Deduction u/s 54F - AO restricting the claim of the assessee u/s 54F to one flat as against the claim of the assessee for exemption in respect of the entire constructed area received - whether CIT(A) is justified in allowing the exemption claimed u/s 54F when the assessee received multiple flats located on different floors separated by different blocks of a gated community/ apartment complex? - HELD THAT:- As gone through the allotment of apartment, it is clear that some of the Blocks have been allotted fully to the assessee/assessees and some of the Blocks are partially allotted amongst the assessees and developers. Assessee has not submitted any documents or any allotment letter for ascertaining the number of flats allotted to the assessee/assessees by the developers which is root for determining the deduction u/s 54F - CIT(A)’s d....... + More

Deduction u/s 80IA - Claim restricted to extent of income from business and profession - AO be directed to allow the claim of deduction under section 80IA of the Act against the gross total income - HELD THAT:- The assessee is not eligible to claim the deduction u/s 80IA of the Act. The legislature has clearly spelt out in the deduction provisions that which incomes are eligible to claim deduction u/s 80IA, and therefore, the assessee cannot go beyond the provisions and claim deduction u/s 80IA. The deduction provisions should be interpreted strictly and if there is any ambiguity, it goes to in favour of revenue - See RAMNATH & CO. VERSUS THE COMMISSIONER OF INCOME TAX [2020 (6) TMI 158 - SUPREME COURT] - Accordingly, the assessee is not eligible to claim deduction u/s 80IA from the income from house property as claimed. Thus, we dism....... + More

Accrual of income in India - Income taxable in India - payments received by the assessee on account of Management Service Fees - Tax Treaty between India and Portual (referred to via protocol attached to Double Taxation Avoidance Agreement (DTAA) between India and Sweden - HELD THAT:- The fact as on date is that the issue in respect of Management Service Fees is well covered in favour of the assessee. The Revenue has preferred appeal before the Hon’ble jurisdictional High Court on the substantial question of law on the same issue. That however, the matter has not yet attained finality at the High Court level nor we find any contrary direction given by the Hon'ble High Court in respect of the issue of Management Service Fees vis-à-vis the ITAT orders in favour of the assessee. Therefore, it is clear that as on date, the is....... + More

Disallowance of project expenses - Addition on the ground as no project-wise accounting was available and no work-in-progress was reported - Addition towards unsubstantiated project expenses - CIT-A deleted the addition even though the assessee failed to bring any material before the Ld. CIT(A) to substantiate the genuineness of such expenses - HELD THAT:- It is undisputed that addition has been made by the Assessing Officer following the findings of his predecessor and the Learned CIT(A) has also deleted the addition following her predecessor’s decision in AY 2012-13 wherein held that on our examination of the method of accounting applied by the assessee, it appears that when the assessee has received billing as per milestone and from the milestone till the close of the year there are no expenditure identified by the Id AO then the....... + More

Disallowance on account of investment allowance u/s 32AC - Appellant is a State Government Public Sector Undertaking engaged in the business of generation of electricity - whether electricity is “goods”? - WhHELD THAT:- We find force in the written submissions filed by the ld. AR of the assessee. In the case of Vedanta Ltd. [2020 (9) TMI 1010 - ITAT DELHI] relying on the judgement of Sesa Goa [2004 (11) TMI 14 - SUPREME COURT] and NTPC Ltd [2012 (5) TMI 127 - ITAT DELHI] directed the AO to allow the claim of deduction u/s 32AC of the Act. As held generation of electricity is a manufacturing activity decision cited supra, The electricity can be transmitted, transferred, delivered, stored, possessed etc. The Hon'ble Supreme Court in the case of the CST Vs. Madhya Pradesh Electricity Board [1968 (11) TMI 85 - SUPREME COURT] h....... + More

Exemption u/s 54 - reinvestment of long term capital gain in acquisition of both the flats as one residential unit - HELD THAT:- Even though different flat numbers are given, both the flats in Flat No. 802A and Flat No. 802B are adjacent to each other and is a one residential property which has common passage/staircase, common kitchen and common entrance and common amenities as per the project of the builder.The assessee is entitled to claim deduction under section 54 of the Act for the reinvestment of long term capital gain in acquisition of both the flats as one residential unit. Against the alternate plea of the assessee that even if the Department treat the residential unit as two different residential units and the assessee is entitled to claim exemption under section 54 of the Act in view of the decision in the case of CIT v. V.R. K....... + More

Taxability of on-money - Addition u/s 68 - on-money transactions offered by the assessee‟s group concerns @12% of on-money receipts before the Hon‟ble Income Tax Settlement Commission - HELD THAT:- The issue of on money received by the assessee is proved beyond doubt from the records found during search proceedings and subsequent acceptance by the key personal of the Ahuja group. The issue before us is only consideration of the above said on money to be taxed under section 68 of the Act or Based on the findings of the CIT(A) that receipt of on money has to be taxed only on net income and estimated net income @25% of the gross on money received. Submissions of the assessee that the above said issues are already considered by the Co-ordinate Bench in Tulip Land And Developers [2021 (2) TMI 1170 - ITAT MUMBAI] and Bhalchandra Tra....... + More

Disallowance u/s 14A - HELD THAT:- We find that the Co-ordinate Bench of the Tribunal in assessee’s own case in assessment year 2015-16, has decided the issue of disallowance under section 14A of the Act [2021 (2) TMI 608 - ITAT MUMBAI] wherein the issue has been decided in favour of the assessee and against the Revenue. Disallowance of payment for non-compliance with RBI norms on KYC and under Information Technology Act treating the same as falling under Explanation-l to section 37(1) - HELD THAT:- We find that the Co-ordinate Bench of the Tribunal in assessee’s own case [2021 (2) TMI 608 - ITAT MUMBAI] has decided the issue of disallowance under section 37(1) wherein issue has been decided in favour of the assessee and against the Revenue by deleting the disallowance made by the Assessing Officer. Addition of non-monetary pe....... + More

Addition u/s 68 - unaccounted income - HELD THAT:- As relying on SHRI SHASHIKANT B. MHATRE (HUF) VERSUS INCOME TAX OFFICER 4 (4) , THANE [2019 (5) TMI 1846 - ITAT MUMBAI] has decided the issue in favour of the assessee and against the Revenue. Respectfully following the above decision, we allow the appeal filed by the assessee.

Penalty u/s 271(1)(c) - proof of concealment of income - HELD THAT:- Penalty under section 271(1)(c) of the Act is liable to be imposed only where the assessee has concealed its particulars of income or furnished inaccurate particulars. Action of making addition on ad-hoc basis does not result into imposition of penalty u/s 271(1)(c) of the Act and hence cannot be termed as either concealment or furnishing of inaccurate particulars of income. We find support from the series of decisions by different High Courts as well the decision of the Co-ordinate Benches of the Tribunal, wherein it was held that when addition is made on estimate basis, penalty is not sustainable in the eyes of law. Even the learned Departmental Authorities has not brought any cogent material to prove otherwise warranting interference at the instance of the Revenue. In....... + More

Penalty u/s 271(1)(c) - Disallowance u/s 69C - HELD THAT:- Penalty under section 271(1)(c) of the Act is liable to be imposed only where the assessee has concealed its particulars of income or furnished inaccurate particulars. Action of making addition on ad-hoc basis does not result into imposition of penalty u/s 271(1)(c) of the Act and hence cannot be termed as either concealment or furnishing of inaccurate particulars of income. Departmental Authorities has not brought any cogent material to prove otherwise warranting interference at the instance of the Revenue. In this view of the matter, we are of the considered view that the learned Commissioner (Appeals) was indeed justified in deleting the penalty, as there was no concealment of income on the part of the assessee have been proved by the Revenue and additions made on estimation by the Assessing Officer do not call for initiation of penalty. - Decided against revenue.

Penalty u/s 271(1)(c) - concealment of particulars of income or furnished inaccurate particulars - HELD THAT:- AO imposed penalty u/s 271(1)(c) of the Act on estimation basis without adducing any evidence on record for concealment of income. Penalty u/s 271(1)(c) of the Act is liable to be imposed only where the assessee has concealed its particulars of income or furnished inaccurate particulars. Action of making addition on ad-hoc basis does not result into imposition of penalty u/s 271(1)(c) of the Act and hence cannot be termed as either concealment or furnishing of inaccurate particulars of income. Penalty under section 271(1)(c) of the Act is liable to be imposed only where the assessee has concealed its particulars of income or furnished inaccurate particulars. Action of making addition on ad-hoc basis does not result into impositio....... + More

Addition of sales of flats - suppression of sale price of the flats in order to evade the tax - HELD THAT:- Except drawing inferences on the basis of the documents, AO did not refer to the prevailing market prices in the vicinity so as to conclude that there is an attempt to reduce the sale consideration for the sole purpose of evading the tax. No material was produced before the CIT(A) to reach a conclusion as to the actual cost of the plot in competition with the prevailing market value. In respect of this flat also, AO requires to make enquiry as to the prevailing market value of the plot vis-à-vis the figures mentioned in the documents. Now coming to the omnibus additions made by the learned AO for all the 3 years, basing on these documents relating to 2 flats, AO while stating that there was understatement of the cost of the f....... + More

Reopening of assessment u/s 147 - unexplained cash payment - Two notices issued u/s 148 - whether the AO can issue second notice u/s 148 and initiate fresh reassessment proceedings before completion/conclusion of proceedings initiated by way of first notice u/s 148 either by way of dropping the first reassessment proceedings or completing the proceedings by passing the reassessment order u/s 147? - HELD THAT:- Both the notices u/s 148 have been served on the assessee and the assessee has in turn responded to these two notices individually vide his letter of even date 21.01.2015 and has filed his objections to the reasons so recorded by the Assessing officer. It is therefore not in dispute that both these notices u/s 148 have been issued by the AO and duly served on the assessee and thus, two separate proceedings have been initiated by the....... + More

Extension of time to dispose of the appeal pending before the tribunal - HELD THAT:- This is a matter moved by the revenue seeking extension of time to dispose of the appeal pending before the tribunal while the same could not be decided within stipulated period pursuant to order dated 20th January, 2021. Several aspects are being referred to by the learned Counsel for revenue. Having regard to the aforesaid, we deem it appropriate to extend the period by a further period of three months from today. Rest of the conditions to continue unaltered.

Deduction u/s 54F - Denial of claim as capital asset transferred was not a long term capital asset in view of Section 2(29A) r.w.s.2(42A) - ITAT allowed deduction - Whether Tribunal erred in treating the asset held by assessee for less than four months as long term capital asset as against stipulation in Sec.2(29A) r.w.s 2(42A) is holding for more than 36 months? - whether Expl.1(b) below sec.2(42A) is applicable and the period of holding of the asset by the previous owner also needs to be considered even though assessee did not receive the asset through gift or will as mentioned in sec.49(i)(ii) but by settlement deed? - HELD THAT:- As decided in The Principal Commissioner of Income Tax, Chennai - 34 Vs. Smt.Deepa Vijay [2021 (1) TMI 787 - MADRAS HIGH COURT] wherein had done an elaborate factual exercise, gone through the covenants and c....... + More

Reopening of assessment u/s 147 - reopening on the basis of the material and the impounded documents recovered during the course of survey action undertaken by the Investigation Wing, Surat under Section 133A - disposing of objections of assessee - HELD THAT:- In case of CIT Vs. M/s.Kelvinator of India Limited [2010 (1) TMI 11 - SUPREME COURT] it has been held inter alia that the Assessing Officer has power to reopen, provided there is "tangible material" to come to the conclusion that there is an escapement of income from assessment and that reasons must have a live link with the formation of the belief. Our Court has also in similar case, in the case of Aaspas Multimedia Pvt. Ltd. [2017 (6) TMI 557 - GUJARAT HIGH COURT] held that if on the basis of information supplied by/from the office of Principal Director of Income Tax (In....... + More

Maintainability of appeal v/s writ petitions - writ petitioners, strenuously contended that it is the case where the respondents themselves admitted certain vital facts and those admitted facts were not considered by the Assessing Authority and therefore, the order impugned is liable to be set aside - legality of investments - HELD THAT:- When the contentions of petitioners are extracted in the counter-affidavit, that cannot be construed as an admission. By extracting the abovesaid statement in the very same paragraph, the respondents have stated that “the Mauritius Company had simply been used by the UAE Company to hoodwink the taxing authorities in India, whereas actually, it is the UAE Company which has made the investment in the Assessees-Company”. Therefore, the mere contention raised by petitioners regarding the alleged ....... + More

Disallowance of prior period expenses - HELD THAT:- From communication dated 19.10.2010 addressed to the Assessing Officer, it is evident that the claim was made with regard to prior period expenses before the Assessing Officer again. The assessee had filed the written submissions before the Commissioner of Income Tax (Appeals) in which claim with regard to prior period expenses was made. The Commissioner of Income Tax (Appeals) had passed the Assessing Officer to submit a remand report, which was submitted by the Assessing Officer. On the basis of material available on record, the Commissioner of Income Tax (Appeals) as well as the tribunal have allowed the claim with regard to the assessee's prior period expenses. The first substantial question of law is therefore, answered against the revenue and in favour of the assessee.

Reduction of provision for bad and doubtful debts written back credited to profit and loss account for computation of book profit under Section 115JB - Disallowance of estimated expenses under Section 14A of the Act for computation of book profit under Section 115JB - no notice under Section 143(2) of the Act issued on the revised return - HELD THAT:- Admittedly, the first three issues involved in this appeal are covered by decisions of this Court in the case of the assessee as well as in GOKALDAS IMAGES P. LTD.[2020 (11) TMI 345 - KARNATAKA HIGH COURT].Therefore, substantial question of law Nos.2 to 5 are answered against the revenue Validity of assessment - absence of notice under Section 143(2) - HELD THAT:- Since the issue with regard to validity of the proceedings on account of absence of notice under Section 143(2) of the Act has no....... + More

Addition u/s 69A - assessment was selected for limited scrutiny for verification of cash deposits made into savings bank - HELD THAT:- As assessee has not been given a proper opportunity to explain the source of cash deposit. Before the A.O., the assessment proceedings were getting time barred and only two hearings were given to the assessee to furnish the necessary details. Before the CIT(A), necessary details explaining the source of cash deposits were placed on record. CIT(A) called for a remand report from the A.O. The A.O. furnished the remand report without considering the additional evidence placed before the CIT(A). The A.O. also did not provide an opportunity of hearing to the assessee to substantiate his case. As given the facts and circumstances of the case, the matter needs to be considered afresh by the A.O. The A.O. shall co....... + More

Disallowance u/s 54F - assessee did not deposit unutilized amount in capital gain accounts scheme as required u/s 54F - HELD THAT:- As relying on SHRI RAMAIAH DORAIRAJ VERSUS INCOME TAX OFFICER, WARD 4 (2) (2) , BANGALORE. [2020 (12) TMI 597 - ITAT BANGALORE], VENKATA DILIP KUMAR [2019 (11) TMI 416 - MADRAS HIGH COURT] we direct the A.O. to allow the claim of the assessee after verifying the details of investment made in the purchase of new flat by the assessee, i.e., whether the investment has been made within the period prescribed u/s 54F - Appeal filed by the assessee is treated as allowed for statistical purposes.

Exemption u/s 11 - assessee was granted registration u/s 12A of the Act in the year 1980 since then the assessee was having registration u/s 12A - DIT(E) cancelled the registration u/s 12AA of the Act on the ground that the assessee violated the provision of section 13(3) of the Act for taking loan and donating the same to the sister concern without carrying out any charitable activity - DIT(E) while cancelling the registration, observed that the main objective of the assessee trust was running of a hospital but as per the examination of books of account for the Assessment Years 2005-06 to 2009-10, a very meager receipt from OPD was disclosed HELD THAT:- In the opinion of DIT(E), it is clearly violation of provision of law to divert the property of assessee trust to others for non-charitable activities. In the opinion of Ld. DIT(E), there....... + More

Admissibility or otherwise of assessee’s subsequent claim for treatment of Excise Duty Refund as capital in nature without filing any revised return - HELD THAT:- Allowability of cess u/s 37 has been examined by the Co-ordinate Bench of ITAT in ITA No. 685/Cal./2014 [2018 (11) TMI 1611 - ITAT KOLKATA] wherein the amount of the cess paid has been held to be an allowable deduction. We find that the Hon’ble High Court of Judicature for Rajasthan at Jaipur in the case of Chambal Fertilizers and Chemicals Ltd. [2018 (10) TMI 589 - RAJASTHAN HIGH COURT] held that in view of the Circular of CBDT where the word ‘cess’ is deleted, the claim of the assessee for deduction is acceptable. In that case, the Hon’ble High Court held that there is difference between the cess and tax and cess cannot be equated with the cess. H....... + More

Rectification u/s 154 - eligible for deduction u/s 80IA (4) - HELD THAT:- There is no doubt that the assessee has suppressed the facts of his activity and filed return of income before obtaining report in prescribed Form no. 3 CEB dated 22.10.2011. Since this is the 8th year for claiming deduction u/s 80 IA (4) considering the submissions from both the sides we remit this issue back to the file of AO for de-novo assessment. Needless to say that the assessee shall be given a reasonable opportunity of hearing. Assessee is directed not to seek unnecessary adjournments, and appear before the Assessing Officer on or before 30.09.2021 within three effective opportunities at assessee’s own risk and responsibility. Assessee’s appeal is allowed for statistical purposes

Permission for withdrawal of application - application is filed without due payment of the fees required to be paid by the applicant and on calling for the said details, the applicant has requested withdrawal of the application - classification of supplies - HELD THAT:- In the case at hand, it is found that the applicant has submitted the form without the proper payment as required under the above rule and when asked to clarify, has requested for withdrawal of the application. As the application cannot be admitted, the request for withdrawal of the application is permitted. Application allowed.

Classification of manufactured goods - Automotive Seating System - classified under CH 87089900 attracting GST @28% or under CH 940199990 attracting GST @18%? - HELD THAT:- It is seen that the chapter heading 9401 covers only seats and parts thereof. So only such items, which constitute as specific parts of a seat such as backs, bottoms, armrests etc can be termed as parts of seats - CTH 8708 covers 'Parts and accessories of Motor Vehicles' and CTH 9401 covers 'Parts of seats of Motor vehicles' - From the definitions, 'parts' are an amount or section which when combined with others makes up the whole of something. Hence part is an essential component of the whole without which the whole cannot be complete or cannot function. It is an integral component of the whole. Accessories are not an essential component withou....... + More

Grant of Anticipatory Bail - right to operate the locker - allegation against petitioner is that she operated the locker which was in the name of her husband Sahil Jain and removed certain crucial documents - HELD THAT:- Prime facie, there are serious and specific allegations leveled against the petitioner in the FIR in question for which her custodial interrogation would be imperative, more so, since she allegedly removed crucial documents having a direct link with the proceedings, which were pending against her and her husband under the CGST Act. Petition dismissed.

Seeking release of pending refund of IGST - HELD THAT:- The pre-conditions set out under Rule 96 of the Central Goods and Services Tax Rules, 2017, which are production of certificates and documents such as the export manifest or export refund covering, the number and date of the shipping bill or bills of export and a valid return in Form GSTR 3 or 3B as the case may be, have to be complied with by the assessee concerned. In this case the petitioner appears to, prima facie, have produced the above documents under cover of its communication dated 24.07.2018. In any event, this is a question of fact that would have to be verified by the Assessing Authority - while the legal issue stands decided in favour of the petitioner, let the factual aspect of production of documents in terms of Rule 96 of the CGST Rules be looked into by Assessing Aut....... + More

Seeking Bail - Passing of fake input tax credit - issued fake invoices/bills without receipt of goods - commission of economic offences - Offences under Sections 132(1)(b) 7 (c) of CGST Act, 2017 - HELD THAT:- As the law stands, in such type of offences, while granting bail, the Court has to keep in mind, inter alia, the larger interest of the public and State. The accused is active in creation and operation of the nonexistent business entities for availing and passing of bogus ITC thereby defrauding the state exchequer. Considering the nature and gravity of the accusation, the nature of supporting evidence, availability of prima facie case against the petitioner, coupled with the fact that a huge amount of public money has been misappropriated and also the fact that further investigation of the case is under progress and taking into acco....... + More

Permission for withdrawal of application - Exemption under Serial No. 66 of N/N. 12/2017-Central Tax (Rate) dated 28th June 2017 - Indian Institute of Technology Madras - educational Institution or not - rate of tax on services provided to Indian Institute of Technology Madras - nil rate applicable as per Serial no 3 of Notification No 12/2017 - Central Tax (Rate) dated 28th June 2017 or otherwise? - HELD THAT:- In the case at hand, the applicant vide their application has stated that they provide security service to IIT Madras and when the documents related to the supply for which ruling is sought was called for, the applicant has stated that by mistake they had mentioned that the services are provided to IIT Madras in the application, while the services are being provided to IIITDM, Kancheepuram - the applicant had made elaborate submis....... + More

Attachment of Bank Accounts - lockers were opened - petitioner's case is that while attaching the bank account of the petitioners, no SCN was served on the petitioner - no opportunity given to submit the explanation - HELD THAT:- Scrutiny of the documents revealed that Vennapusa Venkata Subba Reddy created 70 different fictitious/shell firms in Andhra Pradesh and Telangana for taking GST registrations. The modus operandi of the said Vennapusa Venkata Subba Reddy was that he opened the fictitious firms only on paper to issue fake GST invoices showing supply of iron and steel goods, chemicals, battery scrap, led etc. This fictitious firms generally operated in three levels - there will be no money, bank transactions at the first and second levels. However, bank accounts are opened with Lakshmi Vilas Bank in the name of firms operating a....... + More

Service of SCN - while attaching the bank locker, no SCN served on the petitioner to offer his explanation - HELD THAT:- Scrutiny of the documents revealed that the petitioner created 70 different fictitious/shell firms in Andhra Pradesh and Telangana for taking GST registrations. The modus operandi of the petitioner was that he opened fictitious firms only on paper to issue fake GST invoices showing supply of iron and steel goods, chemicals, battery scrap, led etc. This fictitious firms generally operated in three levels - there will be no money, bank transactions at the first and second levels. However, bank accounts are opened with Lakshmi Vilas Bank in the name of firms operating at third level showing receipt of sale consideration through banking channels from different business firms/companies in whose name fake GST invoices are iss....... + More

Maintainability of appeal - time limitation - appeal was dismissed on the grounds that the appeal was not presented within the time prescribed under law - appeal was accompanied by the downloaded printed copy of the order appealed and was not accompanied by the certified copy thereof at that stage since the Lawyer who had filed the appeal was in self quarantine - Sufficient cause for delay present or not - HELD THAT:- Considering that the explanation offered by the petitioner is a plausible and not an unreasonable one, especially in these Covid times, and further considering that a downloaded copy thereof was in fact submitted along with the appeal which was otherwise filed within time, this Court is of the view that the mere delay in enclosing a certified copy of order appealed against along with the appeal should not come in the way of ....... + More

Constitutional Validity of levy of IGST on supply of services outside India - providing marketing and promotion services - Export of services - Constitutional Validity of section 13(8)(b) and section 8(2) of the Integrated Goods and Services Tax Act, 2017 are ultra vires articles 14, 19, 245, 246, 246A, 269A and 286 of the Constitution of India - HELD THAT:- The challenge in this matter is similar to the challenge in DHARMENDRA M. JANI VERSUS UNION OF INDIA AND OTHERS [2021 (6) TMI 563 - BOMBAY HIGH COURT], which has been dismissed by a separate judgment holding that neither Section 13(8)(b) nor Section 8(2) of the IGST Act are unconstitutional. It is also held that neither Section 13(8)(b) nor Section 8(2) of the IGST Act are ultra vires the IGST Act. Also Section 13(8)(b) of the IGST Act is not ultra vires Section 9 of the CGST Act or MGST Act, 2017. Section 13(8)(b) as well as Section 8(2) of the IGST Act are constitutionally valid and operative for all purposes.

Reopening of proceedings - invocation of Section 32 K(3) of the CE Act - HELD THAT:- Since the petitioner has challenged the notice for confiscation of goods and conveyance dated 19.04.2021, the Court is not inclined to interfere with the same at this juncture. It is needless to say that as and when the final confiscation order is passed, the petitioner shall have an opportunity to file an appeal as may be permissible under section 107 of the Goods and Services Tax Act, 2017. Petition disposed off.

Refund of GST - Export of goods - Zero Rated Supplies - HELD THAT:- Without going into the merits of the case, it is directed that the respondent No. 3 - Deputy Commissioner of Customs, Mundra (Katchh) shall decide the aforesaid representations at Annexures 'E' and 'F' of the petitioners as expeditiously as possible, preferably within 04 (four) weeks from the date of receipt of this order, in accordance with law. Petition disposed off.

Grant of Anticipatory Bail - justified arrest by police or not? - when can a person be arrested after filing FIR? - HELD THAT:- This Court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of F.I.R., the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an F.I.R. has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of JOGINDER KUMAR VERSUS STATE OF UP. [1994 (4) TMI 385 - SUPREME COURT], the Apex Court....... + More

Supply of intermediary services as intermediary to his overseas customers - export of service by virtue of section 13(8)(b) of the IGST Act read with section 8(2) of the said Act or not - intra-State supply or not - Constitutional validity of Section 13(8)(b) read with Section 8(2) of the IGST Act - GST is a destination based tax on consumption and section 13(8)(b) of the IGST Act is contrary to the said principle - Vires of Article 246A read with Article 269A, Article 286 as well as Article 245 of the Constitution of India as the section results in levy on export of services as intra-State supply - vires of charging section 5 - vires of Section 9 of the CGST Act and MGST Act - violation of Article 14 of the Constitution being arbitrary, unreasonable and discriminatory - violation of right to carry on business viz. Article 19(1)(g) of the....... + More

Exemption from GST - Municipality - Local Authority - Fee from parks - Market fee-daily - Market fee -weekly - Fish Market weekly - Fee for bays in bus stand - Bus Stand Others-Charges for TV Advt in bus-stand - Bus Stand Others-Locker rent provided in bus stand - Slaughter House fees - Fees for pay and use toilets bus stand and other common places - Fee for entry vehicle bus stand-two wheeler stand - Direct charge or Reverse charge - scope of Advance Ruling - services through tender contractors - services rendered and contractors are not agents - Annual track rent-Cable Operator laying fee (optical fiber laying fee) - Renting of building-Residential purpose - Whether the renting of immovable property service rendered by them as a local authority to Pure state Govt. offices, Co-operative society and Nationalised Banks are exempt or not? -....... + More

Rejection of petitioner's bid (highest bidder) - contract awarded to the second highest bidder - rejection on the ground that material facts were suppressed - total figure mentioned was ₹ 10982.01, while it was claimed to be ₹ 10982.27 - small variation in the calculation of service tax amount due to rounding off - HELD THAT:- Reliance placed on Section 170 of the CGST Act, 2017 at this stage when the bidder is supposed to quote the price, is misconceived. Such exercise of rounding off the tax figure will be at a subsequent stage when the actual filing of returns and payment of tax arises and not at an interim stage particularly not at the stage where the price has to be quoted while submitting the bid. The Court finds no error having been committed by the Tender Inviting Authority in rejecting the Petitioner's prayer - Petition dimsissed.

Exemption from GST - service of operating mini AC buses by the applicant for B.E.S.T (Brihan Mumbai Electricity Supply Transport Undertaking) - Classifiable under Tariff Heading 9966 or not - rate of tax at 12% as renting of any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient or 18% as rental service of transport vehicles with or without operators? - benefit of N/N. 12/2017-CT(R) dated 28.06.2017 or not? - HELD THAT:- In the instant case, the applicant has an agreement with BEST for operation and maintenance of AC mini buses in Mumbai and suburban areas. The applicants owns buses, provides drivers and also incurs expenses on fuel and maintenance of the buses. For all these services provided by the applicant, BEST is paying them service charges on kilomet....... + More

Classification of goods - scientific and technical instruments/ equipment supplied to public funded research institutions, research institutions, universities, Indian Institute of Technology, departments and laboratories of the Central and State Government, basis the certificates appended herewith - part “a” of the Sr. No. “I” of the condition in the Certificate of Registration with DSIR - applicability of N/N. 45/2017-C.T. (Rate) dated 14.11.2020 and corresponding N/N. 45/2017 and 47/2017 issued under the MGST Act, 2017 and the IGST Act, 2017 - HELD THAT:- Considering the fact that conditions prescribed under all Notifications are the same, production of Certificate of registration with DSIR having reference to the erstwhile Notification No. 51/96-Cus should be considered sufficient compliance for eligibility to a....... + More

Classification of services - Fee from parks - Market fee-daily - Market fee-weekly - Fees for bays in bus stand (bus stand entrance fee collection) - Bus -stand (others), charges for of TV advt. in bus-stand - Bus -stand (others), locker rent provided in bus- stand - Bus -stand (others), flower shop in bus stand in open space - Bus -stand (others), cycle stand, scooter, auto, four wheeler stand in bus stand and other places - Bus -stand (others), collection of room rent for temporary stay - Slaughter house fees - Rent,Travelers’ bungalows & rest house (municipal lodge) - Fees on pay & use toilets - For entry vehicle in the market - N/N. 14/2017C.T.(Rate) dated 28.06.2017(or) Sl.No. 4 of N/N. 12/2017-C.T.(Rate) dated 28.06.2017 - HELD THAT:- The applicant is a ‘Municipality’ as defined in clause (e) of article 243....... + More

Maintainability of petition - appealable order or not - Section 107 of the CGST Act - HELD THAT:- Section 107(6) provides that an appeal shall not be entertained unless the appellant pays the amount of tax, interest, fine, fee and penalty arising out of the impugned order in full, as is admitted by him, and a sum equivalent to 10% of the remaining amount of tax in dispute arising out of the said order. The petitioner is at liberty to raise all issues before the appellate authority - SLP disposed off.

Refusal to issue customs clearance to the High Alumina Refractory Cement imported - demand for production of BIS certificate for the goods imported by the petitioners - HELD THAT:- According to the scheme of the BIS Act and its Rules, the Bureau of Indian Standards is a National Standard Body having technical expertise to establish national standards for goods or articles, process, system or service etc. and it by itself has no power to enforce the implementation. On the other hand, the standards fixed under Section 10 by the Bureau, have to be notified by the Central Government and thereafter, if it considers that the standards established in respect of goods and articles mentioned in Section 14 or Section 16 shall require compulsory conformity, the Central Government shall make a legislation or issue specific order in that regard. Notif....... + More

Duty Drawback - non realisation of export proceeds - violation of principles of natural justice - HELD THAT:- This Court is of the considered opinion that even in such circumstances the grievances if at all exists the same can be exhausted by filing an appeal before the appellate authority under the provisions of the Customs Act. The introductory paragraph of the impugned order states that an appeal against the order lies with the Commissioner of Customs (Appeals), Custom House, 5 th floor, Chennai 600 001, under Section 128(1) of the Customs Act, 1962, within 60 days of communication of this order. Thus the petitioner is very much aware of the appellate remedy contemplated and such an appellate remedy is also informed to the petitioner even through the impugned order. However without exhausting the appellate remedy the present writ petit....... + More

Valuation of imported goods - Toyota Landcruiser - misdeclaration of goods by concealing evidence - Confiscation of goods - Penalty - HELD THAT:- It is clear from the conditions specified in public notice no. 3 (RE-2000)/1997-2002 dated 31st March-2000 of Director General of Foreign Trade that endorsement of ‘no sale’ for two years was to be recorded by the competent authority in the registration certificate of the vehicle. The appellant, having entered into lease agreement with the importer, cannot be said to be ignorant of such condition. Nonetheless, we are unable to concur with the findings of the lower authorities that ‘no sale’ restriction has been breached by taking possession of the vehicle on lease. The distinction between ‘sale’ and ‘lease’ is not only substantive but also legally ....... + More

Valuation of imported goods - baby garment woolen knitted top - baby garments woolen knitted jacket - change in classification - classification be revised from tariff item no. 6111 30 00 to tariff item no. 6106 20 10 and tariff item no. 6203 33 00 of First Schedule to Customs Tariff Act, 1975 respectively or not - enhancement of declared value - HELD THAT:- The classification for ‘baby woolen tops’ and ‘baby woolen jackets’, adopted by the importer, appeared to have been discountenanced by the Textile Committee for two reasons: that the articles were made of polyester fibre, and not of wool as described in the bill of entry, and that visual examination by the Textile Committee found these to be intended not for babies but for girls and boys. The ‘boys’ jackets’, found not to be knitted, was sought....... + More

Rejection of claim for Preferential Duty - Areca nuts - certificate of origin (COO) - benefit of N/N. 26 of 2000 - remission of duty assessed under section 17 of the Customs Act, 1962 - HELD THAT:- In the present case, the claim for preferential duty has been rejected unilaterally and without assigning any reasons whatsoever by the Deputy Commissioner of Customs, an authority not competent to have rejected the claim as per the proviso to Section 28-DA(4). Though the consignment has been imported in February 2021, there has been no initiation of enquiry by the proper officer under sub-Section (3) for further enquiry into the COO or any other aspect of the matter that he deems relevant. The impugned order rejecting the claim for exemption has come to be passed by the 2nd respondent, the Deputy Commissioner of Customs, who is not the compete....... + More

Jurisdiction - proper officer for issuance of SCN - DRI is proper officer or not - Classification of imported goods - External/Portable Hard Disc Drives - classifiable under CTH 84717020 as ‘Hard Disc Drive” or under Tariff Item 84717030 as “Removable Disc Drive”? - HELD THAT:- Hon’ble Supreme Court in the matter of COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS M/S SUPERTRON ELECTRONICS PVT. LTD. [2017 (10) TMI 1281 - SC ORDER] has laid down that Additional Director General, DRI cannot be said to be a proper officer under section 2(34) of Customs Act, 1962 and held that the entire proceedings initiated by ADG, DRI by issuing various show cause notices are invalid without any authority of law and liable to be set aside. In the instant case also the show cause notice was issued by the Additional Director General, D....... + More

Classification of imported goods - Pottassium Humate - classifiable under CTH 31052000 or otherwise? - import of goods was denied by the Customs on the ground that it is a restricted item and requires registration from the Central Insecticide Board and Registration Committee - HELD THAT:- Both the authorities have relied upon the test report issued by the Customs Department but the same does not conclusively classify the impugned goods as insecticide. The test report of the Customs only says that “it may find use as a plant growth regulator” and on that basis, the Customs changed the classification and reclassified the goods under CTH 38089340 which is also not tenable in law in view of the letter dt. 05.11.2020 issued by the Central Insecticide Board and Registration Committee. In the present case, the Assistant Commissioner ....... + More

Levy of IGST - oxygen concentrators that are imported as gifts for personal use - violative of Articles 14 and 21 of the Constitution or not - HELD THAT:- Issue notice, returnable in four weeks. Till the next date of listing, there shall be a stay of the operation of the impugned judgment and order of the High Court dated 21 May 2021.

Smuggling - Gold - Electronic goods - baggage rules - specific contention of petitioners is that they wanted to declare the goods before Customs Authority but before they could do so, they were intercepted and apprehended - HELD THAT:- The petitioners could have established their defence only by producing the CCTV footage. They have been denied access to this vital piece of evidence. The best evidence was very much available and it was allowed to vanish. The airport authority is a limb of the State. DRI cannot wash away its hands by taking the plea that they have not installed the CCTV and that it is not in their control. When a huge smuggling attempt was busted and when two of the arrested from whom recoveries were made wrote to the Additional Director General, DRI, Chennai that if he verifies the contents of the CCTV footage, their stan....... + More

Smuggling - Cigarettes - charges based on statements - cross-examinations of statements not done - HELD THAT:- The entire case based on primarily on statement. The charges have also been established on the basis of these statements. It is seen that all three notices have denied any knowledge of the transaction of presence of cigarettes in the containers. There is no specific primary evidence produced by revenue, except the statements, to establish that the notices were aware of the presence of cigarettes in the container - Since it is seen that there no major evidence other than the statements has been produced about the knowledge of the appellants about presence of the cigarettes in the container. It is on paramount importance that the statements are properly tested with cross-examination. Since Cross-examination is not granted the impug....... + More

Enhancement of rate of duty on the day ship arrived vide Notification dated 17.09.2015 - Reassessment of the subject goods imported by the respondent - Crude Palm Oil of Edible Grade in bulk - whether the enhanced rate of customs duty was liable to be paid by the respondent importer? - Recovery of dues under IBC - HELD THAT:- The issuance of the Notification must be followed by its publication in the Official Gazette and on such publication being offered for sale on the date of its issue. If for any reason, the Notification issued by the Central Government is published and offered for sale on the date of its issue, but offered for sale on a later date, then it is only with effect from the date of which it is offered for sale, such a Notification would become enforceable. Mere issuance of a Notification without its publication is of no con....... + More

Anti-Dumping Duty - imports of solar cells, whether or not assembled into modules/panels - exported from China PR, Thailand and Vietnam - HELD THAT:- The matter requires further examination; but before that Indian Solar Manufacturers Association (ISMA) is arrayed as a party to the proceedings. List the matter on 19.07.2021.

Seeking permission to travel abroad - seeking release of passport - smuggling - Foreign Currency - right to travel - Fundamental Rights - offence punishable under Section 135 of the Customs Act 1962 - HELD THAT:- There is no serious challenge to the medical grounds made by the petitioner in the application which was filed before the Chief Metropolitan Magistrate, on the basis of which petitioner was allowed to travel abroad. In the reply filed by the respondent, it appears that respondent is not averse to the foreign travel of the petitioner if the petitioner is directed to deposit 50% of the amount recovered from her in the form of Indian currency. In the instant case, according to the respondent, amount of USD 90000 was recovered from the petitioner which was around ₹ 65,00,000/- in Indian currency. The petitioner in the instant c....... + More

Maintainability of petition - availability of alternative remedy - petition is filed on the ground that the impugned order has been passed without awaiting the decision of the licensing authority based on the letters sent by the writ petitioner, stating that they have fulfilled the export obligations - HELD THAT:- In the present case, the appeal lies before the Commissioner of Customs (Appeals) before whom the legal practitioners are permitted to test the cases. When the litigants are having the benefit of legal assistance through the legal practitioners, then such a remedy must be exhausted by the aggrieved persons before approaching the High Court under Article 226 of the Constitution of India as stated above. Disputed facts cannot be adjudicated by the High Court nor a finding can be given in a writ proceedings without exhausting the a....... + More

Maintainability of appeal - fulfilment of conditions for maintaining the appeal - rejection of petition mainly on the ground that the procedures as contemplated are not followed and the Principles of Natural Justice has been violated - principles of natural justice - HELD THAT:- This Court is of the considered opinion that statutory appellate remedy provided under the Act is a valuable right conferred on a litigant - such a right cannot be dispensed with in a routine manner, even by the High Court under Article 226 of the Constitution of India. Facilitating an aggrieved person to prefer an appeal, has got a definite meaning and an opportunity is provided to consider the original documents and the grounds raised by the aggrieved parties. Therefore, the appellate remedy contemplated under the statute cannot be dispensed with in a routine ma....... + More

Jurisdiction - Proper Officer u/s 28 of the Customs Act, 1962, or not - Officers of the Directorate of Revenue Intelligence - power to issue demand notice - HELD THAT:- In the case of the Commissioner of COMMISSIONER OF CUSTOMS, TUTICORIN VERSUS CESTAT, CHENNAI, M/S. SRI RAJENDRA MANSUKHLAL SHAH, SHRI. MOHAMMED AZAM, M/S. VISAL TRIBOTECH (P) LTD., SHRI. R. PARRIVALLAL AND M/S. SHRI. TARUN SALOT [2019 (12) TMI 249 - MADRAS HIGH COURT] a Division Bench of this Court, to which one of us (T.S.SIVAGNANAM, J.) was a party, had an occasion to test the correctness of an identical order passed by the Tribunal and by a common Judgment, dated 04.10.2019, set aside the order of the Tribunal and restored the appeals to the file of the Tribunal to be kept pending and await the decision of the Honourable Supreme Court. It was also made clear that the ap....... + More

Demand of arrears of amount payable towards Cost Recovery Charges - Container Freight Licence - implementation of the VI Pay Commission as a result of which the salaries of the Central Government Employees were increased drastically - HELD THAT:- There is ample power vested with the Central Government and the Central Board of Excise and Customs as the case may be to make regulations for levying fees in respect of applications, amendment of documents, furnishing of duplicates of documents, issue of certificates, and supply of statistics, and for rendering of any services - there is no difficulty in arriving at a conclusion that both the Central Government and the Central Board of Excise and Customs have power to make a regulation Handling of Cargo in Customs Areas Regulations, 2009 and to levy Cost Recovery Charges from service providers t....... + More

Seeking grant of Regular Bail - Smuggling - Gold - Section 439 (1) (b) Cr.P.C. - HELD THAT:- Section 439 (1) (b) Cr.P.C. deals with special powers of High Court or Court of Session regarding bail and that any condition imposed by a Magistrate when releasing a person on bail be set aside or modified. As stated above, the respondent-authorities have completed the investigation and filed charge sheet and the same was taken on file vide C.C.No.14 of 2020. In view of the fact that the respondent has already filed charge sheet and the same is taken on file vide C.C.No.14 of 2020, only remedy available to the petitioner is to file application under Section 451 Cr.P.C. in the said C.C. seeking interim custody of her passport before the Court below. It is relevant to note that the petitioner has not filed any application under Section 451 Cr.P.C. ....... + More

Revocation of CHA License - mis-declaration of description of the imported goods - time limitation - HELD THAT:- The impugned show cause notice is time barred and contrary to the law settled by this Court. The petitioner however appears to have participated in the adjudication of the impugned show cause notice and had acquiesced in it. Initially, the petitioner had filed a preliminary objection dated 23.7.2016. This was received by the office of the 1st respondent on 28.7.2016. Thereafter, the petitioner filed additional written submission on 26.6.2016 and enclosed few case laws - Without awaiting for the adjudication of the impugned show cause notice, the petitioner has rushed to this court by way of the present writ petition on 5.12.2016. Since the petitioner has partly had acquiesced in the said show cause proceedings by participating ....... + More

Modification of order of Settlement Commission - Import of refurbished hard disk - Absolute Confiscation of seized goods - goods seized from petitioner's godown - goods were destroyed in the fire accident - Insurance claim settled by Insurance Company has to be paid to the Customs Department or petitioner when the goods were absolutely confiscated without any redemption fine - HELD THAT:- In the decision of the Hon'ble Supreme Court in UOI AND ORS. VERSUS IND-SWIFT LABORATORIES LTD. [2011 (2) TMI 6 - SUPREME COURT] where it was held that the order of the Settlement Commission clearly indicates that the said order, particularly, with regard to the imposition of simple interest @ 10% per annum was passed in accordance with the provisions of Rule 14 but the High Court wrongly interpreted the said Rule and thereby arrived at an errone....... + More

Oppression and mismanagement - seeking extension of the term of appointment of P2 as Joint Managing Director and R2 as Managing Director of R1 for a period of three years - revival of one division - HELD THAT:- The Company is managed by the Board of Directors and overall there is representation for all the groups for a quite long time. However, the three divisions were micro managed by the respective groups - two of the divisions were doing well and one division is not doing well. However, the overall management is under the control of Board of Directors only and the Board is also conscious of the profitability or otherwise of each division and the Board has taken conscious decision then and there in the interest of the company. As far as the Gujarat Division is concerned, since it is not performing well, it cannot be solely attributable ....... + More

Oppression and mismanagement of the minority shareholders - Tribunal has not given any findings on the aspect - seeking urgent directions for appointment of an Interim Board of Management in the 1st Respondent Company - HELD THAT:- There appears to be deadlock between both the groups specially with the resignation of Dr. Errol Pinto from the Board of Directors and the Board now has 8 Directors split into 2 groups of 4 each, as seen from the Meeting dated 27.02.2021 the Chairman could not be elected and no other matters were discussed or approved. In fact, it is significant to mention that the Appellants together with the Applicant are contending that the group led by Dr. K. Mukund is falsely claiming that the Financial Statements for the year ending 2018-19 has been approved by the Board. It is also pertinent to note that the Applicant an....... + More

Approval of Scheme of Amalgamation - Section 230-232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Necessary directions regarding issuance of various notices given - the scheme is approved. Application allowed.

Dispensation with shareholder' meeting - section 230 of the Companies Act, 2013 - whether or not shareholders' meetings could be dispensed with in the first motion of the Scheme Application? - HELD THAT:- It has been mentioned in subsection 9 of Section 230, the Tribunal is given discretion to dispense with calling of a creditors meeting or class of creditors meetings, where such creditors or class of creditors having at least 90% value agree and confirm by way of affidavit to the scheme of compromise or arrangement. But this grant of dispensation has not been extended to the shareholders either in subsection 9 or any other subsection of Section 230 of the Companies Act, 2013. The discretion given to NCLT to dispense with meetings is only limited to creditors meetings but not to shareholders meetings when mandate is such, I don....... + More

Enforceability and validity of Oral Agreement - oral agreement for lifting water, exists or not - time limitation - Section 297 of Companies Act - HELD THAT:- Section 46 of the Act must be read along with Section 297 of the Companies Act. It has been established in evidence that the defendant company was having paid-up capital of not less than one crore. Therefore, the prior approval of the central government was required for entering into a contract, in which, the director of the company or his relative is having an interest. The suit well belongs to the appellant Subahani and her brother Mohammed Thasthakir was the managing director of the defendant company. Therefore, two conditions will have to be fulfilled - The first Appellate Court rightly came to the conclusion that there has been a breach of Section 297 of the Companies Act. Sinc....... + More

Seeking to restore the Company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- It has been brought to the notice of this Tribunal that the Petitioner has not complied with filing of balance sheet and other statutory returns before the RoC. The Registrar of Companies, Chennai, the respondent herein, is ordered to restore the original status of the Company i.e. M/s. Cricket Archive Private Limited as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing status of Company from "strike off" to "Active" - Application allowed.

Oppression and mismanagement - stripping of assets of the company - members entitled to vote in GM - HELD THAT:- We are not convinced that there was any tearing urgency to getting authorisation to deal with the movable and immovable assets of the Respondent No. 1 company. Selling all the assets during the pendency of the petition will only ensure that the company exists only in name as a shell, hollow on the inside. The main CP as well as the civil suit bearing CS No. 146/2012 before the Hon'ble Calcutta High Court will both be rendered nugatory. Therefore, we are convinced that ad interim ex parte reliefs are required to be granted. Following reliefs were granted: (a). Grant of stay on all resolutions, if any, passed in the Extraordinary General Meeting, if at all held on 30.03.2021; and (b). Order of injunction restraining the respo....... + More

Approval of scheme of amalgamation - section 230-232 of Companies Act - HELD THAT:- Various directions regarding holding and convening of various meetings issued - various directions regarding issuance of various notices also issued - the scheme is approved - application allowed.

Approval of scheme of Amalgamation - section 230-232 of Companies Act - HELD THAT:- Upon perusing the records and documents in the instant proceedings and considering the submissions made on behalf of the Petitioners, the instant petition is admitted and the next date of hearing is fixed on 20.05.2021. Various directions regarding holding and convening of various meetings issued - Various directions regarding issuance of notices for such meetings also issued - the scheme is approved - application allowed.

Approval of scheme of Amalgamation - Section 232 Read with Section 230 and Section 66 of the Companies Act, 2013 - HELD THAT:- Section 230(i) of Companies Act, 2013 contemplates holding of meeting unless 90% of the Creditors gave consent by way of Affidavits to dispense with meetings. In this case, all the equity shareholders, preference shareholders of the Applicant Companies gave their consent by way of affidavits. The unsecured creditors of the first Applicant Company have not given consent by way of Affidavits. Unsecured creditors of the second and third Applicant Companies have given their consent stating no objection to the scheme by way of affidavits. Therefore, the request of the first Applicant Company for conveying meeting of unsecured creditors be convened and held in the manner directed. Application allowed.

Approval of scheme of Merger - section 230-232 of Companies Act - HELD THAT:- Considering the entire facts and circumstances of the case and on perusal of the Scheme and the documents produced on record, it appears that the requirements of the provisions of Sections 230 and 232 of the Companies Act, 2013 are satisfied - The Scheme of Merger, which is at Annexure F to the instant petition mentioned amendments is hereby sanctioned and it is declared that the same shall be binding on the Petitioner Companies, namely, Parsec Enterprises Private Limited and Saurashtra Cement Limited and their shareholders, and all concerned under the Scheme. The petition is allowed.

Approval of scheme of amalgamation - seeking to dispense with the meeting of Equity Shareholders and Secured Creditors of the Applicant Companies - seeking to direct to convene the meeting of Unsecured Creditors of the Applicant Company - Sections 230 & 232 of the Companies Act, 2013 - HELD THAT:- The Companies has followed extant provisions of Companies Act in framing the Scheme in question, which are duly approved by the Board of Directors of the Companies involved. The Statutory Auditors/Chartered Accountants of the Companies have also issued respective Certificates by inter-alia certifying the details of shareholders, creditors, and compliance of accounting treatment as prescribed U/s. 133 of the Companies Act, 2013 with reference to the Scheme in question. The Applicant Companies have disclosed all the material facts relating to ....... + More

Reduction of Share Capital - Section 66 of the Companies Act, 2013 read with the National Company Law Tribunal (Procedure for Reduction of Share Capital of Company) Rules, 2016 - HELD THAT:- Since all the requisite statutory compliance having been fulfilled and that the proposed reduction of Share Capital shall not cause any prejudice either to the members or the creditors of the Petitioner Company and in consideration of the affidavit submitted by the Regional Director, Eastern Region, representing the Central Government and the Registrar of Companies, West Bengal, the scheme for reduction is passed. The capital of M/s. Titagarh Enterprises Limited is henceforth ₹ 2,57,50,000/- divided into 2,57,50,000 equity shares of ₹ 1/- each, reduced from ₹ 25,75,00,000/- divided into 2,57,50,000 equity shares of ₹ 10/- each ....... + More

Approval of Scheme of Arrangement by way of amalgamation - section 230-232 of Companies Act, 2013 - HELD THAT:- Various directions issued, with respect to calling, convening and holding of the meetings of the Shareholders, Secured and Unsecured Creditors or dispensing with the same - application allowed.

Seeking direction to investigate the affairs of Company by Inspector(s) appointed by the Central Government - freezing of assets of the R-1 Company for a period of 3 years pursuant to the investigation by the Inspector(s) appointed by the Central Government - HELD THAT:- In the instant case, though the Petitioner has no locus standi even to raise the alleged grievance before statutory Authorities or to approach various Courts/Tribunal, used to file frivolous Applications/Petitions on untenable grounds. The Petitioner did not stop to file its frivolous Petitions/Applications, even when the Central Government has passed a detailed order dated 10th November, 2017, in pursuance to an order passed by Delhi High Court by inter alia holding that there is nothing wrong in the affairs of 3 Companies involved in the instant Application. Therefore, ....... + More

Oppression and Mismanagement - transfer of shares of petitioner, by its nominee directors, without his consent - dispute required to be referred to Arbitrator or not - sale of rights issues of respondent 1 Company, pending the adjudication. Whether transfer of some of shares of the petitioner in R1 Company by its nominee directors R3 & R4 to R2 is prima-facie legal and valid? - HELD THAT:- Since R3 & R4 were not specifically restrained by the petitioner acting on its behalf while acting as its nominee Directors in R1 Company, such transfer of shares, prima-facie cannot be held to be void in absence of enough material. In any way it can't be held at this stage that the act of transferring the Petitioners shares in R1 Company by R3 & R4 is fraudulent transfer. Such finding can't be recorded unless the matter is heard at ....... + More

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

Approval of scheme of Arrangement - Section 230 to 232 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- This Tribunal is of the considered view that the scheme as contemplated amongst the petitioner companies seems to be prima facie in compliance with the provisions of the Companies Act, 2013. Further there seems to be no objection on the part of the shareholders that the Scheme is in any way detrimental to the interest of the shareholders of the Company. In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal sanctions the Scheme of Amalgamation appended as Annexure "A4" along with Company Petition as well as the prayer made therein. The scheme is approved - application allowed.

Seeking approval for reduction of share capital - only objection raised by the income tax department is with regard to an outstanding demand towards fringe benefit tax - Section 66 of the Companies Act 2013 - HELD THAT:- The petitioner has already deposited the amount towards fringe benefit tax and the receipt thereof has been placed on record. Further, no other objection has been raised by the Income tax department. The Application is allowed for reduction of the share capital of the company.

Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - HELD THAT:- Upon considering the approval accorded by the members and creditors of both the Petitioner companies to the proposed Scheme, and the affidavit filed by the Ld. Regional Director, Northern Region, Ministry of Corporate Affairs, the report of Department of Income Tax and the Official Liquidator there appears to be no impediment in sanctioning the present Scheme. Consequently, sanction is hereby accorded to the Scheme under Section 230 to 232 of the Companies Act, 2013. The Petitioners shall however remain bound to comply with the statutory requirements in accordance with law. The scheme is sanctioned - Application allowed.

Approval of the resolution plan - dissenting financial creditor - order of priority among the creditors as also the priority and value of the security interest of a secured creditor - Section 62 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- As regards the process of consideration and approval of resolution plan, it is now beyond a shadow of doubt that the matter is essentially that of the commercial wisdom of Committee of Creditors and the scope of judicial review remains limited within the four-corners of Section 30(2) of the Code for the Adjudicating Authority; and Section 30(2) read with Section 61(3) for the Appellate Authority. The NCLAT was right in observing that such amendment to sub-section (4) of Section 30 only amplified the considerations for the Committee of Creditors while exercising its commercial wisdom so as t....... + More

Application to consider Proof of claim along with condonation of delay before the Adjudicating Authority - grievance of the Appellant is that when the Adjudicating Authority passed the Impugned Order it did not take into consideration and include the claim made by the department for Operational dues - HELD THAT:- The Appellant was required to file claim in terms of IBC provisions but did not follow the procedure as laid down in the IBC read with the Regulations and did not duly file claim in proper format within time. Even when the time was over and the Appellant department was advised by the Resolution Professional to get delay condoned by moving Adjudicating Authority, the department instead of resorting to Section 60 of IBC and other enabling provisions only sent a letter, further with a wrong Format, that too addressed to Adjudicating....... + More

Substitution of Legal Heirs in the appeal, on the death of original appellant - defaults were committed by the Corporate Debtor in repayment of financial facilities availed from the Applicant Bank - HELD THAT:- Considering the defaults committed by the Corporate Debtor in its repayment obligation, the applicant bank invoked the securities provided by the Corporate Debtor and its promoters. After invocation of securities, the Applicant Bank took actions under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and took symbolic possession of the Land in question along with Bank of Baroda on 22.09.2015 in accordance with Section 13(4) of the Act read with Rule 9 of the Security Interest (Enforcement) Rules, 2002. After this verification, it became absolutely clear to the Applicant Bank th....... + More

Financial Creditors claiming to be part of CoC - Financial Creditors claimed to be assignees of financial debt - It is claimed that the Appellants would constitute 68% of the CoC and thus they have an important stake involved - HELD THAT:- It appears that there are various disputes raised including issues relating to the admission of the claim of the Appellants are the issues. It also appears from Company Appeal (AT) (Insolvency) No. 385 of 2021 that the Interim Resolution Professional (IRP) had rather recorded that there were dues and recoverables from the Appellant. It also appears that there is dispute regarding the Appellants to be related parties. All these issues are yet to be decided one way or the other by the Adjudicating Authority. It would not be appropriate for us to entertain the present appeals against the impugned orders as....... + More

Payment of LCs were made by debiting the Cash Credit Account - GST refund - adjustment of the said amount to settle the liability on account of the LCs opened during pre-CIRP period - HELD THAT:- The agenda reveals that the Members of the PNB (Appellant herein) has agreed to revert the aforesaid amount. There are no illegality in the impugned order passed by Ld. Adjudicating Authority, National Company Law Tribunal, Special Bench, Chennai - appeal dismissed.

Approval of Resolution Plan by Adjudicating Authority - One Time Settlement already approved - whether Section 29A of IBC will be applicable with retrospective effect in Section 10 proceedings which were initiated prior to Section 29A coming into force and to decide the issue and any other question of law? - HELD THAT:- There is no doubt that at the time when Mr. Wig submitted the One Time Settlement to the Bank, which was converted by Respondent No.2 with the help of Appellant as a Resolution Plan, he could not have done so. The arguments of Respondent No.2 show that it had already approved the OTS of Mr. Wig on 27th March, 2018. It also appears that Mr. Wig had already paid ₹ 103 Lakhs to the Bank. This can be seen from the Impugned Order where it has referred to the compliance with Regulation 38 of CIRP Regulations in Para 14.1 o....... + More

Eligibility of Related Party to submit Resolution Plan - It is claimed by the Appellant that during the Corporate Insolvency Resolution Process of the Corporate Debtor, Respondent No.2 filed a resolution plan - Respondent No.2 is a a related party of Respondent No. 3 or not - Appealable order or not - Section 29A of IBC - HELD THAT:- Respondent No. 1’s claim that the retirement deeds should be accepted as Section 29A of IBC does not envisage any inquiry in the authenticity of retirement deeds is not sustainable because the retirement deeds have been, at the first instance, being disputed by the Appellant and the Appellant has placed documents in the form of GST and Income Tax returns which point towards the discrepancy in the retirement deeds. Moreover, none of the Respondents have disputed the GST and Income Tax returns, which are ....... + More

Liquidation of Corporate Debtor - resolution of MSME - Corporate Debtor fall under the category of the MSME or not - Section 240 A of the IBC - eligibility of MSME to participate and submit a scheme, to avoid liquidation of the Corporate Debtor - HELD THAT:- From the perusal of the extracts of minutes it is seen that the Financial Creditors and the Appellant, the liquidator have participated in the meeting and resolved that the Promoters may submit the scheme and the scheme should be preferred over liquidation - In view of the discussions in the fourth Stakeholders meeting, the liquidator, before the Learned Adjudicating Authority seeking the permission of the Authority to allow this scheme of the Appellant. However, the Learned Adjudicating Authority passed the impugned order. It is settled law that the liquidation is only the last resor....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - debtor-creditor relationship between Operational Creditor and Corporate Debto or not - pre-existing dispute or not - HELD THAT:- Based on the 'MOU', the dues receivable to Operational Creditor 'Sew-Prasad JV' have been transferred/assigned to the 1st Party, i.e. Sew Infrastructure Ltd (in short 'SIL') w.e.f. 20 May 2016. Therefore the question of maintainability of the Petition by Operational Creditor' 'SPJV' arises. Based on the assignment of debt to SEW Infrastructure Ltd, 'SPJV' does not remain an Operational Creditor of the Corporate Debtor 'GIPL' - it is clear that there was no debtor-creditor relationship between Operational Creditor 'SPJV' and the Corporate Debtor&....... + More

Maintainability of application - initiation of CIRP - mismatch between the date of default and date when OTS entered - date of default if any could be only after the acceptance of this OTS, which is not satisfied in the present case - HELD THAT:- The Adjudicating Authority found that there was debt due and default and the Application filed by the Bank was complete and that the same deserves to be admitted. It can be seen that there was an earlier Offer of settlement dated 09th November, 2015 and there was yet another offer by way of OTS on 29th March, 2016. After the grant of Loan, the Corporate Debtor made default in payment of instalments - Considering the record, the Loan Account of the Corporate Debtor was in default on 27th December, 2014 and if on 29th March, 2016, the Corporate Debtor entered into the OTS as at Annexure A-6 that is....... + More

Seeking explanation for holding back the salaries of Applicants, from Resolution Professional - seeking disbursement of salary - seeking disbursement of superannuation dues - service of notice of termination, if termination is proposed - HELD THAT:- This bench ordered liquidation of the Corporate Debtor and appointed Mr. Divyesh Desai as the liquidator. In view of this, the Applicants are directed to approach the liquidator with proper details of their claims in respect of the salary dues for the CIRP period. The liquidator shall decide the same in accordance with law. Applicant No. 4 has claimed a sum of ₹ 69,73,619/- towards superannuation benefits apart from salary during CIRP. As far as this claim is concerned, major portion of the claim relates to pre-CIRP period and thus he has to file the claim as an Operational Creditor and the liquidator should consider the same in accordance with Law. Application disposed off.

Condonation of delay in filing the claim before the Resolution Professional of the Corporate Debtor - HELD THAT:- In accordance with section 15(1)(c) of the Code read with regulation 6(2)(c) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations), once the application for initiation of the CIRP is admitted by the National Company Law Tribunal (NCLT), a public announcement is required to be released by the IRP for inviting claims - Regulation 12(2) of the CIRP Regulations provides that a creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the IRP or the RP, as the case may be, on or before the ninetieth day of the insolvency commencement date. This deadline of 90 days was in....... + More

Seeking exclusion of period of 140 days from the CIRP of the Corporate Debtor - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The erstwhile Director had filed an Interlocutory Application for extension of time period wherein the Hon'ble Apex Court vide Order dated 28.07.2020 in Civil Appeal No(s). 2211/2020 extended the time for a period of two months subject to deposition 50% amount within one month and remaining within the next 30 days and further stated that no further extension will be granted - The applicant states that this application is being filed for exclusion of 140 days from the CIRP period i.e., the lockdown period starting from 25.03.2020 to 02.06.2020 (69 days) and further the period from 18.06.2020 to 28.08.2020 (71 days) due t....... + More

Liquidation of Corporate Debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is evident, that the Financial Creditors in the CoC are Punjab National Bank with 80% of voting share and Canara Bank with 15% voting share. It appears that the Corporate Debtor is owed to pay ₹ 246.93 Crores to these Claimants. Out of which, the Promoter-Directors have come forward with a Plan valuing ₹ 12.75 Crores to pay within 22 months, however, considering all the materials available before the CoC, it has in its wisdom taken a decision to proceed for liquidation of the Company, instead of approving the Resolution Plan submitted by the Promoter-Directors. As to the approval of the Plan is concerned, as long as the procedure is complied with, the CoC can take commercial decision in the interest of the Creditors whi....... + More

Seeking for forwarding the name of the proposed Resolution Professional (RP) to IBBI for its confirmation - Section 60(5) r/w Section 22(3)(b) of the Insolvency & Bankruptcy Code, 2016 (IBC, 2016) and Regulation 17(3) of the IBBI Regulations - HELD THAT:- This Tribunal takes a strong exception to the attitude of Punjab National Bank Housing Finance Ltd. on the one hand abstaining from attending the meeting altogether and/or also failing to exercise its voting share at least through e-voting, but however, raising objections before this Tribunal in relation to the change of IRP to RP. We are unable to consider the objection of Punjab National Bank Housing Finance Ltd. in this regard and the same is brushed aside. On its part in relation to Dhankalash Distributors Pvt. Ltd., Ld. Senior Counsel Mr. Ganda appearing for the said Financial C....... + More

Seeking exclusion of time from CIRP period - HELD THAT:- I.B.B.I. inserted a Regulation 40(C), thereby the time lost due to lockdown are excluded in the calculation of the Corporate Insolvency Resolution Process time frame. In view of the same, the period from 25.03.2020 till date of this application i.e., 29.09.2020 is excluded from the time frame of 270 (180+90) days of the Corporate Insolvency Resolution Process period. Relief as sought is allowed - application allowed.

Prayer for withdrawal of Company Petition filed under section 9 of IBC - HELD THAT:- The present application is filed under Section 12A IBC 2016 read with Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and not under Rule 11 of the NCLT Rules, 2016 - Mere plain reading of the provision shows that nowhere it is mentioned in the Regulations that a claim can only be verified on the last date. The applicant has not explained the reasons when he received the claim on 18.02.2021 and the last date was on 19.02.2021 then what prevented him to verify the claims within this period. And why he has waited for 7th day as provided in the Regulation 13(1) of the IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016 when he has received the claim of the fi....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- Though there is no specific date of default mentioned, the same issue was considered by the bench and vide order dated 30.01.2020, the bench has decided that the matter is within limitation - Accordingly, demand notice was issued on 16.09.2017 and the present application is filed on 21.05.2019. Hence the application is not time barred and filed within the period of limitation. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of....... + More

Liquidation order - Section 33(2) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The RP prepared the Information Memorandum and apprised the CoC in its 4th meeting dated 29.04.2020 that the Copy of Information Memorandum may be obtained after submitting the confidential undertaking and Form G for inviting the expression of interest was published on 17.08.2020 after the approval of the CoC in same meeting. The Form-G was again issued on 14.09.2020 after the discussion held in the fifth CoC meeting held on 07.09.2020. This authority also extended the CIR Period for further 90 days and excluded the period from 25.03.2020 to 31.07.2020 due to Covid-19. In furtherance to the publication of Form G, the resolution professional received an expression of interest from 4 prospective resolution applicants. The liquidation of the company is ordered.

Rejection of Liquidator/Respondent's decision for not accepting his claim - applicant offered personal services as a Freelancer and was not an employee - HELD THAT:- It is seen from the e-mails which were sent by the Applicant to the erstwhile Managing Director of the Corporate Debtor which shows that the Applicant was not in employment of the Company after April 2013 - It is also seen from the documents that the Applicant was offering his personal services to a few Companies as a Freelancer and as rightly contended by the Learned Counsel for the Respondent, as per the Standing Orders, 1946 issued by the Joint Commissioner of Labour, Government of Tamil Nadu under the Tamil Nadu Industrial Employment (Standing Orders) Rules, 1946. In the present case, the Applicant has not given any documentary evidence as well as not furnished copies....... + More

Money Laundering - scheduled offences - will the judgments of the Supreme Court rendered under the NI Act can be simply applied to the PML Act? - scope of Section 141 of the NI Act and Section 70 of the PML Act - HELD THAT:- The NI Act offences are not economic offences, unlike offences under the PML Act. A prosecution under Section 138 of the NI Act stems from a civil dispute between the drawer and the drawee of a cheque. It gets a criminal colour, only when the drawer fails to pay the drawee within the stipulated period. Whereas, offences under the PML Act are economic offences and can by no stretch of imagination be equated to a prosecution between a drawer and a drawee under the NI Act. It is well settled that statutes not dealing with the same subject matter cannot be said to be in pari materia. Constitution Bench of the Supreme Cour....... + More

Petition pertains to the stage prior to completion of investigation and filing of complaint by Respondent - Summons issued pertaining to the same ECIR, in respect of which present petition is filed - HELD THAT:- An arguable issue arises in the present case, which needs consideration. There is no dispute about the fact that petitioner nos. 1 to 3 are already enjoying an order of interim protection given by the Supreme Court in the pending writ petition. It is only the petitioner no. 4 who is presently apprehending coercive action in pursuance to summons issued by respondent no. 2. Further investigation undertaken by respondent no. 2 can proceed, subject to the result of the present writ petition - issue notice to respondents, returnable on 30.04.2021.

Seeking grant of Regular Bail - Money Laundering - Scheduled Offences - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - requirment for fulfilment of two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - HELD THAT:- The declaration by the Supreme Court in Nikesh Tarachand Shah's case [2017 (11) TMI 1336 - SUPREME COURT] would render the twin conditions prescribed in Section 45(1) of the PMLA for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under ....... + More

Money Laundering - scheduled offences - Material present to constitute offence - amendment of PML Act in the year 2009 - applicability of schedule offences’ is concerned to an act committed prior to amendment - HELD THAT:- Part B of the Schedule provides that in Paragraph one, besides several offences under the Indian Penal Code, Sections 120-B, 419 and 420 are included vide Section 13 of the Prevention of Money Laundering (amendment) Act, 2009 (since repealed by Repealing and Amending Act, 2019 (31 of 2019) - It is apt to note that the Complaint of the ED in S.C.No.1 of 2019 impugned and is challenged under Section 482 of the Cr.P.C., simply adopts the Charge Sheet contents/accusations against the Accused No. 13 therein who is the Petitioner/Accused No. 12 in this Criminal Petition. There was a Charge Sheet and Supplementary Charge....... + More

Grant of anticipatory bail - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - Money Laundering - scheduled offence - HELD THAT:- By Act 13 of 2018 Section 45(1) of the PMLA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words “punishable for a term of imprisonment of more than three years under Part A of the Schedule” as occurring in Section 45(1) before the judgment of the Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] were substituted with the words “under this Act”. As per learned ASG, after such amendment, the defect on the basis of which the....... + More

Bank accounts were opened fraudulently - misuse of account without knowledge - shell companies where the cash deposits were transferred from the bank accounts of petitioner and other dummy accounts - HELD THAT:- No allegation of any fraud with State Exchequer or affecting any Govt. policy like demonetization. Neither any allegation nor any material to suggest that money was acquired by cheating anyone, by defrauding anyone, being ransom for kidnapping, proceeds of any dacoity, obtained from any corrupt practice or embezzlement of Govt. fund-sets. The only allegation is that its source was not disclosed in income tax before the cash was deposited in Muzaffarpur. The money belonged to the clients for accommodation entry; petitioner has admitted this fact in the statement given under Section 50 of PML Act. The ED has not stated that the mone....... + More

Seeking grant of Regular Bail - siphoning of funds - scheduled offences - bogus purchase invoices - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - HELD THAT:- Assuming that the twin conditions of section 45 of the PMLA Act still remain in the Statute Book, in that eventuality also the observations of the Supreme Court do not get obliterated. The Schedules attached to the PMLA Act still continue. The insertion of the words "under this Act" by deleting "offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule" only makes an ostensible change. The offence of money laundering as stipulated un....... + More

Provisional attachment order - seeking grant of interim relief - violation of the statutory provisions as contained in FEMA, 1999 - HELD THAT:- In the present case, the contentions canvassed before this Court can certainly be looked into by the Adjudicating Authority and the date has already been fixed by the Adjudicating Authority. The present appellant-Trust is certainly free to participate in the proceedings before the Adjudicating Authority. Hence, in the considered opinion of this Court, keeping in view the totality of the circumstances of the case and as the matter is pending before the Adjudicating Authority, this Court does not find any reason to interfere with the order of the learned Single Judge as substantial relief has been granted by the learned Single Judge in permitting the operation of two bank accounts in order to cater ....... + More

Jurisdiction - maintainability of appeal filed by Enforcement Directorate itself before Learned Tribunal - Money Laundering - scheduled offences - proceeds of crime - defalcation of ₹ 2672 Crores, involving 25 banks of which five were private ones - Section 26(1) of the PML Act - HELD THAT:- Section 26 is a provision enabling certain entities to file an appeal. In this, so far the Directorate is concerned, the Legislature thought it prudent to specify the Head of the Directorate i.e., the Director as the authority to initiate an appeal. This, however, cannot preclude the Enforcement Directorate itself from preferring an appeal if it decides to do so for some reason. In doing so, the Directorate may fairly be represented by any of its authorities, especially the ones who have been specifically mentioned in section 48 of the Act. Had ....... + More

Seeking permission to travel Singapore - Seeking to uplift Lookout Circular in F. No. ECIR/CEZO/I/01/2018 - overstaying in abroad during COVID-19 situation - non-cooperation in proceedings or not - HELD THAT:- The Special Court (PC Act), CBI-16, Rouse Avenue District Court, Delhi, passed the order dated 15.03.2021 permitting the petitioner to travel abroad from 16.03.2021 to 30.06.2021, by suspending the LOC till 30.06.2021, on the same terms and conditions that have been imposed in its earlier order dated 07.02.2020. The learned Senior Counsel for the petitioner as well as the Special Public Prosecutor for the second respondent submitted that similar conditions may be imposed for the present travel also by suspending the LOC issued by the second respondent till 30.06.2021. This Court is of the view that without expressing any view on the....... + More

Seeking enlargement on Bail - Money Laundering - transfer of money outside the country without making any import - the amount parked outside India - tampering of evidence is possible - HELD THAT:- Considering the serious nature of the offence, this Court declines to grant bail. Petition dismissed.

Money Laundering - issuance of non-bailable warrant - HELD THAT:- The learned Designated Judge was pleased to register a complaint under Sections 3 and 4 of the PMLA Act and was pleased to issue summon against respondent no. 1-M/s. Sanket Media Private Limited (represented by the Directors-Shri PVS Sharma) and accused no. 2-Shri PVS Sarma who is in judicial custody and further, ordered to issue non-bailable warrant against accused nos. 3 and 4. It appears that before passing the order of issuance of non-bailable warrant against accused nos. 3 and 4, the Court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance, should issue bailable-warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Court....... + More

Validity of second Bail application - seeking grant of regular bail - scheduled offences - preparation of forged documents and records by In-charge Executive Engineer, Water Resources Division - Bilaspur - HELD THAT:- The Supreme Court in the matter of ROHIT TANDON VERSUS THE ENFORCEMENT DIRECTORATE [2017 (11) TMI 779 - SUPREME COURT] has held that economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. The first bail application of the applicant was rejected by this Court on 03.01.2020 taking into consideration the gravity of offence and the nature of allegation against the applicant. After dismissal of first bail application, there are no change in circumstances - the second application filed under Section 439 of the Code of Criminal Procedure is rejected.

Grant of regular bail - Money Laundering - reverse burden of proof on the accused under Section 24 of the PML Act - allegation against this applicant is of very serious nature that the applicant being an IAS officer, misused his position and power and made unlawful gain - HELD THAT:- On the basis of the report of Adjudicating Authority dated 27.06.2018 in which, it has been held that the properties of M/s Prime Ispat Ltd., which has been attached by the PAO, is not involved in the money laundering. It is the submission of the respondent side, that this report is under challenge before the Appellate Authority, but for the present, there is no order of the Appellate Authority, setting aside or varying the report of the Adjudicating Authority. Under the present scenario, the applicant has the report of Adjudicating Authority in his favour, w....... + More

Money Laundering - freezing of petitioner’s bank account - It is the petitioner’s case that the impugned order had been passed without providing it with a copy of the show-cause notice or an opportunity to place on record its objections thereto - HELD THAT:- In order to avoid any further controversy in this matter, it would be in the interest of justice to grant an opportunity to the petitioner to respond to the Show-Cause Notice. The petitioner is granted 10 days’ time to respond to the Show-Cause Notice dated 08.10.2020. The Adjudicating Authority will thereafter pass a fresh order in accordance with law, after duly considering the petitioner’s response to the show cause notice - Petition allowed.

Hawala transaction - proceeds of crime - Scheduled offences - Section 44 of PMLA - HELD THAT:- Keeping in mind the health of the petitioner and also the fact that the petitioner is in custody since 15.01.2021, this Court is inclined to grant interim bail to the petitioner for 30 days from the date of his release on the conditions imposed - application allowed.

Jurisdiction - power of Special Courts constituted under Section 43 of the PMLA to try an offence punishable under the PC Act - HELD THAT:- Both, the PC Act as well as PMLA, are in one sense special enactments. The PC Act was enacted to consolidate and amend the law related to prevention of corruption and for all matters connected therewith. It specifies the offences as well as the penalties that can be imposed. The PC Act also contains special provisions with regard to investigation of cases under the PC Act as well as contains provisions regarding the procedure to be followed. In terms of Section 22 of the PC Act, the Cr.PC would be applicable subject to the modifications as specified therein - The principle that a special act overrides a general act is not applicable in the present case. PC Act and PMLA are both special statutes in the....... + More

Seeking grant of anticipatory bail - Commission of offences punishable under section-420 IPC and section-10 of the Haryana Development and Regulation of Urban Areas Act, 1975 - violating the terms & conditions of the licence granted for the development of a colony - HELD THAT:- Grant of anticipatory bail at this stage of investigation is likely to frustrate the right of investigating agency to interrogate the accused and collect the useful information as well as material which might have been concealed - success in such interrogation would elude if the accused knows that he is protected by the order of the Court and therefore, hold that with regard to the instant offence which comes within the category of economic offence the very purpose of the investigation will stand materially hampered. Taking into consideration the entire facts a....... + More

Attachment of property under PMLA - Hospitality sector - Seeking permission for extra finance under the Emergency Credit Line Guarantee Scheme (‘ECLGS’) due to covid pandemic - HELD THAT:- A perusal of the valuation report of the property, which is confirmed by the Yes Bank, shows that the total value attributed to the property is to the tune of ₹ 342.40 crores, and the realisable value of the said property is ₹ 325.20 crores. The valuation report has been given by the CBRE, which is a valuation & advisory services agency, and the said report has also been placed on record - Considering the fact that the Yes Bank’s valuation of the property is to the tune of ₹ 342.40 crores which is accepted by the bank and the bank has approved the loan, and the attachment by the ED is to the tune of ₹ 120,20....... + More

Offence under PMLA - Former Minister in the Government of Karnataka and his relatives and others - Prevention of Corruption Act, 1988 - Correctness and legality of the proceedings initiated against them under sections 3, 4 and 8(5) of the Prevention of Money Laundering Act, 2002 - predicate offence or not - proceeds of crime - Attachment/confiscation of properties - offences which are alleged to have been committed prior to 01.06.2009 - HELD THAT:- Petitioners appear to have put forward the plea of post facto law on the premise that the acts constituting the offences alleged against them were perpetrated prior to the amendment of the schedule to the PML Act and therefore, the action initiated against them falls within the mischief of Article 20(1) of the Constitution of India. This contention, in the factual setting of the case, is totall....... + More

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

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

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

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

Insider trading - appellants entered into suspected insider trading being privy to unpublished price sensitive information ("UPSI") of declining profits of TJL and disposed of their promoter shareholding and thereby avoided losses - violation of Code of Conduct applicable to “insiders by not taking pre-clearances from the concerned authority of the company for trading in the shares of the company during the UPSI period - contention of the appellants that the impugned order has been passed in haste and that too without show-causing the appellants and thereby not providing them an opportunity of presenting the full facts - HELD THAT:- Having heard the learned counsel for the parties at reasonable length, we proceed to dispose of the appeal at the stage of admission itself without calling for reply/rejoinder etc. as this matt....... + More

Violation of the provisions of PFTUP Regulations - artificial trades - manipulative trading - there was a pattern of trading and the price of the shares went up in pre-planned manner by engaging in small trades sometimes of one share each but no explanation of the same was offered - HELD THAT:- This Tribunal held that the placing of orders in a very small number generally may point towards the possible violation of the provisions of PFTUP Regulations still it is possible that an investor observing the movement of the scrip could be placing orders in the system without any intention to manipulate the market. Finding that there is no connection of the appellants therein either with the company or with the group connected with the company it was found that merely irrational behaviour of the investor, for want of connection, it cannot be said....... + More

Compensatory interest on increased offer price - valuation of the shares to be done in accordance with Regulation 8(2)(e) of the SAST Regulations - Application for payment of interest rejected - appellant has prayed for compensatory interest at the rate of 10% per annum on increased offer price to be paid from April 10, 2018 to October 9, 2018 and 18% compensatory interest from January 31, 2020 till date of payment - HELD THAT:- Interest starts running from the date when respondent No. 2 entered into an agreement to acquire 100% ownership of FML which is April 10, 2018. The period of interest stops when respondent No. 2 submitted the draft letter of offer which was published on October 9, 2018. For this period, namely, April 10, 2018 to October 9, 2018 interest has been paid. After SEBI finalized the price of the shareholders on July 4, 2....... + More

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

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

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

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

Levy of penalty for Non disclosures as required under the LODR Regulations - appellant had issued non-convertible debenture securities - CIRP proceedings were ongoing - penalty imposed for violating Regulations 52(4) and 54(2) of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 ( 'LODR Regulations, 2015' - whether the impugned order imposing penalty upon the appellant for alleged contravention during the period prior to the approval of the resolution plan could be passed by the adjudicating officer? - HELD THAT:- In clear terms of the resolution plan, the show cause notice could not be issued to the appellant for the alleged contravention relating to the period prior to the acquisition and, consequently, the impugned order could not be passed against the appellant. What cou....... + More

Violator indulging in serous act of misusing client's securities - appellant was expelled from the membership of the respondent exchange and also declared as a defaulter - HELD THAT:- All the violations are admitted by him. No reply was submitted to the show cause notice issued regaring violation noted in the inspection for the year 2017-18. Considering the request of the appellant that he wanted to surrender his license afer redressing the complaints the investors, the Committee of respondent no. 1 time and again granted him time in hearing of the proceedings.Ultimately finding that the complaints were not resolved completely the impugned order was passed. As seen that after declaration of the appellant as a defaulter more complaints of the investors are pouring in with the respondent nos.1 and 2. The appellant was earlier penalized ....... + More

Fraud by the company - Liability of directors - Concealing and suppressing the material facts as in violation of the provisions of Section 12A of SEBI Act - Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market - WTM directing the company to take steps for refund of the money from Banco and also debarred the appellant from accessing the securities market for a period of 5 years - HELD THAT:- The submissions so made are beyond the pleadings and cannot be taken into consideration. The respondent cannot be allowed to better their case and rely upon such documents which are not part of the record. There is no finding that the appellant, being a director for more than 10 years, was deemed to be involved in the day-to-day affairs and management of the Company nor there is any finding that the appellant was chairman ....... + More

Whole Time Member restraining the appellant from accessing the securities market - securities of the appellant in its demat account has also been frozen for the same period - appellant is a trader and investor in the capital market - HELD THAT:- Appellant had only executed one trade out of 983 trades, we are of the opinion that the penalty of debarring the appellant for six months is wholly unwarranted and cannot be sustained. Finding that 13 entities were acting as a homogenous group and were connected to each other and had executed the trades in a premeditated manner with a sole purpose of manipulating the price is not applicable in so far as the appellant is concerned. The finding that other notices were taking turns on different trading days with a premeditated motive to raise the LTP of the scrip is not applicable in the appellant....... + More

Fraudulent IPO proceedings - certain applicants of the IPO were funded by the entities connected with the Company itself and subsequently, the IPO proceeds were not utilized towards the objects of raising funds and instead were allegedly transferred to a few of the entities who had funded the applicants of the IPO - Underwriting Agreement to subscribe unsubscribed portion of the IPO - ex-parte ad interim order issued - Whether the Noticee nos. 4 to 11 are connected and whether the Company through its connected entities/Noticees has funded the subscription of its IPO? - HELD THAT:- A careful consideration of clauses of the Underwriting Agreement reveals that the obligation of the underwriter was limited/restricted to only those IPO applications that was to be procured by it only in case of default of payment by an applicant after allotment....... + More

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- The Registry shall also list all connected/cross special leave petitions filed by the Security and Exchange Board of India and other respondents. In the meanwhile, without prejudice to the rights and contentions of all parties, the trustees are permitted to call meeting of unit holders to seek their consent/approval. Steps in this regard be taken within a period of one week from today. For the time being, there will be stay of redemption payment to the unit holders.

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- Permission to file special leave petitions is granted Issue notice.Counter affidavit/reply be filed by the non-applicants/respondents within seven days. Rejoinder affidavit, if any, be filed within seven days thereafter. Service upon the unrepresented respondents is permitted through all modes including e-mails. An apprehension is expressed on behalf of the SEBI that the last order recording that without prejudice to the rights and contentions of all parties, the trustees are permitted to call meeting of unit holders to seek their consent/approval could be misread and treated as a precedent. This it is stated would create difficulties. We clarify that order [2020 (12) TMI 1209 - SUPREME COURT] has been passed in the peculiar facts and circumsta....... + More

Violation of provision of SEBI Act v/s IPC - Bail application - offence punishable under other Act such as IPC - Whether amount taken from the clients was 'deposit' or fees - invoking the principles of M.P. Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 - HELD THAT:- Section 26 of SEBI Act only prohibits cognizance of offence which is punishable under SEBI Act, but does not prevent cognizance in respect of offence punishable under other Act such as IPC. It is true that the police has come to know about the complainants after communicating with SEBI and after obtaining particulars from the same agency and in the FIR the names of the complainants have been given, but under Section 154 of Cr.P.C, it is not imperative that the aggrieved person is only authorized to lodge FIR. FIR has been lodged by SHO on the directions of ASP who....... + More

Fraudulent use of the mutual funds units of the complainant - Applicant seeking the grant of regular bail - applicant herein malafidely facilitated the accused director Awanish Kumar Mishra and AFSPL in using the said fraudulently transferred mutual fund units for margin - applicant seeking interim bail on the account of his wife’s illness - HELD THAT:- Applicant was in a fiduciary capacity and has allegedly committed gross breach of trust in relation thereto in alleged connivance with other co-accused persons of an alleged amount of INR 344.07 crores, and it has to be taken into account the factum that the complainant is a public limited company, and that the members of the public have also consequently been allegedly defrauded of the amount of INR 344.07 crores by alleged fraudulent use of the mutual funds units of the complainant....... + More

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

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

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

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

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

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

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

Offences under FEMA Act - whether show cause notice has been issued without considering the amendments made in various regulations framed under FEMA Act, 1999? - HELD THAT:- There is no dispute that there are transactions in foreign exchange either as derivatives or in the form of currency futures. The issue in this matter is as to whether the transactions have been made in accordance with Foreign Exchange Management (Foreign Exchange Derivative Contracts) Regulations, 2000 or not. The issue can be sorted out only after all the relevant documents are placed before the authorities. Thus, not entering into the merits of the case. Considering the pandemic situation, the authorities are requested to allow the petitioners to submit their record within 8 (eight) weeks from today. The oral submissions of the petitioners be recorded by way of vid....... + More

Interest liability u/s 42(3) of FERA - main ground on which the Petitioner claims interest is that Section 42(3) of FERA stipulates that interest is payable at 6% p.a. in all cases other than cases relating to confiscation either under Section 63 of FERA or under the Customs Act, 1962 - HELD THAT:- In present writ petition claiming interest was filed on or about 28.08.2009. It is clear that the writ petition was filed more than 9 years after receiving the rupee equivalent of UK Pounds 1800. Upon perusal of the affidavit, find that the Petitioner stated that she and her counsel visited the office of the 1st Respondent to request for the payment of interest and that she was constrained to file the writ petition on account of non-payment thereof. Apart from this statement, no explanation is offered for the delay and no written reminders are ....... + More

Holding of inquiry against the petitioner in the manner provided in Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - HELD THAT:- Impugned Show Cause Notice is at the first stage wherein the Adjudicating Authority on receiving a reply to the Impugned Show Cause Notice is to form an opinion whether an inquiry at all should be held against the petitioner. At this stage we do not deem it appropriate to entertain this present petition. The petitioner shall be at liberty to raise all its contentions before the Adjudicating Authority. Needless to say, if the petitioner is aggrieved of the decision taken by the Adjudicating Authority, it shall always be open to the petitioner to challenge the same in accordance with law.

Permission for Direct Investment in certain cases - Remittance of equity subscription/loan/corporate guarantee/bank guarantee or through other permitted mode - additional financial commitment in JSPML by way of equity subscription/loan/corporate guarantee/bank guarantee, etc. - Denial of grant permission to the petitioner to make additional commitment/payment - respondent have rejected the application of the petitioner and have not granted permission for making the additional financial commitment/payment of USD 300 million on account of the objection raised by the Enforcement Directorate - HELD THAT:- Respondent RBI by a cryptic non-speaking order has rejected the application of the petitioner without giving any reasons whatsoever. The said order fails to give any reasons as to why the application of the petitioner is being rejected. The ....... + More

Restrictions on dealing in foreign exchange - diversion of exported goods, non-realisation of export proceeds, non-clearance of imported bills and write off/ set off - HELD THAT:- Trend Setters Group of Companies had failed to submit Bill of Entry as evidence for actual import of the goods. Trend Setters Group of Companies did not realised the substantial portion of export proceeds and it is also established that except filing a Suit before a Sub-Court in Ernakulam, Kerala and writing to the RBI for write off/ set off, no other steps have been taken. In other words, no sufficient and visible efforts have been by/ on behalf of the Trend Setters Group of Companies to realise the export proceeds. Who was/were the person/persons responsible for the diversion of export goods / non-realisation of export proceeds and remittances of payment towar....... + More

Extension of the usance period of the Letter of Credit Facility sanctioned to the writ petitioners from 180 days to 270 days - distinction between the usance period of a Letter of Credit and the period of a Trade Credit - HELD THAT:- The argument that the 2018 Regulations brought about a change in policy regarding the usance period for credit does not hold water, since the said Regulations and the Master Direction on External Commercial Borrowings and Trade Credits dated July 1, 2015, updated up to October 6, 2015, relate to loans extended by overseas banks. The germane consideration in the present case is, rather, the Master Direction - Import of Goods and Services dated January 1, 2016 (updated lastly on April 1, 2019). Trade Credit Policy - Revised Framework formulated by the RBI on March 13, 2019 does not alter the position as far as ....... + More

Detention Orders at the pre-execution stage - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) - HELD THAT:- Proposals for invoking the provisions of the COFEPOSA Act were mooted in the second week of October 2019 - overseas evidence was received from SPA Dubai in the first week of November 2019. The proposal to detain the petitioners was further analysed keeping in view the strong tendency to indulge in smuggling activities in future. The proposal for preventive detention of the petitioners was sent to the Detaining Authority on 02.01.2020. The proposal was placed before the Central Screening Committee on 13.01.2020, and the recommendations of the Central Screening Committee (CSC) were submitted to the Detaining Authority on 14.01.2020. The proposals were examined by the Detaining Authority....... + More

Seizure and attachment of the bank account of the petitioner's father - grievance of the petitioner before this Court is that the bank account mentioned in the writ petition is not allowed to be operated by the petitioner under the guise of investigating the matter under FEMA and no order of attachment was passed by the first respondent at any point of time in respect of the said bank account and therefore, the petitioner cannot be prevented from operating the bank account - HELD THAT:- Investigation under FEMA is pending and the investigation conducted so far reveals that the amount inter alia lying in the subject matter bank account appears to have been involved in violation of provisions of FEMA. Though such counter affidavit is filed, when a specific question is put to the leaned counsel for the first respondent by this Court as t....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - only part payment of amount declared - HELD THAT:- The petitioner cites the difficulties caused by the on-going COVID-19 pandemic to justify the delay in making the remittances. As far as W.P.Nos.14451 and 14497 of 2020, wherein Form 3 has been issued on 27.12.2019 and the 30 day period available for remittance is till January, 2020, the reliance upon the pandemic would not come to the aid of the petitioner. As far as W.P.No.14454 of 2020, wherein Form 3 has been issued on 27.02.2020 and time was available till the end of March, 2020, the lock down that was imposed on 25.03.2020 may come to the aid of the petitioner. W.P.Nos.14451 an 14497 of 2020 are dismissed - List W.P.No.14454 of 2020 on 21.06.2021 for further hearing.

Intent to evade service tax or not - activities during the period 16.07.2001 to 31.03.2005 - advances received during the period 16.06.2005 to 31.12.2005 - justification for invocation of extended period of limitation for demanding of service tax, as contended? - HELD THAT:- The respondent had applied and obtained registration under various categories of services as guided by the authorities of the appellant-Revenue. It is also evident that the authorities, who informed the respondent that its activities would get covered by photography service, scientific or technical constancy service and commercial training and coaching service etc., are guided by Revenue considerations alone and they have not kept in mind the nature of activity undertaken by the respondent- NRSA and area of operation of its activities, apart from the important role it....... + More

Refund of service tax paid by utilizing the Cenvat credit denied - denial on the ground that the output service was exempt under section 102 of Finance Act, 1994 - refund of interest - HELD THAT:- The learned Commissioner (Appeals) held that reversal of Cenvat credit under Rule 6 of Cenvat Credit Rules, 2004 would not arise. Despite this clear finding the learned commissioner (Appeals) denied the refund on the ground that it will lead to double benefit once through availment of Cenvat credit and another through refund of service tax which is not permissible at all. With the above finding it is settled that Rule 6 shall not apply in the present case. The revenue also not challenged this finding therefore, it attains the finality. Now the issue remains to be decided that when the output services has been exempted retrospectively with a ride....... + More

100% EOU - Refund of unutilized CENVAT Credit - invoices in terms of Rule 4A of the Service Tax Rules, 1994 - HELD THAT:- The appellant is a 100% EOU and have availed various input services in the course of providing their output service. Denial of credit on account of non-availability of registration details of input service providers - HELD THAT:- It is seen from the order of the Commissioner (Appeals) that the credit of ₹ 67,446/- had been rejected for the reason that invoice copies do not contain the registration no. of the service provider - On perusal of the documents, it is seen that the registration details of the input service provider were available and therefore, the rejection of refund on the ground of non-availability of registration No. in the invoices is not maintainable. Consequently, refund amounting to ₹ 67,4....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - service tax return for the period from April 2014 to September 2014 filed late - non-payment of interest or penalty as applicable - HELD THAT:- As per Section 127 of the SVLDRS Scheme, when the declaration made by the petitioner was rejected, meaning thereby he would be liable to pay further interest and penalty on late payment and return. However, to levy any such liability under Section 127 of the SVLDRS Scheme, under Section 127(3), it mandates that after the issue of estimate under Section 127(2), the designated committee shall give opportunity of being heard to the declarant, if he so desires, before issuing the statement indicating the amount payable by the declarant. Considering the benevolent scheme which has been set into motion by the respondents, the petitioner was require....... + More

Benefit of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - petitioner had not filed returns during the relevant period - Declarations were only voluntary disclosure - obligation to pay full outstanding amount to get benefit of scheme - HELD THAT:- Once it is accepted that the declarations filed by the appellant were factually incorrect in respect of the material particulars furnished therein, the provisions of Section 129(2)(c) of the Finance Act, 2019 would have to be seen as empowering the Department to treat the declarations as never made, and to initiate proceedings for recovery of the tax amounts as per the provisions of the Finance Act, 1994, as amended, governing the levy and collection of Service Tax - The Department, however, has not chosen to deny the petitioner the benefit of the scheme, but has merely suggested a ....... + More

Benefit of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - refusal to accept the manual returns filed - HELD THAT:- Sub clause (3) of Rule 7 was incorporated with effect from 1.10.2011. A reading of the aforesaid provision would make it clear that the returns contemplated under Section 70 is required to be filed in the forms specified in Rule 7(1) and from 1.10.2011 onwards it is to be submitted in electronic form. Rule 7(3) is explicit that the half-yearly return shall be submitted electronically. No other method of submitting the half-yearly return is contemplated after 1.10.2011, as the wording used in the rule gives the requirement a mandatory colour. The word 'shall' used in the provision is reflective of the said intention of the rule making authority. The requirement of electronic filing is further evidenced by the....... + More

Refund of Service Tax paid - Construction of Services - non leviability of service tax prior to 01.06.2007 and restricting the demand for normal period post 01.06.2007 - principles of natural justice - HELD THAT:- It stands abundantly clear that an amount of ₹ 8,01,765/- is the confirmed liability of the appellant in terms of order dated 16.12.2012. The refund to that extent plus interest of ₹ 55,422/- thereupon is therefore liable to be rejected. Accordingly, it is held that the appellant is not entitled for any refund claim post the sanction of refund of ₹ 30,55,791/-. The order of Commissioner (Appeals) stands modified to the effect that instead of ₹ 5,06,280/- to Government exchequer and attributing ₹ 3,50,907/- to unjust enrichment, the total refund claim of ₹ 8,57,187/- stands rejected - Appeal dismissed.

Refund of Service Tax paid - Hotel Accommodation Services - Out-of-Pocket Expenses - General Insurance Service - HELD THAT:- The refund in respect of Hotel Accommodation Services is availed only for the benefit of the employees. The same issue has been allowed in favour of the appellants in their own case for the subsequent period - Refund allowed. Out-of-Pocket Expenses - HELD THAT:- There are no sufficient documents showing the details of these expenses or the type of services that have been availed by the appellants - the appellant is not eligible for the refund of service tax paid on out-of-Pocket Expenses as they do not related to any particular service - refund not allowed. General Insurance Services - HELD THAT:- This said issue is covered by decision in the case of M/S. ATC TYRES PVT. LTD. VERSUS COMMISSIONER OF GST & CENTRAL ....... + More

CENVAT Credit - input services - port charges - purchase of goods from high sea seller and some of the invoices for port services etc. were in the name of high sea seller - HELD THAT:- Admittedly the melting scrap purchased by the appellant on high sea sale, is their input for manufacture of M.S. billets. Further Rule 9(1) of Cenvat Credit Rules provides that cenvat credit shall be taken by the manufacturer on the basis of invoice issued by a manufacturer for clearance of inputs from his factory or depot or from the premises of the consignment agent of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer. Similarly, an importer is entitled to avail cenvat credit on inputs if the importer is registered in terms of the provisions of Central Excise Rules, 2002 (admittedly app....... + More

Benefit under VCES scheme denied - non-payment of minimum of 50% of the tax dues declared - HELD THAT:- In the case of THE NARASIMHA MILLS PRIVATE LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE (APPEALS) , THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE [2015 (6) TMI 787 - MADRAS HIGH COURT], this Court held that an appeal under Section 85 of the Finance Act, 1994 is maintainable before the Commissioner of Service Tax and the aggrieved person is at liberty to prefer such an appeal. The mixed question of fact and law are to be decided by the Appellate Authority by affording an opportunity to the parties concerned. The petitioner is at liberty to prefer an appeal before the Commissioner of Service Tax by following the procedures and in the event of receiving any such appeal from the petitioner, the Appellate Authority is bound to consider the same on merits - Petition disposed off.

Levy of penalty - delayed payment of service tax - tax was deposited on being pointed out - Section 73 of FA - HELD THAT:- The very SCN was issued in the year 2014 for which the compliance was already made by the appellant in 2011 by way of payment of tax and interest soon after the short payment was detected. The only allegation in the SCN is that the appellant-assessee has not deposited service tax on their own ascertainment. When the tax amount stands already deposited with interest, the very SCN was not required to be issued under Section 73(3). Merely because the tax amount has been deposited on the basis of ascertainment by the Department, the assessee cannot be deprived of the benefit of aforesaid provisions, more so in view of the fact that no evidence has been adduced in the SCN that there was a deliberate short payment. Penalty is required to be set aside - appeal allowed - decided in favor of appellant.

SEZ unit - Refund of Service Tax - Management or Business Consultant Service - period from July 2017 to September 2017 - claim was filed on 29/05/2018 - rejection refund claim has been filed beyond one year from the end of the month in which actual payment of service tax was made by the claimants - introduction of CGST Act, 2017, by omitting Chapter V of the Finance Act, 1994, by virtue of Section 173 of the CGST Act - Applicability of 12/2013-ST dt. 01/07/2013 - HELD THAT:- The appellant has given detailed reasons in their letter dt. 29.05.2018 filed along with the refund claim application wherein they have given specific reasons explaining the delay but the Assistant Commissioner did not consider those reasons and simply observed that they are not genuine. Further it is found that the Notification No.12/2013 itself gives him a discretio....... + More

Refund of unutilized CENVAT Credit - rejection of refund on the ground that credit was transferred to GST regime through TRAN-1 - HELD THAT:- Originally when the appellant filed the refund claim of ₹ 43,91,346/- under Notification No.05/2006, the same was partially allowed to the extent of ₹ 11,92,412/- and the original authority rejected the refund of ₹ 31,98,934/- only on the ground of time bar. The original authority took more than 4 years to decide the refund claim of the appellant and in the meantime GST Law has come into force. Now, the appellant filed the appeal before the Commissioner (Appeals) but as on the date of filing the appeal before the Commissioner, the appellant was uncertain about the outcome of the Order-in-Appeal and the due date to file TRAN-1 was fast approaching therefore the appellant decided to ....... + More

Interest on delayed refund - relevant date - to be calculated from the date of expiry of three months with effect from the date of receipt of application for refund or on expiry of the said period with effect from the date on which the order of refund is made - section 11BB of Central Excise Act, 1944 - Circular 398/31/98 dated 2.6.1998 - HELD THAT:- A close reading of Section 11BB, which now governs the question relating to payment of interest on belated payment of interest, makes it clear that relevant date for the purpose of determining the liability to pay interest is not the determination under subsection (2) of Section 11B to refund the amount to the applicant and not to be transferred to the Consumer Welfare Fund but the relevant date is to be determined with reference to date of application laying claim to refund - The non-payment....... + More

Maintainability of petition - compliance with the requirement of pre-deposit - HELD THAT:- It is undisputed fact that petitioner has filed an appeal before First Appellate Authority against the assessment order, whereby demand was created. It is also undisputed that Board Circulars are binding on department and as per Circular coercive measures for recovery of balance liability are not permissible if appeal is filed alongwith mandatory pre-deposit of 7.5%. The contention of the respondent that petitioner must file appeal before Appellate Authority seems to be highly technical, in view of the fact that petitioner has already filed an appeal against the assessment order whereby demand was created and tax liability intended to be recovered stands stayed in view of Board Circular dated 16.09.2014. Petition allowed.

Levy of service tax - food that is ‘taken away’ or collected from restaurants or eateries, in parcels - consumption of the food and drink is not in the premises of the restaurant - HELD THAT:- Not all services rendered by restaurants in the sale of food and drink are taxable and it is only certain specified situations that attract tax. The sale of food and drink simplicitor, services of selection and purchase of ingredients, preparation of ingredients for cooking and the actual preparation of the food and drink would not attract the levy of tax. Only those services commencing from the point where the food and drinks are collected for service at the table till the raising of the bill, are covered. This would encompass a gamut of services including arrangements for seating, décor, music and dance, both live and otherwise,....... + More

Refund of service tax due to retrospective exemption - period of limitation - Validity and Vires of Section 103(3) of the Finance Act, 1994 - HELD THAT:- It was held by the High Court that The substantive right to claim the refund in favour of the petitioner would be under Section 103 of the Finance Act, 2014. Therefore, subsection (3) of Section 103 of the Finance Act, 1994 cannot be said to be discriminatory and/or violative of Article 14 of the Constitution of India as contended on behalf of the petitioner. The view taken by the High Court is a possible view. Hence the special leave petition is dismissed.

Nature of activity - Manufacture or service - Process amounting to manufacture or not - activity of crushing, pulverizing, converting and packing of spices into powder form - taxability under business auxiliary service? - coverage by decisions of co-ordinate benches of the Tribunal in M/S. JAYAKRISHNA FLOUR MILLS (P) LTD. VERSUS CCE, MADURAI [2014 (12) TMI 547 - CESTAT CHENNAI] and in SARA SPICES VERSUS COMMISSIONER OF C. EX., CUS. & S.T., COCHIN [2018 (2) TMI 1794 - CESTAT BANGALORE] - HELD THAT:- The constitutionally enshrined demarcation even among the several taxable events assigned to the Union by the Seventh Schedule for imposing of levies is mirrored, for the period preceding the introduction of ‘negative list’ regime, by the taxing of ‘contract manufacture’ as ‘business auxiliary service’ wh....... + More

Reverse charge mechanism - Levy of service tax - Banking and Financial Services - service provider located outside India - time limitation - penalty - revenue neutrality - various service provider viz. Merchant Bankers, Lead Managers, Advisors, Financial Advisors, Principal Agents, Legal Advisors, Management Consultants, Under writers, etc. who are based outside India and have charged fees for their services in Foreign Currency for raising funds through ECB & FCCB. - HELD THAT:- The appellant has neither raised the issue of taxability seriously before the adjudicating authority nor even in the appeal memo filed before us. It is also observed that the appellant have vehemently argued that their case is covered under Section 73(3) Finance Act, 1994. Section 73(3) applies only in such case where the assessee undisputedly accepting the li....... + More

Clandestine removal - cut tobacco - evidence to establish the guilt of the petitioners regarding evasion of excise duty or clandestine removal of goods, present or not - criminal proceedings ended in acquittal but simultaneous departmental proceedings continued - HELD THAT:- On a perusal of the complaint, it is to be noted that the averments therein are verbatim repetition of the averments in the show cause notice dated 05.12.1995. There cannot be any doubt that departmental proceedings and criminal prosecution can be initiated simultaneously. It is settled law that there cannot be any hard and fast rule as to whether the criminal proceedings have to be quashed after departmental proceedings are concluded in favour of the accused. It depends upon the fact situation arising in each case. The appeal has been allowed vide order dated 26.12.2....... + More

Empowerment to deny availment of exemption extended to indigenously manufactured goods by notification issued under Central Excise Act, 1944 - non-compliance with conditions prescribed in parallel notification issued under Customs Act, 1962 for procurement from abroad - HELD THAT:- Tax liability under Customs Act, 1962 arises upon import of goods with the importer responsible for compliance with all requirements for clearance; the liability under Central Excise Act, 1944 is, though collected on clearance, a levy on manufacture that the manufacturer assumes responsibility for. With registered status under the statute, a manufacturer, supplying goods against an exemption notification, poses lesser risk than an importer in recovery of duty foregone in the event of misuse. The procedural prescriptions stipulated for exemption from duties of c....... + More

Demand for differential duty - assumptions and presumptions under the Chewing & Unmanufactured Tobacco Packing Machine (Capacity Determination & Collection of Duty) Rules, 2010, read with Section 3A of the Act - HELD THAT:- Under the scheme of CT Rules, 2010 read with Section 3A of the Act, unless the declaration filed by a manufacturer is found to be untrue or false, no demand for additional duty can be raised. In Rule 18(2) of the CT Rules, 2010 - if it is found that goods have been manufactured or cleared from a unit which is not registered or the number of machine or the RSP of the pouches is contrary to the declaration, than the assessee can subject to demand of the duty and levy of penalty. Admittedly, in the facts of the present case, the Department have not found any case of mis-declaration or any other misgiving on the pa....... + More

CENVAT Credit - input services - outward transportation services - period August, 2014 to March, 2016 - Circular bearing No.1065/4/2018-CD, dated 08.6.2018 was not considered - HELD THAT:- The aspect of non-consideration of the impact of the Circular, dated 08.6.2018, is fatal to the order passed by the Appellate Tribunal. In the considered opinion of this Court, the matter requires reconsideration by the Appellate Tribunal after taking into account, the impact and effect of Circular bearing No.1065/4/2018-CD, dated 08.06.2018. The matter is remanded to the Appellate Tribunal for fresh consideration of the issue and for passing appropriate order afresh - Appeal allowed by way of remand.

CENVAT Credit - input services - outward transportation on FOR basis - place of removal - Landline Telephone - scope of SCN - HELD THAT:- The show cause notice is vague as it does not contain any specific allegation whether the goods removed from the factory are by way of any clearance in DTA or for the purpose of export - the contention made by the appellant in reply to the show cause notice as well as by way of certificate issue by the Unit Head, M/s. Hindustan Zinc Ltd., certifying that the clearance were made to the port of export and the contention made by the appellant have not been found to be untrue, and still have been rejected without there being a contrary finding of fact - credit allowed. Landline telephone - fixing of land line at the residence of the employees/officers - HELD THAT:- The appellant have not taken specific plea....... + More

Classification of goods - industrial chemical ‘Sikko Sol’ - classifiable under sub-head No. 2710 1213 of the Central Excise Tariff Act,1985 or otherwise? - period from 01.04.2011 to 31.12.2015 - HELD THAT:- A notice was issued under Section 174(2)(e) of the Central Goods & Service Tax Act, 2017 on 02.02.2021, for initiation of process of recovery. On 22.02.2021, the raw material/finished goods, movable and immovable properties were attached. Plant and machinery was also attached - it is deemed fit and proper in the interests of justice to restore the appeal before the CESTAT which shall be decided on its own merits. The petitioner shall give an undertaking that it shall neither alienate movable or immovable property nor create third party rights - The respondents are directed to defreeze the bank accounts and the petitioner shall undertake to utilize it only for the purpose of his business - SLP disposed off.

Denial of Refund claim - denied on the ground that the claim is nowhere related to Section 35F - Section 11B of Central Excise Act 1944 - HELD THAT:- Once the appeal was admitted thereafter the appellant sought the refund of the amount recovered by the Deputy Commissioner without serving the Order-in-Appeal. It is really strange that after the decision of the Commissioner (Appeals) dated 30.12.2014, no recovery proceedings was initiated by the Department for 4 years and all of a sudden after more than 4 years, the recovery was sought by writing a letter and that too without supplying the copy of the Order-in-Appeal passed by the Commissioner (Appeals). Further, I find that the authorities below has wrongly considered the said refund under Section 11B of the Central Excise Act whereas the appellant has sought the refund on the ground that ....... + More

Large Taxpayer Unit - Jurisdiction to decide the appeal - Rejection of rebate claim - restriction on inter-unit transfer of credit available to Large Taxpayer Unit - N/N. 21/2014-CE(NT), dated 11.07.2014 - HELD THAT:- From sub-clause (b) of the first proviso of Section 35B in the Central Excise Act, 1944, it can be seen that the Tribunal does not have jurisdiction to decide any appeal if such order relates to a rebate of duty of excise on goods exported. In the present case, the rebate claims filed under Rule 18 of Central Excise Rules, 2002 has been rejected by the department. Whatever may be reason for rejection, since the order relates to a claim of rebate, in our view this Tribunal does not have jurisdiction to decide the appeal. The appeal is dismissed for lack of jurisdiction.

CENVAT Credit - capital goods - availment of credit while availing depreciation - appellant claimed the depreciation on entire invoice value including the excise duty as well and 100% CENVAT Credit on these capital goods has also been availed on 31.7.2014 - HELD THAT:- When the appellant was subsequently asked about the said adjustment to have been made in the balance sheet for the year 2015-16 and 14-15, the appellant did not respond nor submitted any revised balance sheet for the aforesaid period. In absence thereof, it actually remained unclear as to whether the double benefit claimed by the appellant i.e. 100% availment of Cenvat Credit on the capital goods purchased in the year 2013-14 and 2014-15 and also claiming depreciation thereupon has actually been surrendered by the appellant or not. Infact Rule 4(4) of CENVAT Credit Rules, 2....... + More

Manufacture of RMC at site or not - TMaintainability of petition - petitioners have not filed this petition impugning the Order-in-original within the statutory period prescribed under Section 35 of the Excise Act - petitioners’ case hinges on the assertion that the installation at the project site for manufacture of CM (which is exempted) is different from the installations for manufacture of RMC, and they have manufactured controlled CM, as civil contractors executing civil works contract, for captive use at site and not for sale - HELD THAT:- On examining the explanation offered by the petitioners for not filing statutory appeal and because of the absence of the necessary details, has opined in paragraph 16 above that the petitioners are superfluous in their explanation of the delay in availing/failure to avail the appeal remedy........ + More

Calculation of depreciation of capital goods for reversing the credit - whether the straight line method or the written down value method has to be adopted for calculating the depreciation? - HELD THAT:- It is seen that the Commissioner (Appeals) has directed to calculate the depreciation by giving an overall limit of 70%. The appeal was only with regard to the question as to whether the straight line method or the written down value method has to be adopted for calculating the depreciation. In such circumstances, when both sides did not have any contentions as to the rate of 2.5% applied, the Commissioner (Appeals) ought not to have given any direction to calculate the depreciation by subjecting it to a cap of 70%. The Tribunal in the case of SIDDHARTH POLYSACKS PVT. LTD. VERSUS COMMR. OF C. EX. & SERVICE TAX, JAIPUR-I [2015 (12) TMI....... + More

Area Based exemption - refund of Excise duty - benefit of N/N. 20/2008-Central Excise dated 27.03.2008 - HELD THAT:- This petition is instituted on the grievance that the Notification dated 27.03.2008 having been restored as per the judgment of the Supreme Court in the UNION OF INDIA AND ANR. ETC. VERSUS M/S V.V.F. LTD. AND ANOTHER ETC. ETC. [2020 (4) TMI 885 - SC ORDER], two application dated 28.09.2020 under Clause3(1) of the Notification No.20/2008-Central Excise dated 27.03.2008 was submitted by the petitioner claiming for a special rate, but the same has not been given its consideration and without giving a due consideration to the claim for special rate made by the petitioners, the respondents now intend to attach the bank accounts of the petitioner on the premises that the refund of excise duty would be as per the rates provided in....... + More

Area-based exemption - Capital goods - exempt goods - N/N. 49/2003-CE dated 10.6.2003 - HELD THAT:- The credit is available to the assessee on capital goods in terms of Rule 3 of Cenvet Credit Rules, 2004 if the said goods used in the manufacture of dutiable goods. However, these capital goods have been used for manufacture of dutiable goods, in that circumstance, the assessee is entitled to take credit. Admittedly, the facts are not in dispute that these goods have been installed during the period November, 2015 to March, 2016, the appellant opted out of area based exemption which clearly indicates that the appellant used capital goods for manufacture of dutiable goods. It is admitted fact that the goods have been used by the manufacture of dutiable goods, therefore, in terms of Rule 3 of the Cenvet Credit Rule,2004 the appellant is entitled to avail credit - Appeal allowed.

Reversal of CENVAT Credit - value of service in case of trading - proportionate amount of CENVAT credit of common input services attributable to the exempted services is reversed - HELD THAT:- Undisputedly, trading is a form of service and no service tax is leviable on it and hence it is an exempted service. Usually the amount one pays to a service provider is the value of the services. For example, what one pays a doctor, dentist, lawyer, hair dresser, etc. represents the value of their services. Unlike other services, the amount transacted in trading represent not only the service rendered by trader but also the value of the goods delivered. The service element cannot be the total turnover of the goods traded but is only a small fraction of the turnover. This turnover represents the value of the goods plus the value of the service rende....... + More

CENVAT Credit - returned goods under Rule 16(1) of Central Excise Rules, 2002 - denied on the ground that the credit has been taken by the appellant on fake letter issued by the recipient of the goods - HELD THAT:- In the statement of M/s. Adarsh Enterprises and M/s Gandhi Springs, it is clearly mentioned that they have not returned the goods but produced the ledger account. The ledger accounts are with the department, the department could have verified their statement is correct or not? By producing the ledger account. The said documents have been hidden by the department and not brought on record, therefore, the allegation without evidence is not acceptable in the law. Further, the appellant sold the goods to M/s Sikkim Ferro Alloy but neither any investigation nor statement ever recorded during investigation of M/s Sikkim Ferro Alloy. ....... + More

CENVAT Credit - input services - Goods Transport Agency Service - Custom House Agent Service - place of removal - credit denied on the ground that the transportation service used from the factory gate to the buyers place is beyond the factory gate - HELD THAT:- It is admitted fact that appellant have delivered the goods to the buyer’s place on FOR basis, the freight element was not charged separately, it is included in the assessable value on which excise duty was paid. In this regard the learned adjudicating authority also considered the CA certificate showing that the freight charges is integral part of the assessable value of the finished goods - It was held in the case of THE COMMISSIONER, CENRTAL GOODS AND SERVICE TAX VERSUS M/S. ULTRATECH CEMENT LTD. [2020 (3) TMI 1206 - GUJARAT HIGH COURT] that Appellants are eligible for the....... + More

Refund / Recovery of alleged excess amount of the money refunded earlier to the petitioner towards excise duties - case of petitioner is that though the petitioner is entitled to special rate to get these benefits and applied for finalizing the same, the authorities have not considered the same despite repeated representations submitted in that regard - HELD THAT:- It is directed that the respondent No.2, i.e., Commissioner, Central Goods and Service Tax, Guwahati shall dispose of the representations submitted by the petitioner including the one dated 27.01.2021 for fixation of special rate within four weeks from the date of receipt of a certified copy of this order. It is also directed that till such decision is taken by the authorities on consideration of the representation(s) submitted by the petitioner, the authorities shall not take ....... + More

Refund of alleged excess amount of the money refunded earlier to the petitioner towards excise duties - HELD THAT:- It is directed that the respondent No.2, i.e., Commissioner, Central Goods and Service Tax, Guwahati shall dispose of the representations submitted by the petitioner including the one dated 05.02.2021 for fixation of special rate within four weeks from the date of receipt of a certified copy of this order. It is also directed that till such decision is taken by the authorities on consideration of the representation(s) submitted by the petitioner, the authorities shall not take any coercive action against the petitioner pursuant to the demand notice dated 01.01.2021 challenged in this writ petition. List along with WP(C) No.2566/2021 on 14.07.2021.

Interest is demanded on account of delayed payment of duty - supplementary invoice during the period 2009-10 for the period 2008-09 to 2010-11 - Penalty - Time Limitation - HELD THAT:- In this case, it is a fact of record that the appellant did not pay interest for the intervening period when they issued supplementary invoices for duty paid thereon. It is also a fact on record that thereafter an audit took place in January-February 2012 for the period 2008-10 and asked the appellant to make the payment of interest for the intervening period, but the appellant did not comply with the said direction. Thereafter, the Revenue was sleeping for more than 3 years and on the morning of 3rd September 2015, a show cause notice was issued to demand interest for the intervening period by invoking extended period of limitation. As it was in the knowle....... + More

CENVAT Credit - CENVAT Credit - Input service distribution (ISD) - input service is attributed to the goods on which excise duty is paid includes the cost of services on which credit was taken - Issuance of Input Service Distributors’ invoice by Parle to its contract manufacturing unit - contract manufacturing is carried out in terms of notification No. 36/2001-CE (NT) - HELD THAT:- The appellant accepted the authorization and agreed to discharge all liabilities under the Excise Act and Rules made thereunder in respect of the goods manufactured from time to time by the appellant on behalf of Parle. The terms and conditions also stipulate that the appellant would work as a job worker for manufacture of “Biscuits” for Parle and that Parle would arrange to send the raw materials and packing materials to the appellant on pay....... + More

Cancellation of the Sales Tax Eligibility Certificate - Entitlement for sales tax incentive - entitlement to priority industry status - Industrial Policy Resolution 1996 - HELD THAT:- While it is true that the Petitioner as a new unit was in the SSI category, it graduated to a Medium Scale industry after the expansion and modernization drive. It satisfied the description of an "existing unit" that had undertaken expansion and modernization - Once the Petitioner has been declared as a priority industry in terms of IPR 1996 Clause 2.7 (i) and (xii) Part-II, the Petitioner's unit was eligible to get an additional two years of sales tax exemption. The Petitioner is right in its contention that the Opposite Parties are mistaken in their stand that IPR 1996 was meant only for a New/SSI/Medium/Large industry. The notification issue....... + More

Maintainability of appeal - requirement to comply with the pre-deposit of 12.5 per cent of the disputed tax along with the appeal - appellate authority rejected the appeal of the petitioner for want of payment of 12.5 per cent - section 31(1), 31(2) and 31(3)(a) of the A. P. VAT Act - HELD THAT:- Any VAT dealer objecting to "any order" passed or proceeding recorded by any authority under the provisions of the Act other than an order passed by the Additional Commissioner or Joint Commissioner or Deputy Commissioner, may within 30 days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed. It is to be noted here that the word used is "any order passed" and not "order of assessment". Hence, the argument of the learned Government Pleader that appeal itself....... + More

Levy of Penalty u/s 53(3) of the VAT Act - Under declaration of tax - fraudulent or wilful neglect - validity of SCN - HELD THAT:- The present show-cause notice also suffers from similar infirmity. There is no indication in the show-cause notice with regard to the factual foundation alleging fraud or wilful neglect on the part of the petitioner-assessee in relation to under declaration of tax. Sri Naidu, learned Government, sought to wriggle out of the situation by referring to the finding of the authority relating to absence of plausible explanation for non-disclosure of turn over by the assessee as the foundation for wilful neglect - The initial onus was on the department to aver the factual foundation of fraud or wilful neglect in the show-cause notice. Only then the petitioner-assessee would have been put on adequate notice to respond....... + More

Rejection to grant of stay pending appeal before the Tribunal - pre-deposit for maintaining the appeal - Section 33 of the APVAT Act, 2005 - invocation of Article 226 of the Constitution of India - HELD THAT:- Since the petitioner herein has already deposited 50% of the disputed tax amount i.e., 12.5% before the first appellate authority and 37.5% before the Tribunal and also deposited another 50% while filing the appeals before the first appellate and second appellate authorities questioning the penalty imposed and since the contentions raised by the petitioner herein in the grounds of appeal are required to be gone into by the Tribunal under Section 33 of the APVAT Act, this Court does not find any justification on the part of the 1st respondent in declining to consider the request of the petitioner herein by going into merits of the appeal. Petition allowed.

Concessional rate of duty - issuance of C-Forms - inclusion of 'High Speed Diesel Oil' as a commodity in the registration certificate - HELD THAT:- R liance on the said circular is misplaced in view of the subsequent judicial pronouncement. It cannot be in dispute that the case on hand is covered by the decision reported in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] where it was held that Appellant State and the Revenue Authorities are directed not to restrict the use of 'C' Forms for the inter-state purchases of six commodities by the respondent/assessees and other registered dealers at concessional rate of tax ....... + More

Concessional rate of duty - issuance of C-Forms - inclusion of 'High Speed Diesel Oil' as a commodity in the registration certificate - HELD THAT:- R liance on the said circular is misplaced in view of the subsequent judicial pronouncement. It cannot be in dispute that the case on hand is covered by the decision reported in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] where it was held that Appellant State and the Revenue Authorities are directed not to restrict the use of 'C' Forms for the inter-state purchases of six commodities by the respondent/assessees and other registered dealers at concessional rate of tax ....... + More

Validity of assessment order - inclusion/ addition of coffee husk in the total turnover of the petitioner - omissions or suppressions by the dealer in maintenance of record or production of records, registers, etc. - HELD THAT:- Pre-assessment notice was issued on September 24, 2013, reply dated October 8, 2013 was received on October 9, 2013 by the assessing officer and on October 9, 2013 order in annexure A was made by the assessing officer. Reference to these three dates is made to demonstrate that the Commercial Tax Officer just by receiving the reply on October 9, 2013 has made the order in annexure A. Apparently, order in annexure A is not preceded by enquiry of any sort - The principle laid down by this court in SUZION INFRASTRUCTURE SERVICE LTD. VERSUS CTO [2010 (6) TMI 677 - KERALA HIGH COURT] has been considered by this court in....... + More

Refund of excess tax paid - ongoing works contract - composition scheme - HELD THAT:- In the facts of the present case, such independent consideration by the 2nd or 3rd respondents was necessary, having regard to the fact that, in the third counter affidavit deposed to by the 1st respondent, it is stated that he had failed to mention about the amounts, which are claimed to be due from the petitioner as a ground for recommending to withhold the refund, have already been recovered by initiation of Garnishee proceedings from the third parties. Since, the 2nd and 3rd respondents have acted on such recommendation of the 1st respondent, who has failed to discharge his function as a tax administrator, the action of the 2nd and 3rd respondents in approving such recommendation of the 1st respondent, is no less a failure and the 3rd respondent had ....... + More

Reopening of assessment - burden of proof for reopening of assessment not discharged - assessment based on the details in website is a valid ground or not - HELD THAT:- A learned Single Judge of this court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] has taken note of provisions of the Maharashtra Value Added Tax Act and the rules made thereunder and had exhorted the Commercial Tax Department to follow the aforesaid mechanism to deal with the issue relating to mismatch between the turnover declared in the returns by an assessee and the turnover noticed in the website of the Commercial Tax Department. It was submitted that though, a Review Petition was filed before the learned Single Judge to review the aforesaid decision, a centralised mechanism has been devised by....... + More

Principles of Natural Justice - cancellation of registration of petitioner - composition taxpayer has not filed returns for a continuous period of six months - HELD THAT:- Though the petitioner has failed to file any reply, before passing the impugned order, the respondent should have called the petitioner for a personal hearing either in person or through video conferencing. As no hearing was held prima-facie, the interim order is liable to be interfered. Therefore, there shall be an interim stay as prayed for till four weeks. Notice to the respondent returnable in four weeks - Post the matter after four weeks.

Validity of assessment order - time limitation - delay in service of demand notice - proper explanation for the delay or not - HELD THAT:- It is not in dispute that the petitioner was a dealer registered under the provisions of Jharkhand Value Added Tax Act, 2005 (JVAT Act) and Central Sales Tax, Act, 2006 (CST Act) and the petitioner filed application for surrender of the registration certificates before the Commercial Tax department w.e.f. March, 2015 for which acknowledgements regarding submission of such applications have been annexed as annexure 1 and 1/1 of each of the writ petitions. The petitioner was regularly filing its returns to the respondent-Commercial Tax department and its regular assessment proceedings were completed - The petitioner was served with four demand notices for the assessment years, 2009-10 and 2010-11 , both ....... + More

Levy of Entry Tax - cutting tools were used by it for roughing, drilling and boring of semi finished goods and for cutting and shaping of metals and other materials - benefit of exemption as contained in Explanation I to the Notification dated 30.03.2002 issued by the Government of Karnataka - Section 3(1) of Karnataka Tax On Entry Of Goods Act, 1979 - HELD THAT:- If goods specified in the table are bought by the dealer into the local area for 'consumption' or 'use' as raw materials, component parts and inputs in the manufacture of an intermediate or finished product, such goods are exempted from levy of tax. A constitution bench of the Supreme Court examined the correctness of the ratio laid down by three judge bench in SUN EXPORT CORPORATION VERSUS COLLECTOR OF CUSTOMS, BOMBAY [1997 (7) TMI 117 - SUPREME COURT], in which....... + More

Vires of Rule 6 (1 B) of the Maharashtra Value Added Tax Rules, 2005 - tenure of two years for members of the Maharashtra Sales Tax Tribunal - HELD THAT:- Respondent to file their reply on or before 12.02.2021 with copy to other side. Rejoinder if any, to be filed on or before 17.02.2021 with copy to other side. Matter to appear on board on 22.02.2021.

Maintainability of petition - time limitation - primary contention of the petitioner is that prior to issuance of show-cause notice, the petitioner is entitled for consultation with the Noticee before issuance of show-cause notice in terms of the Circular No.1053/02/2017-CX dated 10.03.2017 - HELD THAT:- The proceedings being at the preliminary stage be concluded at the earliest and also the submission of the learned counsel for revenue that they would not take any coercive steps till adjudication is completed, it would be appropriate to dispose off the matter in the stated manner in order to avoid any procrastination of the proceedings which are at nascent stage. It is made clear that the order passed would not be a precedent to be followed in other matters, while noticing the peculiar facts and contentions raised in the petition and tha....... + More

Validity of assessment order - reversal of Input Tax Credit - suppression of sales - mismatch of information - no pre-assessment notices served on the petitioner - HELD THAT:- Though this direction was issued as early as on 01.03.2017 in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] followed by the Commissioner of Commercial Taxes Department issuing a Circular in January, 2018 stating that all assessments involving the issue of mismatch are to be kept in abeyance till such mechanism is set up, nothing has transpired in this regard till date - the completion of assessment need not await the mechanism and have taken a view in other cases that the Department must collate all materials based on which the alleged mismatch is arrived at and furnish the same to th....... + More

Concessional rate of duty - issuance of 'C' Forms - inclusion of 'High Speed Diesel Oil' as a commodity in the registration certificate - HELD THAT:- The petitioner is entitled to the inclusion of 'High Speed Diesel Oil' as a commodity in the registration certificate. Let this exercise be carried out within a period of four (4) weeks from the date of uploading of this order. The request of the petitioner for issuance of 'C' Forms is allowed as a consequence thereof. Petition allowed.

Seeking registration of Sale Certificate in respect of the schedule mentioned property by the petitioner Bank - HELD THAT:- The legal issue involved in this writ petition is no longer res integra and has been considered in several decisions of this Court and the latest of which being in the case of TAMILNAD MERCANTILE BANK LIMITED VERSUS THE JOINT I SUB REGISTRAR, M/S. TOUGH BAGS, LALITHA RAMALINGAM, R. PALANIAPPAN, R. THIRUMALAIAPPAN, SAKTHIMALA, M. UDAYARAJAN, HEMALATHA, SHRIRAM TRANSPORT FINANCE COMPANY LTD. [2021 (1) TMI 1118 - MADRAS HIGH COURT] where it was held that the petitioner Bank cannot be denied the relief as sought for. In such view of the matter, both the writ petitions stand allowed. The first respondent in both the writ petitions are directed to register the sale certificates issued by the petitioner Bank in favour of th....... + More

Works contract - rate of tax on transfer of material - suppression of purchases during inspection - HELD THAT:- In view of the fact that the Appellate Deputy Commissioner considered the issues elaborately and allowed portion of the claim set out by the petitioner, the Commercial Tax Officer cannot pass any order contrary to the orders passed by the Appellate Deputy Commissioner and therefore, the Commercial Tax Officer exercised excess jurisdiction, which is impermissible - This Court is of the considered opinion that in respect of the said appeal filed by the respondent-Department before the Tribunal, the respondents are at liberty to pursue the matter pending before the Tribunal and the Tribunal is expected to consider the appeal on merits and pass orders in accordance with law by affording opportunity to the parties. The impugned order....... + More

Validity of assessment order - suo motu invoked his jurisdiction under Section 84 of the Tamil Nadu Value Added Tax Act - no personal hearing was afforded to the petitioner - principles of natural justice - HELD THAT:- Since the jurisdiction under Section 84 of Tamil Nadu Value Added Tax Act was suo motu invoked by the assessing authority himself, I must hold that the original orders of assessment dated 28.03.2017 automatically go. As I have already pointed out, the said orders were passed without granting personal hearing to the petitioner. The core contention raised by the learned counsel for the petitioner is that the impugned orders are vitiated by pre-determination. The assessing authority has chosen to go by what transpired during the inspection by the Enforcement Wing Officials. This contention advanced by the petitioner's coun....... + More

Recovery of dues of deceased dealer - deletion of charge against property - Mutation of charge over the property - HELD THAT:- Late Kamlesh Manilal Thakkar was the proprietor of the proprietary concern, namely, M/s. Thakkar Manilal Devchand and he passed away on 31st December, 2010. The Department, in so many words, has stated that the property in question was not of the ownership of Kamlesh Manilal Thakkar but the lawful owner is Smt. Nirupaben Manilal Thakkar (the writ applicant herein). In such circumstances, it was informed by the Department to the Mamlatdar that no other steps were required to be taken with respect to the property, and the mutation of the charge over the property bearing No.21919 be cancelled - if the Department wants to recover the dues of the deceased dealer, then the same cannot be recovered from the immovable property in question as the said property is not the estate of the deceased. Application disposed off.

Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - burden on the complainant to prove each and every fact even after accused admitting the cheque - HELD THAT:- Accused admitted that Ex.P.1-cheque belongs to him and it bears his signature. Even though the accused taken up a defence that he was not knowing the complainant, he was not familiar with him, he had not borrowed any amount from the complainant nor issued Ex.P.1 in his favour, the moment he admits that the cheque relied on by the complainant belongs to him and it bears his signature, presumption under Section 139 of N.I. Act arises. Similarly, Section 118 of N.I. Act gives raise to presumption regarding the consideration, date, time of acceptance, endorsements and that the holder is a holder in due course until the contrary is proved. Therefore, once the accu....... + More

Dishonor of Cheque - liabilities discharged by payment of dues, which was not considered by Court - seeking closure of proceedings as per Section 143 of Negotiable Instruments Act r/w. 258 of Cr.P.C. - HELD THAT:- The Hon'ble Apex Court in M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VERSUS KANCHAN MEHTA [2017 (10) TMI 218 - SUPREME COURT] categorically held that where the cheque amount with interest and cost, as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 of Cr.P.C. Normally, general rule for trial of case under Chapter XVII of the Negotiable Instruments Act is to follow the summery procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary, taking i....... + More

Dishonor of Cheque - Legally enforceable debt or not - rebuttal of presumption - section 138 of the Negotiable Instruments Act - HELD THAT:- A perusal of the entire records and even in the statutory notice sent by the complainant, the respondent/accused has sent the reply and he denied the execution of the cheque - When the cheque was returned for the reason that the signature differs, and the respondent/accused has taken a stand that the complainant is a stranger to the accused, it is for the appellant/complainant to establish the case and the appellant has not proved the same, and if once, execution of cheque is proved, the presumption under Sections 118 and 139 of the Negotiable Instruments Act can be drawn and the accused has to rebut the presumption that there is no legally enforceable debt and cheque has not been issued for legally ....... + More

Dishonor of Cheque - legally enforceable debt or the liability or not - rebuttal of presumption - HELD THAT:- In a recent decision delivered in a case of T.P. Murugan vs. Bojan 2018 (8) TMI 35 - SUPREME COURT, the Apex Court succinctly held that the moment the cheque is signed and issued in favour of a holder, under Section 139 of the Act raises a statutory presumption on the discharge of a legally enforceable debt. What emerged from the aforesaid decision is that Section 139 of the Act raises a statutory presumption in favour of the holder of the negotiable instrument in discharge of the debt or other liability though it may not in all conceivable circumstances be in discharge of the legally enforceable debt or other liability and, therefore, depends upon the special facts involved in the given case. Even if the statutory presumption is ....... + More

Dishonor of Cheque - permission for condonation of delay in compounding of offences - HELD THAT:- Taking into account the fact that the parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the amount of cheque and he does not want to pursue the proceedings against the revisionist, this Court deems it appropriate to compound the offence on the basis of compromise deed dated 13.11.2020 entered into between the parties. However, in terms of the guidelines framed by the Hon'ble Supreme Court as the revisionist has not appeared before the Court and has not taken effective steps to compound the offence at initial stages, in the backdrop of peculiar facts and circumstance of the case, this court deems it appropriate to permit the compounding of offence subject to payment of ₹ ....... + More

Dishonor of Cheque - necessary ingredients for offence against company present or not - Section 138 read with Section 141 of the NI Act - HELD THAT:- The Managing Director and Director who issued the cheque would be accused for offence under Section 138 of the N.I. Act in case offence committed by the company. It is not necessary to make specific averments in the complaint and by virtue of Section 141 of the N.I. Act they are liable to be proceeded in accordance with law. It is not in dispute that petitioner No. 2 has issued cheque on behalf of the company as Managing Director to the respondent/complainant as stated in para 4 of the complaint. It is for the petitioners to establish the said plea before the trial Court during the course of trial as the issue cannot be adjudicated in this petition at this stage. As such, learned JMFC is abs....... + More

Seeking grant of Anticipatory Bail - director of a builder company, a flat in which was failed to be delivered - HELD THAT:- There is no provision in the Rules of Court regarding filing and entertainment of anticipatory bail application - However all the anticipatory bail applications are being filed before this court in accordance with the provision of Chapter XVIII, Rule 18 of the Rules of Court after serving prior notice of the same on the Government Advocate. Therefore, the requirement of granting time to the Government Advocate to obtain instructions within seven days, where the Court grants an interim order in an anticipatory bail application, is not in the interest of speedy justice. Section 438(2) Cr.P.C provides for the conditions to be imposed while granting anticipatory bail in cases, the Court deems fit. However, the condition....... + More

Dishonor of Cheque - Restoration of case - Presumption in favour of holder - Section 139 of NI Act - HELD THAT:- The purpose of introducing Section 138 of the N.I. Act was to bring sanctity in commercial transactions. The negotiable instruments like cheques started losing their creditability in not being honoured on presentment. The legislature found that an action in civil court for collection of the negotiable proceeds like a cheque was defeating the very purpose of recognizing the negotiable instruments as speedy vehicle of commerce - It is now well settled that even if the cheque gets dishonoured with endorsement “Payment stopped by drawer” and there were insufficient funds on the date when the cheque was presented it amounts to an offence under Section 138 of the N.I. Act. When no prejudice has been caused to the petition....... + More

Validity of grant of Bail - Siphoning of funds by respondent No.2 promoter, before they ceased to be in control over the complainant-company - foremost plea put-forth by petitioner is that the trial court while granting bail to respondent No.2, has not taken into consideration the directions issued by this Court in its right perspective - HELD THAT:- The learned trial court had heard the parties at length, noted their contentions and thereafter, held that accused is in custody for one year and four months and he cannot be kept in custody for infinite time; that investigation is complete and prosecution has to clarify why accused should be kept in continued custody and also that tampering of evidence exists in every case till the length of the trial - No doubt at the time of grant of bail, the court is not required to go into the merits of....... + More

Dishonor of Cheque - examination of witness denied - opportunity to challenge the said order of rejection not granted or failure to avail the opportunity availed - rebuttal of presumption - HELD THAT:- Even in the cross- examination of PW-1, the accused had taken sufficient time. Since the accused failed to utilise the opportunities given to him to cross-examine PW-1, it was taken that the accused had not cross-examined PW-1. It is thereafter, by filing a recalling application, he got an opportunity to cross-examine PW-1. Accordingly, the matter was listed for cross-examination of PW-1 on 08-12-2014. Even on the said date also, he did not cross-examine PW-1, as such, once again, it was taken that there was no cross-examination of PW-1 from the accused's side. Subsequently, the accused made one more similar application for an opportuni....... + More

Dishonor of Cheque - insufficiency of funds - presumption of service of notice - difficulty in determination of date the cause of action - admission of non-service of first notice by the complainant - Validity of second notice - HELD THAT:- The complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. The complaint, however, must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. In the present case, the notice having been sent on 19.09.2012, if the presumption of service of notice within a reasonable time is raised, shall be deemed to have been served, at best within a period of 30 days from the date of issuance thereof i.e. 19.09.2012. The applicant was required to make payment in terms of ....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - contradictions in evidences - HELD THAT:- The entire evidence of PW-1 is contradictory within itself on several counts and does not inspire any confidence to believe that the accused had issued the cheque at Ex. P-1 to the complainant towards any legally enforceable debt or liability, more particularly towards Ex. P-9. If according to the complainant the accused had entered into several agreements with him of not less than three to four in number and there were several transactions between them and since he could not able to co-relate Ex. P-1 with Ex. P-9, on the contrary, he himself has contradicted the alleged loan transaction and the liability in several manner, it cannot be presumed that there existed any legally enforceable debt payable by the accused in ....... + More

Dishonor of Cheque - rebuttal of presumption - Section 118 of Negotiable Instrument Act - HELD THAT:- The evidence on record indicates that on 16.06.2001, the plaintiff issued suit notice-Ex. A3. Even though intimation was sent to the appellant, he did not chose to receive the same. The appellant is not an illiterate villager. He is a government servant. He was working as male nursing assistant. He has not chosen to send any communication. If his signatures had been unlawfully obtained by the plaintiff, certainly, the defendant would have issued legal notice to the plaintiff demanding the return of the documents signed by him. It is true that there was a police enquiry. But then, the police complaint was given after filing of the suit filed by the plaintiff. Even if no presumption is drawn in terms of Section 118 of Negotiable Instrument ....... + More

Dishonor of Cheque - failure to make repayment of loan taken from a friend - rebuttal of presumption - payment of loan was not established - HELD THAT:- Since the accused neither overcome the objection raised by the complainant nor could able to demonstrate as to how the said Note book act as an evidence about the alleged clearance of the loan of ₹ 6 lakhs, which is the subject matter of the present case, the said Note book at Ex.D-5 would not enure to the benefit of the accused. Therefore, the accused could not able to demonstrate that she has cleared the loan of ₹ 6 lakhs availed by her from the complainant. By looking at the entries mentioned therein showing several withdrawals, payments, credits etc., it cannot be deduced that any particular sum, on any particular day, was made to the complainant by the accused. Merely by ....... + More

Dishonor of Cheque - insufficiency of funds - documents were sought to be produced on issuance of summons - rebuttal of presumption - HELD THAT:- According to the reply notice issued by the accused, he agreed to provide labour for harvesting the sugarcane and also transport the same to the factory premises. He had to sign some documents and provide blank signed cheque as security for the work undergone by him and he signed the documents prepared by the complainant and handed over blank cheque duly signed by him and the contents of the documents were never explained and the said blank cheque has been misused which was given by the accused as security towards performance of the work. It is needless to say that the complainant who has filed the complaint has to prove his case. The learned Magistrate has further observed that the accused has ....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt between the parties or not - HELD THAT:- The petitioner/accused has not raised any other grounds or addressed any other augments worth to be considered. On the other hand, as observed above, the admitted cheque at Exhibit P-1, of which the accused is the drawer has been dishonoured with the banker's share of 'insufficient funds' as could be seen in the banker's memo at Ex. P-2 and the debit slip at Ex. P-3. The copy of the legal notice at Exhibit P-4 has been admittedly served upon the accused which is further evidenced in the postal receipt and postal acknowledgement card at Exhibits P-5 and P-6 respectively. The reply sent by the accused as per Exhibit D-1 proves to be untenable and could not able to shaken the evidence of the complainant, both oral a....... + More

Dishonor of Cheque - insufficiency of funds - legally recoverable debt or not - failure to probablise the defence - HELD THAT:- Since the materials supplied was of inferior quality, the accused suffered loss and therefore, he requested for return of the advance amount and also the cheque-Ex.P.1. The complainant had not returned the cheque instead, he has misused the same. Therefore, there was no legally recoverable debt and hence the accused has not committed any offence punishable under Section 138 of the N.I. Act. During cross-examination, it is suggested to the witness that he has not produced any letter of authority to represent the complainant partnership firm. However, P.W.1 stated that he was authorized to represent the complainant-partnership firm and later he produced Ex.P.293, which is the authorization letter issued by all the ....... + More

Dishonor of Cheque - petitioners were neither signatories to the cheque nor parties to the agreements - Partner of the partnership firm - territorial jurisdiction of the Learned Magistrate - Section 138 read with Section 141 of the Negotiable Instruments Act - Whether the averments made in the petition of complaint are sufficient to arraign the present petitioners as accused? - HELD THAT:- In the present case, averments were made at paragraph 3 of the petition of complaint that all the accused including the present petitioners were partners of the said firm looking after its day to day business affairs and responsible for each and every business conducts at the relevant time when the offence was committed. Looking after its day to day business affairs as partners and responsible for each and every business conducts of the firm at the rele....... + More

Seeking grant of Bail - Smuggling - recovery of contraband item - Heroin - personal search of accused was carried out or not - evidentiary value of petitioner’s statement recorded under Section 67 of the Act - HELD THAT:- In the present case, 46 small zip lock polythene packets containing contraband were recovered from the bag of co-accused Madan Lama and 01 packet was recovered in possession of present petitioner. In total, 475 gm. contraband/ heroin was recovered in this case - The stand of NCB is that personal search of accused was not carried out, as 01 packet containing contraband recovered from petitioner was in his hands while exchanging it for money and the remaining 46 packets were recovered from the bag of co-accused and, therefore, notice under Section 50 of the Act was not required to be given. This has so been observed ....... + More

Incorrect reporting of the proceedings - HELD THAT:- Any slant in the reporting, which is not in line with the orders of the Court, leads to multifarious problems including the embarrassment that counsels appearing in the matter may encounter vis-a-vis their respective principals. - Petitioner undertook to remove the contents, the disconcerting blog, titled “A Summer of Relief for Taxpayers” from its website. List the matter on 22.07.2021.