TP Adjustment - upward adjustment of notional guarantee fees made u/s 92CA of the Act - HELD THAT:- This issue is entirely covered in assessee’s own case by the judgment and order passed by the Co-ordinate Bench in favour of the assessee [2016 (11) TMI 1671 - ITAT AHMEDABAD] Upward adjustment of notional guarantee fees made by AO u/s 92CA - HELD THAT:- As relying upon the judgment passed by the Mumbai Tribunal in the case of Siro Clinpharm Pvt. Ltd. vs. DCIT [2016 (5) TMI 633 - ITAT MUMBAI] the upward adjustment made on notional guarantee fees has been deleted. Hence, taking into consideration the judgment passed by the Co-ordinate Bench in assessee’s own case on the identical issue [2016 (11) TMI 1671 - ITAT AHMEDABAD] we find no reason to deviate from the decision and observation in its support made therein and thus, accordi....... + More

TP Adjustment - comparable selection - HELD THAT:- In Dover India (P.) Ltd. v. DCIT [2017 (4) TMI 1497 - ITAT PUNE ] it is held that “where a company was performing similar functions with that of the assessee, in absence of revenue establishing that said concern was persistent loss making concern, merely because said concern during relevant year had shown losses, could not be a valid reason for excluding same from list of comparables. We are of the considered view that the principles laid down in the above decisions are applicable to the instant case. A fortiori Sabero Organics Gujarat Ltd., Aksharchem (India) Ltd. and Bhageria Dyechem Ltd. have earned profit in FYs 2009-10, 2010-11, 2012-13 & 2013-14 and incurred losses only in FY 2011-12. Such fluctuations are normal in competitive business environment and the same cannot be c....... + More

Penalty u/ s 271(1)(c) - bogus long-term capital gain - Assessee himself had surrendered his long-term capital gains claim to be exempt u/s 10(38) as bogus in the assessment - HELD THAT:- We see no reason to express our concurrence with the Revenue’s stand. We make it clear that hon’ble apex court’s landmark decision in Reliance Petroproducts’ case [2010 (3) TMI 80 - SUPREME COURT] has settled the law that quantum and penalty proceedings stand on different footing and each and every disallowance/addition in the former does not ipso facto attract the latter penal provision. Assessee has filed all the relevant supporting evidence in support of genuineness of this above-stated long-term capital gains derived during the course of scrutiny. That being the case, we find that this tribunal’s coordinate bench’s....... + More

TDS u/s 195 - Addition u/s 40(a)(i) - payments made for purchase of raw material, components, etc. from non-resident Indian - DTAA between India and Japan - HELD THAT:- As far as the payment to Honda motor Japan is concerned, the issue in dispute is squarely covered by the decision of the Tribunal in assessment year 2009- 10 [2017 (8) TMI 1535 - ITAT DELHI] wherein the Tribunal has followed the decision of the Hon’ble Delhi High Court in the case of CIT Vs. Herbalife [2016 (5) TMI 697 - DELHI HIGH COURT]. We note that Hon’ble High Court in the case of Herbalife (supra) has also considered the amendment in provisions of section 40(a)(i) of the Act by way of insertion of sub-clause(ia) w.e.f. 01/04/2005. Accordingly, we delete the disallowance in respect of payment to Honda motor Japan. Regarding payment to Honda Asia Thailand i....... + More

Disallowance on account of late deposit of ESI arbitrarily - whether disallowance so made deserves to be deleted - HELD THAT:- Department has not disputed the fact that the payment on account of ESI contribution was made by the assessee before the end of the financial year relevant to the assessment year under consideration and therefore, the payment was made much before the due date of filing of return of income U/s 139(1) of the Act. As decided in M/S K.S. AUTOMOBILES PVT. LTD. [2019 (3) TMI 1648 - ITAT JAIPUR] in view of a series of decisions of the Hon’ble Jurisdictional High Court in favour of the assessee and further Hon’ble Supreme Court in case of PCIT vs. Rajasthan State Beverages Corporation Ltd. [2017 (7) TMI 1087 - SC ORDER] has dismissed the SLP filed by the Department this issue is decided in favour of the assessee and against the Revenue.

Penalty u/s 271AAB - assessee as a result of search has disclosed an income in the return filed in response to the notice issued under section 153A - HELD THAT:- Statement furnished by the assessee under section 132(4) of the Act, during the search proceedings and note that even in the statement there was no reference to any such material found during the course of search for the income disclosed by the assessee in response to the notice issued under section 153A. As such the voluntary income was disclosed by the assessee and the addition made by the AO was without having found any incriminating document in the course of search. There was no reference made by the authorities below to the documents of incriminating nature having bearing on the income of the assessee in their respective orders. The ld. DR has not advanced any arguments agai....... + More

TDS u/s 194C - Disallowance u/s 40(a)(ia) - non deduction of tds on payment to the truck operators/owners - payments exceeding ₹ 20,000/- in a single transaction or not? - Payments to contractors and sub-contractors - whether the payments in question have rightly been disallowed from deduction in computation of total income of the appellant? - HELD THAT:- AO held that the assessee had entered into a sub-contract with the said three persons within the meaning of Section 194C - Such findings of AO were concurrently upheld up to the High Court and, after interpretation of Section 40(a)(ia), this Court also approved the decision of the High Court while dismissing the appeal with costs. Appellant has made an attempt to distinguish the nature of contract in Palam Gas Service [2017 (5) TMI 242 - SUPREME COURT] by suggesting that therein, t....... + More

Rectification application u/s 154 - refund along with interest in accordance with Section 244A - HELD THAT:-Issue notice. Mr.Deepak Anand, Advocate accepts notice on behalf of the respondents. Keeping in view the limited prayer sought in the present writ petition, this Court disposes of the same by directing the respondent No.2 to decide petitioner’s aforesaid rectification application within six weeks by way of a reasoned order and to make payment of refund, if any, in accordance with law. All the rights and contentions of the parties are left open.

Deduction u/s 80IA - Rental income from the I.T. Park - taxable under the head “Income From Business” OR under the head "income from house property" - HELD THAT:- The burden of the argument of Revenue, perhaps emanated from only the name of the company, forgetting that the main business activity of the company from its motor business had been diversified into developing a special kinds of property and earning lease rental income as its main business income. By no stretch of imagination, could a software park developed with the special facilities and amenities for software companies, be described or believed to be a property created for earning rental income as income from house property. The Tribunal not only relied upon an earlier decision of Madras High Court in the case of CIT v. Elnet Technologies Ltd. [2012 (11)....... + More

Reassessment against company not in existence - assessment of income in the year of discontinuance or even after discontinuance - Tribunal remanding back to the file of AO for investigation as to whether the company was in existence at the relevant time by holding that the assessment order passed was nullity - HELD THAT:- In the instant case, the assessee filed their Return of Income for the assessment year 2000-01 which assessment was reopened and the assessee fully participated in the reassessment proceedings and thereafter the Assessment Order has been passed. Therefore the reassessment order would take effect and to be effective for the assessment year 2000-01 and the striking off the name of the assessee Company from the Register of Companies on 25.05.2007, can in no manner impact the said assessment. More the question would be wheth....... + More

Computing deduction u/s 10AA - expenditure incurred in foreign currency by the appellant - Whether to be excluded from export turnover for the purpose of computing deduction? - finding of the Tribunal that the expenditure incurred in foreign currency by the appellant needs to be excluded from the export turnover for the purpose of computation of deduction - HELD THAT:- Appeal before the Tribunal was on the direction of the DRP to exclude the foreign exchange expenditure. Unfortunately, the Tribunal did not discuss the matter but proceeded on the basis that foreign currency expenditures cannot be considered as part of 'export turnover' and at the same time, it cannot form part of 'total turnover'. The Tribunal did not decide as to whether it was expenses incurred by the assessee in respect of services rendered by the assess....... + More

Disallowance of deduction claimed u/s 80-IA(4) - conditions specified under the relevant section have not been complied with - HELD THAT:- In the event where the assessee fails to provide the copies of the agreements, the AO was empowered under the provisions of section 131/133(6) of the Act to call for the requisite information from the authorities which awarded the contract to the assessee. But we find that the AO has not done so despite having all the necessary details of such undertakings /local authorities of the government of Gujarat. Requirement of having the valid agreement with the Government was also there in the provisions of the Act before the amendment in the year 2002 by the Finance Act 2001. Assessee on the basis of these tender documents was claiming deduction in the earlier assessment years which was allowed by the Revenu....... + More

Penalty u/s 271(1)(c) - non specification of charge - inaccurate particulars of income by claiming excess long-term capital loss which was otherwise not entitled - HELD THAT:- We find that the order imposing penalty has not specified the guilt committed by the assessee for such penalty - First Appellate Authority, however has not taken into consideration the particular aspect of the matter. it appears from the penalty order that the Learned AO has not levied the penalty on the specific charge as mandated u/s 271 (1)(c) of the Act. In such facts and circumstances the Hon'ble Jurisdictional High Court in the case of Snita Transport Pvt. Ltd. [2012 (12) TMI 981 - HIGH COURT OF GUJARAT] has held that penalty cannot be imposed without mentioning the specific charge. Thus as AO has not mentioned the specific charge in its penalty order whet....... + More

Disallowance u/s. 14A on account of administrative expenses - HELD THAT:- As relying on M/S. MAZDA LIMITED [2020 (4) TMI 251 - ITAT AHMEDABAD] we find it justified in restricting the disallowance of administrative expenses on ad-hoc basis at 1% of the exempt income as per Clause (f) to Explanation-1 of Sec. 115JB of the Act. The order, is, passed accordingly. This ground of appeal is, thus, partly allowed. Addition to the book profit under Section 115JB on account of disallowance of the same amount u/s 14A - HELD THAT:- As relying on JAYSHREE TEA & INDUSTRIES LTD. [2014 (11) TMI 1169 - CALCUTTA HIGH COURT] AND VIREET INVESTMENT (P.) LTD. [2017 (6) TMI 1124 - ITAT DELHI] ad-hoc disallowance at 1% of the exempt income under Clause (f) to Explanation 1 of Section 115JB of the Act would be justiciable. Hence, we limit the disallowance of ....... + More

Deduction u/s 80IA(4) - assessee is acting as a work contractor in the projects of housing development as per explanation attached below section 80-IA (13) - whether the assessee is acting as a developer or the works contractor? - HELD THAT:- Assessee deploys its resources (material, machinery, labour etc.) in the construction work clearly exhibits the risks undertaken by the assessee. The assessee in the tender documents as discussed above has clearly demonstrated the various risks undertaken by it. The assessee was to furnish a security deposit to the Government and indemnify at the same time of any losses/damage caused to any property/life in course of execution of works. Assessee was responsible for the correction of defects arising in the works at its own cost. For that purpose the Government retained the money payable to the assesse....... + More

Exemption u/s 11 - grant of registration under section 12AA - Assessee object is restricted to a mere class or a community the object of the Trust are for educational benefit and for providing assistance to ‘Modh Vanik’ children - HELD THAT:- Income Tax Act, 1961 came into force with effect from 01.04.1962 i.e. after the registration of the Act and hence the trust was already in existence before the Act came into force. Even assuming it can be denied under section 12AA of the Act for the failing to satisfy the conditions not having the object restricted to a particular community, the Explanation 2 of Sec. 13 gives a free hand to the assessee to claim the benefit as sought for. The word Schedule Cast, backward classes, Schedule Tribe and women and children means if the Trust is established for the benefit of the women and child....... + More

Disallowance on account of contract cancellation - Non deduction of TDS - HELD THAT:- Contract cancellation charges are in the nature of payment for failure to oblige contractual terms and conditions resulting in settlement of contracts at a price of lower than pre-determined price and thus the appellant had to make payment as per terms of contract. The cancellation of the contract was in respect of supply of goods in which the appellant deals. It is the appellant who knows his business and he knows when to enter into a contract and when to exit. Ld. CIT(A) justified such cancellation of contracts by the appellant which according to him a part and parcel of the regular export business. Disallowance of such contract cancellation payment holding it speculative in nature by the AO has, therefore, been directed to be deleted. Having regard to....... + More

TP Adjustment - benchmarking the transaction of Direct Sales Compensation (‘DSC’) - Whether commission of 2 % of sales made by the associated enterprises (‘AE') in India charged by the Appellant was consistent with the group pricing policy and practice followed globally by other group entities, and hence, the same is at arm's length? - HELD THAT:- We follow the order of the Co-ordinate Bench for the immediate previous assessment year 2009-10 and direct the AO to adopt rate of commission @ 3.93% in place of 8.61% done by him and pass consequential order after due verification. Needless to say, the AO would give reasonable opportunity of being heard to the appellant before passing the order. Bad debts written off - bad debts written-off were considered as operating expenses for the purposes of computing operating m....... + More

TP Adjustment - comparable selection - functional similarity - HELD THAT:- Assessee is engaged in providing IT services and solution that helps clients plan, build, support and manage their IT infrastructures, thus companies functionally dissimilar with that of assessee need to be deselected. Extraordinary event such as merger/amalgamation would have an impact/effect on the profitability. Since Accentia Technologies Ltd., Cosmic Global Ltd., Mold Tek Technologies Ltd., Acropetal Technologies Ltd. and M/s Datamatics Financial Services P. Ltd. are excluded by us, we direct the AO to compute the arithmetic mean margin of the remaining comparables and pass consequential order. Disallowance u/s 14A r.w.r. 8D - HELD THAT:- In the instant case the AO has failed to record even elementary satisfaction that having record to the contentions of the a....... + More

Applicability of section 167B - taxing at maximum marginal rate - assessee in the status of AOP - HELD THAT:- Section 167B(2) prescribe that in case of any Association of Person (not being a case falling under sub-section 1 of 167B) if total income of the any member of the Association of Person (excluding the share from such Association) exceeds the maximum amount, which is not chargeable to tax under the Finance Act of the relevant year, the tax shall be charged on the total income of the Association at maximum marginal rate. CIT(A) held that income of the members being in the slab of maximum rate of tax, the society is not entitled to the benefit of exemption from the minimum amount and liable to the incidence of maximum marginal rate income of section 167B(ii) of the Act. CIT(A) on the issue in dispute is well reasoned. A society regis....... + More

Validity of reopening of the assessment - appeal of the assessee was dismissed ex-parte due to non appearance - HELD THAT:- Once, the assessee has filed an appeal and raised this issue before the ld. CIT(A) then the matter ought to have been decided by the first appellate authority. Therefore, the non adjudication of this issue by the ld. CIT(A) due to non appearance of the assessee would not give an absolute right to the assessee to raise these issued before the Tribunal without having benefit of finding of the first appellate authority. This is a mixed question law and facts. The legal issue can be decided only after considering the factual aspect of the transactions. The assessee has not produced the relevant record and evidence to show that the transactions carried out by the assessee in the commodity exchange have no linked with the ....... + More

Rejection of books of account u/s 145(3) - non maintenance of stock register and the incorrect method of valuation of stock adopted by the assessee - estimation of gross profit earned - CIT(A) who upheld the rejection of books of account but at the same time reduced the estimation of GPR from 18% to 16% - contention of Assessee that merely because stock registers were not maintained by the assessee it could not be the reason for rejecting the books of accounts and when the assessee had explained that since it was manufacturing large number of small items it was not feasible and was not in the practice of maintaining stock register for each items - HELD THAT:- As for the non maintenance of stock register the assessee has explained the non feasibility of maintaining it considering the fact that it was dealing in a large number of small item....... + More

Levy of penalty u/s 271(1)(b) - non-compliance to first notice issued u/s 142(1) - reasonable cause for non-compliance in terms of section 273B - HELD THAT:- Information/documents so sought by the AO necessarily have to be provided by the assessee to the authorized representative - There is nothing on record which demonstrate that such documents were either in the possession of the authorized representative at the time of initial hearing and he wanted time to go these documents before submitting to the AO or the assessee has subsequently submitted these documents to the authorized representative to be submitted to the AO which the authorized representative failed to submit before the AO. Though there is non-appearance on part of the authorized representative at the second scheduled date of hearing, at the same time, the possibility of non....... + More

Undisclosed investment - assessee has given advance for the property which was taken over by assessee’s sister concern - AO has made the addition only because assessee has not shown the same in its sister concern in their balance sheet - HELD THAT:- Assessee had given the amount as advance for the golf club road project, which is evidenced in the balance sheet of assessee as on 31.03.2005. Initially assessee wanted to take over the project from its sister concern which did not materialize, so the advance paid by assessee to landlord was adjusted with current account balance of sister concern M/s. Capital Construction Assessee in fact had shown the same under the head “Loans and Advances” and has included the amount in “Advances recovered in cash or in kind” in its balance sheet as on 31.03.2005 and the paymen....... + More

Maintainability of appeal - memo of appeal was filed in the name of the company which lost its identity after its merger - scheme duly sanctioned by the High Court under the provisions of the Companies Act - HELD THAT:- By virtue of scheme of amalgamation all the existing and the future litigation of the transferor company will be transferred and continued in the name of transferee company viz., M/s.Accenture Services Private Limited with effect from 1st April 2012. This M/s. Accenture Services Private Limited has subsequently merged with the M/s. Accenture Solutions Private Limited. By virtue of this merger, all the litigations pursued against or by both M/s. Zenta Knowledge Services Private Limited and M/s.Accenture Services Private Limited shall automatically be transferred and will be continued in the name of transferee company viz., ....... + More

Detention of goods alongwith vehicle - transport of goods to the auction destination - goods although not auctioned on the same date as the onward transportation, were subsequently auctioned from the auction centre - HELD THAT:- The detention was on account of a misunderstanding of the nature of the transaction and transportation of the goods, and finding that the onward transportation of the goods was covered by valid documents, and on the return journey, when the vehicle was intercepted, it was not carrying any goods that had contravened the provisions of the Act, the Writ Petition is closed with a direction to the respondent to forthwith release the vehicle that has been detained through Ext.P5 detention notice. Petition disposed off.

Petition for Granting Bail - Clandestine manufacturing and sale of pan masala without payment of GST - alleged evasion of tax - It is argued that the petitioners have been falsely implicated in the case. - petitioners, despite their right to challenge the assessment by depositing 10% of the amount assessed, they have deposited entire amount of ₹ 7 crores - Sale and distribution of pan masala has been completely banned across the country due to pandemic induced lockdown - HELD THAT:- On careful consideration of nature and gravity of the allegation made against the petitioners and the specific evidence collected in respect of these allegations, elaborate discussion of which would not be apt as it may adversely affect the interest of either party, the specific facts put-forth by the learned senior counsels for the petitioners and their....... + More

Release of detained goods alongwith vehicle - detention on the ground that the e-way bill covering the interstate movement of the goods had not been produced before the detaining authority when demanded - HELD THAT:- It is the case of the petitioner that the e-way bill covering the second leg of the journey from Cochin to Kasargod had been produced. The said explanation however, could not suffice to explain the absence of the e-way bill covering the first leg of the journey. Under the said circumstances, the detention of the vehicles and the goods cannot be said to be unjustified. The petitioner may be permitted to obtain a release of the vehicles and the goods on furnishing a bank guarantee for the amount demanded in Exts.P5 and P5(a) notices, it is directed that, if the petitioner furnishes a bank guarantee to cover the amount demanded in Exts.P5 and P5(a) notices, the respondent shall forthwith release the vehicles and the goods to the petitioner - petition disposed off.

Bail Application - GST fraud - creation of several dummy and non-existent entities to avail bogus Input Tax Credit (ITC) - offences punishable under Section 132(1)(b)(c) and (l) of OGST Act, 2017 - period February, 2018 to October, 2019 - HELD THAT:- There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the touchstone of its own generic facts and individual merits. However, the discretion of the court has to be exercised judiciously sans any element of arbitrariness. Even if the “bail is the rule and jail is the exception” - the basic bail jurisprudence remains unaltered, but in the instant case, the alleged GST fraud committed by the petitioner is having humongous ramification on the revenue collection by the State. At this backdrop, the possibility of the accused tampering....... + More

Place of supply - intermediary services - Export of Services - Constitutional validity of Section 13(8)(b) of the Integrated Goods Service Tax Act, 2017 - refund of IGST paid on services provided by the members of the petitioner association and to their clients located outside India - place of provision of services - location of the supplier or location of the recipient? - inter-state supply - Section 13(8)(b) of the IGST Act, 2017 - Circular No.90/09/2019GST dated 18th January 2019. Whether the provisions of Section 13(8)(b) r.w.s. 2(13) and 8(1) of the IGST Act,2017 are ultra vires and unconstitutional or not? HELD THAT:- The introduction of Goods and Service Tax in India in the year 2017 is with an object of providing one tax for one nation so as to harmonize the indirect tax structure in the country. For the said purpose, the Constitu....... + More

Refund of ITC in case of inverted duty structure - Not allowing refund of unutilized input tax credit relatable to input services - Validity of amended Rule 89(5) of the CGST Rule, 2017 - Circular no.79/53/2018-GST dated 31.12.2018 - HELD THAT:- Rule 89(5) and more particularly explanation (a) thereof, provides that Net Input Tax Credit shall mean “input tax credit” availed on “inputs” during the relevant period other than the “input tax credit” availed for which refund is claimed under sub-rule (4A) or (4B) or both. Therefore, the grievance of the petitioner is that only the “inputs” is referred to in explanation (a) to sub-rule 5 of Rule 89 of CGST Rules 2017 and therefore, “input tax credit” on “input services” are not eligible for calculation of the amount of refu....... + More

Constitutional validity and legality of Section 17(5)(c) and Section 17(5)(d) of the Central Goods and Services Tax Act, 2017 and the Delhi Goods and Services Tax Act, 2017 and the Circular No.28 dated 01st January, 2018 - denial of Input Tax Credit - Works Contract - HELD THAT:- Issue Notice. List on 15th September, 2020.

Power to conduct search - reason to believe to conduct search, present or not - section 69 of GST Act - HELD THAT:- The assurance given by the learned counsel for the Revenue that no further recovery shall be effected till the demand is raised in accordance with law and that the matter is being kept for 05.08.2020 for further hearing, we direct that no coercive action shall be taken against the petitioner. The respondents shall remain bound by their statement made today till then. However, it is clarified that the grant of interim protection regarding coercive steps shall not debar the respondents from carrying on the investigation till the next date of hearing. List on 05.08.2020.

Profiteering - Jurisdiction - time limitation - principles of natural justice - commensurate reduction in GST prices to its recipients, by grammage increase - HELD THAT:- Petitioner is directed to deposit the principal profiteered sum of ₹ 2,33,456/- within two weeks. Upon deposit of the said amount, interest amount as well as the penalty proceedings initiated by the respondents shall stand stayed till further orders. List the matter on 24th August, 2020 along with other connected matters.

Maintainability of appeal - alternative remedy of appeal - Release of seized goods along with conveyance - Confiscation - appealable order or not - section 130 of CGST Act - HELD THAT:- As a final order of confiscation has been passed and the same being an appealable order, we relegate the writ applicant to file a statutory appeal as provided under Section 107 of the Act. Along with the appeal, it shall be open for the writ applicant to prefer a Miscellaneous Application under section 67(6) of the Act 2017 for provisional release of the vehicle pending the final disposal of the appeal. If any such application under section 67(6) of the Act is filed by the writ applicant, then the authority concerned shall look into the same at the earliest and pass an appropriate order in accordance with law - application disposed off.

Attachment of Bank Account of petitioner - Jurisdiction to issue the order - violation of principles of natural justice - HELD THAT:- The learned counsel for petitioner had stated that the petitioner was willing to offer a bank guarantee to the respondent No.3 of a nationalised bank of the amount in dispute claimed to be fraudulent availment of ITC i.e. ₹ 60,08,750/- in terms of communication dated 10.06.2020 issued by the Respodent, placed on record as annexure P5 to the petition. Direction issued to provisionally release/ lift the debit freeze instructions subject to conditions and bank guarantee. List on 10th September, 2020.

Detention of goods along with the vehicle - invoices did not bear continuous numbers - power to detain a vehicle in the course of transit - section 129 of CGST Act - HELD THAT:- In the instant case, it is not in dispute that e-way bills did accompany the goods. It is also not in dispute that the transportation was covered by tax invoices. The objection of the respondents is only that the invoices did not bear continuous numbers and hence they suspect that the invoices bearing serial numbers that fell between the numbers on the invoices produced at the time of transportation, could have been used for transportation of other goods that had not been brought to the notice of the Department. The entertainment of such a doubt by the authority cannot be a justification for detaining the goods in question, especially when they were admittedly acc....... + More

Freezing of petitioner's bank accounts - Section 159 (5) of the Central GST Rules, 2017 - HELD THAT:- The present petition is disposed of with the directions to the authority concerned to positively decide the same on or before 27.07.2020 by passing a speaking order.

Revocation of cancellation order - cancellation of registration of petitioner - contention of the petitioner is that the orders of the Assessing Authority and of the First Appellate Court cannot be sustained now in view of the Central Goods and Services Act (Removal of Difficulties Order), 2020 issued under Section 172 of the Act - HELD THAT:- It was held in the Gazette Notification issued on 25.6.2020 about the time limits of filing application - Learned Standing Counsel did not dispute that the Gazette Notification. The order dated 10.1.2020 passed by the Assessing Authority and the Appellate Order dated 13.2.2020 are set aside - The application dated 7.12.2019, which was filed by the petitioner for the revocation of the cancellation order dated 19.9.2019, shall now be decided in accordance with law within a period of 15 days from the date of production of a copy of this order.

Constitutionality and legality of National Anti-Profiteering Authority as well as Section 171 of the Central Goods and Services Tax Act and Rules 122, 126, 127 and 133 of the Central Goods and Services Tax Rules - HELD THAT:- Though learned counsel for respondent no1 and 3 objects to the grant of instalments to the petitioner, yet this Court keeping in view the COVID-19 pandemic situation, directs the petitioner to deposit the principal profiteered amount i.e. ₹ 75,08,64,019/- in six equated monthly instalments commencing 15th August, 2020. List the matter on 24th August, 2020 along with other connected matters.

Maintainability of petition - appealable order - Refund of ITC accumulated during export - CBIC’s Circular No. 135/05.2020 dated 31st March, 2020 - HELD THAT:- Since, the order dated 22nd July, 2020 is an appealable order, the present writ petition and all pending applications are disposed of with liberty to the petitioner to file appropriate proceedings in accordance with law. All the rights and contentions of the parties are left open. The next date of hearing i.e. 11th August, 2020 stands cancelled.

Violation of principles of natural justice - cancellation of registration within stipulated time - petitioner did not appear in response to notice dated 06.09.2019 - CBIC order No.1 of 2020 Central Board of Indirect Taxes and Customs in S.O. 2064 (E). dated 25.06.2020 - HELD THAT:- The Commercial Taxes and Registration Department of the Government of Tamil Nadu has passed G.O.Ms.No.102 dated 26.06.2020 consequent upon the above CBIT Notification. This Writ Petition is allowed and the petitioner is at liberty to approach the Assessing Authority by the cut-off date provided in the Notification seeking restoration of registration.

Grant of refund along with interest - zero-rated supply of goods or services or both made by registered persons - HELD THAT:- Admittedly, till date the petitioner’s refund application dated 4th November, 2019 has not been processed. As neither any acknowledgment in FORM GST RFD-02 has been issued nor any deficiency memo has been issued in RFD-03 within time line of fifteen days, the refund application would be presumed to be complete in all respects in accordance with sub-rule (2), (3) and (4) of Rule 89 of CGST/DGST Rules - To allow the respondent to issue a deficiency memo today would amount to enabling the Respondent to process the refund application beyond the statutory timelines as provided under Rule 90 of the CGST Rules. This Court is of the view that the respondent has lost the right to point out any deficiency, in the petit....... + More

Imposition of penalty - Profiteering - HELD THAT:- The petitioner to deposit ₹ 63,14,901/- in this Court, within two weeks, as sought. The amount once deposited, to be kept in maximum interest bearing account awaiting the adjudication of the petition - Subject to the said deposit, the operation of the impugned order dated 19th March, 2020 is stayed. List on on 24th August, 2020.

Release of detained goods along with vehicle - Section 129 and Section 130 of the GST Act - HELD THAT:- If the writ applicants are ready and willing to deposit the amount as stipulated above then we may consider releasing the goods as well as the conveyance with a further liberty to prefer appeal under Section 107 of the CGST Act, 2017, against the final order of confiscation having regard to the fact that the impugned order of confiscation was served upon the writ applicants in the month of March, 2020. As the writ applicants are ready and willing to deposit the amount towards their liability, following order is passed:- (i) The writ applicants shall deposit 50% of ₹ 36 Lac with the respondent No.3 and the balance amount of ₹ 18 Lac shall be paid by way of a Bank Guarantee of any nationalized bank. This shall be done within a....... + More

Import of prohibited goods or not - old and used tires which are reuseable - HELD THAT:- Let Notice be issued for final disposal to the respondents returnable on 19.08.2020. The situation being identical in all the captioned matters, similar interim directions are issued subject to similar conditions The Registry shall also notify the Special Civil Application No.8492 of 2015 along with the captioned writ applications for hearing.

Provisional assessment of imported goods - Dry Dates - HELD THAT:- The respondent authorities are directed to conduct provisional assessments of the goods in question (Dry Dates) which have been imported against Bill of Entry No.8025310 dated 29th June, 2020 in accordance with law, rules, regulations and Government policies applicable to the facts of the case, within a maximum period of two weeks from today. Petition disposed off.

Classification of imported goods - Parts of seats of motor vehicle (parts of part) - import of child parts from Japan which are then assembled to manufacture Round Recliner Assembly in India and then said Round Recliner Assembly is dispatched to factory at Haryana where the recliner welding assembly is completed and thereafter it is sent to Maruti factory where it is welded and fixed on the seat of motor vehicles - whether classifiable under heading 8708 of CTH as parts and accessories motor vehicle, or are parts of motor vehicle seats and classifiable under 9401 9000? HELD THAT:- It is seen that in CTH 8708 there is general entry of parts and accessories of motor vehicles but there is no specific entry for seat or its parts. Whereas in tariff item 9401, there is entry specifically for seat, wherein under tariff sub-heading 9401 20 00 ent....... + More

Principles of Natural Justice - request of the appellant for cross examination of the witnesses has been rejected during the adjudication proceedings in the SCN - Section 138B of CA - HELD THAT:- From the plain reading of clause (b) of sub section 1 of section 138(b), it is clear that the statement made and signed by person before the Custom Officer can be admitted as evidence when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. In the above section, no exception is provided or any discretion is provided for the Adjudicating Authority to allow or not to allow the cross examination. Particularly, in the present case, when the appellant have veheme....... + More

Condonation of delay of 110 days in filing appeal - sufficient cause present for delay or not - HELD THAT:- It is apparent that the period to file the impugned appeal stands expired on 11 May 2019. Now coming to the reason quoted as sufficient cause for the delay of 110 days in filing the appeal, we observe that the only reason quoted is pendency of writ-petition No. 2826/2019 being filed before Hon’ble High Court of Delhi. Apparently and admittedly the said writ-petition was filed on 10 May 2019 that is just one day prior the date of expiry of period of limitation available to the present applicant to file the impugned appeal. Otherwise also, we observe that the writ-petition was filed by one Shri Stanley Fernandes. The said petitioner though was consignor but apparently he is not appellant nor as is apparently the co-noticee of th....... + More

Clandestine Removal - Absolute Confiscation - Silver - Gold - shortage of goods - notification no.GO 2665 (E) in the Gazette - contravention of the provisions of SEZ Act, 2005 read with the provisions of Customs Act, 1962 - demand based on statement of various persons - corroboration of statements - HELD THAT:- Prior to 9.8.2016 when vide notification no.GO 2665 (E) in the Gazette, the Government in exercise of the powers under sub-section (1) of Section 21 of the SEZ Act, notified the offences contained in Sections 111, 113 and 115 etc of the Customs Act, 1962, as offence under the SEZ Act. Thus, prior to 9.8.2016, Section 111 of the Customs Act is not attracted, when admittedly, the incidence of seizure and inspection was on 3/4th August, 2016. Further, a Coordinate Bench of the Tribunal in the case of M/S CHARISMA JEWELLERY PVT LTD., S....... + More

Release of seized goods - raid - handling of illegally imported gold - HELD THAT:- The writ petition is disposed off with a direction to the respondent to decide application Ext.P4 for provisional release of the gold seized vide Ext.P2 in accordance with law after affording an opportunity of hearing to the petitioner and as well as custom officials. Let the decision be taken within a period of one month from the receipt of the copy of this judgment.

Permission to withdraw petition - availability of statutory remedies - Imposition of penalty u/s 112(b)(ii) read with 114AA of the Customs Act, 1962 - improper importation of goods - SCN do not show any case against the petitioner u/s 112(b)(ii) to have been made out - HELD THAT:- The petition is dismissed as withdrawn with liberty to pursue the statutory remedies.

Revocation of Customs Broker license - forfeiture of security deposit - imposition of penalties - concealment of good bars inside slippers - HELD THAT:- The Commissioner of Customs has, merely, concurred with the findings of the inquiry authority and, without narration, let alone consideration, of the several submissions relating to the inquiry, to the extent of repeating the assessment of threats posed to the nation by the lack of diligence on the part of the ‘customs broker’, proceeded to revoke the license. It is settled law that, in the absence of a specific procedure, the principles of natural justice shall govern any action that leads to detriment. It would appear that the inquiry had not distinguished itself by conformity to the fundamental requirement of notice of intention to conduct hearings. The request for cross-ex....... + More

Detention order - Smuggling - carrying dutiable or prohibited goods - Gold - currency - Baggage Rules - COFEPOSA Act - HELD THAT:- The subjective satisfaction requisite on the part of the Detaining Authority, the formation of which is a condition precedent to the passing of the Detention Order, gets vitiated only if material or vital documents, which could have a bearing on the issue and would influence the mind of the Detaining Authority, one way or the other, are not placed by the Sponsoring Authority before the Detaining Authority. The assertion of the Detenue that, the said ‘Summons’ were not relied upon by the Sponsoring Authority or placed before the Detaining Authority does not vitiate the ‘subjective satisfaction’ recorded by the Detaining Authority, since the same was not relevant for the formation of the ....... + More

Condonation of delay in filing appeal - representation of appeal after a delay of five years - no satisfactory cause shown for the delay - HELD THAT:- The appeal itself was presented with a delay of 35 days initially and then after the defects were pointed out, the appeal was re-presented after almost five years. This delay goes unexplained and there is no satisfactory cause shown for having re-presented the appeal after a delay of five years. In the absence of any such plausible explanation for the delay, we do not find any justification to condone the delay - COD application dismissed.

Refund of SAD - HELD THAT:- Based on the Assistant Commissioner of Customs, through his written instructions dated 12.02.2018, the learned Standing Counsel for the respondents has opined that since the aforesaid order of the CESTAT, dated 12.06.2017 has been accepted by the Committee of Commissioner and they have also sanctioned and disposed of all pending re-fund claims based on the special order and that, similar orders could be passed in the present writ petitions also. In view of the in-principle decision taken by the respondents to re-fund the Special Additional Duty - Petition allowed.

Re-export of confiscated goods - import of old and used ventilators with all standard accessories - prohibited goods or not - eligible for home consumption or not - applicability of sub-rule (6) of Rule 12 of Hazardous and Other Wastes (Management, Handling and Transboundry Movement) Rules 2016 - HELD THAT:- On perusal of said Schedule VI of the said Rules, it is seen that at Basel No.B1110 used critical care medical equipment for reuse are included. The goods imported by the appellant and which are impugned goods are ventilators which through common knowledge, we note that the same are critical care medical equipments. The appellant has declared them as used ventilators. Further reuse includes original use. Therefore, the imported goods which are subject matter of this appeal are covered by Basel No.B1110 and are covered by said Schedule....... + More

Classification of imported goods - GoPro HERO5 Black Action Camera - whether the imported goods namely, 'GoPro HERO5 Black' Action Camera is classifiable under CTH 8525 8020 as claimed by the appellant, or under CTH 8525 8090 as affirmed by Revenue? - benefit of N/N. 50/2017 - Cus, dated 30.06.2017 - HELD THAT:- It is an admitted fact on record that the appellant had claimed the benefit of notification dated 30.06.2017, which was purportedly denied by the authorities below on the ground that imported cameras are not capable of recording the images as per the parameters prescribed under notification dated 17.03.2012. On careful examination of both the notifications dated 17.03.2012 and 30.06.2017, it clearly reveals that the later notification was issued by superseding the former notification, wherein the character and features of ....... + More

Valuation of imported goods - demand on the ground that the impugned goods were imported in packaged form for retail sale attracted the provisions of Section 4A of the Act, 1944 read with the provisions of Standards of Weights and Measures Act, 1976 - HELD THAT:- It is an undisputed fact on record that the candies/chocolates of different variety are displayed by the retail outlets in the tubs and bins, wherefrom according to the choice, the buyer picks up the chocolates in loose form and mixed up with other kinds of chocolates and thereafter the chocolates so picked up by the buyer are sold without any packages, on the basis of weight only. The appellant used to circulate the price list for retail sale for its outlets, which were made of the quantity like 10 gm, 20 gm, 50 gm of mixed candies. The imported goods were packed in cartons only....... + More

Levy of Anti-Dumping Duty - import of Ductile Iron Pipes, DI Pipes originating in or exported from China PR - initiation of a sunset review investigation for continuation of ADD - likelihood of dumping injury - HELD THAT:- The Designated Authority has recommended that continuation of Anti-Dumping Duty on import of DI pipes from the subject country namely, China PR is no longer required. The Anti-Dumping Duty on the product under consideration namely, DI pipes has been levied since 14 September, 2007 vide Customs Notification dated 14 September, 2007. The appellant is before us as the Anti-Dumping Duty has not been continued after 9 October, 2018 on the expiry of the period mentioned in the Notification dated 10 October, 2013. It is appropriate to mention that levy of Anti-Dumping Duty on any goods is primarily to protect the domestic indu....... + More

Refund of IGST - Non compliance with the Directions - action against the respondent authority (Pr. Commissioner of Customs) - HELD THAT:- Noticing the contents of reply, time of one week is permitted to the respondent to approach the Apex Court. We are conscious of the fact that the judgment which is sought to be implemented by the applicant - original petitioner is dated 27.06.2019. One year has already gone. In one week’s time, if the respondent does not move the Apex Court, the matter shall be proceeded on merits. Matter to appear on 20.07.2020.

Holding of Video Conferencing - Commencement of physical hearing in the first week of July, 2020 - HELD THAT:- From the report it is evident that though the CESTAT was willing to hold the video conferencing but the members of the Bar were not in favour. On a representation of Bar Association President, CESTAT, New Delhi was requested to commence physical hearing on first week of July, 2020. petitioner has already filed the appeal. But, the only apprehension is that there is no hearing either physical or through video. In view of the report of the Registrar General, no further course of action in the review petition seeking the clarification of the order whereby petitioner was given liberty to avail the remedy of appeal is required. Petition disposed off.

Imposition of penalty u/s 112(a) of Customs Act, 1962 - import of LED battern fixture, LED panel light, LED flood light etc. - prohibited goods or not - the BIS number embossed on the driver did not tally with the registration number given in the BIS certificate - Absolute Confiscation - HELD THAT:- The registration number has two parts. One, the 8-digit number and also I.S. no.R-41036226 is 8-digit number, with regard to the driver imported by the appellant which is under dispute. The second part, which is the I.S. no. gives the description of the product type number. In case of driver, the product type number i.e., IS No.15885 is “PART 2/SEC 13” - 2012. On the drivers instead of embossing the said Indian Standard number, the Indian Standard number of LED lights happened to be embossed. The Indian Standard number of LED light....... + More

Non-Compliance of the directions issued by this Court - HELD THAT:- Notice to the respondents, returnable on 8.7.2020. Direct service through E-mode is permitted in addition to the normal mode of service.

Maintenance of status quo about fixed assets and shareholding pattern of the Company - principal of lis pendence - HELD THAT:- It is apparent that NCLT has rejected the prayer of R-1 for impleading subsequent purchaser as party to the proceedings. However, directed that the subsequent purchaser’s right will be governed by Principal of lis pendence and the issue is kept open. It means such order is not final. Impugned order upheld - appeal disposed off.

Rectification of the register of members of the respondent-company - Restraint on respondent-company from holding the annual general meeting or extra-ordinary general meeting - section 59(1) of the Companies Act, 2013 - HELD THAT:- The respondent-company in the instant application will fall under the category of "unpaid seller" who can exercise the above rights only. Nothing more - It is settled law as decided by the hon'ble Supreme Court of India in its judgment in TRIVENI SHANKAR SAXENA VERSUS STATE OF U.P. AND OTHERS [1991 (12) TMI 285 - SUPREME COURT] that a lien is only a right to retain which is rightfully and continuously in possession belonging to another until the claims are satisfied. It can be acquired either by contract or by operation of law. It is the right of retention of goods. In the absence of delineated pr....... + More

Approval of scheme of Amalgamation - merger of business - no proceedings pending inquiry or investigation in respect of the applicant-company - HELD THAT:- While dispensing with the meetings, this Bench directs that notices be sent to the Central Government through the office of the Regional Director (Northern Region), the Income-tax Authorities, Registrar of Companies, NCT of Delhi and Haryana, official liquidator and other sectoral regulators or authorities as required under sub-section (5) of section 230 of the Companies Act, 2013 who may have significant bearing on the operation of the applicant-companies along with copy of required documents and disclosures required under the provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. Copies of the notices along with the pr....... + More

Maintainability of Contempt Petition - issuance of injunction orders - HELD THAT:- Any of the actions initiated either by ROC or SFIO were for the business of Infra Realty being carried on in fraud of its creditors, or otherwise for fraudulent or unlawful purpose and taking note thereof, the learned Single Judge noted that there were serious allegations against the petitioner Company i.e. Infra Realty. Not even an iota of substance emerges from the record to say that any act of the respondent Nos.1 to 3 invites any order prayed for. The judgments relied upon by the petitioners are of no avail. It would suffice to say, the initiation of contempt proceedings depends on the facts and circumstances of a given case and that, it is to be exercised in the discretion of the court where required, founded on the well established principles of law -....... + More

Non-disclosure of allotment of equity shares of Respondent company - Dispute between the Directors - allegation that Respondent No.2 has handled the affairs of Respondent Company in a ‘dishonest manner’ - production of record before the Administrator - shifting of office - non-speaking order - HELD THAT:- No Board Resolution has been placed before the NCLT or before this Appellate Tribunal to establish that the shares were allotted as per law - there are no material that the findings of the NCLT on this issue are not reasonable. It is apparent that there is dispute between the two directors regarding their shareholding of the company. Whenever any one of the director has been in control of the company admittedly before 2008 by Lalit Agarwal and after 2008 by Pramod Goil, both of them have taken action in such a manner that the....... + More

Maintainability of application for winding up - Striking of name of the company - Section 248 of the Companies Act 2013 - whether the NCLT can proceed with winding up petition or not? - HELD THAT:- From sub-section (8) of Section 248, it is clear that Section 248 in no manner will affect the powers of the Tribunal to wind up the company, the name of which has been struck off from the register of companies. Therefore, even after removal of the name of the company from the register of companies the NCLT can proceed with the petition for winding up under Section 271 of the Companies Act, 2013. Similar view taken in the case of MR. HEMANG PHOPHALIA VERSUS THE GREATER BOMBAY CO-OPERATIVE BANK LIMITED AND M/S. PENGUIN UMBRELLA WORKS PRIVATE LIMITED [2019 (9) TMI 893 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI] where it was held that the....... + More

Grant of Bail - Money Laundering - siphoning of funds - proceeds of crime - money circulation scheme - cheating and defrauding by alluring to invest ₹ 10,000/- in the attractive investment Scheme - HELD THAT:- In the instant case, the petitioner has been in possession of the “proceeds of crime” and it appears that he along with others have attempted to project the same as untainted money by transferring the same to different bank accounts in a bid to camouflage it and project it to be genuine transactions. The contention of the petitioner in so far as the question of being a pre-existing “knowledge” as per Section 3(b) of the Act and in order to be held culpable under Section 4 of the Act, the same deserves to be rejected for the simple reason that the question as to whether the accused had prior knowledge ne....... + More

Advance Deposit - Section 2(31) of the Companies Act, 2013 read with Rule 2(c)(xii)(b) of the Companies (Acceptance of Deposits)Rules, 2013 - main contention was that the advance against immovable property is deposit and such deposit was given to 1st Respondent based on fraudulent representations of 2nd and 3rd Respondent as their sole intent was to defraud the appellant - HELD THAT:- The appellant has raised the issue of ‘deposit’ in its Company Petition. But this issue has not been determined by the NCLT. Such determination will requiring looking into the facts and the nature of the transactions which may call for more submissions to be examined to arrive at a conclusion. In absence of such exercise having not been done by NCLT, we are unable to express our opinion on this issue. Matter remanded back to NCLT to decide whethe....... + More

Permission of Company to revise Board's Report - Corporate Social Responsibility - Section 135 of the Companies Act - HELD THAT:- The instant petition is filed in accordance with law and due notice were ordered to the ROC and the Income-Tax Department, and they have also filed respective affidavits. Therefore, we are convinced with the reasons furnished by Petitioner to seek the relief as sought for. Therefore, we are inclined allow the application as sought for in the interest of justice, and on the principle of ease of doing business, however, without prejudice to the right(s) of Registrar of Companies to initiate appropriate proceedings, if the Company violate any provisions of Companies Act, 2013 and the Rules made thereunder. And the Petitioner is also at liberty to file Application suo-moto seeking to compound of any violation i....... + More

Maintainability of application - initiation of CIRP - termination of employment - salary and other dues - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - legally enforceable debt or not - HELD THAT:- At the very beginning that these proceedings under the Code are summary proceedings, where even if there was a debt, the same should be clear and undisputed and the default, as defined under section 3(12) of the Code should be clearly established. There is no scope for investigation under the Code, further than what has been brought on record. Further, it is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of MOBILOX INNOVAT....... + More

Validity of undated document disclosing a DIN status which shows that the petitioner has been disqualified by the Registrar of Companies under Section 164(2) of the Companies Act, 2013 - HELD THAT:- On perusing the relevant documents, although the impugned DIN Status indicating the disqualification of the petitioner by the ROC is not dated, paragraph 6 of the writ petition states that the petitioner had renewed his digital signature (DSC) on 17th January, 2020. The petitioner came to know of the impugned document in March, 2020 which has been stated in paragraph 6 of the writ petition. It can therefore be assumed that the impugned document is after January, 2020 and before March, 2020 when the petitioner came to know of it. Section 168(2) of the 2013 Act is very clear. The resignation of a Director takes immediate effect from the date on ....... + More

Maintainability of application - sections 241 and 242 of the Companies Act, 2013 - Oppression and Mismanagement - transfer of shares - nomination of shares - HELD THAT:- A bare reading of the provisions of section 72(1), every holder of securities has a right to nominate any person to whom his securities shall “vest” in the event of his death. In the case of joint­holders also, they have a right to nominate any person to whom “all the rights in the securities shall vest” in the event of death of all joint holders. Sub­section (3) of section 72 contains a non­obstante clause in respect of anything contained in any other law for the time being in force or any disposition, whether testamentary or otherwise, where a nomination is validly made in the prescribed manner, it purports to confer on any person &ld....... + More

Reimbursement of liquidation expenses of vessels/tugs - winding up of company - HELD THAT:- The official liquidator has rightly rejected the claim for supply of food provision on board on 4th September, 2017 in the sum of ₹ 42,040/-. The claim for port charges in the sum of ₹ 6,51,473/- is rightly rejected on the ground that official liquidator had taken possession on 6th February, 2018 and as the same were neither approved by this Court nor informed to the official liquidator prior to incurring such expenses and thus could not be considered as liquidation expenses. The manning expenses were incurred by the applicant without permission of this Court and without conveying such expenses to the official liquidator before taking possession by the official liquidator. The official liquidator rightly rejected the claim for reimburse....... + More

Fraud/cheating - damaged/second hand vehicle - primary allegation of the complainant/respondent No. 2 is that all the petitioners have cheated her by giving a different vehicle, which was not booked by her and the said vehicle was second-hand defective vehicle, for which she cannot run the vehicle - HELD THAT:- The selling of vehicle by the manufacturer to the dealer and the purchase of vehicle by customer from the dealer by its own choice by executing all necessary documents and it is a purely business transaction. The dealer while selling a vehicle obviously explained the features/benefits to its customer and equally the customer by its option purchased such vehicle and such transaction cannot be termed as an inducement on the part of the manufacturer/dealer/ sub-dealer within the purview of law. In the given case, there is nothing to r....... + More

Oppression and Mismanagement - Transfer of Shares - siphoning of funds - act of oppression against the minority shareholders or not - petition filed after a delay of 4 years of cause of action - failure on the part of respondents in their capacity as directors of the company to comply with the fiduciary duty towards expulsion of petitioners Nos. 1 and 2 - increase of share capital. Whether the company petition filed after a delay of 4 years of cause of action is maintainable? - HELD THAT:- The facts are overwhelmingly loaded against the respondents as the acts of oppression and mismanagement are continuing till date. Considering the facts of the present case the petitioners are continuously knocking the doors of various forums to redress their grievances since 2010 and finally filed this petition on April 5, 2013 under sections 397, 398 a....... + More

Rejection of prayer of the petitioner for delivery of possession of the premises/flat - Sub-Section (2) of the Section 452 of Companies Act, 2013 - HELD THAT:- The scheme referred to, the quarter/premises being part of the entitlement in terms of service and the settled principles of law which have spelt out the proposition regarding the provisions of Sub-Section (2) of Section 452 of the Companies Act (earlier Sub-Section (2) of Section 630 of the Companies Act, 1956), I am of the opinion that the accused/opposite party is unnecessarily dragging the issue relating to vacating the quarter/premises belonging to the company on different pretext. In view of the conduct of the accused/opposite party and the provisions of law along with the settled principles, it can be held that the order dated 17- 4-2019 passed by the Ld. ACJM, Durgapur is n....... + More

Maintainability of petition - oppression and mismanagement - Stay of the Extra Ordinary General Meeting - whether the Petitioners were successful in making out a case for interference by this Tribunal by invoking Section 241 and 242 of the Companies Act, 2013? - HELD THAT:- The reading of Sections 397 and 398 provides a right to members of a company who comply with the conditions of Section 399 (Section 244 of the New Act) to apply to the court for relief under section 402 of the Old Act (Section 242 of the New Act) or such other reliefs as may be suitable in the circumstances of the case, if the affairs of a company are being conducted in a manner oppressive to any member or members including any one or more of those applying. Therefore, we have to understand Section 399 of Old Act (Corresponding to Section 249 of New Act) to arrive at a....... + More

Whether Section 391 (6) of the Act empowered this Court to interdict the process, set in motion by the complaint, dated 15th February, 2019, addressed by NSDC to the EOW? HELD THAT:- The criminal proceedings cannot be stayed, under Section 391 (6) of the Act. “Civil proceedings” alone can be so stayed. In the present case, pursuant to the complaint, dated 15th February, 2019, addressed by NSDC to the EOW, the record reveals that the EOW is merely looking into the matter, for which purpose it had called the applicant, to appear before it, vide the notice dated 23rd April, 2019 supra. The said notice cannot even be termed a “show cause notice”, as it merely states that the complaint of NSDC was being looked into, and requested the applicants to appear, before it, in that regard. No action, prejudicial to the applican....... + More

Maintainability of application before NCLT - Notification dated 24.3.2020 issued by the Ministry of Corporate Affairs, New Delhi - default in the present case was below rupees one Crore - HELD THAT:- This issue has not been discussed by the National Company Law Tribunal at all. The petitioner is therefore permitted to approach against the said order dated 5.5.2020 passed by the National Company Law Tribunal before the National Company Law Appellate Tribunal, or file a review application before the NCLT itself. We are not inclined to entertain the present civil revision petition and we leave it free for the petitioner to approach the National Company Law Tribunal itself or the Appellate Tribunal, as the case may be, for raising the said issue. The amendment Notification dated 24.3.2020 depends upon the facts of the case and unless this iss....... + More

Grant of Bail - collusion in fraud - petitioner has been charge-sheeted under section 447 of the new Companies Act - HELD THAT:- There are no substance in the argument of the learned Counsel for the SFIO that the twin conditions prescribed under section 212(6) of the New Companies Act, 2013 start with negation of bail to the accused and the court could grant bail to such an accused only if the court records a satisfaction qua the accused being ‘not guilty’ of the alleged offence and also a satisfaction that if released on bail the accused is not likely to commit any similar offence again. Also this court does not find substance in the insistence of the learned counsel for the SFIO that the application of the twin conditions, as prescribed under Section 212(6), are mandatory and have to be applied to all the considerations of g....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Annexure - 2 at Page no. 107 of the Appeal Paper Book statement does not show dues payment of ₹ 25,00,000/- by the Appellant (Operational Creditor) - Further, Annexure R-1 of the Written Submissions filed by the Respondent (Corporate Debtor) which is the e-mail ledger account of the Appellant (Operational Creditor) relevant at page no. 164 of the Appeal Paper Book dated 02-09-2016 shows receipt of ₹ 25,00,000/- first time during the course of argument before this Appellate Tribunal. This document has been marked as ‘X’. As letter sent by the Respondent (Corporate Debtor) to the Appellant (Operational Creditor), this document ‘X’ was not placed b....... + More

Approval of Resolution Plan - section 31(1) of the Insolvency and Bankruptcy Code, 2016 - CIRP process - effective implementation of the plan - HELD THAT:- This Adjudicating Authority is of the opinion that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 of the Insolvency and Bankruptcy Code, 2016 meets the requirement as referred in section 30 of the Insolvency and Bankruptcy Code, 2016 sub-sections (1), (2), (2)(a), (2)(b), (2)(c), (2)(d), (2)(e), (2)(f), (3), (4), (5) and (6) and has provisions for its effective implementation. Hence, this Adjudicating Authority is hereby approved the resolution plan submitted by the resolution professional as approved by the CoC. This resolution plan is now binding on the corporate debtor and its employees, members, creditors, guarantors and other stak....... + More

Reconsideration of Resolution Plan - application of mind by Adjudicating Authority before approving or rejecting a Resolution Plan - irregularities committed by the Resolution Professional and the Committee of Creditors in applying the evaluation matrix under the guise of using the commercial wisdom to the Plan submitted by the Appellant and the successful Resolution Applicant - HELD THAT:- The commercial wisdom of the CoC is paramount, and it has the absolute prerogative to decide the viability and feasibility of the Resolution Plans presented before them and the same is not to be interfered even by the Adjudicating Authority. In the present case, the CoC after evaluating both the Resolution Plan being that of STPL and IMR based on pre-disclosed evaluation criteria approved the Resolution Plan of STPL by a voting share of 95.15% and the ....... + More

Maintainability of application - initiation of CIRP - default in repayment of outstanding loan amount - scope of financial debt - conflict between the provisions of the IBC, 2016 and the Tea Act, 1953 - HELD THAT:-The term "finance account" has been defined as the account relating to the temporary finance granted by the lender to the corporate debtor. It has also been mentioned that a resolution under section 293(1)(d) of the Companies Act, 1956 had been passed by the shareholders of the corporate debtor to enable the company and its directors to borrow loans not exceeding ₹ 1,200 crores and avail of temporary finance within the limit of borrowing of the corporate debtor-company. It is also mentioned that the financial creditors were approached by the corporate debtor. It is also mentioned that disbursement could be made i....... + More

Approval of Resolution Plan - CIRP process - scope of the committee of creditors to look into the matter - HELD THAT:- The unsuccessful resolution applicant has filed this application. There is no merit in the stand of the applicant, the applicant was given opportunities to revise and submit better plan. Both the resolution applicant were treated at par. In fact, this resolution applicant wanted to participate and submit its resolution plan after the deadline. The committee of creditors has allowed the same and has accepted the plan of the applicant for evaluation. Hence, from the records it is clear that the scoring of the successful applicant is more than that of the applicant. Hence, the allegation of this applicant that there is error in marking of score by the committee of creditors is not correct and not acceptable. The evaluation m....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The admitted document executed between the Parties, which is latest in terms of time is the Agreement dated 1st October, 2016 and considering the contents of the same, there are no reason to disagree with the Adjudicating Authority that after the earlier ‘MoU’s parties entered in to the execution of an arrangement as seen in the Builder Buyer Agreement dated 1st October, 2016. No doubt, in the primary stage, after the ‘MoU’ dated 30th May, 2013 two Buyer/Seller Agreements dated 03.06.2013 were executed but then that arrangement appears to have been given up when Parties entered into further three fresh ‘MoU’s dated 01.06.2014, 01.06.2015 and 01........ + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and default or not - Jurisdiction of Tribunal to entertain the appeal - time limitation - HELD THAT:- The last invoice was issued on January 11, 2011. Thereafter, on July 20, 2015 and August 3, 2016, the respondent had admitted the past dues, which were beyond the threshold of limitation. but stated that the respondent was making every effort to effect payment of the relevant amount. Subsequently, both parties had executed a memorandum of understanding on August 16, 2018, whereby the respondent had agreed to make payment within 6 months, i. e., by February 15, 2019. Thus, in view of the section 25(3) of the Indian Contract Act, 1872 which overshadowed section 18 of the Limitation Act, 1963, the matter is within t....... + More

Rectification in the approved Resolution Plan, after 13 months of the completion and conclusion of the CIRP - allotment and transfer of shares by the approved plan - HELD THAT:- Since rectification of the resolution Plan does not involve the question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code, therefore it is not Code, therefore it is not permitted to modify the Resolution Plan under the guise of inherent powers of the Tribunal. Thus we are of the considered opinion that the Adjudicating Authority had no jurisdiction to entertain an application for rectification of Resolution Plan and making substantial changes in the Plan, after a lapse of 13 months of the completion of CIRP, even after the....... + More

Maintainability of application - initiation of CIRP - pendency of SARFAESI proceeding - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is a settled legal position that the pendency of the SARFAESI proceeding or other dispute does not prevent a financial creditor to trigger the corporate insolvency resolution process because the nature of remedy being sought for under the provisions of the I and B Code is "Remedy in Rem" in respect of the CD. This Adjudicating Authority is satisfied that corporate debtor availed the loan/credit facilities from the financial creditor; Existence of debt is above Rs. one lakh; Debt is due; Default has occurred on May 1, 2000; The petition has been filed within the limitation period as entire matter entangled in the court cases and clear ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Hon'ble Supreme Court in the matter of M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT] has ruled such that if the Adjudicating Authority is satisfied that there is a debt and default has been occurred, then the Adjudicating Authority is bound to admit the application - By placing reliance on the said decision of the hon'ble Supreme Court, the debt is well established and the default has been occurred because the outstanding loan is still unpaid. This satisfies the requirement of section 3(11) and (12) of the Insolvency and Bankruptcy Code for triggering the corporate insolvency resolution process in respect of the corporate d....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - time limitation - HELD THAT:- Admittedly, even as per learned counsel for the petitioner, the date of default for the alleged claim was July 8, 2013. The petitioner also failed to show any subsequent acknowledgment of debt by the respondent-corporate debtor, therefore, the starting point for the period of limitation is the date of default, i. e., July 8, 2013. Since, admittedly, the date of default of the debt due to the petitioner was July 8, 2013 and that no acknowledgment of debt or any other circumstances are shown to extend the period of limitation beyond the period of 3 years expiring on July 8, 2016 and the CP having been filed on July 16, 2018 is clearly barred by the period of limitation - the instant CP is barred by the period of limitation and accordingly, the same is dismissed.

Liquidation process - right of the secured creditor - Permission to cause the sale of assets of the Surana Power Limited in Liquidation under Regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations 2016 - Application rejected mainly on the ground that BHEL is a Secured Creditors, entitle to proceed under section 52 to realize its Security Interest - HELD THAT:- In the present case, the Secured Creditors which 73.76% in value have already relinquished the Security Interest into the liquidation estate. Thus, it would be prejudicial to stall the liquidation process at the instance of a single creditor having only 26.24% share (in value), in the secured assets. The Respondent does not hold a superior charge from the rest of the Secured financial creditors in the secured Assets. The above provision of SA....... + More

Dissolution of Corporate Debtor - section 54(1) of the IBC, 2016 R/w Rule 11 of NCLT Rules, 2016 - CIRP process - HELD THAT:- The total outstanding amount payable by Corporate Debtor to Creditors was ₹ 8, 17, 19,714.00 as on date of Admission, out of which IRP/RP received total amount of ₹ 4,31,14,104.00. The total realizable Assets value of the Company as per the valuation done by the IBBI approved Valuers in terms of Regulation 27 is ₹ 8,00,234.00, against which Resolution Professional has recovered ₹ 8,70,479.19, which is over and above the liquidation and Fair Value. Therefore, the Resolution Professional paid on 20.03.2020 with breakup of, IRP/RP Professional Fee - ₹ 3,35,000.00; Towards Publication cost (reimbursement to IRP) - ₹ 29,778.00; To Valuers (4 Nos.) with GST-₹ 1,18,000.00. Therefo....... + More

Condonation of delay in filing appeal - Appeal has been filed on 11-11-2019 after about 150 days of the Impugned Order - CIRP process - HELD THAT:- The Appellant admittedly had noted all the passing of the Resolution Plan, at last on 4-7-2019. It is stated that when admittedly Appeal has to be filed at the most within 45 days from the date of the knowledge, the Present Appeal is apparently time barred. The ground raised in the Appeal Para 6 that during the pendency of the said proceedings before "CERC" the Appellant was not in a position to quantify the Operational Debt and do so only when the proceeding was initiated on 25th September, 2019 can not be accepted. The Appellant had admittedly filed claim before the IRP/RP of which major part was admitted by the IRP/RP. Inability to quantify the Operational Debt, as claimed when again, be no reason or obstruction in filing of the Appeal against the Impugned Order. Appeal is time barred and is dismissed.

CIRP process - grievance of the writ petitioner is that the police has refused to act on the First Information Report registered by them at the behest of the petitioners against the private respondents - HELD THAT:- A perusal of the affidavit-in-opposition filed by the police authorities, taken in its full perspective, shows that the police took sufficient steps in connection with the complaint lodged by the present petitioners - However, since the intervening commencement of the CIRP and the moratorium following therefrom, to which effect an order has also been passed by the National Company Law Tribunal, Kolkata Bench, whatever action the police may take, will ultimately lead to an investigation as to the transactions of the company, which are the subject matter of the CIRP. Therefore, although agreeing with the principle that a morator....... + More

Conduct of inspection of Mr. Koteswara Rao Karuchola (IP) - Allegation that the IP had contravened provisions of the Code, Regulations, and directions issued thereunder - HELD THAT:- An IRP or RP is appointed by the AA. He is an officer of the Court and he is duty bound to conduct CIRP with fairness and diligence and must maintain absolute independence in discharge of his statutory duties without any external influences. The entire resolution process of a Corporate Debtor is dependent on the IRP/RP who is primarily responsible for efficiently and effectively steer it towards resolution. It is due to this reason that the role of the IRP/RP becomes paramount during CIRP. Further, it is the duty of the IP to follow the guidelines laid down under the Code and the Regulations made thereunder so as to legitimately meet the interests of all stak....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- On perusal of the definition it is clear that "person" must fall on the above category(s). In the case on hand, the petition is filed in the name of M/s. S. Crane Engineering Works, a proprietary concern as operational creditor, who is not a "person" for the purpose of filing the application u/s. 9 of the I & B Code. Hence, on this ground itself the application is not maintainable - It is also the duty of the Adjudicating Authority to dispose of cases "jus dicers", in accordance with law as it is and not "jus dare" in accordance with law as it should be. Also, the respondent has also raised some objections with regard to the amount of debt relating to one invoice. The application, so filed by the applicant is not maintainable and is bad in law as well as in facts.

Liquidation of the Corporate Debtor - seeking to remove goods lying in Customs Bonded Warehouse without any condition, demur and/or payment of Customs Duty - Waterfall Mechanism of section 53 of the Insolvency and Bankruptcy Code, 2016 - CBEC Circular No. 1053/02/2017-CX dated March 10, 2017 - HELD THAT:- Both the Acts, Insolvency and Bankruptcy Code, 2016 as well as Central Excise Act, on the subject, as both the statutes are having status of special law and contains non obstante clause under section 142A of the Customs Act, 1962, as well as section IIE of the Central Excise Act, 1994, and, thus, having priority for distribution of proceeds including the liquidation of assets. Hon'ble Supreme Court came to an occasion to examine similar legal position in its landmark decision in SOLIDAIRE INDIA LTD. VERSUS FAIRGROWTH FINANCIAL SERVIC....... + More

Settlement of all dues - Approval of Resolution Plan - CIRP process - time period of 180 days - Section 17 of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- All the dues of the applicant/appellant has been settled as one time settlement and paid in full. These three appeals listed before us today have become redundant - the appeals filed by the appellants are dismissed as infructuous.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- There is no formal contract between the Operational Creditor and Corporate Debtor relating to the Job or Service undertaken/to be undertaken - No evidence record of Debt or acknowledgement letter from the Corporate Debtor is made available by the Operational Creditor. Application rejected.

Grant of Bail - Transfer of Government funds into fake accounts - Money Laundering - siphoning of funds - allegation against the petitioner is of opening 22 bank accounts in his name using forged identification documents - HELD THAT:- The Court notes that the case involves defrauding the public exchequer and the petitioner has admitted his role by the statement under Section 50 of the Act. This Court would refrain from offering any comment as to what would be the likely sentence awarded to the petitioner, if convicted, as at best, today, it would be merely speculative. Since the alleged offence is not a crime simpliciter, the period of custody already undergone by the petitioner and comparatively low value of amount involved, at the current stage, would not aid the petitioner's quest for bail. The Court is not inclined to enlarge the ....... + More

Grant of Regular bail - Money Laundering - siphoning of funds - the allegation is that the amount was given by RFL to entities which were, directly or indirectly, owned or controlled by the applicant, or in which the applicant otherwise had financial interest, including companies linked to RHC - HELD THAT:- Sanctity must attach to filing of a complaint pursuant to an ECIR. It must, as a matter of law, be taken to be the culmination of investigation into the offence to the extent the offence is defined in that complaint. No one is seeking to prevent or forestall further investigation but for the sake of on-going investigation, this court cannot warp the entire concept of pre-trial imprisonment and bail. Nowhere is it the law that an accused, yet to be tried, is to be kept in custody only on a hunch or a presumption that he will prejudice o....... + More

Money Laundering - proceeds of crime - Liquidation/transfer of attached amount before expiry of appeal period - challenge on the ground that the transfer as contrary to the prayer made in the PAO and the consequent confirmation order passed by the Adjudicating Authority - section 26 (3) of the PMLA, 2002 - applicant came to know about it after resuming business - business was closed due to COVID-19 pandemic situation - violation of principles of natural justice. Whether the appellant has made out a prima facie case for grant of order of status quo ante? - HELD THAT:- Since the respondent has followed the procedure prescribed, there are no illegality found in getting the amount transferred in the account of ED. The appellant has offered Bank Guarantee for the retransfer of the aforesaid amount is not agreed by the respondent. During the co....... + More

Money Laundering - provisional attachment order - whether the appellant has made out a prima facie case for grant of order of status quo ante? - HELD THAT:- Since the respondent has followed the procedure prescribed, there are no illegality in getting the amount transferred in the account of ED. The appellant has offered Bank Guarantee for the retransfer of the aforesaid amount is not agreed by the respondent. During the course of hearing, the ld. senior counsel for the appellant submitted that the appellant is economically hard pressed and the aforesaid amount would be utilized by them for their real estate business. The aforesaid amount is alleged to be the proceeds of crime, therefore, the said amount cannot be allowed to be used by the appellant at this stage. Appropriate decision would be taken after hearing the parties on the merits....... + More

Money Laundering - transfer of the amount directed even prior to the expiry of the period of the limitation for filing of an appeal as prescribed under Section 26(3) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The appeal is already filed by the petitioner(s) before the learned Appellate Tribunal, the present petitions are disposed of requesting the learned Appellate Tribunal to consider and dispose of the application(s)/appeal(s) filed by the petitioner(s), as expeditiously as possible and preferably within a period of three weeks from today. The petitioner(s) shall be at liberty to produce this order before the learned Appellate Tribunal in support of their request for early hearing of the appeal(s)/application(s) filed by them. Petition disposed off.

Jurisdiction - power of Tribunal to grant stay/pass order of status quo - Retention of documents, digital devices and other things seized/recovered - section 17(4) of the PMLA - whether the Appellate Tribunal has jurisdiction to grant stay or passed any order of status quo which has the consequence of stalling the investigation? HELD THAT:- Section 26 (1) clearly provides that the appeal to this Tribunal is to be preferred against an order passed by the Adjudicating Authority. The Adjudicating Authority has passed the impugned order under Section 8(3) of the said Act allowing the application filed by the Respondent in the interest of investigation and interest of justice and permitted that the records seized in the case to be retained in terms of Section 17(4) of the PMLA, 2002. Since the order under challenged is an order passed by the A....... + More

Grant of Bail - Money Laundering - scheduled offences - submissions of applicant is that the applicant is an innocent person and has been falsely implicated in the case, he is having no previous criminal history and in jail since 07.01.2020 - HELD THAT:- The schedule offence was registered on 30.11.2007 by the CBI and the applicant co-operated in the aforesaid schedule offence and thereafter, charge sheet was filed before the Special Judge, CBI (Central), Lucknow on 06.10.2009, then the applicant surrendered before Special Judge, CBI (Central), Lucknow and he was released on bail on 15.12.2009, thereafter, the Enforcement Directorate registered the ECIR on 31.03.2010 and started investigation, but the applicant was not taken into custody under Section 19 of The Act and no Provisional Attachment Order under Section 5 of The Act was issued ....... + More

Money Laundering - allegation of depositing demonetized notes of more than ₹ 44 crores in accounts of various persons, including his own, and thereafter transferring it through RTGS into accounts of various other persons at Delhi and Kolkata, mostly in fictitious accounts - HELD THAT:- The petitioner is in fact the main player in the whole episode. It was submitted that he is the person who actually brought the demonetized cash to the Bank where it was allowed to be deposited in the accounts of others persons without their knowledge and subsequently, they were transferred through RTGS to other accounts. It was submitted that Shashi Kumar and Rajesh Kumar had given blank cheques to the Bank for being used in case they defaulted in the loan repayment and, having been given in good faith, were misused, in connivance with the Bank offic....... + More

Money Laundering - proceeds of crime - alleged purchase of fleet of cars out of the ill-gotten money and received about ₹16 crores in one year from Shell companies for bribing/ fixing cases in income-tax department - Section 120B/420 IPC and Section 13(2) read with 13(1) PC Act - Grant of Regular Bail. HELD THAT:- Issue Notice.

Jurisdiction of the National Company Law Tribunal, Hyderabad Bench-I, Hyderabad, to entertain the appeal - Money Laundering - diversion of money - Section 60(5) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The issue sought to be raised including the power under Article 226 of the Constitution of India is no longer res integra. In a recent pronouncement, the Apex Court in M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD. VERSUS STATE OF KARNATAKA & OTHERS [2019 (12) TMI 188 - SUPREME COURT] has dealt with the same, which states that the jurisdiction of the NCLT delineated in Section 60(5) cannot be stretched so far as to bring absurd results. Thus, the NCLT has got no jurisdiction to go into the matters governed under the PMLA - the proceedings have been initiated before the jurisdictional Court by the petitioner pursuant to the Fin....... + More

Money Laundering - interplay between Section 306, and Section 308, of the Code of Criminal Procedure, 1973 - revocation of the tender of pardon - HELD THAT:- The Certificate, of the Public Prosecutor, in the present case, does not allege that, before the Court, the respondent concealed anything essential, or gave false evidence. In fact, a holistic reading of the application, filed by the petitioner before the learned Special Judge, reveals that the grievance of the petitioner is, essentially, that the respondent has not cooperated during investigation, and has withheld material in his possession. Mr. Handoo is right when he contends that non-co-operation, during investigation, is not one of the circumstances contemplated, by Section 308 (1), as justifying issuance of certificate by the Public Prosecutor. Quite obviously, this is because ....... + More

Prayer for deposit of amounts deposited in the accounts opened in HDFC and DCB - HELD THAT:- I take on record the submission made by Mr. Jain, on instructions from Mr. Mahajan that the order passed by this Court on May 13, 2020 with regard to the payment of salary to the employees, has been complied with - The statement made by Mr. Luthra for not withdrawing the amounts deposited in the accounts opened in HDFC and DCB shall continue till the next date of hearing. List on 26th May, 2020.

Freezing of petitioner's Bank Accounts - permission to petitioner to pay the salaries to the employees for the month of April, 2020 by encashing FDRs of equivalent amounts - HELD THAT:- The petitioner is permitted to furnish to the respondents within 24 Hrs., list of the employees to whom the salaries have to be paid for the month of April, 2020. Respondents shall verify the list and convey their approval and objection, if any, with regard to any name, within 24 Hrs. of the receipt of the list from the petitioner. They shall send a communication to the Banks forthwith to enable the petitioner pay salary to its employees for the month of April, 2020, by operating / encashing the FDRs of the equivalent amount, (equivalent to the salaries to be paid to the employees). The petitioner is permitted to deposit the TDS and connected statutory....... + More

Grant of Anticipatory bail - case of petitioner is that the Accused petitioner was not even made an accused in the original case emanating from FIR No. 251/2015 registered with the Anti Corruption Bureau against other co-accused persons - HELD THAT:- Perusal of material on record and looking to the facts and circumstances of the case, specially to the fact that revision petition challenging the order dated 21.01.2019 passed by the trial court, has already been dismissed by a coordinate bench of this court as well as by the Hon’ble Supreme Court, similarly situated co-accused have already surrendered before the trial court and looking to the fact that accused petitioner is involved in serious economic offence involving huge sum of money and keeping in mind the principle of law enunciated by Hon’ble apex court in P. CHIDAMBARAM ....... + More

Grant of Bail - Money Laundering - Scheduled offences - allegation against the petitioner is that the petitioner amazed huge amount of movable and immovable property from his criminal activity in connection with twenty-six criminal cases against the petitioner - HELD THAT:- There is no material to substantiate that the petitioner would tamper with the evidence or be non-co-operative in the trial. In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], the Constitution Bench of the Hon’ble Supreme Court said that the bail is not to be withheld as a punishment. The main object is to secure the attendance of the accused at the trial. The proviso to Section 45 of the Prevention of Money-Laundering Act, 2002 is applicable in this matter. Considering the entire facts aforesaid, the petitioner deserves to be enl....... + More

Vires of Clause (ii) of sub-Section (1) of Section 45 of the Prevention of Money Laundering Act, 2002 - amendment in section 45 - applicability of decision in the case of NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] where the Supreme Court has declared Clause (ii) of sub-Section (1) of Section 45 of the Prevention of Money Laundering Act, 2002, ultra vires Articles 14 and 21 of the Constitution of India - amendment in section 45, subsequent to the Supreme Court’s decision, in case of Nikesh Tarachand Shah. Whether the amendment introduced in Section 45 of the Act, by Act No. 13 of 2018, shall amount to re-framing the entire Section 45 and thereby reviving and resurrecting the requirement of twin conditions under sub-Section (1) of Section 45 of the Act for grant of bail? HELD THAT:- In vi....... + More

Money Laundering - Freezing of petitioner's Bank Account - proceeds of crime - Permission to pay the salaries to the employees for the month of April, 2020 by encashing FDRs of equivalent amounts - HELD THAT:- The petitioners are permitted: (a) to discharge their liabilities towards salaries, bonus and reimbursements payable to their employees; (b) to make payments towards provident fund, professional tax, TDS on salaries and TDS on non-salary payouts from the bank accounts (including fixed deposits) that are subject matter of action by respondents Nos. 2 and 3, subject to verification by the concerned respondents of the list of employees and the amounts due (towards all heads of permitted payouts), for which purpose the petitioners shall furnish to respondent No. 3 a list of employees to whom salaries/bonus/reimbursements are require....... + More

Money Laundering - Release of petitioner on bail - loans to shell companies and related known entities - siphoning of funds - HELD THAT:- It is essential to observe that during the course the hearing of the present proceedings, it was suo moto by this Court brought to the notice of both the learned Senior counsel for the petitioner Mr. Mukul Rohatgi and learned Senior Standing Counsel for the State Mr. Rahul Mehra that in Writ Petition Civil Diary No.10829/2020 vide order dated 07.04.2020, the Hon’ble Supreme Court permitted the petitioner thereof who had challenged the criterion of the Hon’ble High Powered Committee of this Court dated 28.03.2020 putting an embargo to the release on interim bail/ parole of under trials in cases of alleged commission of economic offences and whereby vide order dated 07.04.2020, the Hon’b....... + More

Revocation of pardon - Section 308 of Cr.P.C - HELD THAT:- The application contains detailed allegations, on facts, to highlight that the respondent has misused the pardon, extended to him, and has not made a full and true disclosure of the information known to him, or the documents, over which he has control. Prima facie, it is not necessary to enter into the said details, as the learned trial court has dismissed the application of the petitioner on a preliminary ground, without examining it on merits. Resultantly, a pure question of law, relating to the circumstances in which revocation of pardon, under Section 308 Cr.P.C can be granted, and the conditions precedent therefor, arises for consideration. Issue Notice - List this matter for final disposal on 3rd June, 2020.

Provisional attachment of properties - physical possession of properties - COVID-19 pandemic situation - HELD THAT:- In view of the present circumstances, including the restricted functioning of the judicial authorities and the consequent impediment which may be faced in having the matter heard expeditiously by the Appellate Tribunal, the respondents are directed not to give any further effect to the impugned notices dated 01.04.2020 for a period of fifteen days from today or until the matter is taken up by the Appellate Tribunal, whichever is earlier. In view of the present situation, if it is not possible for the petitioners herein to sign the appeal paper book or the affidavits before the Appellate Tribunal, the same may be considered by the Tribunal on the signatures of learned counsel for the appellants, subject to the appellants making good the defects as soon as practicable, and not later than one week after the lifting of the national lockdown. Petition disposed off.

Unpublished price sensitive information being shared on a messaging platform 'Whatsapp' - whether the appellant is entitled for inspection and for supply of all the documents in possession of the adjudicating authority including those documents upon which no reliance has been placed by the Adjudicating Officer ('AO') of the Securities and Exchange Board of India ('SEBI' )? - HELD THAT:- Concept of fairness and principles of natural justice are in-built in Rule 4 of the Rules of 1995 and that the AO is required to supply the documents relied upon while serving the show cause notice. This is essential for the person to file an efficacious reply in his defence. The contention that the appellant is entitled for copies of all the documents in possession of the AO which has not been relied upon at the preliminary stage w....... + More

Guilty of causing false media report causing the rise in the price of the scrip - temporary prohibitory order - WTM directing the present appellants to disgorge an amount of ₹ 22,69,461/-along with interest at the rate of 12% per annum from December 22, 2008 - HELD THAT:- Appellants submitted that there is a delay in the proceeding, the documents filed by the appellants themselves would show that before the WTM they were pressing time and again for more documents from the respondents before filing reply to the show cause notice. Even though a compact disk was supplied to them the demand continued which ultimately led to filing of reply belatedly. Though the practice of keeping temporary prohibitory order continuing for a long period cannot be accepted, it is to be noted that ultimately the said order is revoked. Therefore, the issue....... + More

Acquisition of the shares by promoters - increase in the collective shareholding of all the appellants - the promoters, from 29.42% to 61.10% which was more than threshold limit of 5% - no public announcement was made - violation of provisions of Regulation 3(2) read with Regulation 13(1) of the SAST Regulations, 2011 - HELD THAT:- There should be common objective of purchase of shares or voting rights amongst the members to make them persons acting in concert. In the present case, while two promoters had an objective to dispose of their shares, the appellant No. 1 Susheel Somani had an objective to acquire the shares. This itself would show that there was no common cause between the appellant No. 1 Susheel Somani and the two transferors. Therefore, though the promoter group holdings in the company remained constant, the same would be irr....... + More

Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market - Monetary penalties imposed on them under section 15HA of the SEBI Act, 1992 - HELD THAT:- SEBI was doing investigation during the interim and some delay though has happened on account of change in the AO. Though the impugned order deals with trading in the name of the minor, no action has been rightly contemplated against the minor. As regards the other noticees/appellants on appeal before us we note that though their relationship through common address, common mobile numbers etc. are matters of record and proved no motive has been attributed to their trading pattern. New LTP, NHP and a few first trades in the scrip have been created/done by these appellants which would prima facie points towards a manipulative effort. It is on record that the scrip was p....... + More

Inordinate delay in the issuance of the show cause notice for violation of Section 12(A)(a), (b) and (c) read with Regulations 3(a),(b),(c) & (d) and 4(1), (4(2)(a) and (g) of PFUTP Regulations - delay of 7 years in issuing the show cause notice - HELD THAT:- There has been an inordinate delay in the issuance of the show cause notice. Even though there is no period of limitation prescribed in the Act and Regulations in the issuance of a show cause notice or for completion of the adjudication proceedings the authority is required to exercise its powers within a reasonable period as held recently in Adjudicating Officer, Securities and Exchange Board of India v. Bhavesh Pabari [2019 (3) TMI 197 - SUPREME COURT]. In the instant case, we are of the opinion that the power to adjudicate has not been exercised within a reasonable period and ....... + More

Collective Investment Schemes - show cause as to why the Yatra Art Fund should not register itself with SEBI in the prescribed corporate form, as otherwise the collective investment scheme carried out by the Trust would be illegal - SCN also mentioned that all amounts collected should be refunded within a period of 30 days from the said show cause notice - HELD THAT:- The statutory scheme is that, if a collective investment scheme, as defined, is to be floated by a person, it could only be done in the form of a collective investment management company and in no other form. This is the reason why Section 11AA uses the expression "company" in sub-Section (2) and not the word "person" (as the CIS Regulations of 1999 had come into force on 15-10-1999; Section 11AA being enacted and coming into force on 22-2-2000). Once the....... + More

Restrained orders from accessing the securities market or dealing with the securities market directly or indirectly - BSE Limited ('BSE') was directed to appoint an independent auditor/audit firm for conducting a detailed forensic audit of the books of account of Ricoh India Limited - prima facie suspicion and vicarious liability attributable to a MD/CEO - HELD THAT:- The impugned order (quoted at paragraph 5 and 6 of this order) bring out only a suspicion about the role of the appellants. Moreover, we note that though the submissions of the appellants have been noted in detail in the impugned order they have not been dealt with appropriately. Question before us is how long the appellants would be kept out of the market through directions contained in an interim order and confirmatory order which are based on only a prima facie su....... + More

Insider trading - circumstantial evidence as to whether a person is guilty of insider trading - HELD THAT:- Appellant had passed on the price sensitive information regarding the open offer to the Tippees. Such inference taken from the immediate and proximate facts and circumstances surrounding the events is reasonable and logical which any prudent man would arrive at such a conclusion. The Supreme Court in Kanhaiyalal Patel 2017 (9) TMI 1269 - SUPREME COURT held that an inferential conclusion from proved and admitted facts would be permissible and legally justified so long as the same is reasonable. In the light of the aforesaid, the decisions cited by the learned counsel for the appellant on the issue that a person cannot be held guilty only on the strength of proximity of relationship with the Tippee are distinguishable on facts and are....... + More

Orders for release of securities - learned senior counsel sought intervention of this Tribunal to stay such orders as well as to allow the appellant to dispose of the securities worth ₹ 21.62 crores and thereafter releasing the remaining securities given by Respondent No. 2 to the appellant - HELD THAT:- We pass the following interim directions - The parties shall appear before NSE, either physically or through Video Conference, on June 24, 2020. NSE shall give the contact details and arrangements for the said meeting to the parties at least one day in advance. (b) Based on the database of NSE and other parties rights in respect of the securities in question shall be reconciled/determined within one week thereafter. (c) This Tribunal will hear the matter further on Friday, July 03, 2020. In the interim status quo shall be maintained....... + More

Withhold of money by SEBI - penalty for violation of Regulations 3 and 4 of Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 - During the pendency of the appeal, the Recovery Officer of SEBI recovered an amount - HELD THAT:- Once the order of the AO imposing a penalty was set aside, there was no justification for SEBI to withhold any amount which was recovered pursuant to the order of the AO. Such retention of the amount after the order of the AO has been set aside, is without any authority of law. The fact that no direction for refund of the amount was issued by the Tribunal is immaterial. Once the order has been set aside, there is no amount to be recovered and consequently any amount so recovered has to be refunded immediately. Respondent has a....... + More

Maintainability of the Writ Petition - whether IGRP of the First Respondent has jurisdiction to re-examine the complaint of the Third Respondent pursuant to the direction issued by the Second Respondent after having arrived at the conclusion that the admissible claim of the Third Respondent against the Petitioner was 'NIL' and relegated the parties to take further course of action under the Exchange Regulations in the earlier order dated 18.10.2016, which has attained finality having remained unchallenged in the manner recognized by law - HELD THAT:- There cannot be any doubt that the attempt to re-examine the complaint of the Third Respondent against the Petitioner by IGRP of the First Respondent without any specific provision to that effect in IGRM devised by the Second Respondent in Circular No. CIR/MRD/ICC/30/2013 dated 26.09........ + More

Reversal trades - manipulative and unfair trading - 5 Entities restrained from accessing or dealing in the securities market directly or indirectly for a period of 5 - 7 years - Further 11 entities, who have already undergone a debarment of more than 5 years from the date of the interim order have been directed to disgorge an amount of ₹ 3,05,99,174/- jointly and severally along with the 5 entities who have now been restrained along with interest @ 12% p.a. from December 17, 2012 till the date of payment - HELD THAT:- In a scheme of manipulative and unfair trading it is not necessary that every participant should be indulging in every type of trading violation or even in the same/similar magnitude. Once they are found to be part of a group trying to manipulate the volume or price of the scrip they became party to the violation. Hair....... + More

Liability of the Company and directors - repayment of the money collected through issuance of Secured Optionally Convertible Debentures - HELD THAT:- WTM relying on the provisions of sub section 2 of Section 73 of the Companies Act has observed that the liability of the Company and directors would remain until the whole of the subscription amount along with interest is refunded to the allottees. This being the position the appellant cannot escape from the liability of the repayment. In the case of Sayanti Sen [2019 (8) TMI 1441 - SECURITIES APPELLATE TRIBUNAL, MUMBAI] this Tribunal has observed that WTM in the impugned order therein had given a categorical finding that one Shri Shib Narayan Das was responsible for the affairs of the company. In the present case the appellant during the relevant period being a promoter director of GIIPL ca....... + More

Period of limitation to initiate proceedings - proceedings were launched by respondent SEBI after a period seven years - Manipulation of scrips - Shares were either sold in off-market or through market to the connected entities in order to create a volume manipulation in the said scrips - HELD THAT:- Power to initiate the proceedings must be exercised by the authorities within a reasonable time. This would depend upon the facts and circumstances of the case, nature of the default / statute and prejudice caused to the noticee. In the present case, the appellant neither put a plea of prejudice before the AO nor before us. It was simply stated that since the proceedings were launched by respondent SEBI after a period seven years, the same should be quashed on the ground of delay. The record would show that all the documents concerning the de....... + More

Public offer of shares - no private placement as per assessee company as per WTM - offer to more than 49 persons - violation of the provisions of the Companies Act - HELD THAT:- Evidence indicates that an invitation was made by the management of the company to selected persons for subscription or purchase by less than fifty persons. Such persons receiving the offer or invitation was not calculated directly or indirectly to be availed of by other persons, and consequently such invitation or offer could not be treated as an offer or invitation to the public. The finding of the WTM on this aspect is absolutely perverse. The reasoning given that merely because three allottees had made the complaints indicates that the offer or invitation falls in the category of one which is calculated to result directly or indirectly in the shares, debenture....... + More

Shares acquired without making any public announcement - as per WTM Acquisition of the shares were against Regulation 3(2) of the SAST Regulations - HELD THAT:- Though a presumption that the promoters would be persons acting in concert can be raised the same can be rebutted either by positive evidence or by negative facts discernable through the conduct of the parties. The fact that the appellant Company did not participate in acquisition of additional shares by two of the other appellants, the fact that there is no resolution passed by the present appellant and fact that there is no communication on record from the appellant Company would show that present appellant Company cannot be termed as person acting in concert. The present appeal will have to be allowed. In the present case, what we find is that Appellant Nos.5 and 6 had not deli....... + More

Money mobilization - Public issue - Whether the Company came out with the Offer of RPS [Redeemable Preference Share] as stated in the Interim Order? - whether the Offer of RPS is in violation of Section 56, Section 60 and Section 73 of Companies Act, 1956? - HELD THAT:- As neither the company nor the directors have disputed the same. Also perused the documents/information obtained from the 'MCA 21 Portal' and other documents available on records. It is noted, that OIL has issued and allotted RPS to 4,191 investors during the financial years 2011-12 and 2012-13 and raised a total amount of ₹ 5,46,48,000/- - number of allottees and funds mobilized has been collated from the information from Ministry of Corporate Affairs (MCA) Portal and the documents submitted with the complaint received by SEBI. Therefore, it is possible that....... + More

Non-compliance of summons issued by SEBI - whether the appellant has violated provisions of Section 11C(3) of the SEBI Act? - whether clause 43 of the Listing Agreement has been violated by not disclosing to the Stock Exchange the alleged variations between the projected utilization of funds and the actual utilization of funds raised through the preferential allotment? - HELD THAT:- Though the appellant may be charged with non-submission of full information the submission of the appellant that the management of the appellant was new etc. has to be given some weightage while imposing the penalty. Given this and the facts of the matter, we are of the view that the amount of penalty at the rate of ₹ 10 lakh on this violation is on the higher side particularly when the appellant did provide part of the information readily available with....... + More

Private placement of securities - Allotment of Unsecured Fully Convertible Debentures (FCDs) in excess of 500 members - increase in the subscribed capital of the Company - section 71(5) - issuance of FCDs by the Company was public issue OR not? - WTM directed to cancel the FCDs and forthwith refund the money collected till date through the issuance of FCDs including the application money collected from investors,restriction to the number of shareholders to whom the debentures would be issued - appointment of trustees - HELD THAT:- Shareholders in their 68th Annual General Meeting held on 28th September, 2015 passed a special resolution to allot and issue 1,92,900 Fully Convertible Debentures of ₹ 250/- with the condition that the shareholders will have no right to renounce the offer in favour of any person and that these debentures ....... + More

Money mobilization - money collected by the Company for teak plantation scheme was in the nature of Collective Investment Scheme (CIS) as defined in section 11AA of the Securities and Exchange Board of India Act - scheme was being carried on without requisite registration under the SEBI Act - HELD THAT:- In Appeal No. 378 of 2017 were appointed as directors for a limited period between 2008 and 2009. During this period, no amount was collected under the CIS. There is no finding that the amount collected had matured during the period when these appellants were the directors. Consequently, in our opinion, these directors could not be fastened the liability to refund the amount as they had neither collected the money nor were responsible for disbursement of the money to the investors at that stage. Admittedly the said appellants after their ....... + More

Permission for Direct Investment in certain cases - direct investment in joint venture or wholly owned subsidiary outside India - application the petitioner seeks permission for remission of USD 54.99 Million on or before 31st July, 2020 - HELD THAT:- What prima facie appears is that based on a communication written by Directorate of Enforcement containing cryptic information the RBI/respondent has chosen to withhold permission to the petitioner. The discretion under clause 9 of the abovenoted Regulations has to be exercised by RBI the respondent based on cogent facts and materials and not at the mere directions of Directorate of Enforcement. It was for the respondent/RBI to exercise its discretion in the facts and circumstances of the case keeping in view its own permissions given and subsequent facts and events that may have taken place....... + More

Permission for Direct Investment in certain cases - on the saying of the concerned Enforcement Directorate, permission is being refused to the petitioner - HELD THAT:- In case an Indian party does not satisfy the eligibility norms of Regulation 6 then it may apply for RBI for approval. It is Regulation 6 which states that permission cannot be given in case the investigations are pending by the Law Enforcement agencies. Regulation 9 does not provide any such stipulation. Hence, prima facie the petitioner was correct in having approached RBI under Regulation 9. Counsel for RBI has pointed out to some inquiry initiated recently as mentioned in communication dated 14.08.2019 by Enforcement Directorate. The petitioner refutes this. We cannot help noticing that the corporate guarantee and the loans have prima facie been taken with the prior per....... + More

Offence under FERA - Economic Offence cases - failure to realize the respective full export proceeds of the goods within the stipulated period - Transaction in clandestine manner - Whether opportunity notice as contemplated under the proviso to Section 61 (2) (ii) of FERA has been issued to A-1 to A-3? - Whether prior permission as mandated u/s 18 (2) of FERA has been obtained by A-1 to A-3 from the Reserve Bank of India;? - judgment of acquittal recorded by the trial court - HELD THAT:- This Court has no hesitation in holding that even non-issuance of opportunity notice as contemplated u/s 61 (2) (ii) of FERA will not vitiate the case. However, in the case on hand, Ex.P-41, opportunity notice as contemplated u/s 61 (2) (ii) of FERA has been issued to the accused. In such circumstances, the finding of the trial court that no opportunity n....... + More

Organisation of a political nature as barred from receiving foreign contributions - Sections 5 (1) and 5 (4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3 (i), 3 (v) and 3 (vi) of the Foreign Contribution (Regulation) Rules, 2011 as violative of Articles 14, 19 (1) (a), 19 (1) (c) and 21 of the Constitution of India - Guidelines for declaration of an organisation to be an organisation of a political nature not being a political party are found in Rule 3 of the Rules - principal challenge of the Appellant-organisation to Section 5 (1) of the Act is on the ground that the terms ‘activity, ideology and programme’ are vague and have not been defined in the Act which result in conferring unbridled and unfettered power on the executive. Therefore, the Appellant-organisation contended that Section 5 (1) is violative ....... + More

Violation of provisions of Section 10(6) of the FEMA Act - Responsibility of Authorised person - goods had arrived in India, but the Company failed to submit Bill of Entry and did not take delivery of the goods - goods not released and as such kept in bonded warehouse - defence of the appellant that he could not be made responsible for the stated contravention. For, he became the Managing Director of the Company much later i.e. on 22.10.2001 - HELD THAT:- In the present case, the finding of fact is that the import of goods for which the foreign exchange was procured and remitted was not completed as the Bill of Entry remained to be submitted and the goods were kept in the bonded warehouse and the Company took no steps to clear the same. As a result, Section 10(6) of the FEMA Act is clearly attracted being a case of not using the procured ....... + More

Contravention of FEMA - Investment in three step-down subsidiaries through Wholly Owned Subsidiary (WOS) without the permission of the RBI - Penalty imposed - HELD THAT:- As provided that if any person contravened any provision of this act or contravened any rules, regulation, notification, direction or order issued in exercise of the powers under this Act be liable to penalty upto thrice the sum involved in such contravention where such amount is quantifiable. In the present case the sum involved are quantifiable. During the course of argument the learned counsel for the appellants submitted, on query by the Bench, submitted that more than six crores of INR were invested in the step-down subsidiaries. If it is so the imposition of ₹ 70 lakhs on the appellant company and ₹ 20 lakhs on the Managing Director is not disproportion....... + More

Condonation of delay in filing applications for substitution of Legal Heirs (LRs) of the deceased appellant - common application for substitutions of LRs has been filed on 01.11.2018 i.e. around 370 days from the date of death of the deceased appellant - HELD THAT:- There is a huge delay of 370 days in filing the application. It is not the case of the proposed appellants that they are not aware of the pendency of the appeals before Appellate Tribunal, it is also not the case that the proposed LRs were not running the Company or that the Company was closed after the sad demise of deceased appellant for one year. In the present case, there is not only a huge delay but also there is no sufficient explanation as to why there is a delay of 370 days in filing the application. In the present case, there is not only a huge delay but also there is....... + More

Violation of provisions under FCRA, 1976 - foreign contribution received by the respondent-petitioner - HC quashed the FIR - HELD THAT:- The impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegtions made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. The assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Cou....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS) - contention of the respondents is that Sub Rule (3) of Rule 7 only qualifies Sub Rule (1) of Rule 7 - HELD THAT:- While Sub Rule (1) of Rule 7 specifies the form that has to be used while filing the half yearly returns, Sub Rule(3) clarifies the manner in which the half yearly returns have to be filed by an assessee after 01.10.2011. When so read harmoniously, it would follow that the half yearly return that has to be submitted in the particular form mentioned in Sub Rule (1) had necessarily to be submitted electronically with effect from 01.10.2011 - In the instant case, the petitioner not having filed the returns in electronic form within the period specified in the statute, cannot now be heard to contend that he can file the return in manual form for the purposes of obtai....... + More

Reverse Charge Mechanism - levy of service tax on Construction of Residential Complex Service for the period upto 30.06.2012 and same service after 01.07.2012 - Circular No.332/35/2006-TRU dated 01.08.2006 and No.19/7/2007-ST dated 23.08.2007 - HELD THAT:- There is no evidence on record to establish that the appellant had constructed a residential complex before 30.06.2012 or the appellant had constructed a complex with more than 2 residential units together after 01.07.2012. The appellant did not provide residential complex service prior to 01.07.2012 and appellant was eligible for exemption under Notification No.25/2012-ST dated 20.06.2012 at Serial No.14 for activity of construction undertaken by him for the period subsequent to 01.07.2012. Further, appellant was not liable to pay Service Tax under Reverse Charge Mechanism. Appeal allowed - decided in favor of appellant.

Reverse Charge Mechanism - levy of service tax on Construction of Residential Complex Service for the period upto 30.06.2012 and same service after 01.07.2012 - Circular No.332/35/2006-TRU dated 01.08.2006 and No.19/7/2007-ST dated 23.08.2007 - HELD THAT:- There is no evidence on record to establish that the appellant had constructed a residential complex before 30.06.2012 or the appellant had constructed a complex with more than 2 residential units together after 01.07.2012. The appellant did not provide residential complex service prior to 01.07.2012 and appellant was eligible for exemption under Notification No.25/2012-ST dated 20.06.2012 at Serial No.14 for activity of construction undertaken by him for the period subsequent to 01.07.2012. Further, appellant was not liable to pay Service Tax under Reverse Charge Mechanism. Appeal allowed - decided in favor of appellant.

Taxability - principles of mutuality - services provided to group / promoter companies - period April 2007 to September 2011 - Business Auxiliary Service or not - HELD THAT:- The companies have come together to share the resources and there is mutuality of interest of the promoters / member companies. No evidence of any consideration paid by Group Companies for providing of services to the member-companies or GMR group of companies. The only basis for providing of services by the appellant is on cost sharing basis as per the norms or formula laid down by the members of the appellant company. Therefore, SCN is not maintainable both on the principle of mutuality and on the fact of lack of consideration for such services alleged to have been rendered. Appeal allowed - decided in favor of appellant.

Levy of Service Tax - Construction Activities - reverse charge mechanism - it appeared to revenue that appellant were providing “Construction of Residential Complex Service‟ for the period upto 30.06.2012 and same service after 01.07.2012 being covered by the provisions of Section 66 E of the Finance Act, 1994 - exemption under Sl. No.14 of N/N. 25/2012-ST dated 20.06.2012 - HELD THAT:- There is no evidence on record to establish that the appellant had constructed a residential complex before 30.06.2012 or the appellant had constructed a complex with more than 2 residential units together after 01.07.2012 - Thus the appellant did not provide residential complex service prior to 01.07.2012 and appellant was eligible for exemption under Notification No.25/2012-ST dated 20.06.2012 at Serial No.14 for activity of construction unde....... + More

Extended period of limitation - VCES scheme - invocation of proviso to Sub-section (1) of Section 73 of Finance Act, 1994 - demand on the ground that the appellant had not filed ST-3 returns till the issue of show cause notice - HELD THAT:- The learned Original Authority has accepted the plea of the appellant that the details of the transactions were recorded by the appellant in their specified records. Further, he was held that the appellants were entitled to reduced penalty. This indicates that there were no elements for invoking extended period of limitation - Further, in view of submissions of the learned Chartered Accountant on behalf of the appellant that the amount voluntarily deposited was more than service tax liability for normal period, there were no provisions for issue of said show cause notice dated 05.06.2017 in view of pro....... + More

Valuation - Reverse Charge Mechanism - Clearing and Forwarding service - Goods and Transport Agency service - inclusion of reimbursement of expenses in assessable value - pure agent services - Department was of the view that appellant adopted a novel modus operandi by which it bifurcated the amount received by it from various service recipients under two different category of services i.e. ‘Clearing and Forwarding services’ and ‘Goods and Transport Agency service’ - allegation that the appellant had not declared the taxable value correctly as gross receipts as per section 67 of the Finance Act, 1994 for the purpose of payment of Service Tax - period 2007-2008 to 2011-2012. HELD THAT:- So far as the issue pertaining to reimbursement of expenses incurred by the appellant on account of service recipient working as pur....... + More

Imposition of penalty u/s 76 and 78 of FA - Non-payment of service tax - Business Auxiliary Services - appellant is incurring commission amount for payment to the selling agents located outside India - period June 2005 to March 2009 - demand paid on being pointed out, before issuance of SCN - Revenue Neutrality - HELD THAT:- The applicability of service tax on commission amount paid to the service provider located outside India is not in dispute. The assessee has already deposited the service tax with applicable interest well before the issue of SCN - also, the levy of service tax on services received from outside India was a new concept and the same was made applicable only w.e.f. April 2006. There was an ignorance on the part of the assessees regarding the service tax liability on import of services from outside India. The appellant her....... + More

Rectification of impugned Form SVLDRS-03 dated 22nd May, 2020 - rectifiable error - HELD THAT:- The petition and application are disposed of with a direction to the respondent No.2 to decide the petitioner’s representation dated 12th June, 2020 in accordance with law within two weeks. Issue Notice.

Principles of Natural Justice - denial of reasonable opportunity of being heard - levy of Service Tax - contract of construction of road - period from April- 2014 to June-2017 - HELD THAT:- This court is of the considered view that due and sufficient opportunity of being heard of reasonable nature was extended to the petitioner to respond to the show cause notice which was issued about 9-10 months back. If the petitioner had any genuine intentions of filing reply and not delaying the matter, petitioner would have availed the opportunity - thus the opportunity of reasonable in nature was extended to the petitioner before passing of the impugned order vide P/1. Petition dismissed.

Levy of octroi by municipalities - Invocation of Finance Act, 1994 against the amount retained by the appellant - exemption under notification no. 13/2004- ST dated 10 September 2004 - circular no. 897/7/2006-ST dated 18 December 2006 and no. 96/07/2007-ST dated 23 August 2007 of Central Board of Excise & Customs - HELD THAT:- The adjudicating authority has proceeded on the assumption that the collection of octroi was the service rendered by the appellant and the sole aspect that remained in dispute was the fitment within the proposed taxable service. In doing so, the plea of having discharged sovereign function that was beyond the ambit of tax laws was taken up to sustain the finding that taxable service had been rendered. There can be no cavil that sovereign functions are not intended to be taxed; sovereignty of a State has its gene....... + More

Services received from outside India - POPOS Rules - reverse charge mechanism - chartering out of vessels - agency commission, disbursed in India and remitted outside India - various reimbursements - reimbursement to out chartering agents, being payment to agents for handling port charges outside India - reimbursement of deputation expenditure - reimbursement as sales promotion expenditure - reimbursement as expenditure on maintenance and repair - reimbursement towards expenditure on consulting engineers and training - section 66A of Finance Act, 1994. Whether rendering of such service outside India, even if it is for the benefit of the entity in India, amounts to provision of the service in India? - HELD THAT:- The peculiar characteristic of invisibility, and intangibility of the taxable event compounded by the near impossibility of segr....... + More

Imposition of penalties - Mining of Mineral services - tax along with interest paid on being pointed out before issuance of SCN - period 2007-08 and 2008-09 - HELD THAT:- The issue is no more res integra and has been settled in favour of the assessee that once the assessee pays the tax along with applicable interest before issuance of the show-cause notice, the show-cause notice should not have been issued in the facts of the present case. The case of the appellant is squarely covered by Section 73(3) of the Finance Act, 1994 since the appellant assessee after making payment of service tax and the applicable interest before issuance of the show-cause notice, intimated the authorities for not issuing the show-cause notice. Once the payment of service tax and interest is made by the appellant assessee and the intimation is furnished to the ....... + More

Refund of CENVAT Credit - rejection on the ground that the assessee was not registered with the Service Tax Department - shifting of premises - HELD THAT:- The issue is no more res-integra in view of the judgment of Hon’ble High Court of Karnataka in the case of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [2011 (9) TMI 450 - KARNATAKA HIGH COURT] where it was held that In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund, on the ground which is not existence in law - the issue is answered in favour of the appellant holding that even though they were not registered prior to 13/05/2013, th....... + More

Maintainability of application - appropriate forum - High Court or Supreme Court - Issue involving determination of rate of Service Tax - whether fabrication of structure which was not covered under the expression “erection of plant, machinery, or equipment’s”? - no civil work was undertaken - Erection Commissioning and Installation Service or not? Mr. Shah pointed out that the impugned orders in both the appeals passed by the Appellate Tribunal are one relating to the rate of duty of service tax. According to Mr. Shah, the appeal would lie before the Supreme Court. HELD THAT:- Both the appeals are disposed of as not maintainable before this High Court with the liberty to take appropriate steps in accordance with law before the appropriate forum - appeals disposed off.

Levy of Service Tax - banking and other financial services - foreclosure charges levied by the banks and non banking financial companies on premature termination of loans - matter referred to Larger Bench - HELD THAT:- Where service tax is chargeable on any taxable service with reference to its value, then such value shall be determined in the manner provided for in (i), (ii) or (iii) of sub-section (1) of section 67. What needs to be noted is that each of these refer to “where the provision of service is for a consideration”, whether it be in the form of money, or not wholly or partly consisting of money, or where it is not ascertainable. In either of the cases, there has to be a “consideration” for the provision of such service. Explanation to sub-section (1) of section 67 defines “consideration” to i....... + More

Maintainability of petition - alternative remedy of appeal - Levy of Service Tax - construction undertaken in TNCSC Thanjavur Division - time limitation - HELD THAT:- There is nothing on record to indicate that the appellant himself was very much vigilant in getting his writ petition disposed of. Merely delay in taking up of the writ petition does not impell to entertain the aforesaid arguments for the reason that even if the contention is that the appellant was not liable to service tax, it was a question of fact, which had to be determined on the strength of the contract agreement and the documents which have been relied on by the parties - there are no error in the approach of the learned Single Judge in allowing the appellant to seek the remedy of appeal, which has been extended to the appellant even after a lapse of such a long time ....... + More

Classification of services - GTA or cargo handling service - local transportation/shifting charges collected by the Appellant which is inclusive of loading of tipper, transportation upto Railway Track Head and automated unloaded of tipper at the Railway Track Head - HELD THAT:- The contract in dispute in the instant case is essentially for the transportation of goods which incidentally involving loading of tipper/unloading of tipper at Railway Track head/Railway Siding which cannot be taxed under the category of Cargo Handling Service simply because rates for loading of tipper at Dump Yard and unloading of tipper at Railway Siding is not provided separately. The Learned Commissioner (Appeal) has erred in placing reliance on Circular No.B11/1/2002-TRU dated 01-08-2002 which does not apply to the facts of the instant case. Further, so far a....... + More

Classification of services - IPR service or franchise service? - manufacture and sale of various formulations (fast moving consumer goods) - benefit of a Notification dated 10 September, 2004 - reverse charge mechanism - HELD THAT:- The amended definition of “franchisee” contains only the first condition of the definition as it stood prior to 16 June, 2005 and the other three conditions have been left out. Under the amended definition, “franchise” means an agreement by which the franchisee is granted representational right to sell or manufacture goods or to provide service or undertake any process identified with franchisor, whether or not a trade mark, service mark, trade name or logo or any such symbol, as the case may be, is involved. Thus, if the condition relating to “representational right” is not....... + More

Principles of Natural Justice - CENVAT Credit wrongly availed - prayer made in the application is that the applicant may be permitted to add certain grounds as also file related documents and to grant an opportunity to the applicant to urge the said grounds at the time of hearing of the appeal - extended period of limitation - interest and penalties - scope of Rule 10 of the 1982 Rules - HELD THAT:- If the appellant has not taken a ground, he cannot be permitted to urge or be heard in support of the ground not taken unless leave is granted by the Tribunal. The Supreme Court in JUTE CORPORATION OF INDIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND ANOTHER [1990 (9) TMI 6 - SUPREME COURT] examined the powers of Appellate Assistant Commissioner under section 251 of the Income Tax Act. After noticing that the Appellate Assistant Commissioner....... + More

CENVAT Credit - input services - repair and maintenance services utilised for dismantling steel structural works, fabrications & erection of columns, trusses, monkey ladder, strengthening of existing structure, maintenance of tailing line, drilling and sand blasting, carried out in the factory premises of the appellant - manufacture of zinc lead which are taxable output - Board Circular No. 943/4/2011-CX dated 29.04.2011 HELD THAT:- The input services are not hit by the exclusion clause (A) in Rule 2(l) of Cenvat Credit Rules, 2004 in view of the inclusive part of the definition input service, read with the clarification given by the Board dated 29.04.2011. Appeal allowed - decided in favor of appellant.

CENVAT Credit - input services - services utilised in the factory of production - Road work over jarofix yard site - De- sludging of sludge sand - Installation of speed breaker - Electrification work at Jarofix yard site & canteen building in CISF colony - Installation of deep irrigation system - Drain repairing - Tree washing and washing of common area road - Watering of plant - Levelling and dressing of plantation - Monsoon shed for storage of chemicals and WIP during rainy season - AMC for plant & machinery, security services at main gate, laying cable work at CISF colony, etc. HELD THAT:- The appellant is entitled to cenvat credit on all the items of input services in dispute, as the same has been received and utilised in the factory of production allowable under Rule 2(l) of Cenvat Credit Rules, 2004. Appeal allowed - decided in favor of appellant.

Maintainability of application - availability of alternative remedy - Principle sof natural justice - opportunity to cross examine 50 witnesses not granted, whom the appellant/assessee intended to cross examine during the course of assessment proceedings before the learned Commissioner - HELD THAT:- Since the learned single Judge has only relegated the appellant to the effective alternative remedy, we are inclined to examine the details of the merits of the contentions raised by the learned counsel for the Assessee as to whether opportunity to cross examine the witnesses was required to be given in the present case or not or whether sufficient opportunity was already given to the Assessee or not. We cannot appreciate short circuiting the normal procedure of appellate forums to be availed by the Assessee in such cases. Merely because there....... + More

Reversal of CENVAT Credit - input materials and input services are used both in or in relation to the manufacture of dutiable and exempted goods - Rule 6 of the Cenvat Credit Rules - appellant had exercised the option of availing Rule 6(3)(i) of the Cenvat Credit Rules for the year 2008-09 by making payment as per the said provision in April 2008 - bar from altering of said option - HELD THAT:- This issue came up for consideration before a Co-ordinate Bench of the Tribunal in M/S. MERCEDES BENZ INDIA (P) LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2015 (8) TMI 24 - CESTAT MUMBAI]. In this case the allegation was that the assessee while reversing the amount of cenvat credit and paying the interest had not followed the procedure as laid down in subrule 3A(a) and (b) of the Cenvat Credit Rules respectively, inasmuch as they had ne....... + More

Principles of unjust enrichment - Refund alongwith interest - Assistant Commissioner passed order holding that the petitioner was although entitled for refund, but directed that the said amount may be credited in the account of the “Consumer Welfare Fund” instead of crediting it in the account of the petitioner - HELD THAT:- The presence of the Assistant Commissioner is directed, who had passed the order not refunding the amount to the petitioner, but on the insistence of Mr. Bhatt that better sense may prevail on the officers and amount would be fully paid to the petitioner within 24 hours, we adjourn this matter for day after tomorrow i.e. 29.07.2020. We further provide that the interest of 6% would be payable up to the date when the amount was credited in the account of the Consumer Welfare Fund. However, after that date th....... + More

Refund of Excise Duty - Area Based Exemption - It is the case of the petitioner that there was an application of the petitioner dated 27.05.2008 claiming that under the notification in force, the petitioner is entitled to an exemption/refund from excise duty up to 65% and thereafter several other applications were submitted to the department by the petitioner on the same claim but in respect of other assessment years - HELD THAT:- The respondents are directed in the Excise Department to give a consideration to on the applications of the petitioner and pass reasoned orders on the same. The requirement of passing the reasoned order be done within a period of three months from the date of receipt of a certified copy of this order. Further, till such consideration are made and the reasoned orders passed, the authorities in the Excise department shall not encash the bank guarantee given by the petitioner in respect of 100% of the excise duty paid by them. Petition disposed off.

Classification of goods - Aloe Vera juice, Aloe Vera powder, amla juice and amla powder - whether classifiable under chapter 6 as originally classified by the appellant or under Chapter Heading 13021919 as confirmed in the impugned order or under Chapter Heading 20098990 as now claimed by the appellant? - demand of differential duty alongwith interest - extended period of limitation - imposition of penalties. Classification of Aloe Vera juice, Aloe Vera powder, amla juice and amla powder - classified under Chapter 13 or under Chapter 20? - HELD THAT:- Chapter 13 deals with lac, gums, resins and other vegetable saps and extracts. Chapter note 1 specifically shows that Chapter Heading 1302 applies, interalia, to liquorice extract and extract of pyrethrum, extract of hops and extract of aloes. This note also excludes certain types of product....... + More

Utlization of CENVAT Credit - one-to-one co-relation between input services and output services required or not - period March 2009 to August 2009 - time bar - scope of SCN - HELD THAT:- The manufacturer of excisable goods can take credit of CENVAT paid on input services and there is no such requirement for one to one co-relation and there is no bar on the utilization of CENVAT credit availed on input services for payment of tax on excisable goods manufactured and cleared. It has been held in numbers of cases that as far as the inputs or input services are availed on payment of duty and as long as they are capable of being used in the provision of service Tax and manufacture of excisable goods credit cannot be denied; there is no requirement of one to one correlation. Time Limitation - HELD THAT:- Timely scrutiny of Returns by the Departm....... + More

Nestle Milky bar and Eclairs - Benefit of exemption under N/N. 6 /2002-CE dated 1.3.2002 as amended with notifications 3/2006 dated 1/3/2006 and 12/2012 dated 17/3/2012 - classification of goods - Whether the confectionery products cleared by the appellant under Chapter 1704.90 are 'white chocolate' or not? - extended periof of limitation - interest and penalties - HELD THAT:- Both the Revenue as well as the appellant do not dispute the classification of the impugned products under CETH 1704. The only difference in the argument is based on the presence or absence of ingredients like cocoa butter and hydrogenated vegetable oils. As per Tariff Entry 1704 refers to sugar confectionery (including white chocolate) not containing cocoa. Chapter 17 does not include sugar confectionery containing cocoa or chocolate (other than white choco....... + More

Method of Valuation - inter unit transfer of goods from the Taloja Unit for captive consumption to the Belur Unit - entire value of cost of production or actual value of cost of production to be adopted? - adoption of rule 8 of the 2000 Valuation Rules, for ultimately transferring the goods to the supplier of goods - HELD THAT:- The fact of the present case are similar to the facts of the aforesaid decision of the Tribunal in M/S ITC LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI [2016 (4) TMI 280 - CESTAT CHENNAI]. The factual position was also explained in detail in the written submissions filed by the Appellant at the time of hearing before the Additional Commissioner. It was clearly pointed out that if both the units of the Appellant had been in one factory, there would not have been any scope for addition of profit margin @ 10% ....... + More

CENVAT Credit - common input services were used for manufacture of both taxable as well as exempt goods - Rule 6(3) of CCR - case of the Department in this case is that the appellant had adopted incorrect value of "P" in the formula 'M/N*P' provided under Rule 6(3A)(c)(iii) ibid inasmuch as the factor "P" denotes total Cenvat credit and not common Cenvat credit - HELD THAT:- The issue arising out of the present dispute is no more res integra, in view of the decision of this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE & ST, RAJKOT VERSUS M/S. RELIANCE INDUSTRIES LIMITED [2019 (3) TMI 784 - CESTAT AHMEDABAD] where it was held that From the reading of Rule 6(1), it is clear that only in respect of input or input service used in exempted goods are not allowed. That means input or input service used in taxable service/dutiable goods. Appeal allowed - decided in favor of appellant.

100% EOU - Goods cleared by the EOU for sale within India - duty-free inputs (both imported and indigenous) - Inputs not used for Manufacture of goods - Inputs used for manufacture of exempt goods - Claim of alternative benefit of exemption notification which is not the part of SCN - HELD THAT:- the noticee is not estopped from putting forth other grounds of defence and if he does so,fairness requires that they are also considered. We, therefore, find in favour of the appellant as far as the question as to whether the new exemption notifications not being the subject matter of the SCN can be raised as a point of defence at this stage of appeal. Evidently, if the goods are otherwise covered by another exemption notification and the appellant is entitled to such exemption notification, fairness requires that such benefit should be given to ....... + More

Valuation - deductions in nature of discounts - manufacture of tyres under the brand name “CEAT” on job work basis - Rule 10A(ii) of Central Excise (Determination of price of excisable goods) Rules 2000 - HELD THAT:- The issue is no more res integra and is decided in their own case, in another period, COMMISSIONER OF CENTRAL TAX MEDCHAL - GST VERSUS ACE TYRES LTD., UNIT - II, EXEL RUBBER LTD. [2019 (11) TMI 377 - CESTAT HYDERABAD], this issue came up before this tribunal and this tribunal has held that the learned Commissioner (Appeals) has correctly assessed the goods and appellants are entitled for discounts as claimed - there are no infirmity in the order. Appeal dismissed - decided against Revenue.

Principles of Natural Justice - Sabka Vishwas Legacy Dispute Resolution Scheme, 2019 - request for an opportunity of personal hearing rejected - rectification of mistake - whether aggrieved person of an order like Ext.P1 having availed the remedy of rectification, be permitted to take the benefit of Sabka Vishwas Legacy Dispute Resolution Scheme, 2019 or not? - HELD THAT:- It is deciphered that the amount estimated by the designated committee must exceed the amount declared by the declarant. However on comparison of Exts.P1 and P3 the amount confirmed in the order in original Ext.P1, is ₹ 5,88,76,999/- whereas in the scheme the petitioner had claimed the liability of ₹ 4,60,68,715/-. Thus it was less than the amount as estimated by the designated committee. It is also a matter of record that though the petitioner could have av....... + More

Validity of declarations filed under Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 - issuance of discharge certificates under Section 127(8) of the Finance Act, 2019 - Scheme was held to be not maintainable on the premise that the case involves the confiscation of goods and imposition of redemption fine and Section 129 of the Finance (No.2) Act, 2019 does not grant any relief from the confiscation or redemption fine - HELD THAT:- The writ applicants could not be said to have got a fair opportunity of hearing before the concerned respondent. We are at one with Mr. Dhaval Shah, the learned counsel appearing for the writ applicants that the concerned respondent could not have fixed the personal hearing during the period of lockdown. We are of the view that one opportunity should be given to the writ applicants to put forward their ca....... + More

CENVAT Credit - input services - Renting of Immovable Property Service - service tax paid under the deeds for infrastructure development agreement, lease deed and subsequent maintenance on which service tax was paid by the input service provider under the head of renting of immovable property service - effect of amendment with effect from 01.04.2011 - HELD THAT:- As can be seen from the three components of the definition of input service under Rule 2(l) of CENVAT Credit Rules 2004, the initial part says that any service used by a service provider in connection with provision of output service or by a manufacturer in or in relation to manufacture of the final products whether directly or indirectly is covered under the definition of input service - This definition has been further enlarged by adding several other input services such as tho....... + More

COD application - Area Based Exemption - Refund of the amount - statutory time limit with statutory condonable period - can the Commissioner or this Tribunal go beyond provisions of statute and condone the delay beyond the condonable limits, where there is a statutory time limit with statutory condonable period? - If the exemption notification provides for exemption subject to some conditions and if one of the conditions required for getting a larger refund has not been fulfilled by the appellant, can the exemption notification be read, ignoring such conditions? - HELD THAT:- On the question of condonable limit for delay in the case of Singh Enterprises vs CCE, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT] the Hon’ble Supreme Court has held that where a statutory time limit is fixed for condonation, the delay cannot be condoned beyo....... + More

Clandestine manufacture or removal - MS ingots and TMT Bars, flats, challans etc. - shortage of goods - correctness of reliability upon third party evidence - HELD THAT:- Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence - Reliance to be placed in the case of BAJRANGBALI INGOTS & STEEL PVT. LTD., SURESH AGARWAL VERSUS CCE, RAIPUR [2019 (1) TMI 966 - CESTAT NEW DELHI] where it was held that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. There is no other evidence or document in the form of stock verification of the raw-material of the appellant and the material supplied to M/s. PIL nor any evidence abo....... + More

CENVAT Credit - input services - outward transportation of goods from their premises to the buyers premises or otherwise - sale of goods on FOR (buyer’s premises) basis - place of removal - HELD THAT:- This issue is no longer Res integra. It has been settled by the Hon’ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] and the issues were identical. In that case, the original adjudicating authority namely the Assistant Commissioner had denied the benefit of CENVAT credit on the outward transportation of the goods from the factory to the buyer’s premises when the sale was on FOR destination basis. The assessee challenged the order of the original authority and the Commissioner (Appeals), relying on the Board Circular dated 23.08.2007 ha....... + More

Valuation - electrical transformers - inclusion of cost of transportation and transit insurance from the factory to the buyer’s premises in assessable value - place of removal - whether place of removal is buyers’ premises or not - HELD THAT:- It is clear that for the period from 28-9-1996 up to 1-7-2000, the place of removal has reference only to places from which goods are to be sold by the manufacturer, and has no reference to the place of delivery which may be either the buyer’s premises or such other premises as the buyer may direct the manufacturer to send his goods. As a matter of law therefore, the Commissioner’s order and Revenue’s argument based on that order that freight charges must be included as the sale in the present facts took place at the buyer’s premises is incorrect. Further, for the....... + More

Validity of assessment order - time limitation for completion of Best Judgement Assessment - contention is that in as much as the petitioner has a period till 31st of December, following the end of the financial year, for preferring the annual returns, the said period must also been seen as the date from which alone the respondents could proceed to complete the best judgment assessment, under Section 62 of the Act - HELD THAT:- The reference to Section 44 of the Act, in Section 62, is only for the purpose of determining the five year period within which the assessing officer has to complete the best judgment assessment. It does not mandate that the steps for completing the best judgment assessment should be initiated only after 31st December, following the end of the financial year, in which the default as regards filing of monthly return....... + More

Refund of excess collection of tax - payment of tax at higher rate, in the absence of Form ‘C - Section 9A of the CST Act - inter-state trade and commerce - HELD THAT:- When the assessee has sold the goods on the price, which is inclusive of tax, the turnover is to be calculated as per the formula provided in Section 8A of the CST. In the facts of the case the rate of CST applicable for the goods supplied by the respondent-assessee is 4%. Therefore, 4% tax is required to be applied on the turnover as calculated under Section 8A of the CST Act. As observed above, the respondent-assessee deposited the CST at the rate of 10%/12.5% by making reverse working of the turnover under Section 8A of the CST Act. The correct amount of tax payable would be therefore, much less than what the respondent-assessee has deposited. This has resulted in....... + More

Jurisdiction - Withholding of refund - Refund of pre-deposit amount alongwith the interest - the impugned order was passed by the Sales Tax Officer - HELD THAT:- This petition deserves to be allowed on the sole ground that the impugned order was passed by the Sales Tax Officer, who had no authority to withhold the amount under Section 39 of the VAT Act. A plain reading of Section 39 of the VAT Act stipulates that the power is vested in the Commissioner to withhold the refund upon recording an opinion that the revenue would be adversely affected and that too after affording due opportunity to the assessee - In the present case, there is no order passed by the Commissioner recording his satisfaction and since there is no order of the Commissioner, there is no question of affording any opportunity. The Sales Tax Officer has no authority to w....... + More

Principles of natural justice - service of notice - Concessional rate of tax - inter-state sales - entire turnover covered by C-Forms - rate of tax applicable under Section 8(1) of the CST Act - HELD THAT:- There has been a grave violation of principles of natural justice in as much as the personal hearing notice dt.30.03.2020 was served at 7.15 p.m. through e-mail and the impugned assessment order was passed on the very next day i.e 31.3.2020 when there was a lockdown prevalent on account of COVID-19 pandemic situation and the petitioner was disabled from availing the personal hearing offered by the 1st respondent. The matter is remitted back to the 1st respondent for fresh consideration - Petition allowed by way of remand.

Completion of assessment - levy of tax on gross and net turnovers - taxability under CST Act - Petitioner contended that the turnover that had been declared in the monthly VAT 200 returns were the service charges, which the petitioner received in the State of Telangana, on which the petitioner is paying service tax under the Finance Act, 1994 - HELD THAT:- When the petitioner had specifically raised a contention that the petitioner has no turnover, which is taxable under the CST Act, 1956, and what was declared by it in the monthly VAT returns is service tax, which the petitioner is receiving in the State of Telangana for allowing Telecom Operators to use the tower facilities erected by it in the State, on which the petitioner was paying service tax under the Finance Act, 1994, the 1st respondent is expected to advert to the said contenti....... + More

Validity of Section 4(8) of the Telangana VAT Act, 2005 read with Section 2(28) Explanation (iv) - Section 65(105)(O) of the Finance Act, 1994, vires to Entry 54 of List II of the VII Schedule to Article 14 and Articles 19(1)(g) and 245 of the Constitution of India - validity of Audit Assessment Proceedings - time limitation. HELD THAT:- The impugned assessment proceedings dt.13.03.2020 for the tax period 2013-14 to 2016-17 passed by the 1st respondent is set aside - the matter is remitted back to the 1st respondent for fresh consideration; the 1st respondent shall permit the petitioner to file additional objections to the notice dt.23.01.2020 issued by the 1st respondent, if the petitioner so desires; afford a personal hearing to the petitioner; and then the 1st respondent shall pass a reasoned order in accordance with law and communicate it to the petitioner.

Reversal of Input Tax Credit - alleged mismatch between the particulars circulated by the petitioner and the particulars available in the selling/purchasers return of turnover - periods 2010-11 to 2015-16 - TNVAT Act - HELD THAT:- This issue had been considered by this Court in M/s. JKM Graphics Solutions Private Limited V. Commercial Tax Officer [2017 (3) TMI 536 - MADRAS HIGH COURT] and the Court had directed that a suitable central mechanism be evolved within the Department to delve into various aspects of mismatch. Pursuant thereto, a Circular was issued by the Commissioner bearing No.3 of 2019 (Q1/39643/2018 dated 18.01.2019), wherein at paragraph (c) the Commissioner directs the Authorities to keep assessments involving the issue of mismatch in abeyance, however issuing pre-assessment notices in time in order that the assessments ar....... + More

Reversal of Input Tax Credit - levy of penalty - discounts received by the petitioner from the supplying dealers - packing materials purchased by the petitioner from local registered dealers - TNVAT Act. Reversal of ITC on discounts received by the petitioner from the supplying dealers - HELD THAT:- Since Section 19(20) which has been invoked to deny the benefit of ITC, has itself been inserted only with effect from 19.08.2010. Though a Division Bench of this Court had initially held that the provision would operate retrospectively and impact prior assessment periods as well, the Supreme Court in the case of JJAYAM & CO. VERSUS ASSISTANT COMMISSIONER & ANR. [2016 (9) TMI 408 - SUPREME COURT] reversed the aforesaid conclusion of this Court confirming the position that Section 19(20) would operate only from the date of its insertion....... + More

Concessional rate of tax - Issuance of C-Form - purchase of High Speed Diesel - inter-State purchase - HELD THAT:- The first respondent is directed to dispose of the on-line application dated 03.02.2020 and the subsequent application dated 06.02.2020 sent by registered post by the petitioner, on merits and in accordance with law and also in the light of the aforesaid decisions rendered by this Court, within a period of four weeks from the date of uploading the copy of this order in the website. Petition disposed off.

Rejection of application filed under the Amnesty Scheme introduced by Section 31A of the Kerala Value Added Tax Act, 2003 - rejected on the ground that there is an appeal intended by the State from the order of the first appellate authority - Circular No.2/2020 - HELD THAT:- There is no ambiguity in the provision which introduced the Amnesty Scheme. It provides for settlement of all pending tax dues and even the tax applicable, with reference to a penalty imposed where there is no best judgment assessment made or contemplated. The requirement is, filing of an application before the dates specified and the withdrawal of the appeals filed by the assessee. There is no requirement of a specific provision requiring the State to withdraw the appeal filed, since the settlement arrived at on the basis of the statutory provision is binding on the ....... + More

Amendment in returns of second quarter - recovery of alleged tax - civil appeals pending before Supreme Court - HELD THAT:- This Court is of the view that no useful purpose would be served by keeping the petition pending. Consequently, it directs respondent no. 1 to allow the amendment sought by the petitioner in its return of 2nd Quarter for the Financial Year 2015-16 vide application dated 16th June, 2019. However, this direction shall remain suspended till the Civil Appeals pending before the Supreme Court, are decided and this direction shall abide by the decision that the Supreme Court renders. Petition disposed off.

Principles of Natural Justice - petitioner did not avail opportunity of personal hearing - HELD THAT:- Whether or not the petitioner availed the opportunity of personal hearing, it is the duty of the 1st respondent, as appellate authority, to deal with the contentions raised in the grounds of appeal filed by petitioner and the 1st respondent could not have rejected the appeal only on the ground that personal hearing opportunity was not availed by the petitioner. The appeal filed by the petitioner before the 1st respondent is restored to the file of the 1st respondent.

Principles of Natural Justice - contention urged by the learned counsel for the petitioner is that Exhibit P8 order is bad, since it was issued after the period prescribed under Section 25(1) of the KVAT Act - HELD THAT:- As per Section 25(1) of the KVAT Act, the assessing authority can, within five years from the last date of the year to which the return relates, proceed to determine, to the best of its judgment the turnover which has escaped assessment to tax or has been underassessed - In the instant case, the petitioner has not disputed the fact that the assessee was issued with Exhibit P4 notice dated 21.11.2011, which was well within the period prescribed under Section 25(1). The assessing officer having thus proceeded to determine the tax which had escaped assessment, the challenge against Exhibit P8 assessment order on the premise....... + More

Principles of natural justice - service of assessment order - contention of the petitioner is to the effect that no orders of assessment have been passed and hence the demands are non-est and invalid - HELD THAT:- Though the orders of assessment appear to have been dispatched, they have been returned and hence have not been served upon the assessee. Learned counsel for the petitioner confirms that copies of the orders of assessment have been received by him now and the same will be duly handed over to the petitioner as well. In the light of the position that the orders of assessment giving rise to the impugned demands admittedly have not been served upon the petitioner, the impugned recovery notice has no legs to stand and is hence quashed. The interim stay of recovery granted on 15.07.2020 will continue for a period of four (4) weeks from today to enable the petitioner to take such action as it may be inclined as against the orders of assessment. Petition disposed off.

Disbursement of Refund amount - assessment year 2008-2009 - HELD THAT:- In the counter affidavit filed by the respondents, the liability to make refund is admitted. Therefore, the reason now stated through the learned Special Government Pleader cannot be accepted. The respondents are directed to make the petition mentioned refund to the petitioner without any delay. Of course the respondents will also be liable to pay the said amount along with statutory interest. This amount shall be paid within a period of twelve weeks from the date of receipt of a copy of this order. Petiton allowed.

Validity of assessment order - TNVAT Act - periods 2011-12 and 2012-13 - allegation is that the impugned assessments are passed entirely upon the report of the officials of the Enforcement Wing and do not reflect any independent application of mind on the part of the Assessing Officer - Circular No.3/2019 - HELD THAT:- Even in the case where there is an adverse report by the Enforcement Wing in regard to a particular issue, the Assessing Officer is at liberty and in fact ought to examine the issue independently. This has admittedly not been done in this case. Hence, the impugned orders are quashed and the Writ Petitions allowed.

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- Similar issue decided in the case of M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] where it was held that benefit of the concessional rate is available to dealers who purchase High Speed Diesel from neighbouring States by way of inter-state sales. The matter is similar and thus the case is relied upon and similar order passed - petition allowed.

Doctrine of Contemporanea Expositio - Availment of Capital Investment Subsidy - issuance of new Entitlement Certificate for subsidy - Capital Investment Subsidy to the Appellant to the extent of 75% of deposited VAT. - whether the company was entitled to the subsidy to the extent of 75% of tax payable and deposited or was entitled only to 50%? Entitlement of the Appellant to Capital Investment Subsidy - HELD THAT:- It appears that though at one stage (i.e., on 02.12.2005), the State Government thought it proper to announce an entirely different treatment to cement units by extending 75% subsidy to them with a different methodology and hence, inserted Sub-clauses (vi) and (vii) to Clause 7 of RIPS-2003 but, it did not continue with that policy and deleted the said sub-clauses on 28.04.2006. It remains trite that extending of any incentive ....... + More

Validity of assessment order - principles of natural justice - Order has been passed disregarding various documents submitted by the petitioner on different dates - HELD THAT:- Issue notice returnable on 27.07.2020. Mr. Tirthraj Pandya, learned Assistant Public Prosecutor waives service of notice for the respondent-State.

Principles of Natural Justice - legality and the validity of the assessment order - challenge is made essentially and predominantly on the grounds that, without assigning any reason or availing any opportunity and in complete breach of the principles of natural justice, the impugned order came to be passed by the respondent No.2 - HELD THAT:- In the instant case, since there is violation of principles of natural justice, more particularly, when the petitioner chose to approach the respondent-authority on 13.03.2020 and requested for relevant and vital documents, in response to the notice issued by it, without supplying the same, respondent-authority has imposed the petitioner with not only the heavy penalty but also interest by the order dated 24.03.2020, which is impugned in this petition, we, therefore, deem it appropriate to entertain ....... + More

Wilful defaulters or not - default in repayment of dues - grievance of the petitioners was that the respondent bank was not giving access to the underlying documents to the petitioners - Master Circular dated 01.07.2015 - HELD THAT:- Procedure adopted by the respondent is wholly contrary to the mandate stated by the Supreme Court in the case of STATE BANK OF INDIA VERSUS M/S. JAH DEVELOPERS PVT. LTD. & ORS. [2019 (5) TMI 862 - SUPREME COURT]. Firstly, it is not a reasoned order. Secondly, the order of the First Committee was never communicated to the petitioners. The net result is that the petitioners never had an opportunity to make a representation against the order of the First Committee to the Review Committee. There is clear non-compliance of the directions of the Supreme Court as noted in the judgment of STATE BANK OF INDIA VERS....... + More

PIL - welfare of advocates - non-inclusion of advocates in the definition of the word “professionals” under the Micro, Small and Medium Enterprises Development Act, 2006 - Petitioner in person submitted that this public interest litigation has therefore been preferred for the welfare of advocates as a class, so that the benefits which flow from inclusion under the Act, 2006 is also available to them. HELD THAT:- We are not inclined to entertain this petition as a Public Interest Litigation. It ought to be kept in mind that such public interest litigation for the benefit of a class of persons can be preferred if the affected persons are unable to access the courts, e.g. the poorest of the poor, illiterates, children, and other classes of people who may be handicapped by ignorance, indigence, illiteracy or lack of understanding ....... + More

Cancellation of promotion demoting the petitioner from the post of Assistant Commissioner of Taxes to the Superintendent of Taxes - gross irregularity in refund/adjustment of additional security deposited by five(5) number of coal dealers - HELD THAT:- In the present case in hand, it has been held that the inquiry report holding the charges against the petitioner as proved to be perverse as the same is without any evidence. The penalty was imposed on the basis of the said inquiry report which is also liable to be set aside alongwith the order passed in the appeal. Once the said order including the inquiry report are set aside and quashed, the question of imposition of penalty on the petitioner does not arise. Admittedly the petitioner was due to be promoted which was accordingly done and subsequently the said order was cancelled due to th....... + More

Grant of anticipatory bail - cheating - sale of Gold - total mismatch as regards the contents of the FIR and the investigation which has been carried out on the basis of the FIR - HELD THAT:- Admittedly, the FIR was registered with allegation of cheating with the complainant regarding the sale of gold by the complainant and his mother Usha Rani with the firm M/s. Kartike Gold Enterprises owned by petitioner No.1. Later on, by registering two DDR Nos.49 and 50 dated 19.06.2020, certain new facts on the basis of the complaints given by the petitioners were added in the present FIR, a procedure which is unknown to the criminal law. There is no such provision in Cr.P.C. for amending the contents of the FIR wherein new allegations are with regard to different transactions like the agreement to sell as set up by the complainant. This Court is o....... + More

Grant of Regular Bail - fake sale - persuading the complainant to purchase the apartment in the complainants name - main allegation against the applicant is that he is the ultimate recipient of ₹ 46,40,000/- taken by way of a loan from the bank, against an equitable mortgage, on the basis of a sale deed which is alleged to be fake and forged - HELD THAT:- The applicant has not cooperated in the investigation, the only aspect cited is that the applicant did not give to the I.O. original documents relating to the sale of goods against which money was received by the applicant/M/s Harshit Enterprises from M/s Heico Electronics. However, this demand of the I.O. must be taken as answered on point of fact, when the original, signed office copies of invoice/s dated 28.03.2014 were delivered by the applicants counsel to the I.O. in court, a....... + More

Grant of Bail - unsecured loans granted by RFL to various entities - Non-performing Assets - ever-greening of loans - conspiracy with the Promoters and for their benefit - It is alleged that despite the report of RBI, the petitioner had not taken any remedial measures, but on the contrary actively sought to misrepresent the financial position of RFL by concealing various NPAs - HELD THAT:- The reading of the chargesheet indicates that the prosecution had identified nineteen questionable loan transactions where the borrowers had defaulted in repayment of the dues advanced to them. The chargesheet indicates that in all of those nineteen instances, the loan had been approved by the Risk Management Committee and in certain cases was also approved by the RPT (Related Party Transaction) sub-committee. The date on which the approvals were been g....... + More

Grant of Regular Bail - Fraud - siphoning of public money - disbursement of loans to shell entities - HELD THAT:- While a fraction of the money trail of ₹ 2000 crores has been recovered, the other fraction still remains untraced as yet and investigation regarding the same is ongoing, by the Economic Offences Wing as well as independently by SEBI. The SEBI itself is still investigating fraud of about ₹ 600 crores and has recorded the same in its order dated 14.03.2019. Moreover, the loans granted by the Petitioner to the following entities amounting to over ₹ 600 crores are still under investigation. The petitioner being influential is capable of tampering with evidence and influencing witnesses who were his subordinates. As apparent from the various documents and the bail applications themselves, there is no denial of th....... + More

Constitutional validity of Section 13(1) of the Chhattisgarh Upkar Adhiniyam, 1981 - insertion of a new provision by way of Section 3(1-a) bringing the 'producers' of electrical energy as well within the 'tax net' made various captive power producers - arrears of Energy Development Cess and interest payable for the period from October, 2007 to January, 2014 - HELD THAT:- Though the statue originally intended to collect EDC only from the 'Distributors' of electricity as given under Section 3(1) of the 1981 Act, as per the CG Act No. 28 of 2014, 28 of 2004, Section 3(1-a) was introduced in similar terms, demanding Cess from the 'Producers' of electricity as well. The rate is also common, as on date, by virtue of the CG Act No. 10 of 2010. This being the position, there is no unreasonable classification and bo....... + More

Repayment of loan - Lease Rental Discounting Facility - mortgage of property - Non-performing asset - HELD THAT:- In view of the specific stand taken by the first respondent that each individual bank have their own guidelines with respect to the moratorium period and that the said term it is governed by a contract, it would highly be inappropriate on the part of this Court to examine the terms of the contract, its effect and such other details, which have to be established only after evidence is let in. The petitioners will have to examine the agreement under which they had availed the loans and had taken recourse under the said agreement - In a Writ Petition filed under Article 226 of the Constitution of India, this Court cannot examine these disputed facts. It is an admitted fact that the loan share become Non Performing Assets as on da....... + More

Condonation of delay in service of SCN - Time Limitation - Dishonor of Cheque - insufficient funds - offence punishable under section 138 of Negotiable Instruments Act, 1881 - It is contended that the accused deliberately issued the cheque without maintaining the required balance in his account and he had also not repaid the cheque amount after receipt of the legal notice - HELD THAT:- By way of amendment w.e.f. 6-2-2003, the proviso to Section 142 (1)(b) was appended to, thereby enabling the Court to condone the delay in filing the complaint, if the complainant is successful in satisfying the Court about the sufficient cause for not making the complaint within time. Admittedly the complainant had filed I.A.No.1 seeking condonation of delay even though I.A.No.1 is filed under section 141 of the Act. It is well settled proposition of law t....... + More

Request for detention in Kerala instead of Mumbai - case of petitioners is that they are resident of Kerala - HELD THAT:- This Court is of the prima facie view that pending adjudication of this petition, the petitioner should immediately surrender before Director General of Police, Government of Kerala, Thiruvananthapuram and if the petitioners do not succeed in this petition, they shall be shifted to Mumbai - The petitioners are directed to surrender before Director General of Police, Government of Kerala, Thiruvananthapuram on 18th June, 2020 at 02:30. List for continuation of the arguments on 24th July, 2020.

Smuggling - Drug Trafficking - Heroin - Contraband Item - illegality while drawing samples from the seized substance - whether the procedure specified under the Standing Orders can be flouted? - HELD THAT:- A combined reading of paras of the Standing Orders would show that where more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the ‘field testing kit’. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing - Mixing of the contents of container/package (in one lot) and then drawing the repres....... + More

Smuggling - white powdery substance - prosecution’s case rests almost entirely on the alleged voluntary statements of the appellants (accused) recorded under Section 67 of the NDPS Act, and the statements of Sagar Iyer Subramanium (PW8) and Mushahid Ali (PW18) - HELD THAT:- The Trial Court erred in not examining the material placed on record and accepted the prosecution’s case even though there is sufficient material to doubt the case set up by the prosecution. The Trial Court had completely ignored that the parcel seized by NCB weighed 2.4 kgs and the parcel allegedly received by Nitesh Patel weighed 36 kgs and this belied the prosecution’s case that the parcel dispatched by Sagar Iyer was the same that was received by Nitesh Patel from Chennai - There is a doubt whether the sample of the substance seized is the same as....... + More

Grant of Moratorium due to COVID-19 pandemic situation - Restraint on respondent from recovering loan repayment instalments/EMI due - RBI Circular dated 27.03.2020 - grievance of the Petitioner relates to compliance/non- compliance by Respondent 5 to 7 of the RBI Circular. Whether a Writ of mandamus can be issued against a private bank to implement the Circular issued by the RBI dated 27.03.2020? - HELD THAT:- The obligation and duty of the RBI to regulate the financial institutions, its business as also the credit system of the country, by exercising the powers vested with it under the Act - Subsequent to the invocation of the DMA apprehending the adverse impact thereof on the economy of the country, the RBI with alacrity had issued the Circular dated 27.03.2020, in order to discharge its above obligation and duty. The aim, object and in....... + More

Dishonor of Cheque - section 138 of NI Act - case of petitioner is that the cognizance as taken by the impugned order dated 21.12.2018 is beyond the period of limitation, as prescribed by Section 142(b) of the NI Act - HELD THAT:- The limitation in terms of Section 142 of the NI Act for instituting the complaint had expired on 10.12.2018. The complaint has been filed on 21.12.2018 without seeking leave of the court for extension of time for instituting the complaint as provided below Section 142(1)(b) which provides that such complaint has to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the NI Act. In the case in hand, the cause arose on 11.11.2018 when 15 days from the date of receiving the notice demanding payment of the cheque amount had expired. Thus, the c....... + More

Dishonor of Cheque - allegation that the condition precedent for filing of the case under Section 138 of the Negotiable Instruments Act, 1881 was itself not satisfied - HELD THAT:- The learned appellate court erred in law in ignoring the mandatory time frame prescribed under section 138 of aforesaid Act of 1881 and held that the complaint case filed after 10 days of issuance of notice of bouncing of cheque was not fatal to the case on the ground that the purpose for issuance of notice has been fulfilled as the accused Anil Chandra had got knowledge about the dishonour of the cheque much before the filing of the complainant case and had not made payment of the cheque and that the accused had the opportunity to make payment in Court within fifteen days of receiving of Court's notice, if he was honest towards his cheque. This court finds....... + More

Dishonor of Cheque - Vacation of the order of cognizance of offence on behalf of the accused / defendant - It is the case of the complainant (defendant / acccused) that he made inquiry and then he could come to know that with a dishonest intention, the cheques were presented before the Bank, thus the complainant felt cheated - HELD THAT:- It is an admitted case that after receipt of the notice under Section 138 N.I. Act and after a proceeding under Section 138 N.I. Act, which had been filed against the complainant, the complainant chose to file this complaint, which is the subject matter of this case. The Hon'ble Supreme Court in the case of SUNIL KUMAR VERSUS ESCORTS YAMAHA MOTORS LTD. AND ORS., [1999 (10) TMI 749 - SUPREME COURT], on amongst other, has held that a complaint and FIR after filing a complaint case under Section 138 N.I....... + More

Bail Application - commercial quantity of contraband - overcrowding in jails - corona positive cases present - HELD THAT:- No ground is made out for entertaining these (interim) bail applications. Bail application dismissed.

Wilful Defaulters or not - petitioners contend that the Show Cause Notice was issued by an Assistant General Manager of the Bank, who did not qualify even for being a member of the WDIC - Oppression and Mismanagement - siphoning of funds - HELD THAT:- The writ petitioners in the instant case had avoided submitting their reply to the show cause notice of the bank, despite getting several opportunities, even within the extended time afforded by the bank. In spite of the delay, although the bank was under no obligation to do so, it dealt with the salient objections raised by the petitioners in their reply, in the impugned order declaring the petitioners to be wilful defaulters. Sufficient reasons were provided for the decision, the factual and legal merits of which are for the review committee, and not this court, under Article 226 of the Co....... + More

Violation of Fundamental Rights - delay of 43 days by the Detaining Authority in deciding the representation of the petitioner - petitioner is in custody since 11th October, 2019 - detenues challenged the Detention Order on the ground that the Detaining Authority ought to have considered the representation without waiting for the report of the Central Advisory Board and delay in consideration of the representation violated the rights of the detenues guaranteed by the Constitution - COFEPOSA Act. HELD THAT:- There is no valid explanation for non-consideration of the petitioner’s representation from 06th November, 2019 to 18th December, 2019. There is no merit in the respondents’ explanation that they were waiting for the report of the Central Advisory Board - The delay on the part of the Detaining Authority to consider the peti....... + More