sale of substantial quantity of processed cashew kernels - violation of condition of the Notification No. 18/2015-Cus. dated 1.4.2015 - jurisdiction to issue SCN - HELD THAT:- It has to be stated that the learned counsel for appellant did not put forward any arguments on the issue as to whether DRI is the proper officer to issue Show Cause Notice. Though the judgment of the Hon'ble Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] was brought to his notice, he submitted that he does not wish to contest on the said issue before the Tribunal or before any other forum. Wheth....... + More

Revocation of Customs Broker License - forefeiture of security deposit - levy of penalty - applicability of Regulation 14 of the CBLR, 2018 - allegation of fraud by availing export finance by submission of export bills without making exports - HELD THAT:- It is an admitted fact that the appellant has issued the checklists to the exporters. Even investigation report recorded that ABCCPL owned and controlled by Shri Ashish Jobanputra was exporting cotton since the year 2009 mainly to China under Letter of Credit. Since ABCCPL was a regular exporter exporting goods since 2009, they did not find any difficulty in getting the export documents for availing the fraudulent export credits from the Banks. These documents have been issued by M/s. RSS Shipping Pvt. Ltd. who was operating the CHA licence in the name of M/s. Ramesh Transport Co. (the a....... + More

Classification of goods - mill processed non-allow ferrous waste metal goods wound in a coil - goods has been treated as waste material under the Tariff item 72044900 of the First Schedule to the Customs Tariff Act, 1975 or not - Section 28 KA of the Customs Act, 1962 - HELD THAT:- The appellant being an importer intends to import mill processed non-alloy ferrous waste metal goods wound in coil from South Africa and placed a purchase order for a supply of 200 MT of the product in an 8x20 feet container. According to the appellant, it is a ''RE-ROLLABLE WASTE'' unavoidably obtained as a result of the manufacturing of '' Cold Rolled Coils'' from '' Hot Rolled Coils''. Such a coil which is neither a Hot rolled nor a cold-rolled is having multiple thicknesses, tensile strength etc. These coils a....... + More

Interpretation of statute - smuggling of Gold - Whether Section 15(1)(a)(iiia) of the UA(P)A, which was inserted in the year 2012, was meant to include the smuggling of gold in the category of ‘other material’ as mentioned in Section 15(1)(a)(iiia) of the UA(P)A or not? - HELD THAT:- Single Bench of MOHAMMED ASLAM SON OF ABDUL RASHID VERSUS UNION OF INDIA, NATIONAL INVESTIGATION AGENCY [2021 (2) TMI 124 - RAJASTHAN HIGH COURT] held that gold is a valuable material, smuggling of which can be done with intent to threaten or likely to threaten the economic security of the country and was thus considered to be a ‘terrorist act’. However, in MOHAMMED SHAFI P., JALAL A.M., RABINS KARIKKANAKUDIYIL HAMEED, RAMEES K.T., SARITH. P.S., SWAPNA PRABHA SURESH, SHARAFUDEEN K.T., MOHAMMED ALI VERSUS NATIONAL INVESTIGATION AGENCY, ....... + More

Seeking release of consignment - Hexane Liquid Chemical - argument is that once the Hexane Liquid Chemical is imported for Industrial purpose, it shall be utilized for Industrial purpose only - HELD THAT:- An interim order is passed for release of the consignment subject to the certain terms and conditions - The writ applicants shall ensure that the Hexane, which they have imported shall be used only for the industrial purpose. The writ applicants shall undertake to allow the Customs Department to inspect the books and records as well as the actual use of the Hexane as and when required. The respondents Nos.2 and 3 respectively are directed to assess the bills of entry for import of Hexane and permit clearance for home consumption of Hexane or for warehousing, as the case may be, subject to the aforesaid terms and conditions. It goes without saying that this interim arrangement shall be subject to the final outcome of the writ applications - Post this matter on 03.08.2022.

Enhancement of penalty without given a reasonable opportunity of hearing - power of the commissioner of customs (appeals) - Violation of principles of natural justice - violation of Section 128-A of the Customs Act, 1962 - HELD THAT:- The 1st respondent/the Commissioner in appeal has enhanced the penalty imposed by the original authority contrary to the provisions of Section 128-A of the Customs Act, 1962. The impugned order stands quashed and the case is remitted back to the 2nd respondent to pass appropriate orders on merits and in accordance with law afresh, within a period of 3 months from the date of receipt of a copy of this order - Petition allowed by way of remand.

Condonation of delay in filing appeal - writ petition has been filed long after the expiry of limitation - Penalty u/s 114(i) - illegal activities with the tenants - tenant was using the property, which was rented out by the petitioner for storing turtles and tortoises. - smuggling and export of tortoises from India - levy of penalty u/s 114(i) of the Customs Act, 1962 - HELD THAT:- No doubt the petitioner has missed the statutory period of limitation prescribed under Section 128 of the Act. As per Section 128 of the Act, a statutory appeal has to be filed within a period of 60 days from the date of receipt of the order before the Appellate Commissioner. As per the proviso to Section 128(1) of the Act, a further grace period of 30 days is given to an assessee or a person aggrieved by the decision passed under the Act to file such appeal w....... + More

Seeking grant of anticipatory bail - Conspiracy - tracing of money trail - recovery of cheated amount - HELD THAT:- Undoubtedly, the State has verified the factum of the applicant having undergone targeted Chemotherapy on 20.01.2021 with he having been diagnosed with Prostate Cancer, Stage-4 in March 2019, as per the synopsis filed on 26.02.2021 by the State and the applicant he has been taking medicines for the said Chemotherapy and undergoing Chemotherapy sessions since 2019. The documents of the Action Cancer Hospital that the applicant has placed on record indicates that as on 20.01.2021, the applicant had been admitted for Chemotherapy and was scheduled for Chemotherapy on 21.01.2021. The said document annexed to the written submissions of the applicant dated 08.02.2021 also indicates that the applicant was being discharged in a stab....... + More

Seeking restoration of the name of the company - Section 252 of Companies Act - HELD THAT:- On perusing the material and submissions of the Appellant and the Respondent made available on record, it would be just and equitable to revive the name of the company BIH Technologies Private Limited in the statutory register as being maintained by the Registrar of Companies, Guwahati. In exercise of the powers conferred on the Tribunal under section 252(3) of the Companies Act,2013, the present appeal is partly and conditionally allowed.

Sanction of scheme of amalgamation - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- On perusal of the Scheme and the proceedings, it appears that the requirements of the provisions of section 230 and 232 are satisfied by the petitioner company. The proposed Scheme of Amalgamation is bona fide and in the interest of the shareholders and creditors. The scheme is sanctioned - application allowed.

Restoration of name of the struck off company in the Registrar of Companies, West Bengal - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Registrar of Companies, West Bengal has submitted its report. It has been stated in the report that only after complying with the provisions of Section 248 of the Companies Act, 2013, Registrar of Companies, West Bengal has struck off the name of the Company with effect from the Register maintained by the Registrar of Companies, West Bengal. In the Report, the RoC, West Bengal has not objected to this application for restoration of the name of he company. On perusal of the application, it is satisfying that the name of the company should be restored to the register - Accordingly, in exercise of the powers conferred on the Tribunal under Section 252 of the Companies Act, 2013, the petition is allowed.

Breach of interim order or not - IL&FS default case - Whether IL&FS has any claim whatsoever on the receivables which are the subject matter of an Assignment Agreement in favour of the Lender deposited in the Escrow Account? - Whether by debiting the money so assigned from the Escrow Account even after 15.10.2018, can Lender and Escrow Bank be said to have violated the order dated 15.10.2018? - HELD THAT:- A perusal of the relevant conditions of transaction documents, makes it clear that a facility of Rs.400 Crores was advanced by the lender to the borrower payable in 96 months with tentative repayment schedule. The amount of interest component and principal component payable on each month has been provided in Schedule 2 of the Agreement. The immovable property of the borrower i.e. ‘IL&FS Financial Centre, Plot-No. 22, G....... + More

Oppression and Mismanagement - validity of Board Meetings - validity of withdrawal of resignation from the post of Directorship - Invocation of jurisdiction of this Bench under Section 397/398 and other provisions of the Companies Act, 1956 - requisite qualification as contemplated under Section 399 of the Companies Act, 1956 - any case has been made out even under Section 111­A of the Companies Act, 1956 or not - validity of Board Meetings - transmission of Equity Shares - validity of AGM conducted - failure to adhere to the request of the petitioner regarding furnishing the documents and inspection of bock s and accounts of the R 1 Company - HELD THAT:- There is no doubt that on 06.04.2013, G.V. Rao addressed a letter to the Board resigning from the post of Directorship. The letter explicitly indicated that his resignation should be....... + More

Restoration of name of the Company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- After perusal of material document on record, the report of the Respondent and after going through the provisions of Section 252(3) of the Act, 2013, this Tribunal is of the view that the Applicant Company was in existence and it is a going concern and name of the Company is to be restored in the Register of Companies as maintained by the Respondent. The application is allowed.

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

Sanction of Scheme of Arrangement by way of Demerger - 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 are issued forthwith in 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 - application allowed.

Seeking approval of the Scheme of Merger - section 230-232 of the Companies Act, 2013 r/w Companies (Compromises, Arrangements And Amalgamations) Rules, 2016 - HELD THAT:- The meeting of the Equity shareholders, optionally convertible redeemable non-cumulative Preference shareholder, non-convertible redeemable non-cumulative preference shareholder, Secured and Unsecured Creditors of the Applicant Company are dispensed with - Application allowed.

Oppression and Mismanagement - Violation of the Status quo order - seeking direction to the Respondents therein (Appellants herein) to pass a direction to the Respondents therein to maintain status quo in all aspects while managing the affairs of the Company, and revoke all Approvals, Resolutions etc. with respect to raising of any additional debt - HELD THAT:- The Respondents 1 to 4 herein have filed the Company Petition bearing No. CP 02 of 2020 before the National Company Law Tribunal, Kochi Bench under various provisions of the Companies Act, 2013 including alleging oppression and mismanagement in the affairs of the Appellant No.1 Company and sought various main and interim reliefs in the CP. It is contended that relief viii of the interim reliefs in the main CP, inter alia the Respondents herein have sought a direction restraining th....... + More

Illegal transfer of shares - consideration for transfer of shares in the name of petitioner or not - questions with regard to genuineness of the documents can be decided by this Tribunal or not? - HELD THAT:- There is an admission on the part of the Respondents that the Petitioner has paid an amount of Rs. 10 Lakhs as part consideration for 40% shares, the total consideration being Rs. 20 Lakhs. The contention of the Respondents is that the Petitioner promised to pay the same later, but however the Respondents would handover blank transfer deeds as an assurance for transferring 40% shares and submitted that the Respondents handed over the original share certificates on payment of the balance consideration. Believing the Petitioner, blindly they handed over the blank transfer deeds as early as 2011, though share certificates were not hande....... + More

Sanction of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 R/w Companies (CAA) Rules, 2016 - HELD THAT:- Various directions with regard to holding, convening and dispensation with various meetings issued - directions with regard to issuance with various notices also issued. The scheme is approved - application allowed.

Cancellation of allotment of shares - seeking return of amount granted by the appellant/applicant as Loan to the Respondent No. 1 company - HELD THAT:- In this case, though there is no written agreement as regard to the grant of loan, nor any other document has been brought on record, but it is also evident by the conduct of all the respondents that they are not in a position to controvert the claims made by the appellant as regard to the nature of the transaction. If the respondents were in a position to controvert the claims made by the appellant, they could have produced the letter of request or any other document signed by the appellant for purchase of shares of a Private Limited Company which are not freely transferable. Further, they could also produce that the shares, minutes and other share certificate showing the compliance to th....... + More

Sanction of Scheme of Arrangement - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- There appears to be no reservation to grant sanction to the Scheme and the sanction of the present Scheme is not against public policy, nor it would be prejudicial to the public interest at large. In addition to above, all the statutory compliance seems to have been complied with by the Petitioner Companies, therefore, the present Company Petition deserves to be allowed in terms of its Prayer clause. The scheme is sanctioned - application allowed.

Seeking restoration of name of the company in the Register of Companies being maintained by the Registrar of Companies, Guwahati, Assam - section 252 of Companies Act, 2013 - HELD THAT:- On perusing the materials made available on record along with the report of the ROC, it is opined that it would be just and equitable to revive the name of the company Well Will Infrastructures Private Limited in the statutory register as being maintained by the Registrar of Companies, Guwahati. In exercise of the powers conferred on the Tribunal under section 252(3) of the Companies Act, 2013, the present Petition is partly and conditionally allowed with directions and subject to the compliance of conditions issued - application allowed.

Maintainability of petition - legality of removal of the Petitioners from the Directorship - applicability of Section 241-242 of the Companies Act - Whether the Petitioners are eligible to maintain this Petition under Section 241-242? - HELD THAT:- It is seen from the records that the 1st Petitioner was holding 44.33% fully paid-up share in the 1st Respondent Company and he has filed the affidavit on behalf of the 2nd Petitioner who was having 5.75% of fully paid-up shares in the 1st Respondent Company. Hence, the affidavit submitted by the 1st Petitioner holding 44.33% for filing a petition is sufficient and the same can be accepted in order to accept a petition under Sections 241-242 of the Companies Act, 2013. Given the facts, the Petitioners are eligible to file a Company Petition under Section 241-242 of the Companies Act, 2013. Whet....... + More

Seeking for the sanction of Scheme of Arrangement - Sections 230 and 232 of the Companies Act, 2013 and in terms of Rule 15 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- It is concluded that the objections/observations to the Scheme received from RD, RoC, have been adequately replied by the Petitioner Companies and hence there is no impediment in approval of the Scheme. The Scheme in question as annexed at Annexure-15 is approved and it is hereby declared that the same is to be binding on all the shareholders and creditors of the Demerged Company as well as Resulting Company. While approving the Scheme, it is clarified that this order should not be construed as an order in anyway granting exemption from payment of any stamp duty, taxes, or any other charges, if any, and payment in accordance with law or in respect of any permission/compliance with any other requirement which may be specifically required under any law. Application allowed.

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

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

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- It is well settled that the Limitation Act is applicable in IBC Proceedings and IBC does not exclude the application of Sections 6 to 14 or 18 and any provision of the Limitation Act - The question to be considered in the present case is as to whether Appellant can take benefit of Article 1 of the Limitation Act, 1963. Hon’ble Supreme Court in the matter of B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] after considering the provisions of IBC and the Limitation Act had laid down that for filing application under Section 7 and 9, it is Article 137 which is attracted. In ....... + More

Liquidation of Corporate Debtor - Section 33(2) read with Section 34 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The primary object of the Code is resolution and liquidation is the last resort. At the same time keeping the timelines prescribed under the Code is paramount, lest asset value is deteriorated. Therefore, taking into consideration of the provisions of law as well as the documents on record, this Adjudicating Authority is of the view that as there is no viable resolution plans received for the Corporate Debtor and the time period for the completion of CIRP process, the only option left under the circumstances being early liquidation process, hence this application directing the liquidation for the Corporate Debtor is allowed. This Adjudicating Authority hereby orders liquidation of the Corporate Debtor, i.e., Anjal....... + More

Seeking enforcement of order - section 60(5) of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- The fact that Respondent No. 2 has filed an appeal against the impugned order does not have any bearing on the obligation of the Respondent No. 1 to obey the impugned order and as on date there is also no stay from any superior court against the impugned order. Accordingly, the said order is fully enforceable as against it (Respondent No. 1) as on date. Application as filed by the Applicant/Resolution Professional stands allowed with the directions to Respondent No. 1 to make full compliance of this Tribunal order dated 23.8.2021 within two weeks' time, failing which the Applicant shall be at liberty to move appropriate application seeking further orders/directions as per law. Petition disposed off.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantors to Corporate Debtors - existence of debt and dispute or not - Section 94 read with section 122 of the Insolvency and Bankruptcy Code, 2016 under rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors), Rules, 2019 - HELD THAT:- In the present matter the respondents has already demonstrated that the recovery proceedings are already under process against the corporate debtor, applicant and other guarantors, even notice to arrest has already been issued against the applicant. In these circumstances, the applicant has filed present application with the ulterior motive to stall the recovery proceedings, which will ....... + 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:- The evidence placed by the financial creditor is sufficient to ascertain the existence of a default on the part of the Corporate Debtor as the Corporate Debtor has failed to honour the terms of the agreement, further, the Cheque provided by the corporate debtor towards principal amount also bounced. The Financial Creditor has fulfilled all the requirements of law. Accordingly, this Adjudicating Authority is inclined to admit this application and initiate the process of CIRP of the Corporate Debtor. The financial Creditor has also proposed the name of the Resolution Professional for appointment of IRP. Application admitted - moratorium declared.

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:- There is a clear admission of the corporate debtor in its reply that the default has occurred and it is unable to make payments due to lack of funds. Therefore, it is most appropriate that CIRP must be initiated and the management of the company shall be vested in the hands of a professional agency. The Scheme of the code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Apparently, since there is no dispute raised by the Corporate Debtor, in fact the corporate debtor has clearly admitted that a default has occurred. This bench is of the view that the prayer of the a....... + More

Maintainability of CIRP - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- An application under Section 7 of the Code is maintainable if the debt is proved to be due and there is default. In view of the Section 4 of the Code, the moment a default is of Rupees One Crore or more, an application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. The applicant clearly comes within the definition of Financial Creditor. The material placed on record as stated in the paras above further confirms that respondent has debt due and has committed default in repayment of the outstanding financial debt. On a perusal of Form - I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete....... + 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 is clear from the pleadings that the Operational Creditor has supplied the goods to the Corporate Debtor as evident from invoices annexed, furthermore, admittedly there is no dispute raised by the corporate debtor before the filing of reply to the present petition, which cannot be taken into consideration at this time. Moreover, the production rejection report is also doubtful as evident from the instances brought to our knowledge by the counsel of Operational Creditor as discussed in the preceding paragraph. Also there is an amount outstanding which corporate debtor has defaulted in payment as evident from the ledger account. It is also pertinent to men....... + 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:- To prove the existence of debt and its default by the Corporate Debtor, the Corporate Debtor, the Operational Creditor relied on certificate of debt and its default issued (from information utility, Annex.-"L") All relevant invoices are produced at Annex.-K. A copy of demand notice served under Section 8 of IBC is also annexed at Annex.-"F". It has been delivered to the Corporate Debtor by post. The postal track report is also on record as Annex-"G" - It is not in dispute the Corporate Debtor did not reply the demand notice. Although, the Corporate Debtor submitted and contended that nothing is due and payable but the record re....... + More

Dissolution of Corporate Debtor - Section 54 of the Insolvency and Bankruptcy Code, 2016 read with Regulation 14 of the Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- It is declared that not only it is just and equitable but as all the assets of the Corporate Debtor is sold and disposed of, no asset is available for the purpose of ‘Liquidation’ as reported by Learned Liquidator, this is a fit case of a Corporate Debtor to be dissolved as prescribed under Section 54 of The Insolvency and Bankruptcy Code, 2016. Ordered accordingly, stood ‘Dissolved’ from the date of this Order. Since the Debtor Company stood Dissolved vide this order and no proceedings are now pending, therefore the Registry is directed that the case file be consigned to records. Application allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is pertinent to note that the Operational Creditor has placed on record the demand notice along with invoices, with its Application. Once the debt is shown as due, it is for the Corporate Debtor to prove that there are no outstanding dues to be paid to the Operational Creditor. Also, no such payment has been made by the Corporate Debtor - The Applicant has filed an affidavit in compliance of Section 9(3)(b) of the Code, stating that no notice of dispute has been received by it. The present application is complete and the Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted - application admitted - moratorium declared.

Approval of Resolution plan - Abatement, extinguishment, discharge and settlement of claims raised by original respondents - Section 31(1) of the Insolvency & Bankruptcy Code, 2016 read with the Resolution Plan - HELD THAT:- Undisputedly the applicant herein i.e. ArcelorMittal Nippon Steel India Ltd., formerly known as Essar Steel India Ltd., (ESIL) submitted a Resolution Plan which came to be approved by the CoC on 25.10.2018 and, thereafter, by the Hon’ble Supreme Court in Committee of Creditors of Essar Steel India Ltd., vs. Satish Kumar Gupta and others, [2019 (11) TMI 731 - SUPREME COURT] Upon approval of the said Resolution Plan all the claims RP by the creditors were settled or discharged by appropriate assignment of value. The Resolution Plan provides that all the claims of ESIL whether contingent or crystallized, known ....... + More

Impact of Section 60(6) of the IBC - Exclusion of moratorium period for initiation of proceedings of suit - whether the provision of Section 60(6) gives rise to a new lease of life to a proceeding at the instance of the corporate debtor on the basis of a moratorium which is put in place by virtue of the order passed under section 14 of the IBC? - whether corporate debtor can take advantage of the same to bring the application in this case filed under Section 11(6) of the Arbitration and Conciliation Act, 1996? HELD THAT:- The principles of interpretation of statutes have been invoked in the varying contexts and are to be applied on the basis of the facts of the case, the nature of the law and a host of principles. Undoubtedly, the golden rule of interpretation is the interpretation which thrives on the ordinary meaning of the words as the....... + More

Liability of respondents to pay its share of the Cash Calls - Appointment of nominee arbitrator - enabling constitution of an Arbitral Tribunal for adjudication of the disputes that have arisen between the parties in relation to the Joint Operating Agreement - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- It is well settled that in terms of sub-section (6A) of Section 11 of the A&C Act, the scope of examination under Section 11 of the A&C Act is limited to the existence of an arbitration agreement between the parties. Notwithstanding the same, in cases where it is ex facie clear that the disputes cannot be entertained, the courts would refrain from entertaining the petition to appoint an arbitrator as the same would be an exercise in futility. It is also trite law that it is only in exceptional cases wh....... + More

Utilization of amount for the distribution of assets under Section 53 of the Code - Realization of security interest by secured creditor - HELD THAT:- The Respondent owes a duty to mention the existence of moratorium passed by this Tribunal including the invocation of Bank Guarantee before the concerned Courts. When proceedings of CIRP and Liquidation are pending before this Tribunal, no proceedings can be continued before the Civil Courts without prior approval of this Tribunal. It is seen from the records that the claims were received and a consolidated list of claims of Rs. 78,02,52,535/- was prepared and that the Corporate Debtor does not have any liquidation assets other than the Liquidation Assets i.e., the amount of Rs.25,13,38,078/- and Rs. 5,46,08,871.37/- in relation to the Corporate Debtor under Section 36 of IBC, 2016. There 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 - application filed within the time limitation or not - HELD THAT:- There is no dispute to the preposition that Application under Section 7 should be filed within three years from the date of NPA but if there are materials on record to indicate that there is an acknowledgment within the meaning of Section 18 of the Code the limitation get extended - The present is the case where there is acknowledgment within the meaning of Section 18 hence the Limitation got extended hence the Application filed on 06.12.2019 was well within time. No other argument is raised - there are no merit in the appeal - 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:- It is seen from the records that this Tribunal had given sufficient chances to the Corporate Debtor to file its Reply and appear before this Tribunal. However, the Corporate Debtor failed to appear and also did not file its Reply. This act itself shows that the amount is due and payable to the Operational Creditor. It is observed that the Operational Creditor has served and intimated the date of hearings to the Corporate Debtor on several occasions. On the basis of the evidences on record the Operational Creditor has established that he has delivered services to the Corporate Debtor Company for which an amount of Rs. 12,85,64,268/- is due and a default has ....... + 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 - Service of notice - HELD THAT:- On several failed attempts of physical service and service by post by the Financial Creditor, this Adjudicating Authority vide order dated 23 February, 2022, directed service on the Corporate Debtor by way of newspaper publication, in the district in which the registered Office of the Corporate Debtor is situated. In pursuance of such order, the publications were made in 'Indian Express' and 'Aajkal' on 17 March, 2022, however, none appeared on behalf of the Corporate Debtor - Further, upon perusal of the record it is apparent that transaction held between the parties squarely falls under the definition of financial transac....... + More

Seeking dissolution of the Corporate Debtor - section 54 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:-There is no impediment to the Corporate Debtor being dissolved, and it is ordered accordingly. The 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 has no substance in its pleas raised in the reply affidavit. The Corporate Debtor has clearly admitted its liability, the account was declared as an NPA because the Corporate Debtor failed and defaulted in repayment of its financial debt. The petition is otherwise complete in all respects - the petition under section 7 of the Code filed by the Financial Creditor deserves to be admitted - moratorium declared.

Money Laundering - renewal of passport - Section 6 of the Delhi Special Police Establishment Act, 1946 - HELD THAT:- There are no doubt that there is absolutely nothing to interfere with the order under challenge. It is true that a complaint has already been laid against the petitioner and others. It is pending as S.C. No. 533/2018 before the Special Court. Meanwhile, Enforcement Directorate has undertaken a further investigation, on the basis of the subsequent revelations that large sum of money was laundered by the petitioner. The estimation of the first respondent is that he is guilty of laundering Rs. 910 crores including sum of Rs. 258.52 crores for which three provisional attachment orders were issued. Now the further investigation by the Enforcement Directorate is in progress. As part of the further investigation, summons dated 23........ + More

Nature of transaction - sale and purchase of land or merely investment in the property - scheduled/predicate offence or not - HELD THAT:- This Court find force in the arguments of learned senior counsel for the petitioners that the petitioners through their companies have only made investment of money and purchased the land, in a legalized manner through registered sale deeds from November, 2004 to November, 2005 and later on in the year 2006, the said 03 land owning companies were purchased by Atul Bansal of M/s. A.B.W. Group, therefore, there is no evidence on record either of applying for licence for the purpose of setting-up of some township for earning profit nor there is any evidence collected by the Enforcement Directorate regarding any conspiracy of the petitioners with other co-accused, much less at the cost of repetition, it is ....... + More

Service of notice - Eviction notice - direction to vacate the premises - owner of property - HELD THAT:- This Court has gone through the materials on record. It is an admitted fact that the petitioner is not the owner of the property. The property in question was in the name of the wife of the petitioner who has sold the property to one Pawan Kumar Singh in the year 2005. Pawan Kumar Singh was the accused in ECIR/02/PAT./2012 and he was the owner of M/s Classic Coal Construction Pvt. Ltd. and with regard to that coal company, Pawan Kumar Singh was facing the money laundering case. Thus, it is an admitted that the property in question was in the name of Pawan Kumar Singh, however, the petitioner was continuing and living in the property in question. It is section 5 of the said Act, which provides for procedure for attachment of the propert....... + More

Jurisdiction - power to initiate proceedings as against the Petitioner under the provisions of Prevention of Money Laundering Act - possession of proceeds of crime - predicate offence or not - provisional attachment of properties - alleged offences under Section 4(d) and 4(f) of the Lotteries Regulation Act and Rule 4(5) of the Lotteries Regulation Rules - HELD THAT:- The petitioner wanted to say that by virtue of the order of discharge passed by the Chief Judicial Magistrate, the substratum of the case has been lost and that he is not in possession of any proceeds of crime within the meaning of Section 2(u) of the PML Act. He wanted to make this Court believe that on account of the order of discharge, charge of generation of proceeds of crime is totally eliminated and he is not liable to be proceeded against - But after having gone throu....... + More

Money Laundering - proceeds of crime - schedule offence - obtaining/acquiring huge properties and made bank transactions in the Jharkhand and other states by involving in process and activities connected with the proceeds of the crime of the schedule offences - framing of charges - HELD THAT:- The facts of the case of DSP Chennai Vs. K. Inbasagaran [2005 (12) TMI 50 - SUPREME COURT] and the case of REKHA NAMBIAR, BHOJRAJ TELI VERSUS CENTRAL BUREAU OF INVESTIGATION [2015 (11) TMI 1862 - DELHI HIGH COURT] (are entirely different from the facts of this case as the case of DSP Chennai Vs. K. Inbasagaran is a case where the appeal was considered by the Hon’ble Supreme Court of India where the trial court did not consider the defence evidence in its proper perspective but it is settled principle of law that at the stage of framing of char....... + More

Money Laundering - schedule offence - proceeds of crime - Section 44(1) of PMLA - HELD THAT:- It is clear that the I.T. Department made search in the official/commercial premises of the appellant and other connected persons. Later, I.T. Department vide communication dated 16.5.2019 which was issued in response to the letter of the appellant dated 1.5.2019 and also of I.T. Department dated 13.5.2019 was satisfied that the cash which was recovered from the officials/commercial premises of the appellant is explained and tax was paid in the selfassessment for the Financial Year 2016-17 - Therefore, the proceedings started on the basis of intriguing recovery of cash and other items in fact, does not exist and the I.T. Department itself was satisfied with the recovery after investigation in the year 2019. Therefore, the finding recorded in the ....... + More

Money Laundering - conspiracy to obtain loan - fake documents - siphoning off the funds for personal use - scheduled offence - proceeds of crime - maintainability of criminal prosecution that has been launched by the Enforcement Directorate under Section 3 r/w 4 of PMLA - HELD THAT:- In this case, there is no shred of material to show that A8 to A15 had committed any criminal activity at all. A8 had purchased lands for his business from A4, A6 and A7 through their power agent Ayyappan and thereafter, he sold those lands to A9 to A15 for a valuable consideration. In this case, 166 acres of land is not the subject matter of crime. The subject matter of the criminal activity is obtaining the loan of ₹ 15 crores from GTFL by submitting forged documents. Therefore, the proceeds of the crime is ₹ 15 crores. A fraction of the sum of ....... + More

Money Laundering - provisional attachment of land - creation of first encumbrance on the subject land - proceeds of crime - offences under Sections 3 and 4 of the PML Act - HELD THAT:- The ingredients for fastening criminal liability u/s.3 r/w 4 of the PML Act against Naidu Amrutesh Reddy are absent in the impugned complaint. To recapitulate the facts, even according to the Enforcement Directorate, Naidu Amrutesh Reddy had paid ₹ 4.33 crores to Suruli Andavar, who was not the actual owner, for purchasing the subject land and had the sale registered as Document No.6266/2011. It is not the case of the Enforcement Directorate that Naidu Amrutesh Reddy sold the said subject land to someone, knowing full well that he has no title to it, obtained the sale consideration of ₹ 4.33 crores via the said criminal activity and projected the amount as an untainted. Petition allowed.

Seeking grant of regular bail - bail is sought on medical grounds - stand of Revenue is that there is a possibility that the petitioner may flee from the country, as he has been granted the permission to travel abroad - HELD THAT:- After hearing learned counsel for the parties and going through the medical record of the petitioner, which is based on a report of Medical Board comprising of seven doctors, constituted by Civil Surgeon, Ambala, it is found that case of the petitioner would be covered under proviso to Section 45(i) of PMLA as he is a sick person requiring urgent medical treatment, especially in view of the fact that while in custody for a period of about 03 months, he was repeatedly advised medical care, as noticed in earlier part of this order. Petition allowed.

Smuggling - gold jewellery - Constitutional Validity of Section 45 of the PMLA - Section 135 of the Customs Act, Section 12 of the Passport Act and also under the penal provision of Prevention of Money Laundering Act - HELD THAT:- It is needless to say that for registration of a crime under the PMLA, the only prerequisite is registration of a predicate/scheduled offence as prescribed in various paragraphs of the schedule appended to the Act nothing more than it. In other words, for initiating or setting the criminal law in motion under the PMLA, it is only that requirement of having a predicate/scheduled crime registered prior to it. Once an offence under the PMLA is registered on the basis of a scheduled offence, then it stands on its own and it thereafter does not require support of predicate/scheduled offence. It further does not depen....... + More

Provisional attachment order - Smuggling - proceeds of crime - failure to discharge the burden as required under Section 24 of the PML Act - HELD THAT:- The PML Act, 2002 gives wide powers to the authorities to attach properties suspected to be involved in money laundering. Section 5 of the PML Act authorizes to attach property and the same is to be exercised if the authority has reason to believe, on the basis of material in their possession that, any person is in possession of any proceeds of crime and such proceed of crime are likely to be concealed, transferred, or dealt with in any manner, which may result in frustrating any proceedings relating to confiscation of such proceeds of crime - It is statutory duty on the part of the authority to file a complaint, stating the facts of attachment before the adjudicating authority after prov....... + More

Money Laundering - Ponzy Scheme - scheduled offence - issuance of general or special authorization for Officers on deputation to be Deputy Director in the office of the Directorate of Enforcement, under the PML Act - Directorate of Enforcement could have bestowed powers on such an Officer to be an Officer as provided under Section 48 of the PML Act or not - validity of registration of ECIR by an Officer acting as Deputy Director the PML Act, in the absence of general or special authorization - provisional attachment order - Section 45(1A) of the PML Act - HELD THAT:- It is the specific case of the petitioner that Central Government did not issue any special authorization for the officer on deputation to be worked as deputy director and Assistant Director in the office of the Directorate of Enforcement and PML Act. As such, no powers confe....... + More

Seeking grant of anticipatory bail - provisional attachment order - schedule offence - proceeds of crime - Sections 44 and 45 of PMLA 2002 - HELD THAT:- The PML Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering. Being a special enactment it has overriding effect on general law. Section 71 of PML Act specially provides that provisions of PML Act shall have overriding effect on any other law time being in force. Thus, it is very clear that provisions of Code of Criminal Procedure will not be applicable until there is no specific provision given in PML Act, 2002. Money Laundering being an offence is economic threat to national interest and it is committed by the white collar offenders who are deeply rooted in society and cannot be traced out easily. These ....... + More

Seeking grant of regular bail - money laundering - proceeds of crime - forged documents - diversion/siphoning off of the funds - twin test laid down under Section 45 of PML Act satisfied or not - HELD THAT:- Section 45(1) of the PML Act imposed two conditions before bail could be granted to a person accused of an offence punishable for a term of imprisonment for more than three years under Part A of the Schedule attached to the PML Act. As per these conditions, before grant of bail, the Public Prosecutor was required to be given an opportunity to oppose the plea for bail and that where the Public Prosecutor opposed such plea, the Court could order release of the accused on bail only after recording a satisfaction that there were reasonable grounds to believe that the person to be released was not guilty of the offence he was accused of an....... + More

Grant of anticipatory bail - possession of huge cash and jewelleries - Creation of shell companies - constitutional validity of Section 45 of PMLA Act 2002 - HELD THAT:- It is well settled that law framed by legislature is having presumption of its constitutionality, unless and until Constitutional Courts declared such law to be unconstitutional, it will have its force and therefore in the opinion of this Court, as twin conditions are still there in the Statute book after amendment in Section 45 of the Act of 2002, underlined principle and rigor of Section 45 of the Act of 2002 may get triggered once prayer for anticipatory bail is made in connection with offence under the Act of 2002. Merely because case is registered on complaint and cognizance of complaint is taken by Court after about two years, will in itself is not a ground consider....... + More

Seeking suspension of LOC issued against the Petitioner - seeking permission to travel to Dubai and Italy - HELD THAT:- During the pendency of the writ petition till November 22, 2021 no compliant under Section 45 of the PMLA was filed by the respondent No.1 before the Special Court. It was in the reply filed on December 28, 2021 to CM APPL. 47740/2021, the respondents for the first time stated that a second supplementary prosecution complaint has been filed before Special Court, PMLA, Rouse Avenue Courts, New Delhi on December 22, 2021 against the petitioner and others in Complaint Case No.75/2019 in ECIR/07/DZCR/2019 for the offence of money laundering as defined under Section 3 of the PMLA and the Special Court has taken cognizance of the complaint and issued summoning order, and accordingly, the writ petition is liable to be dismissed....... + More

Money Laundering - proceeds of crime - predicate/scheduled offence - registration of the subject ECIR, sustainable or not - Criminal liability or not - HELD THAT:- The trial of money laundering offence is independent trial and it is governed by its own provisions and it need not get interfered with the trial of scheduled offence. The PMLA, being a special enactment, contemplates a distinct procedure at the initial stage and thereafter provides for initiation of prosecution, in order to achieve the special purpose envisaged under the Act and as such, it cannot be construed that proceedings under the PMLA are to be equated with prosecution initiated under the criminal proceedings for predicate/scheduled offences. Thus, initiation of action under the PMLA cannot have any implication or impact in respect of registration of other cases, either....... + More

Issuance of summons - validity of issue of summons to appear before the Respondent No.1 and make a statement and disclose information despite the Petitioners being accused which is the subject matter of investigation - HELD THAT:- The writ petitioner No.2 has appeared before the Enforcement Directorate and therefore, in the considered opinion of this Court, no further orders are required to be passed in W.A.No.198 of 2016 and all the issues are left open. Learned counsel for the appellants has informed this Court that the appellant No.2 has already appeared pursuant to the aforesaid summons issued by the Enforcement Directorate and therefore, in the considered opinion of this Court, no further orders are required to be passed in W.A. No. 199 of 2016 also and all the legal issues are left open - Application disposed off.

Money Laundering - proceeds of crime - petitioner could not produce purchase/sale orders in respect of the transactions - effect of the amendment in question in sub-section (1) of Section 45 of the Act - twin conditions of section 45 of the PMLA Act satisfied or not - HELD THAT:- The twin conditions of section 45 of the PMLA Act still remain in the Statute Book, in that eventuality also the observations of the Supreme Court do not get obliterated. The Schedules attached to the PMLA Act still continue. The insertion of the words “under this Act” by deleting “offence punishable for a term of imprisonment of more than three years under Part A of the Schedule” only makes an ostensible change. The offence of money laundering as stipulated under Section 3 of the PMLA Act stems out of the offences prescribed in the Schedu....... + More

Smuggling - illegal excavation and theft of coal was taking place in the leasehold areas of Eastern Coalfield Ltd. - HELD THAT:- From a bare reading of the various provisions along with the scheme of the PMLA, it is clear that sections of CrPC would apply only if the field is not covered, in any manner, by the provisions of the special enactment by way of the PMLA. The CrPC by way of Section 4 & Section 5 itself provides that in case a special law exists, such law will apply over and above the CrPC. Section 65 read with Section 71 of the PMLA further provides that while certain provisions of the CrPC may apply in case there exists no provision in the PMLA, in case of any inconsistency, contradiction or confusion arises, the provisions of the PMLA will prevail and override the provisions of the CrPC. It is otherwise also settled law th....... + More

Pledge of shares - Pawnor and the pawnee’s right to sue for recovery and sell the pawned goods - Accretion on pawned goods - Pledge or hypothecation of securities held in a depository - legal jurisprudence relating to law of pledge - rights of depository Participant - right of redemption given to the pawnor vide Section 177 of the Contract Act - whether the Depositories Act, 1996 read with the Regulation 58 of the Securities and Exchange Board of India (Depositories and Participants) Regulations, 1996, For short, ‘1996 Regulations’ has the legal effect of overwriting the provisions relating to the contracts of pledge under the Indian Contract Act, 1872 - Relevant provisions of the Contract Act - HELD THAT:- We do not find any derogation or conflict between Section 176 of the Contract Act and sub-regulations (8) and (9) o....... + More

Fraudulent and Unfair Trade Practices relating to Securities Market - Transaction violative of Regulation 3 and 4 of the PFUTP Regulations - HELD THAT:- ‘Specified proceedings’ has been defined under Section 2(f) of the Settlement Regulations, 2018, namely, the proceedings that have been initiated by SEBI under the SEBI Act, Securities Contracts (Regulation) Act, 1956 or Depositories Act, 1996 as the case may be. 14,000 odd cases have been initiated under the illiquid stock option matters wherein similar kind of transaction have been executed and similar violation is proposed against all these noticees under Regulation 3 and 4 of the PFUTP Regulations. These 14,000 entities form a class of persons and are involved for similar defaults. Therefore, in our opinion, the Board can specify a procedure and terms of settlement for the....... + More

Insider trading - information relating to the financial results was an Unpublished Price Sensitive Information (“UPSI”) - confirmatory order confirming the ex-parte ad-interim order whereby the appellant was restrained from buying or selling any securities, either directly or indirectly, till further orders - appellant was a Senior Corporate Counsel of Infosys and, being an officer/employee of Infosys, was reasonably expected to have access to the UPSI and, on a preponderance of probability basis, the appellant was in possession of UPSI and thus, was an insider under Regulation 2(1)(g) of the PIT Regulations - HELD THAT:- As in the absence of any direct or indirect evidence coming forth at this stage and the fact that the investigation is still continuing which may take time for issuance of a show cause notice, we are of the o....... + More

Related party transaction - Company proposed to enter into a transaction with one Neelkanth Realtors Private Limited for purchase of 40,000 sq. ft. of residential space - Extra-Ordinary General Meeting was convened for rescinding the resolution in which, the related parties also voted - violation of Regulation 23 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 - HELD THAT:- The Securities Appellate Tribunal has not approved this order passed by the Adjudicating Officer and has allowed the appeal filed by the present respondents while, inter alia, holding that the bar of voting as per Section 188 of the Companies Act, 2013 on related parties operated only at the time of entering into a contract or arrangement, i.e., when the resolution dated 15.07.2014 was passed; and therei....... + More

Insider trading - Whether existed a close relationship/immediate relation between the appellants? - circumstantial evidence (trading pattern and timing of trading) - HELD THAT:- In the present case, as rightly argued by the learned counsel of the appellant, the foundational facts were not proved which could raise the alleged presumption. SEBI failed to place on record any material to prove that the appellants were “connected persons” to Balram Garg as required by Regulation 2(1)(d)(ii)(a) read with Regulation 2(1)(f) of the PIT Regulations as none of the appellants were financially dependent on Balram Garg or even alleged to have consulted Balram Garg in any decision related to trading in securities. In light of the above principles of law laid down by this Court, it was imperative on the Respondent/SEBI to place on record rel....... + More

Release of the mutual funds in favour of the applicant/Respondent No.5, which are of the value of about 350 crores - Earlier, by order this Court had given the option to applicant/Respondent No.5 to get mutual funds converted/encashed and the amount was to be deposited in a fixed deposit account of a nationalized bank - HELD THAT:- The subsequent supplementary chargesheet submitted by the EOW, and relied upon by the learned counsel for the petitioner, ought not to be ignored while considering this matter. In its earlier orders, this Court has clearly found that the securities need to be released in favour of the applicant/Respondent No.5. The only question is with regard to the mode and manner of the securities to be furnished by the applicant/Respondent No.5. It is not disputed that the petitioner has, in terms of the order dated 16.03.2....... + More

Violation of provisions of the Act and the PFUTP Regulations - What is the scope and ambit of statutory appeal to the Supreme Court under Section 15Z of the Act against an order passed by the Securities Appellate Tribunal? - HELD THAT:- Supreme Court will exercise jurisdiction only when there is a question of law arising for consideration from the decision of the Tribunal. A question of law may arise when there is an erroneous construction of the legal provisions of the statute or the general principles of law. In such cases, the Supreme Court in exercise of its jurisdiction of Section 15Z may substitute its decision on any question of law that it considers appropriate. Not every interpretation of the law would amount to a question of law warranting exercise of jurisdiction under Section 15Z. The Tribunal while exercising jurisdiction und....... + More

SEBI Circular applicability - whether or not SEBI would qualify as “Any person aggrieved”? - Retrospective applicability of circular - Standardisation of procedure to be followed by Debenture Trustee(s) in case of ‘Default’ by Issuers of listed debt securities” - Plaint came to be amended now seeking an injunction restraining RCFL and BoB from acting upon, implementing or taking any steps for diluting, extinguishing or creating third party rights in respect of the security provided under the DTD - HELD THAT:- In our view, if SEBI has a statutory right to file an Appeal, such right cannot be divested by virtue of certain remarks passed by the Ld. Single Judge in the Impugned Orders to the effect that the order would not constitute a precedent against SEBI. There is no mention whatsoever in the SEBI Circular su....... + More

Violation of “PFUTP Regulations”- Duty to Disclose Investigative Material - Exceptions to the Duty to Disclose - whether an investigation report under Regulation 9 of the PFUTP Regulations must be disclosed to the person to whom a notice to show cause is issued? - HELD THAT:- The findings of the investigation report are relevant for the Board to arrive at the satisfaction on whether the Regulations have been violated. Even if it is assumed that the report is an inter-departmental communication, as held in Krishna Chandra Tandon [1974 (4) TMI 103 - SUPREME COURT] there is a duty to disclose such report if it is relevant for the satisfaction of the enforcement authority for the determination of the alleged violation. In Natwar Singh [2010 (10) TMI 156 - SUPREME COURT] it was held that material which is relevant to the subject-ma....... + More

Related party transaction - Company proposed to enter into a transaction with one Neelkanth Realtors Private Limited for purchase of 40,000 sq. ft. of residential space - Extra-Ordinary General Meeting was convened for rescinding the resolution in which, the related parties also voted - violation of Regulation 23 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 - whether the appellants were justified in voting for rescinding the resolution dated 15th July, 2014 inspite of being related party entities? - HELD THAT:- From a perusal of Section 188 of the Companies Act it is apparently clear that no member of the Company shall vote on such resolution to approve any contract or arrangement which may be entered into by the Company, if such member is a related party. Admittedly, in....... + More

Confidentiality of the settlement and/or compromise and/or arrangement arrived - HELD THAT:- Advocates appearing for Respondent Nos.1 to 10, 11 and 12 have submitted that the Order dated 28th October, 2021, is passed by consent. In fact, Advocate Khandeparkar representing Respondent Nos.1 to 10 states that SEBI was not only represented during the hearing of the matter but SEBI was also present during the settlement talks held on six occasions. Senior Advocate appearing for SEBI states on instructions, that save and except the fact that SEBI was represented before the Learned Single Judge at the time of hearing, SEBI disputes all the other statements/ submissions made on behalf of Respondent Nos. 1 to 10, 11 and 12. In view of the above, before we proceed further, we allow SEBI to seek a clarification from the Learned Single Judge qua the ....... + More

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

SEBI circular applicability - Clarification seeked in directions that the meeting that is to be held should be in deviation from the terms of the Debenture Trust Deed - Scope of submissions on the basis of any later or Supplementary Trust Deed - HELD THAT:- Obviously, the Supplementary Trust Deed will have to be read with the previous three Trust Deeds in a coherent and consistent manner. A mere reference to SEBI circulars will not and cannot override the express terms of any of the Trust Deeds. The 30 day period will commence from today in view of this clarification.

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

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

Insider trading - violation of SEBI (Prohibition of Insider Trading) Regulations - Family arrangement - case of the appellants that family settlements means family estrangement - family arrangements within the family on two occasions there was no estrangement, as can be seen from the facts highlighted by Ld. WTM - appellants were restrained from accessing the securities market, in any manner, for a period of one year - allegations against the appellant Ms. Shivani Gupta and other appellants is that they being insider to two Unpublished Price Sensitive Informations (“UPSI‟ for short) regarding the buy-back of it‟s share by the Company and had traded in the shares while holding theses informations - WTM recorded a finding that the nature of relationship between the parties, their residence at the same address, financial tr....... + More

Approval of resolution plan - Settlement, compromise or arrangement before the Debenture Holders seeking their assent in terms of the respective Debenture Trust Deeds - negotiations between the Plaintiffs, debenture holders, the company and the resolution applicant/their advisors - 3rd Defendant, the Debenture Trustee, points out that the Debenture Trust Deeds require a meeting to be called in a certain manner - HELD THAT:- Debenture Trust Deed is a contract between the parties to it. They must know the terms of the contract at the time when the execute it. Those terms cannot be later altered except with their consent. The submission by SEBI would amount to saying that a critical term of the contract is always unknown and always liable to change or modification at any given time, conceivably upsetting the entire structure. SEBI’s re....... + 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

Fraud under SEBI Act - penalty imposed - as contended that the applicant/Dalmia has suffered because of the fraud committed by respondent no.1/IL & FS Securities Services Ltd as well as respondent no.4/Allied Services Pvt. Ltd. - HELD THAT:- Keeping in view the findings recorded by the SEBI about the degree of involvement of the applicant/Dalmia in the said transactions, as revealed in records before us, as well as the involvement of respondent no.4 and tentative findings of fraud by respondent no.4, and also keeping in view that by a separate order penalty has also been imposed on respondents no.1 and 4 by the SEBI (without there being any finding of fraud against respondent no.1), we modify the order dated 16.03.2021 to the following extent: That instead of bank guarantee for a sum of ₹ 344.07 crore, which has been furnished b....... + 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.

Offence under FEMA - prejudice on account of infraction of the procedure - main ground of challenge was that the impugned notice was issued without complying with the Rule 4(1) and Rule 4(2) of the Rules of 2000 - HELD THAT:- The adjudicating authority is required to give the notice under sub-rule (1) to the concerned person requiring him to show cause as to why inquiry should not be held against him indicating the nature of contravention alleged to have been committed by him. After considering the cause, if any shown, and on forming an opinion that an inquiry should be held, the adjudicating authority is required to issue notice under sub-rule (3) fixing the date of appearance. In the present case, undisputedly no notice in terms of sub-rule (1) and (2) of Rule 4 has been given and straight away notice under sub-rule (3) of Rule 4 has be....... + More

Offence under FEMA - Petitioner argued that the adjudicating authority did not follow the procedure prescribed in Rule 4(1) and 4(2) of the Adjudication Rules of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - petitioner has been seriously prejudiced by refusal and failure to supply documents relied upon by the complainant Assistant Director - HELD THAT:- In the instant case, failure to bring back export proceeds to the extent of seven thousand crores arose out of loan transactions between the petitioner and his entities and about 23 banks. It is now well settled that every infraction of the principles of natural justice or procedure stipulated for adjudication would not vitiate a proceeding. The petitioner has to demonstrate actual and real prejudice The two tier procedure under Rule 4 which warrants a....... + More

Offence under FEMA - maintainability of writ petition before this Court - HELD THAT:- This Court finds that the writ petition filed at Jaipur Bench, Jaipur for challenging the order dated 26.04.2019 passed by the Additional Director, is not maintainable as no cause of action has arisen in the territory of State of Rajasthan. The submission of the petitioner that initially a complaint was filed by the Additional Director and further direction to deposit the penalty amount in Jaipur Office, cannot be termed as a part of cause of action. This Court finds that the complaint which was filed against the petitioner, has resulted into issuance of show cause notice to the petitioner and thereafter, adjudication has to take place and as such the petitioners cannot be allowed to state that part of cause of action, has arisen in the territory of Stat....... + More

Legality and validity of the seizure orders - HELD THAT:- The facts of the case reveal that before the learned Single Judge, though a prayer for quashment of seizure orders dated 26.08.2021, 30.09.2021 and 15.12.2021 was made, an interlocutory application was preferred for release of ₹ 15,35,45,317/- and the learned Single Judge has allowed the application. The writ petition itself has been disposed of by the impugned order dated 11.02.2022. In the considered opinion of this Court, once the seizure orders were not set aside and no statutory provision was brought to the notice of the learned Single Judge for release of such amount and the seizure orders have been affirmed by the competent authority under Section 37A(2) of the Act, no such provisional release could have been ordered by disposing of the writ petition itself. Learned co....... + More

Seizure orders - respondent No.2 has seized an amount of approximately 270 crores and has transferred a substantial portion of the said amount to its own bank account - HELD THAT:- Several circumstances are narrated with regard to the hardship which the petitioner Company would face, if an amount of ₹ 15,35,45,317/- is not ordered to be released. Under these circumstances, in order to keep the petitioner Company alive and to enable it to meet its day to day expenses like payment of salaries to its employees, payment of taxes, statutory dues and operational expenses etc., this Court, in the interest of justice, deems it appropriate to direct the respondent No.2 to release an amount of ₹ 15,35,45,317/- (Rupees fifteen crores thirty five lakhs fourty five thousand three hundred and seventeen only), which is commensurate with the ....... + More

Offence under FEMA - enquiry contemplated under Section 16(3) of the Foreign Exchange Management Act, 1999 on the basis of complaint by an Authorized officer as provided for under the said sub-section - As argued show-cause notices are not in compliance with the procedure prescribed under Rule 4 of 2000 Rules - HELD THAT:- We are of the view that no indulgence is warranted in the matter of issuance of impugned show-cause notice dated 08.04.2021 and the notice for personal hearing dated 28.06.2021. Adjudicating Authority is yet to hold an enquiry and thereafter take a decision to initiate proceedings for imposition of penalty under Section 13 of the FEMA. Thereafter, the petitioner has a remedy of filing appeals viz. (1) under Section 17 to the Special Director (Appeals) against the orders of the Adjudicating Authorities, being an Assistan....... + More

Violation of provisions of FCRA, 2010 - Suspension of certificate - suspension u/s 13(1) of the FCRA, 2010 - HELD THAT:- This Court, in the facts of that case had set aside the suspension order on two grounds, firstly, no reasons have been spelt out in the suspension order and secondly, the respondents have neither issued Show Cause notice nor initiated an inquiry by the time the suspension order was passed. Insofar as, stating the reasons for suspension is concerned, as concluded above, the reasons have been given in the impugned order. To that extent, the judgment has no applicability. Insofar as the conclusion of the Court by the time the suspension order was passed neither an inquiry was initiated nor any Show Cause notice was issued is concerned, it is my conclusion that the process of inquiry was started in the year 2017. So, it is ....... + More

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

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

CENVAT Credit - Input Service Distribution - excess availment of Cenvat credit of more than 20% of credit - Rule 7 of the CCR, 2004 - levy of interest and penalty on the amount of Cenvat credit availed by it on Capital Goods to the full extent in the first year of purchase instead of 50% - HELD THAT:- The issue regarding availment of ISD credit by the Tirupati unit for materials used in other units, the Appellant has submitted that there was no restriction in availment of Cenvat credit as distributed by the ISD unit under Rule 7 of the CCR, 2004. The issue is settled by the judgment of the Hon’ble Karnataka High Court in the case of COMMISSIONER OF C. EX., BANGALORE-I VERSUS ECOF INDUSTRIES PVT. LTD. [2011 (2) TMI 1130 - KARNATAKA HIGH COURT] wherein it was held by the Court that Merely because the input service tax is paid at a par....... + More

Rejection of rebate claim - export of service or not - rejection on the ground that the same does not qualify as export of service as well as on the ground of unjust enrichment - period from January 2010 to November 2010 - HELD THAT:- This Tribunal in a similar matter pertaining to MRAS services in M/S MEDALLION CONSULTING PRIVATE LIMITED VERSUS CST, DELHI [2017 (4) TMI 96 - CESTAT NEW DELHI] has held that Part performance of service outside India shall be treated as performed outside India. In the instant case, on perusal of the invoices issued by the Appellant to various overseas customers, it is clear that the benefit of these services are accruing to the customer located outside India. Thus, there is no doubt that the services will qualify to be export of services under the provisions of the Export of Service Rules, 2005. Unjust enric....... + More

Non-discharge of tax liability - Petitioner neither got service tax registration nor paid any service tax on the taxable consideration received - demand alongwith interest and penalty - HELD THAT:- It transpires that adjudication with reference to evidence on record is required to be made as to whether the conduct of the Petitioner by not discharging its Service Tax liability is a pointer for invocation of jurisdiction under Section 73 of the Finance Act. It is also necessary for the appropriate authority on the basis of pleadings and material particulars available on record to decide whether there was justification in subjecting the assessee-petitioner to adjudication in view of existence of the circumstances spelt out in proviso to Section 73 of Chapter V of the Finance Act, 1994 so that extended period of limitation is attracted. In th....... + More

Levy of Service Tax - Cargo Handling Services - Storage and Warehousing services - benefit of cum Duty price - invocation of extended period of limitation - Circular No.18/2009-Customs dated 08 June, 2009 - HELD THAT:- The facts of the case are that the appellant’s are container freight station. The appellant’s are providing services on the basis of a tariff card. There are standard packages which involved the complete service of container freight station (including storage for a specified limited time) at a particular rate. All the appellant’s are paying service tax on such services in case of import of goods. All CFS are not paying service tax on such services in respect of export of goods being net covered in service tax net - All appellant’s are charging a “Storage and Warehousing” fees only in case....... + More

CENVAT Credit - duty paying invoices - whether availment of CENVAT Credit by the appellant on the basis of a debit note availed by M/s IGSSTPL without receiving any service is admissible as per law? - HELD THAT:- As per the agreement, under sub-clause (xxii) of definition under clause (1), the obligation of the Development Manager shall include repayment of loan to Yes Bank together with all cost of services thereof; repayment of Development Manager loan together with all cost of services thereof and repayment of all third party capital together with all cost of services thereof. To appreciate the factual position of the impugned case, it is found appropriate to go through the relevant clauses of the agreement between the appellant and M/s IGSSTPL. On going through the various clauses of the agreement, it is found that the appellants have....... + More

CENVAT Credit - input services - Construction/ Works Contract Service for re-carpeting of road in their industrial estate - credit denied on the ground that it is a new construction of road under works contract service which is excluded in the definition of Input Service under Rule 2(l) of Cenvat Credit Rules, 2004 - HELD THAT:- The fact is not under dispute that the industrial estate already existed and for moving around the Industrial Estate the tar roads were also existing. The works contract/ construction was executed for the purpose of re-carpeting of existing road. Therefore, the said services are for the purpose of repair and renovation of the exiting industrial estate. It is observed from the notes of the Board meeting for the purpose of re-carpeting of the road that it is for re-carpeting and not for new construction of road. The....... + More

Clubbing of clearances - Clearing & Forwarding Agent Services - transportation of goods by road with issuance of consignment note for Ultratech - Whether the Revenue is correct in clubbing the two services, which are provided under different agreements as a composite service of C&F agency and demand tax? - Scope of SCN - extended period of limitation - HELD THAT:- Admittedly the demand in the show cause notice was proposed under the head- cargo handling service, whereas in the impugned order-in-original, the demand have been confirmed under the head C & F Agency Service. Thus evidently, the adjudicating authority have travelled beyond the scope of show cause notice. Thus, the impugned order is bad on this score alone. This agreement is entered into between Ultratech Cement Ltd and M/s S S Enterprises (proprietor Gunesh India p....... + More

Validity of Demand-cum-Show-Cause Notice - seeking direction that the respondent authorities should provide an opportunity of pre-show cause notice consultation to the petitioner - whether the Circular dated 11.11.2021 is clarificatory in nature thereby clarifying the Master Circular dated 10.03.2017? - Suppression of facts or not - HELD THAT:- A Perusal of the said Circular dated 11.11.2021 stipulates that the concept of pre-show cause notice consultation in Central Excise and Service Tax was introduced vide the Board’s instructions dated 21.12.2015 as a trade facilitation measure. Thereupon in para 5 of the Master Circular No.1053/02/2017-CX dated 10.03.2017, the said principle of pre-show cause notice consultation was reiterated. Subsequent thereto, a reference was received from the DGGI to clarify whether the DGGI formation fell....... + More

Rejection of the application filed under the Service Tax Voluntary Compliance Encouragement Scheme (VCES), 2013 - time limitation - construction of residential complex - rejection on the ground of pendency of enquiry initiated against it before 01.03.2013 that suffered an adjudication process and gone on appeal to the Commissioner of CGST & Central Excise (Appeals-II), Mumbai - period from October, 2007 to December, 2012 - HELD THAT:- It can be noticed that there is a stipulation under Section 106(2) that if any enquiry, investigation or audit is pending on 01.01.2013, VCES declaration shall be rejected. However, no such documentary evidence/proof of such pending enquiry as define in Section 2(g) of the CrPC or investigation under Section 2(h) of the CrPC was found to be available in its true sense that would empower invocation of jur....... + More

Levy of service tax - scheme of levy under section 66B of Finance Act, 1994 imposed on all ‘services’, as defined in section 65B (44) of Finance Act, 1994, that were either not excluded by section 66D of Finance Act, 1994 (negative list) or not exempted by notification issued under section 93 of Finance Act, 1944 - composite engagement to deliver goods outside the country, for which consideration was received from the recipient of services located outside India - services performed outside the ‘taxable territory’ - Place of Provision of Services Rules - HELD THAT:- It would appear that there is no demand for the pre - ‘negative list’ period and that it was only the inevitable passage of ‘export goods’ through India at commencement of outward journey till loading on ‘foreign going&rsquo....... + More

Refund claim - claim is hit by limitation when filed after the introduction of GST, or not - overriding effect of section 142(8)(b) of CGST Act, 2017 - rejection on the ground of unjust enrichment - HELD THAT:- The Tribunal in the case of Jai Mateshwaari Steels Pvt. Ltd. [2022 (3) TMI 49 - CESTAT NEW DELHI] where it was held that in the facts of the present case, no limitation is applicable as provided under Section 11B (one year from the relevant date), due to overriding effect of CGST Act. Accordingly, I find that the appellant is entitled to refund under the provisions of Section 142(3) r/w 142(8) (b) of the CGST Act r/w the erstwhile provisions of Central Excise Act and the Cenvat Credit Rules. The rejection of refund claim on the ground of limitation is not justified - Appeal allowed - decided in favor of appellant.

Levy of service tax - Reverse Charge (RCM) - taxability of the cross charge, which is primarily based on who should be reckoned as an employer of the secondee - Manpower Recruitment Agency Service - employees who were seconded to the assessee by the foreign group companies - CESTAT set aside the demand - Extended period of limitation - HELD THAT:- During the arrangement, the secondees work under the control and supervision of the Indian company and in relation to the work responsibilities of the Indian affiliate. Social security laws of the home country (of the secondees) and business considerations result in payroll retention and salary payment by the foreign entity, which is claimed as reimbursement from the host entity. The crux of the issue is the taxability of the cross charge, which is primarily based on who should be reckoned as an....... + More

Classification of services - Man Power Recruitment or Supply Agency Service or not - contracts with various persons for supply of man power for utilizing such man power in their factory - period involved from April 2008 to March 2013 - penalty - HELD THAT:- The Tribunal in similar cases, wherein contactors had provided services to TAFE and income was received on piece rate, had observed that the contractors were liable to execute the work for TAFE and are responsible for the defect, if any. It was held that the activity would not fall within the definition of “Man Power Recruitment or Supply Agency Services” - In similar matters in G. RAMAKRISHNAN, K. BALAKRISHNAN, P. KANNUSAMY, M. ARULPRAKASAM, R. ATHINARAYANAN, S. SUBBURAYALU VERSUS CCE & ST MADURAI [2019 (3) TMI 42 - CESTAT CHENNAI] where the period involved is prior to....... + More

Refund of service tax paid - payment of tax due to mistake in facts or of law - period of limitation - whether the amount of Rs.4,78,222/- as was deposited by the appellant on 14.3.2016 was the amount of duty/tax? - HELD THAT:- Apparently and admittedly the said amount was deposited under the wrong impression of appellant being the liable to Service Tax for providing the construction service to M P Police Housing Corpn. Ltd. There is no denial to the fact that these services were exempted from the tax liability till March 2015 under Notification No. 06/2015 dated 1.3.2015. There is also no denial to the fact that the exemption was removed only for the period of one year i.e. from March 2015 to March 2016. From the notification No. 06/2015 vide Notification No. 9/2016 dated 1.3.2016, the retrospective exemption for the construction service....... + More

Refund claim of unutilized CENVAT Credit - Input services or not - partial refund also denied on the ground of nexus between the services received and the services exported - HELD THAT:- From the orders of the lower authorities, it is found that there are no objection was taken when the said input services were consumed, but only when it came to the granting of refund did the Revenue raise the objection that the services did not qualify as input service and that there was no nexus between the services received and services exported. This defeats the very purpose of the CENVAT scheme. The rejection of the refund claims is not sustainable - Appeal allowed.

Taxability - business auxiliary service - submission is that the agencies of the state government are ‘clients’ of the appellant on whose behalf maintenance of roads is undertaken appears to have overlooked the underlying scheme of the tender which brought the appellant in to the transaction - HELD THAT:- ‘Toll’ is a constitutionally authorized levy assigned to governments of constituent states of the Union and, unarguably, to be collected under the authority of the state government. It is not the case of the service tax officers that the mechanism erected for such collection compromises the characteristic of the levy into two - ‘toll’ and other - but that denomination of the latter as ‘commission’ in the contract constitutes two activities of which only one was taxable. Concatenating the de....... + More

Refund claim - credit of additional duty of customs (CVD) on inputs imported - credit of service tax on certain input services like renting of immovable property, of ITSS Services and Consulting Engineering services procured locally and Air passenger transport services - Reverse Charge Mechanism - Refund of services locally procured but billed in US Dollars is not admissible - Refund on defective invoices - rejection on the issue that there is no nexus of the input services with the services exported - HELD THAT:- As far as the issue of nexus is concerned, the same stands covered by various decisions which have been delivered subsequent to the passing of the impugned orders - In the case of TEXAS INSTRUMENTS (INDIA) PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX [2014 (9) TMI 1135 - CESTAT, BANGALORE], it was direc....... + More

Juristic person - separate identity - mutuality of services - sharing of profit - whether a Partner in the Firm can be said to be rendering services to the Partnership Firm so as to fall within the ambit of services as per the Finance Act, 1994? - HELD THAT:- For the period prior to 01.07.2012, there is no definition of a ‘person’ in the Finance Act, 1994 - the term ‘person’ was defined for the first time with effect from 1.7.2012 vide Section 65B (37) of the Finance Act. The period of dispute in all these appeals is prior to 01.07.2012 - Prior to 01.07.2012, there was no definition of the term “person” in the Finance Act, 1994. Only with effect from 01.07.2012, vide Section 65B (37) of the Finance Act, 1994, a ‘person’ was defined for the first time. This definition, inter alia, included a ....... + More

Short payment of service tax - outdoor catering service - abatment of 30% (for goods component), as per notification no. 30/2012-ST - HELD THAT:- There was no dispute with regard to the gross bill raised by the appellant-assessee, as proposed in the SCN. The Appellant had taken a point of law that being eligible under the notification, they have availed abatement of 30% with respect to outdoor catering services under Notification no. 30/2012-ST, which has not been found to be wrong. Accordingly, this demand is set aside and the ground is allowed in favour of the appellant-assessee. Short payment of service tax - renting of immovable property - availment of abatement of 40% erroneously - HELD THAT:- The mistake is bona fide as it is not the case that appellant have collected more tax but have deposited less tax. The learned Counsel admits ....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - it is alleged that the petitioner could not deposit within the prescribed timeframe the “amount declared” in the scheme - HELD THAT:- Ordinarily no direction can be issued by the Court for extending the timeframe provided under the Scheme as this would be the prerogative of the respondents having regard to the ground realities - However, given the circumstances that have been put forth by Mr. Mankotia on behalf of the petitioner, in particular, the fact that the petitioner claims that she is afflicted with cancer, the designated committee or any other appropriate authority will treat the writ petition as a representation and dispose of the same. Petition disposed off.

Clandestine removal - prints out taken from the Hard Disk recovered in the premises of the alleged secret office (claimed to be a third party premises or godown) - admissible evidence or not - reliability on statements - third party evidences - quantification of duty evaded - levy of penalty - violation of procedure laid down under Section 100(3) Cr PC. - HELD THAT:- There were some procedural irregularities in the conduct of the Panchnama proceedings. The investigating agency was required to use panchas whose credentials cannot be questioned. Repeated use of the same Panch witnesses all around different places by the same agency, give scope for avoidable allegations while casting doubts on the proceedings initiated by using them. The Panchnama drawn at the premises of Cadbury / bournvita also suffers from the infirmities that none of the....... + More

Condonation of delay of 411 days in filing appeal - HELD THAT:- The delay ought to be condoned, as the appeal cannot be subjected to a different treatment - the delay is condoned.

Clandestine manufacture and removal of tobacco/gutkha without payment of central excise duty and education cess - HELD THAT:- A coordinate bench of this Court in PRABHAT ZARDA FACTORY CO., K.N. MEHROTRA, PURUSHOTTAM KUMAR ARYA VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI [2018 (5) TMI 1670 - DELHI HIGH COURT] where it was held that In the present case, the impugned order on all aspects and contentions merely reproduces the order-in-original, without specifically and independently examining and dealing with diverse contentions. Reference and independent and exhaustive elucidation of the factual contentions raised by the appellants and consideration of legal issues based upon the said contentions is conspicuously lacking and missing. The impugned order suffers on this account. The substantial questions of law are answered in favour of the appellants and against the respondent with an order of remand to the Tribunal for fresh decision - appeal allowed.

Refund of CENVAT Credit - education cess and secondary higher education cess paid on total custom duty when both the duty were exempted against the CVD - only ground for claim of refund of the appellant is that the period of taking credit as beyond the normal period - N/N. 13/2012-Cus and 14/2012-Cus dated 17.03.2012 - HELD THAT:- In the present case it is not a case of demand but the appellant have paid the amount of cenvat credit accepting their mistake that the cenvat credit in respect of CVD of the custom duty is not admissible. This issue was raised by the audit and consequently the appellant have paid the amount. It is pertinent to note that the issue of non availability of the cenvat credit has been decided by this Tribunal in the case of NIRMA LIMITED, SAURASHTRA CHEMICALS DIVISION OF NIRMA LTD, MAC PAPER MILLS, ACULIFE HEALTHCARE....... + More

Compounded levy scheme - Re-determination of Annual Capacity of Production and monthly duty liability - Pan Masala Packing (Capacity Determination & Collection of Duty) Rules, 2008 read with Notification No 30/2008 of the CE(NT) dated 01.07.2008 and Notification No. 42/2008-CE(NT) dated 01.07.2008 - HELD THAT:- The scheme of the Pan Masala Packing Machines (Capacity Determination And Collection of Duty) Rules, 2008, has been well explained in the impugned order and the during the course of arguments by the appellants. In terms of the said rules the appellant are required to make the declaration in terms of Rule 6 of the said rules, declaring the number of installed packing machines in their factory and the retail sale price of the pouches to be produced by them. On the basis of the declaration made and after causing the verification o....... + More

CENVAT Credit - input services - Hotel Accommodation Service - Air Travel Agent Service - HELD THAT:- Hotel Accommodation Service and Air Travel Agent Service are admissible input services. Reliance can be placed in the case of M/S. UNIQUE CHEMICALS VERSUS C.C.E. & S.T., VADODRA-II [2019 (9) TMI 1137 - CESTAT AHMEDABAD] and INOX INDIA PVT LTD VERSUS C.C.E. & S.T. -VADODARA-II [2021 (7) TMI 551 - CESTAT AHMEDABAD] where it was held that Hotel Accommodation Service was used by the appellant for hotel stay of staff of the appellants who travelled outside for business purpose - As regard Mandap Keeper service, the same is used for arranging the business conference which is a necessity for running the business. Therefore, both the services are directly used for conducting the business of the appellant. The issue is no longer res-Integra as the same has been decided in the favour of the appellant - Appeal allowed - decided in favor of appellant.

Area Bases Exemption - fixation of special rate representing the actual value addition - Recovery of refund / reversal of credit received by the petitioner as per the interim order - Later Hon'ble SC has upheld the validity of withdrawal of area based exemption - principles of promissory estoppel - effect of judgment of the Supreme Court in the case of V.V. F. Ltd. [2020 (4) TMI 669 - SUPREME COURT] and its effect of the said judgment on the amendment made by the Notification No. 38/2008-CE dated 10/6/2008 - HELD THAT:- In the instant judgment, this Court had explained the scope and ambit of Paragraph 3(1) as was inserted by the Notification No. 38/2008-CE. In terms with the said provision, the manufacturer shall have the option not to avail the rates specified in the table and apply to the Commissioner of Central Excise or the Commis....... + More

Permission for withdrawal of appeal - Input Tax Credit - GTA Services - applicability of case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] without verifying the fact that the sale are made on FOR basis - place of removal - HELD THAT:- When the matters were taken up for consideration, the learned counsel appearing for the appellant sought permission of this Court to withdraw these civil miscellaneous appeals and also made an endorsement to that effect. In view of submission and endorsement made by the learned counsel for the appellant, these civil miscellaneous appeals are dismissed as withdrawn.

Entitlement to interest on the amount of refund of pre-deposit under section 35F of the Central Excise Act, 1944 from the date of the deposit till the date of sanction of the amount - section 35FF of Central Excise Act - HELD THAT:- It is not in dispute that the amount towards pre-deposit under secton 35F of the Excise Act was deposited by the appellant on 30.08.2012, which date is prior to 06.08.2014 on which date section 35FF of the Excise Act was amended. The proviso to section 35FF of the Excise Act, as it stood after amendment on 06.08.2014, clearly stipulates that the amount deposited under section 35F of the Excise Act prior to 06.08.2014 shall continue to be governed by the provisions of section 35FF of the Excise Act as it stood before 06.08.2014. Thus, the appellant would not be entitled to claim interest on the pre-deposit amou....... + More

CENVAT Credit - input services - construction services - fee for architectural structural works for factory plant building - group Medi-claim Insurance - Group personal accident insurance - insurance, motor car/vehicle insurance - labour charges for installation - testing & commissioning of components of VRV System (Centrally AC system) in the office building etc. - HELD THAT:- Right from beginning the appellant is taking a stand that construction and architectural services are used for repair and renovation of factory. This submission of the appellant was not effectively rebutted by the Revenue and the Cenvat credit was denied by the lower authorities on the ground that construction service is excluded and appearing in the exclusion clause which were brought in the statute vide Notification No. 3/2011-CE (NT) dated 01.03.2011. On thi....... + More

CENVAT Credit - duty paying invoices - case of the department is that the service recipient is M/s. Valia Industries Association therefore credit cannot be allowed to M/s. Gujarat Guardian Limited who is not a service recipient - Club or association services - difference between the Association and its Members - mutuality of services - HELD THAT:- The appellant as per Industries Association namely M/s. Valia Industries Association is only an association which includes the appellant also as its member. As per the Deed of Association dated 30.06.2008, the association was founded in the name of M/s. Valia Industries Association for operating water supply for the common benefit of all the members. The association engaged Shree Rang Services to handle the said water supply project. Shri Rang Services issued invoices for handling the water supp....... + More

Refund claim - provisional assessment not opted - rejection on the ground that the assessee have not opted for provisional assessment in respect of clearances made from their factory to depot and subsequent sales on lower price as compared to the price for goods cleared from the factory - HELD THAT:- There is no dispute about the fact that appellant have paid duty on the higher price when cleared the goods from their factory to depot and subsequently the goods were sold at lower transaction value. Therefore, the differential duty paid in excess arose for which the appellant have filed refund claim. Both the lower authorities rejected the refund claim only on the ground that appellant have not opted for provisional assessment. However, there is no dispute on the fact that appellant have paid duty in excess as per Section 4 of Central Excis....... + More

CENVAT Credit - basic allegation against the appellant is that appellants while transferring the imported machines to its customers, had charged amount of CVD and additional duty on the machines imported by him but the said amount has not been deposited by the appellant in the Government Exchequer - HELD THAT:- There is no denial to the submission of the appellant that no Cenvat credit has been availed by the appellant. These observations are sufficient for me to hold that Commissioner (Appeals) has committed an error while holding “ I find that there is no reference to availment of credit in the said provisions (Sec 28B or Sec 11D) whether credit is availed by the Appellant or not. Since the duty has been collected from customers, the appellant has no other option but to pay the same to govt. exchequer. Accordingly, I hold that the....... + More

Rectification of Mistake - relevancy of statements relied upon - primary challenge made in the original proceedings as well as the proceedings under rectification of mistake is to the fact that statements of various witnesses have been relied without the said statement being tested for relevance under Section 9D of the Central Excise Act, 1944 - HELD THAT:- Since there is some documentary evidence available on record and there are various statements which the appellant claims have been obtained under duress reliance on the said statements cannot be placed in absence of the same being tested under Section 9D of the Central Excise Act, 1944. There are no option but to remand the matter to the original adjudicating authority to examine the relevance of the statements under Section 9D of the Central Excise Act and only thereafter, relied on the said statement - appeal allowed by way of remand.

Demand of differential duty - Similar Goods - export of goods to DTA exceeding the limit of 50% of on board value of exports - benefit of N/N. 51/96-Cus. dated 23.07.1996 denied - clearance of the goods not similar to goods exported, denying benefit of N/N. 23/2003-CE. - full rate of duty on sale is to be paid when Customs Exemption Notifications - requirement to pay second time in respect of DTA clearance the Education Cess and Secondary higher Education Cess - non-submission of certificate signed by an authority not belong the rank of Deputy Secretary to the Govt. of India under Customs Notification No.21/2002 (as amended by Customs Notification No.20/2007) and Customs Notification No.12/2012 - HELD THAT:- In the present case, the appellants contend that the goods exported by them as well as cleared to DTA are precision optical componen....... + More

Levy of penalty - appellant had paid the duty with interest even prior to issuance of the Show Cause Notice - suppression of facts or not - intent to evade duty or not - HELD THAT:- The appellant paid the duty with interest even prior to issuance of Show Cause Notice. If that is so, the authorities had no jurisdiction to initiate proceedings at all and consequently the question of payment of penalty would not arise at all. The Ld.Commissioner(Appeals)’s observation that had the department not pointed out the discrepancy the deficit amount would not have been paid, is an inference not supported by allegation in the notice nor any evidence leading to the conclusion that the Appellant had suppressed the facts. In these circumstances the penalty imposed under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of Central Exci....... + More

Failure to pay Central Excise duty while availing the benefit of CENVAT Credit - molasses - Rule 4(2) of Central Excise Rules read with Rule 8(1) of the Rules - period October 2012, December 2012 and February 2013 - levy of interest and penalty - HELD THAT:- Undisputed fact is that appellant had received molasses from three khandsari units and in terms of Rule 4 (2) read with Rule 5 of the Central Excise Rules, 2002 was required to pay the Central Excise Duty due on the said goods treating them as if the said goods have been manufactured by them. Rule 4 (2) and Rule 5, creates the liability to pay the Central Excise Duty on the recipient of the goods by treating them as “deemed manufacturer” of the impugned goods. These rules do not provide for the manner of payment of the duty in respect of these goods. To reject the contenti....... + More

CENVAT Credit - input services - freight charges for the outward transportation of finished products upto the buyers’ premises as well as the dealers - place of removal - HELD THAT:- From the definition of input service, it can be seen that prior to 1.4.2008, in sub-clause (ii) any service used by the manufacturer whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, will fall within the definition of input service - After 1.4.2008, the definition has been amended so that any service used for clearance of final products upto the place of removal will fall within the definition of input service. The department has taken a view that outward transportation of the goods is a post-sale expenditure and thus is an activity after manufacture. That th....... + More

Interest on delayed refund - relevant time for calculation of interest - entitlement to interest from the date of expiry of three months till the date of refund of said amount from the date of communication of the order or not - HELD THAT:- It is observed that the concept of three months has come under section 11BB of Central Excise Act which talks about the interest on delayed refunds. The pending amount of said provisions makes it clear that section 11B is applicable for such amount which was the amount of duty but was subsequently ordered to be refund. Commissioner (Appeals) himself has admitted the applicability of section 35FF, for the amount paid to be refunded being the amount of pre-deposit. However has invoked the pre-amended provision as was in existence prior to August 06, 2014. However the admitted fact of the present case is ....... + More

Levy of penalty under Rule 12 (6) of Central Excise Rules - late filing of Returns (ER-1) for the period July, 2017 to February, 2018 - ex-parte order - violation of principles of natural justice - case of appellant is that it was filing their returns under the GST provisions w.e.f. 01/07/2017, they were under bona fide belief that they are no longer required to file returns under the erstwhile Central Excise Act - HELD THAT:- This cogent explanation was given before the learned Commissioner (Appeals), but the Commissioner (Appeals) failed to record any findings on the said contention. It is further found that the Court below have passed the order with reference to Section 174 of the CGST Act, which provides for repeal and savings. There is no saving Clause in the said Section, for initiating and imposing penalty for none filing of the re....... + More

Refund of GST - grant of interest on refund in accordance with Section 42(1) of the Act - HELD THAT:- The respondent/revenue has carried the matter in appeal to the Supreme Court. The Supreme Court, via order dated 01.02.2017, passed in VIZIEN ORGANICS, M/S MUNSHI RAM RAM PARKASH, MANGLA ENTERPRISES, DHANJAL ENGG. WORKS, M/S GOEL OIL COMPANY, M/S ARUN ELECTRONICS, POWER INDUSTRIES PROPRIETO SH. TARUN BANSAL, M/S. LUDHIANA AUTO SUPPLY CO., VERSUS COMMISSIONER, TRADE & TAXES & ANR. [2017 (1) TMI 1168 - DELHI HIGH COURT] has stayed the operation of the aforementioned judgment rendered by the coordinate bench. The present writ petition is disposed off, with the caveat that the petitioner’s claim concerning the remaining interest would be processed and shall be paid, in case the respondent/revenue was to fail in the aforementioned SLP.

Exemption from Sales Tax - Whether the carpets dealt with by the Petitioner on which 1st point sales tax has been paid to the selling dealer, are exempted from sales tax at the last point of sale? - HELD THAT:- The taxing provision in the OST Act is Section 5 (1) which prescribes the rate of tax. The point of levy of tax on different goods are in accordance with Section 8 of the OST Act. Therefore, the reference to entry 23 of the rate of tax for determining amenability to tax is not relevant. The schedule of taxable goods under List- ‘C’ not only covers the goods notified as 1st point tax paid items but all other residual items unless the goods were notified as tax free - There is merit in the contention of the Petitioner that pile carpets are also known as carpets. In common parlance, pile carpets are also understood as carp....... + More

Exemption from Sale Tax - sale of finished products manufactured by the industrial unit under the diversification scheme - order of enhancement of assessment passed by the Ld. Tribunal without compliance of the provisions of Rule-50 (3) of the Orissa Sales Tax Rules is lawful and valid or not - error of jurisdiction or is error in law while deciding issues which are not before him in the appeal filed by the Petitioner in absence of cross objection filed by the State - HELD THAT:- According to the Tribunal, the production and sale under the diversification scheme could not be construed to be increased commercial production over and above the installed capacity of the Unit and that the Petitioner had violated the stipulation laid down in the Finance Department Notification vide entry No.26-FF and 30-FFF (ii) of the Tax Free Schedule of the ....... + More

Benefit of sales tax exemption - excess production and sale of cement of a quantity of 1670 MT - HELD THAT:- The industrial unit was to avail tax exemption in terms of I.P.R.1989. The installed capacity of the unit is that which stands certified under Annexure-2 and 3 and it cannot be changed or modified unless there is expansion/modernization/diversification. In other words, the installed capacity can be altered subject to the justification by amending the registration certificate. In the instant case, the claim of the Petitioner’s case is not based on any such expansion etc. Of course, no bar lies for excess production which may be accomplished with more than one shift but the exemption which the Petitioner is entitled would stand restricted to 15000 MT and cannot cover the excess production. Admittedly, no expansion has been unde....... + More

Jurisdiction - whether D.I.C. has authority in law to issue the eligibility certificate for expansion and or modernization with retrospective effect - HELD THAT:- The period in question is the same i.e. 1994- 95 but the gross turnover (GTO) is noted in the said order of suo moto revision order dated 6th December, 2006 is different. In the order dated 30th May, 2002 of the STO, Dhenkanal Circle the GTO was noted as Rs.11,25,000/- which had escaped turnover and the Petitioner's exemption was disallowed insofar As it pertained to the excess production. On the other hand, the order dated 6th December, 2006 of the CTO appears to deal with supplies made to the Railways - it is plain that the Assessee claimed exemption on the strength of an earlier DIC certificate which did not authorise production beyond 2,70,187 cft. There is no power in t....... + More

Violation of principles of natural justice - non-affording of reasonable and adequate opportunity to represent before the Commissioner - HELD THAT:- This Court is satisfied that the Petitioner has been diligently pursuing its matter (apparent from documents act Annexure-8 series. It was given short notice for appearing before the Commissioner of Sales Tax in connection with hearing and the nonappearance was on account of non-availability of his lawyer in the station, which fact remained uncontroverted at the time of hearing of present petition. The Petitioner is directed to appear before the Commissioner of Sales Tax on 31st May, 2022 along with the certified copy of this order. The Commissioner of Sales Tax may hear the matter on the said date or adjourn the matter to any other date for hearing - Petition disposed off.

Levy of Sales Tax - sale of Gudakhu - Gudakhu being tobacco covered under Additional Duties of excise (Goods of Special importance) Act (ADE Act) is exempted from sales tax under Entry 38 of the exempted list or not - Orissa Sales Tax Act, 1947 (OST Act) - HELD THAT:- Entry-38 of the Exempted List A of the OST Act clearly includes Tobacco as described in column 3 of the first schedule to the ADE Act. If one turns to the ADE Act in the first schedule under Chapter Heading 2404.99 the Entry is “Tobacco used for smoking through hookah or chillum commonly known as hookah tobacco or Gudakhu’. It is therefore, plain that for the purpose of ADE Act Gudakhu is also recognized as a tobacco product - It may be noted here that even in subsequent amendments to the OST Act, there is an express recognition of Gudakhu being a tobacco product....... + More

Levy of Sales Tax - hire charges collected by the Assessee for letting out on lease its aircraft would amount to sales and the amenable to the sales tax under the Orissa Sales Tax Act, 1947 or not - HELD THAT:- Whether in the present case the transaction in question is a sale, it is seen that in the present case there is no actual transfer of the possession of the aircraft in question to the user of the aircraft. The aircraft is at all times in control of the Pilot who is an employee of the Assessee. Even the maintenance of the aircraft is undertaken by the Assessee as are the statutory compliances in terms of the permit granted to the Assessee. Therefore, there is no real transfer of the right to use the aircraft in the manner as envisaged in 20TH CENTURY FINANCE CORPN. LTD. AND ANOTHER VERSUS STATE OF MAHARSHTRA [2000 (5) TMI 980 - SUPR....... + More

Requirement of pre-deposit - Whether the revisional authority-Commissioner of Sales Tax is legally justified in sustaining the orders rejecting appeals summarily by the appellate authority-Joint Commissioner of Sales Tax for want of deposit of 10% of the amount of tax in dispute under the OVAT Act and 20% of the amount of tax under the OET Act? - HELD THAT:- In JINDAL STAINLESS LTD. VERSUS STATE OF ORISSA AND OTHERS [2014 (9) TMI 372 - ORISSA HIGH COURT] this Court delved into the question as to whether the condition precedent for pre-deposit of 20% [reduced to 10% vide OVAT (Amendment) Act, 2017] of tax or interest or both in dispute in addition to payment of admitted tax for entertaining an appeal as provided under Section 77(4) of the OVAT Act read with proviso to Rule 87 of the OVAT Rules is unreasonable, oppressive, violative and ult....... + More

Validity of assessment order - failure to file return - Revenue issued notice twice, despite that, no reply had been given by the petitioner - HELD THAT:- Every month return has to be filed, knowing well with that position, the petitioner dealer has not come forward to file the return and pay the tax. Therefore, notice was issued twice, despite that, no reply has been given and thereafter, assessment order has been passed, the tax component as well as the interest and penalty having been quantified was imposed against the petitioner, which the petitioner had paid only in January 2020 except the penalty. Penalty - HELD THAT:- Section 73 of the Act since has been invoked for imposing penalty that is a wrong invocation and if at all the petitioner case is to be considered and it should be considered only under Section 61 of the Act and in th....... + More

Restoration of application which was dismissed for default - HELD THAT:- The present application is allowed. The order dated 13th September 2019 is recalled and STREV No.41 of 2002 is restored to its original file.

Concessional rate of tax - issuance of C form, which are required for procurement of Extra Neutral Alcohol (ENA) and Malt Spirit utilized for manufacturing of Indian Made Foreign Liquor (IMFL) used for human consumption - HELD THAT:- The ENA and the Malt Spirit in its original form are not the alcoholic liquor fit for human consumption and would therefore, not come within the amended definition of clause(d) of Section 2 of the CST Act and the respondent authorities have, therefore, rightly refused to issue the “C” Form, as claimed by the petitioner herein. Based upon the principles laid down by the Constitutional Bench of the Supreme Court in the matter of SYNTHETICS & CHEMICALS LTD., ETC. VERSUS STATE OF UP. [1989 (10) TMI 214 - SUPREME COURT], the ENA and Malt Spirit are not the alcoholic liquor, which is fit for human c....... + More

Seeking permission for reassessment - power to grant permission for reassessment - Whether section 56(1) of the Act permits the Assessing Officer to refer the case to the Commissioner or Joint Commissioner for assessment/re-assessment? - HELD THAT:- Section 31 of the Act provides rectification of the order on an application of any interested person; whereas, section 29 of the Act empowers on the reason recorded by the assessing authority or the Commissioner on its own after being satisfied that it is just and expedient to do so to grant permission of the closed assessment for reassessment, where the turnover of a dealer for any assessment year or part thereof has escaped assessment to tax or has been under-assessed or has been assessed, but taxed at a lower rate than what at which it is assessable under the Act or any deduction or exempti....... + More

Denial of concessional rate of tax - D-Forms not accepted - ‘D’ Forms disallowed on the ground that the said dealer is a Government concern and not a Government and, as such, ‘D’ Forms, issued by it cannot be accepted and by further on the ground that a Govt. concern being a registered dealer could not issue ‘D’ Forms - HELD THAT:- The provision as laid down under Section 8 (1) (a) is applicable in case of inter-state sale made to Government whether registered or not being registered and in case of Government not being a registered dealer, the selling dealer has to furnish certificate in Form D as referred to in Rule 12 (1) of the CST (Registration & Turnover) Rules, 1959. A selling dealer is not required to furnish any certificate or declaration if the sale is made to Government being a registered ....... + More

Principles of natural justice - principal grievance of the petitioner is that the objections filed in the matter to the notice of default assessment of tax, interest and penalty issued under Section 32 of the Delhi Value Added Tax Act, 2004 - HELD THAT:- There is complete sloth and procrastination on the part of the respondents/revenue - the spirit of the law has, certainly, not been adhered to. Given the fact that the physical interaction often, for various reasons, is not possible with the Commissioner, the respondents/revenue are directed to create a portal/online mechanism for intimation of notices issued under subsection (8) of Section 74 of the Act, read with Rule 56 of the 2005 Rules. The writ petition is, accordingly, disposed of with a direction to the respondents/revenue to dispose of the objections filed by the petitioner, within 15 days of receipt of a copy of the judgment passed today.

Preferential payments of state claim over workmen and other creditors - Seeking priority and preference over other creditors and to release the amount said to be due in favour of the applicant-department - preferential treatment or priority to be accorded to the State claim/crown’s debt vis-a-vis the claim of workmen and other secured creditors - HELD THAT:- The issue of priority of secured creditor’s debt over that of the State Government, commonly known as crown’s debt, has been examined by different High Courts and the Hon’ble Supreme Court. This Court deems it proper to narrate the facts and law, with respect to different High Courts, as how the priority issue has been dealt with by them. The Gujarat High Court in the case of BANK OF INDIA VERSUS STATE OF GUJARAT & 3 OTHER (S) [2020 (1) TMI 1197 - GUJARAT H....... + More

Concessional Rate of Tax - Seeking appropriate direction, commanding the Respondent Authorities to issue “C” Form to the petitioner - seeking to consider the application filed by the petitioner for issuance of “C” Form - Manufacture of foreign liquor-9 - HELD THAT:- Supreme Court in the matter of SYNTHETICS & CHEMICALS LTD., ETC. VERSUS STATE OF UP. [1989 (10) TMI 214 - SUPREME COURT], wherein it has been held that the Rectified Spirit and the ENA are not the alcoholic liquor for human consumption - thus, the ENA and the Malt Spirit in its original form are not the alcoholic liquor fit for human consumption and would therefore, not come within the amended definition of clause(d) of Section 2 of the CST Act and in view thereof, the petitioner would not be entitled to get the “C” Form, as claimed by t....... + More

Classification of goods - rate of Trade Tax under the U. P. Trade Tax Act - Nitrogen component in the Chemical Fertilizer DAP (Di Ammonium Phosphate) - relevant date for enhancement of rates of DAP with effect from 29/01/1999 - Whether the revision in the rate of Nitrogen content in DAP would be applicable from the date of enhancement of the rate of DAP by the Government of India with effect from 29 January, 1999 or from 26 February, 2000 when the same was notified by the State Government? HELD THAT:- There is no dispute with regard to facts in issue inasmuch as vide notification dated 27th May, 1998 the value of Nitrogen component in DAP was fixed at ₹1381.30. Subsequently the value1381.30. Subsequently the value of DAP was enhanced by the Union of India on 29/1/1999. The notification of the Commissioner, Trade Tax dated 26/02/2000....... + More

Validity of assessment order - production of sufficient documents or not - HELD THAT:- After the remand order passed by this Court, two times opportunity was given to the petitioner and twice notices were given and both times the responses have been given by the petitioner dealer - First time, the documents sought for by the Revenue had been given. When further time was sought for especially to substantiate the movement of goods from seller to buyer, those transport documents were sought for and the same were not filed by the petitioner by stating the reason that, both buyer and seller are located in the same campus ie., sister concern and hence there was no separate movement or transportation and no separate charges had been incurred by the seller dealer or by the petitioner in transporting the goods - Only based on this stand taken by t....... + More

Refund claim - case of petitioner is that refund has not been effected except for one assessment year and that large amounts are still remaining due from the respondents - entitlement of interest on for delay in payment of interest under Section 44 of the KGST Act - HELD THAT:- If any refund is due to the petitioner, the same is liable to be processed and refunded without further delay. To enable such consideration of the quantum of refund due to the petitioner including the interest due, the 1st respondent is directed to take a decision upon Ext.P7, Ext.P7(a), Ext.P7(b) and Ext.P7(c), as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Considering the long delay, that has ensued from the filing of Ext.P7 till date, petitioner will be at liberty to file a fresh representation also seeking refund of the amounts due, pointing out the details along with a copy of this writ petition - Petition disposed off.

Dishonor of cheque - acquittal of the accused - complainant under Section 256(1) of the Code of Criminal Procedure - HELD THAT:- It is ascertained that acquittal of the accused on the absence of the complainant under Section 256(1) of the Code of Criminal Procedure is not automatic. The court must apply its judicial discretion to the facts and circumstances of the case where it is expedient for the court to acquit the accused under Section 256(1) of the Code. Having gone through the impugned order, the approach of the learned court was clearly erroneous and not in accordance with law. On the date of passing of the impugned order the accused was represented under Section 205 of the Code and he was physically absent. The learned Magistrate passed the order of dismissal of the case without forming any opinion that there is no good reason to ....... + More

Dishonor of cheque - legal presumptions arising before dismissing the suit by reversing the well considered reasonings of the trial Court - scope of Section 118 of the Negotiable Instruments Act - suit promissory notes under Section 20 of the Negotiable Instruments Act - holder is authorized to fill up the blanks and to negotiate the instrument for a certain amount or not? - defendant has categorically admitted the “execution” and “issuance” of Ex.A1 to Ex.A3 in his written statement and in evidence before the Court - HELD THAT:- On perusal of the evidence of PW1 and PW2 and the written statement filed by the defendant and the oral evidence of PW1, it is found that the execution and issuance of the pro-notes, viz., Ex.A1 to Ex.A3 are not in dispute. In fact, the defendant has categorically admitted the same in the ....... + More

Appointment of Arbitrator - condition stipulated under Clause 51 of the Arbitration Agreement dated 12.03.1987 - Section 11(6)(C) of the Act, 1996 - HELD THAT:- The admitted fact, as would appear from the material available on record that the petitioner/applicant has entered into an agreement on 12.03.1987 for construction of Officer's Bungalows at Jubilee Park site and Adityapur Site, Jamshedpur, presently in Jharkhand State - The petitioner/applicant has concluded the work but certain claim pertaining to disbursement of amount has been crept up, as such, recourse available under the contract has been resorted to by making request before the concerned competent authority of the State of Jharkhand for appointment of sole Arbitrator. The Hon'ble Apex Court further in the case of PROJECT DIRECTOR, NATIONAL HIGHWAYS NO. 45 E AND 220 ....... + More

Maintainability of writ petition - availability of alternative remedy of appeal - Grant of benefit of Moratorium - Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- In case of M/s Balaji Enterprises and other connected matters [2022 (2) TMI 1235 - RAJASTHAN HIGH COURT] involving identical controversy, a co-ordinate Bench of this Court has dismissed the writ petitions on account of availability of remedy to the petitioners under the SARFAESI Act - the issue of availability of an alternative statutory remedy is no more res integra and stands decided against the petitioner. In the backdrop of judgments of the Hon’ble Apex Court of India in the cases of M.D. Frozen Foods Exports Pvt. Ltd. [2017 (9) TMI 1266 - SUPREME COURT] and Indiabulls Housing Finance ....... + More

Dishonor of Cheque - complaint has been lodged beyond the statutory period under section 142 (a) of the Negotiable Instrument Act or not - whether the order passed by learned Magistrate, supposed to have taken cognizance of the offence is tenable under the provisions of section 138 and 142 of the Negotiable Instrument Act? - section 138 of N.I. Act - HELD THAT:- It may be gathered from the impugned order dated 25.7.2013 that two cheques of Rs.1,50,000/- and as Rs.2,20,000/- were drawn by the petitioner on 2.5.2012 in favour of opposite party no.2. The cheques were presented for encashment but were dishonoured due to insufficiency of fund. On the ground of illness the complainant issued notice to the accused petitioner only on 12.11.2012 demanding payment of the cheque amounts. The complaint was lodged on 15.1.2013. This case was filed aft....... + More

Dishonor of Cheque - pre-summons mediation - Negotiable Instruments Act, 1881 - HELD THAT:- In respect of pre-summons mediation, National Portal for summons and the scheme for establishment of special courts for cases under the NI Act, the Union of India, the High Courts and the State Governments are directed to submit their suggestions within a period of two weeks from today. In so far as constitution of special courts is concerned, the learned Amicus Curiae has, for the purposes of constitution of special courts under the NI Act, identified states of Maharashtra, Delhi, Gujarat, Uttar Pradesh and Rajasthan on the ground that the number of cases pending in these states are higher than the other states. The suggestion made by the learned Amicus Curiae is that five districts in each of the above States, where cases under the NI Act are hig....... + More

Offence punishable under Section 63 of the Copyright Act - whether the offence under Section 63 of the Copyright Act is a cognizable offence as considered by the Trial Court or a noncognizable offence as observed and held by the High Court? - HELD THAT:- For the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is a cognizable offence. O....... + More

Dishonor of Cheque - conduct of trials of complaints under Section 138 of the Negotiable Instruments Act - HELD THAT:- The Court directs that the pilot study shall be conducted in the manner indicated. The Secretary General of this Court shall ensure that a copy of the present order is directly communicated to the Registrar Generals of the said five High Courts, who shall place it before the Hon’ble Chief Justice for immediate action. To report progress and compliance, each of the said five High Courts shall file an affidavit on or before 21.07.2022. List on 26.07.2022 to review the further proceeding.

Interpretation of statute - whether the "sum" awarded under Clause (a) of Sub-section (7) of Section 31 of the Arbitration and Conciliation Act, 1996 would include the interest pendente lite or not? - HELD THAT:- As per Article 29.8 of the Concession Agreement, the Termination Payment would become due and payable to the Concessionaire by DMRC within thirty days of a demand being made by the Concessionaire. It further provides that if the DMRC fails to disburse the full Termination Payment within 30 days, the amount remaining unpaid shall be disbursed along with interest at an annualized rate of SBI PLR plus two per cent for the period of delay on such amount. It can thus clearly be seen that Article 29.8 of the Concession Agreement deals with payment of interest on Termination Payment amount. It is thus clear that the Arbitral T....... + More

Dishonor of Cheque - private complaint invoking Section 200 of the Cr.P.C. alleging cheating under Section 420 of the IPC on the part of the Company and its Directors - invocation of jurisdiction of the competent criminal Court by filing a complaint alleging offence punishable under Section 138 of the Act - HELD THAT:- Issuance of cheques, they getting dishonoured and all other factual narration are not required to be reiterated. The issue with regard to registration of criminal case for offence punishable under the IPC notwithstanding registration of case under the Act need not detain this Court for long as the Apex Court in the case of SANGEETABEN MAHENDRABHAI VERSUS STATE OF GUJARAT & ANR. [2012 (4) TMI 728 - SUPREME COURT] where the Apex Court considers the very issue of whether a petition under Section 420 of the IPC would be mai....... + More

Termination of proceedings under Section 25(a) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The Arbitrator has failed to exercise the jurisdiction vested in her, inasmuch as she has passed no order on the applications filed by the Union for recall of the orders dated 19.02.2021. The factual position pleaded in these petitions, to the effect that the applications were taken up for hearing before the Arbitrator on 08.03.2021 and returned without any order been passed thereupon, has not been controverted by the respondent. There is an additional factual circumstance which also persuades me that the impugned orders of the Arbitrator in the present cases, suffer from perversity of approach. As noted, prior to the impugned orders, the last order of the Arbitrator was passed on 06.01.2021. By that order, the case was fixed for hea....... + More

Dishonor of Cheque - Insufficient Funds - It is submitted that the respondent was not able to establish the status and role in the accused Company or in what capacity he issued the cheques in question - who was the drawer of the cheque in question? - HELD THAT:- Although the cheque was the signed by the respondent, the cheque issued to the petitioner bore the name of the accused Company as the account holder, being a separate entity from its members, and not of the respondent. Moreover, as a requirement under Section 138 of the NI Act, the holder of the cheque that is dishonoured has to make a demand for the payment of the contested amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. It is an admitte....... + More

Conspiracy - collection of money from individuals by misrepresenting that they would be given a job at the Company - opening of salary account with the Federal Bank without authorization and in conspiracy with the detenu collected an amount of Rs 85 lakhs from 450 job aspirants - HELD THAT:- In BANKA SNEHA SHEELA VERSUS THE STATE OF TELANGANA & ORS. [2021 (8) TMI 1303 - SUPREME COURT], a two-judge Bench of this Court examined a similar factual situation of an alleged offence of cheating gullible persons as a ground for preventive detention under the Telangana Act of 1986. The Court held that while such an apprehension may be a ground for considering the cancellation of bail to an accused, it cannot meet the standards prescribed for preventive detention unless there is a demonstrable threat to the maintenance of public order. A mere ap....... + More

Maintainability of petition - appropriate forum - whether, against the order passed by the National Commission in an appeal under Section 58 (1)(a)(iii) of the 2019 Act, a writ petition before the concerned High Court under Article 227 of the Constitution of India would be maintainable? - HELD THAT:- It is not in dispute that in the present case, the appeal before the National Commission was against the order passed by the State Commission under Section 47(1)(a) of the 2019 Act. Therefore, against the order passed by the State Commission passed in a complaint in exercise of its powers conferred under Section 47(1)(a) of the 2019 Act, an appeal to the National Commission was maintainable, as provided under Section 58(1)(a)(iii) of the 2019 Act. As per Section 67 of the 2019 Act, any person, aggrieved by an order made by the National Commis....... + More

Seeking grant of Bail - framing of charges - Appellant who is an undertrial prisoner, has already undergone a long period of incarceration - offences punishable Under Sections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful Activities (Prevention) Act, 1967 - HELD THAT:- The fact remains that the Appellant has been in custody as an undertrial prisoner for a period of nearly 8 years already. The Appellant, it may be noted, is charged with offences, some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment for life. Learned Counsel for the Appellant also points out that one of the co-Accused namely Shri Aadil Ansari has been released on bail on 30.09.2020 by this Court. No doubt, in this regard, we keep in mind the submission of the State that the role attributed to th....... + More

Dishonor of Cheque - Bank has been made as party - Liability of bank in case of dishonor of cheque - Vicarious liability of the partner - Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 - HELD THAT:- What can be observed is that for an offence under Section 138 to be made out a cheque has to be issued by the account holder under his name and signature. It is clear that only the holder of the account on which the cheque is drawn can be made liable and such culpability cannot be extended to others except as provided under Section 141 N.I. Act which deals with offences by and on behalf of the company or partnership, where the signatory to the cheque may be a Director of the company or a Partner of a partnership firm. In the present case, the petitioner/HDFC Bank has been made a party by the complainant/respondent No....... + More

Recovery proceedings - symbolic possession of the mortgaged property under section 13(4) of the SARFAESI Act or not - HELD THAT:- First of all, we deprecate the conduct on the part of respondent No. 1 in withdrawing the Letters Patent Appeal despite the fact that this Court was seized of matter in which the exparte adinterim order dated 25.01.2022 passed by the Division Bench was under challenge and in which respondent No. 1 was appearing before this Court. He ought not to have withdrawn the Letters Patent Appeal and made the proceedings before this Court infructuous. As observed hereinabove, such act of withdrawal of the Letters Patent Appeal on the part of respondent No. 1 - original appellant and thereby making the proceedings before this Court infructuous so as to avoid adjudication on the correctness of the impugned order after order....... + More

Scope and power of the Commissioner / Panch appointed by the court - Reference of subject matter of the suit or a part thereof to arbitration under Section 21 of the Arbitration Act, 1940 - HELD THAT:- In the present case, the application dated 23rd December 1994 was moved by the plaintiff and it was not signed by the defendant. As per the heading, the application was for the appointment of a commissioner/arbitrator to conduct an ‘enquiry’ in respect of the accounts by a competent Chartered Accountant who shall act as a panch/Commissioner and submit a report after conducting an audit of the accounts. It was stated that the transactions between the parties are fairly large in number and, therefore, it is necessary to handover the aforesaid task to a Chartered Accountant. The application also states that for the enquiry regardin....... + More

Interpretation of statute - whether Non Banking Financial Companies (NBFC) regulated by the Reserve Bank of India, in terms of the provisions of Chapter IIIB of the Reserve Bank of India Act, 1934 (RBI Act) could also be regulated by State enactments such as Kerala Money Lenders Act, 1958 (Kerala Act) and Gujarat Money Lenders Act, 2011 (Gujarat Act)? HELD THAT:- Section 45Q confers overriding effect upon Chapter IIIB, over other laws. Therefore, the States of Gujarat and Kerala cannot contend that the laws made by them are in addition to the provisions of Chapter IIIB. Though it was contended by the learned counsel appearing for the State of Gujarat that the Gujarat Act exempts NBFCs registered under the RBI Act from seeking registration under the Gujarat Act, we do not think that the same would go to the rescue of State of Gujarat. Unde....... + More

Dishonor of Cheque - requirement of deposit 20% of the amount of fine or compensation - scope of amendment to section 148 of NI Act - retrospective or prospective - It is submitted that the newly added Sections 148 and 143A of the NI Act came into force on 1st September, 2018, whereas the appeal had been filed on 4th April, 2018, that is, before the said amendment, hence, the matter did not fall in the ambit of the same and the application under Section 148 of the NI Act in itself was not maintainable? - HELD THAT:- The language of the provision is silent on the point that at which stage the application under Section 148 of the NI Act can be filed in an appeal against conviction under Section 138 of the NI Act, whether it may be filed at the first instance at the stage of initiation of the proceedings or at any stage during the pendency o....... + More