Disallowing sample expenses and addition of undisclosed stocks in relevant to purchases - Tribunal remanded the matter back to the Assessing Officer to reconsider the expenditure for made-ups - Tribunal once again examined the factual position placed by the Assessee before the Assessing Officer, at the first instance when the assessment was completed, and also verified the details which were culled out during the assessment proceedings after the remand order of the Tribunal in the earlier round of litigation and dismissed the Revenue's appeal - HELD THAT:- This is the second round of litigation and the first round culminated with the order of the Tribunal, remanding the matter to the Assessing Officer. The Assessing Officer has done some factual exercises. This test was corrected by the CIT(A). The CIT(A) examined the matter and rende....... + More

Penalty u/s 271(1)(c) - tax payable on income assessed under the normal provisions in the case of the assessee was less than the tax payable under the deeming provisions of Sec. 115JB - HELD THAT:- On the basis of the amendment, w.e.f Asst. Year 2016-17, even in a case where there are certain additions/disallowances under the normal provisions of the Act, penalty u/s 271(1)(c) can be imposed, irrespective of the fact that the assessee is assessed as per the deeming provisions of Sec. 115JB or Sec. 115JC of the Act. In fact, a careful perusal of the aforesaid amendment reveals that the machinery proviso for quantification of penalty had now been rendered as workable. On a perusal of the “Explanatory Notes to the Provisions of the Finance Act, 2015”. As such, the legislature observed that in a case where tax was paid by an asses....... + More

Reopening of assessment u/s 147 - addition u/s 68 - HELD THAT:- As decided in own SMT. MEENA NAYYAR VERSUS ITO, WARD 41 (5) , NEW DELHI [2020 (3) TMI 957 - ITAT DELHI] onus shifts on to the department to conduct further enquiries with respect to the unsecure loan and establish that why assessee's case cannot be accepted - where the assessee had led evidences in support of the identity of the third party and his capability the initial burden which lies upon him stand discharged. It will not before the assessee thereafter to explain further how or in what circumstances the third party obtained the money and how or why he came to make a deposit of the same with the assessee. In such a situation the burden will shift on to the department to show why the assessee's case cannot be accepted and why it must be held that the entry, for pur....... + More

Estimation of income - Bogus purchases - Rejection of books of accounts - estimation of net profit made by the AO at 40% - CIT-A restricted addition by taking average estimated net profit at 7% - HELD THAT:- In terms of documentation, assessee might have fullfilled all necessary ingredients, but still it failed to bring any evidence apart from these peripheral documents to demonstrate actual work done by the “LPPL” or capacity of “LPPL” to carry out such work. Though we could have recommended for carrying out a fresh investigation in order to prove whether the assessee got this work done actually from the sub-contractor or from some third person, but considering the fact that the actual contract has been completed to the satisfaction of the contractee i.e. ONGC in the present transaction routed through “LPPL&....... + More

Deduction u/s 10AA - Special provisions in respect of newly established Units in Special Economic Zones - MSA does not reveal any specific details regarding software development activity - HELD THAT:- Benefit under section 10A,10AA and 10 B cannot be denied as separate and specific MSA does not exist for each SOW. Be that as it may, from SOFTEX forms placed in paper book at page 536 onwards, columns 7 specifically reveals, export contract/purchase order, being filed with SEZ. We also note that, each form consist enclosures, like copies of export contract, royalty agreement, communication from foreign customers. Submissions by Ld.Standing Counsel for revenue is thus found to be contrary to SEZ approvals placed - transfer pricing adjustment proposed by Ld.TPO was in respect of payments received on account of services rendered by assessee un....... + More

Disallowance on account of Principal NPA - addition on the ground that the provisions of 36(1)(viia) are not applicable to the assessee as the assessee is a primary Cooperative Agricultural and Rural Development Bank which is excluded from the Cooperative Bank - HELD THAT:- The assessee has not disputed that it is a primary Cooperative Agricultural and Rural Development Bank. The Cooperative Bank which is eligible for deduction under section 36(1)(vii) does not include a primary agricultural credit society or a primary cooperative agricultural and rural development bank. There are two exclusions from the broad category of cooperative banks which are (i) a primary agricultural credit society and (ii) a primary cooperative agricultural and rural development bank. Assessee being a primary cooperative agricultural and rural development bank f....... + More

Exemption u/s 11 - Charitable activity u/s 2(15) - assessee trust was engaged in urban development and town planning - AO was of the view that the assessee was carrying out the activities of “advancement of other general public utility” in the nature of trade/commerce/business, therefore, the provision of section 2(15) r.w. proviso 1 & 2 were applied to the case - HELD THAT:- As decided in Ahmedabad Urban Development Authority [2017 (5) TMI 1468 - GUJARAT HIGH COURT] Object and purpose for which the assesses is established / constituted under the provisions of the Gujarat Town Planning Act and collection of fees and cess is incidental to the object and purpose of the Act, even the case would not fall under second part of proviso to Sect/on 2(15). Assessee is eligible to claim exemption/s. 11 of the Act as proviso of sectio....... + More

Denial of refund of tax paid by the assessee while filing the return of income u/s 158BC - block assessment - refund u/s 240 is only in respect of the amount which has resulted due to the addition made by the AO during the assessment - main contention of the assessee is that once the assessment is quashed by the Hon'ble High Court, the tax paid by the assessee on the income declared in the return of income filed in response to notice u/s 158BC also becomes refundable - HELD THAT:- In case of block assessment where the initiation of proceedings are quashed, the judgment of the Hon'ble Supreme Court in case of Shelly Products [2003 (5) TMI 4 - SUPREME COURT] is applicable and consequently the refund of tax is limited only to the extent of the tax liability due to the addition made by the AO and not the tax paid by the assessee on th....... + More

Levy of penalty u/s 271(1)(c) - disallowance of bogus purchases by applying the profit rate - furnishing of inaccurate particulars of income and concealment of particulars of income - HELD THAT:- We could not find anything recorded by the Assessing Officer that there is actual concealment of income by the assessee. Merely suspicion or doubt cannot be the basis for levying penalty under section 271(1)(c) of the Act of the Act either for concealment of particulars of income or for furnishing of inaccurate particulars of income as the case may be. Once there is no reason to disbelieve the sales made by the assessee and particularly when part of material is recorded in stock, it cannot be justified that the estimation made by the Assessing Officer warrants penalty under section 271(1)(c) - It can be a case of addition or disallowance of bogus....... + More

Loss incurred by the assessee in purchase and sale of shares - Whether a business loss or speculation loss? - HELD THAT:- CIT(A) has recorded categorical finding that the assessee has earned profit from share trading activity. We further noted that although, the assessee claims to have earned profit from share trading activity, but such profit has been computed without considering direct and indirect expenses relatable to share trading activity, although the major portion of income or loss of the assessee is from share trading activity. The facts and consequent findings recorded by the Ld. AO, and the Ld.CIT(A) are contrary to each other and requires fresh verification from the Ld. AO, in light of the fact that the assessee has not considered expenditure incurred in relation to share trading activity. We are of the considered view that th....... + More

TP Adjustment - adjustment made to the arm’s length price of Corporate Guarantee issued in respect of payment of outstanding hire charges - TPO rejecting assessee’s claim has charged guarantee commission at 2.5% which has been reduced to 1.75% by learned DRP - HELD THAT:- Basis on which the Transfer Pricing Officer and learned DRP have determined the arm’s length price of guarantee commission is the commission charged by the State Bank of India, Singapore Branch, @ 1.25% per annum on the bank guarantee availed by the AE. We find substantial merit in the submission of the learned Authorised Representative that performance/corporate guarantee cannot be equated with bank guarantee. Even DRP has also observed that the assessee has provided an unsecured performance guarantee. It is further evident, the assessee itself has ava....... + More

Long term capital gain on sale of land - AO mandate to refer the matter to DVO for Fair Market Value - CIT -A deleted the addition as AO did not have mandate to refer the matter to DVO for Fair Market Value - HELD THAT:- As far the FMV as on 4.09.2008 is concerned, the DVO has correctly valued the property as on 4.09.2008 at ₹ 40,20,54,000/ -, of which the appellant is a co-owner having share of 16,639 sq. mhos. Accordingly, the sale consideration of the appellant's share of the property @ ₹ 4806.67 (₹ 40,20,54,000/- divided by the total area of the property i.e. 83,645 sq. mtrs.) works out to ₹ 8,02,37,742/ -. Therefore, the sale consideration of the appellant's share of the property, as determined by the DVa, is taken at ₹ 8,02,37,742/-. As per the provisions of Section 55A of the Act for the year u....... + More

Nature of land sold appurtenant to the bungalow - whether agricultural land within the meaning of Section 2(14)(a)(iii) of the Act and hence, its sale proceeds are exempt from tax’ ? - one of the reason for rejecting assesse’s claim is that the assesse has not declared any income from agriculture operations - HELD THAT:- The Hon’ble Bombay High Court in the case of CIT vs Debbie Alemo [2010 (9) TMI 560 - BOMBAY HIGH COURT] has held that if a land is shown in the revenue records to be used for agriculture purpose and no permission was ever obtained for nonagriculture use, it is inconsequential whether any income from agricultural operation was declared by the assesse in the return of income or not. Thus, the objection of the revenue is without any merit. Department in the case of other two co-owners of the land has accept....... + More

Stay of recovery of outstanding demand - assessee has already paid more than 27% of the amount - HELD THAT:- We are of considered view that assessee deserves the benefit of stay of recovery of outstanding demand. The assessee shall pay a sum of ₹ 4.00 lacs in two instalments of ₹ 2.00 lacs each. Assessee shall furnish proof of deposit of aforesaid amounts to the Registry of the Tribunal within a week from the date of such deposits and shall also furnish copy of the same to the Office of D.R. The assessee shall not seek frivolous adjournments.

Capital gain computation - Cost of acquisition of assessee’s capital asset acquired way back in the year 1957 and sold on 26.02.2012 - HELD THAT:- Neither of the two parties have been able to justify their valuations i.e., exact location and on sale consideration basis; respectively. We therefore are of the view that neither party’s stand deserves to be accepted in entirety. We thus conclude that a lump sum cost of acquisition on estimation basis of ₹ 3,00,000/- w.e.f. 01.04.1981 by adopting rule of thumb would meet the ends of justice. Both parties get part relief in same terms. Necessary computation including that of interest shall follow as per law keeping in mind hon'ble jurisdictional high court’s decision in Ajay Prakash Verma vs. ITO [2013 (1) TMI 140 - JHARKHAND HIGH COURT].

Addition u/s 40A - Disallowance of payment of rent - Assessee company has paid rent to one of its directors for its registered office - onus is on the Revenue to bring on record comparable instances wherein the rent payment for similar premises are the lower than the rent paid by the assessee-company - HELD THAT:- It is not the entire premises which have been taken on rent by the assessee- company rather the premises situated at first floor only which have been taken on rent by the assessee-company for the purpose of its business. The director of the assessee-company is staying at the ground floor and the first floor has been for taken on rent by the assessee company which is clearly specified in the rent agreement. The said premises are used as the registered office of the assessee-company as the every company registered under the Compan....... + More

Capital gain - Transfer of shares u/s 2(47) - assessee gets shares of Amalgamated Company in lieu of shares of amalgamating company - whether in the scheme of amalgamation, shares of amalgamated company received in lieu of amalgamating company which were held as stock-in-trade, would result in income chargeable to tax under the head “Profits and gain of business or profession”? - HELD THAT:- Here under the scheme of amalgamation, the amalgamating company is getting extinguished in the sense that the surviving entity now is only the amalgamated company. However, we cannot ignore the fact that the shares that were with the assessee have undergone the amalgamation process whereby they are replaced with new shares which would be valued entirely on different fundamentals. Subsequent to the amalgamation it is not the same stock in t....... + More

Penalty u/s. 271AAA - difference in the assessed income and returned on account - CIT(A) restricted the penalty being the addition finally sustained by him on account of valuation of the three ladies watches - HELD THAT:- We find that the order of the CIT(A) giving relief to the assessee on various addition except the addition on account of watches has attained finality in view of the dismissal of the appeal filed by the revenue in the quantum appeal. Therefore, the penalty deleted by the CIT(A) on account of the various additions made by the AO in the assessment order does not call for any interference and accordingly the appeal filed by the revenue is dismissed. Defective notice - notice issued u/s. 274 r.w.s 271 AAA shows that such notice does not mention the particular limb of explanation to section 271AAA defining “undisclosed ....... + More

Sale of carbon credits - capital receipt OR revenue receipt - assessee is a company engaged in the business of generation of hydro and wind power. The assessee was entitled to claim deduction u/s. 80IA of the Income-tax Act, 1961 [the Act] in respect of business of generation of power - HELD THAT:- As decided in M/S. SHREE CEMENT LTD. [2015 (3) TMI 759 - ITAT JAIPUR] entitlement earned for carbon credits is a capital receipt and cannot be taxed as a revenue receipt. It is not generated or created due to carrying on business but it is accrued due to 'world concern'. It has been made available assuming character of transferable right or entitlement only due to world concern. The source of carbon credit is world concern and environment. Due to that the assessee gets a privilege in the nature of transfer of carbon credits. Thus, the a....... + More

Estimation of income - Bogus purchases from hawala operators - as per assessee excess gross profit element ought to have been added instead of full amount of purchase - HELD THAT:- As decided in M/S MOHOMMAD HAJI ADAM & CO. [2019 (2) TMI 1632 - BOMBAY HIGH COURT] no ad hoc addition for bogus purchases can be made. It laid down that the addition should be made to the extent of difference between the gross profit rate on genuine purchases and gross profit rate on hawala purchases. Such case specific details were not readily available either with the ld. AR or the ld. DR for facilitating the calculation of gross profit rate of genuine and hawala purchases. Under these circumstances, we set-aside the impugned order and remit the matter to the file of the AO and recompute the amount of additions. Reopening of assessment u/s 147 - Disallowa....... + More

Nature of expenses - Expenses incurred on Enterprise Resource Planning (“ERP”) and software expenses - revenue or capital expenditure - HELD THAT:- From the perusal of the material on record it can be seen that no benefit of an enduring nature has been derived by the assessee as result of said expenditure. The said expenditure has been incurred only for smooth working and for improving the functioning of the organization. The Assessing Officer ignored the fact that in today’s fast changing technology where software becomes obsolete for smooth functioning of the business, the software needs to be replaced / upgraded by an assessee from time to time, the software, in any, case cannot also be said to result in any enduring benefit to the assessee to be considered and thus, it cannot be held as capital expenditure. The case ....... + More

Disallowance u/s 14A r.w.r 8D - HELD THAT:- As the investments from which the tax-free income is earned were made from the appellant’s own surplus funds/accumulated profits, following the decision RELIANCE UTILITIES & POWER LTD. [2009 (1) TMI 4 - BOMBAY HIGH COURT] AND HDFC BANK LTD. [2016 (3) TMI 755 - BOMBAY HIGH COURT] we delete the disallowance made under Rule 8D(2)(ii). Disallowance under Rule 8D(2)(iii) - In the instant case, the appellant has not maintained separate books of accounts in respect of exempt income. It is relevant to mention here that Rule 8D was notified by Central Board of Direct Taxes (CBDT) by the IT (5th Amdt) Rules, 2008 w.e.f. 24.03.2008.Thus it is applicable for the impugned assessment year. The reliance placed by the Ld. counsel for AY 2007-08 stands on a different pedestal from AY 2008- 09. Consider....... + More

TP Adjustment - ALP of the payment has been determined by using CUP as a method for benchmarking and for this purpose, the price of a similar software module licensed by Oracle Corporation was used as a comparable uncontrolled price - HELD THAT:- We notice that the TPO/AO has arrived at the ALP by not adopting any of the methods prescribed u/s 92C of the Act in respect of (i) payment of license fees for time and billing software, (ii) payment of regional administration and regional co-ordination cost allocation and (iii) payment of information technology cost allocation. In view of the above factual scenario, we are of the considered view that the ratio laid down by the Hon’ble Bombay High Court in Lever India Exports Ltd.; Merck Ltd. [2017 (2) TMI 120 - BOMBAY HIGH COURT], Johnson & Johnson Ltd. and Kodak India Pvt .Ltd. [2017 ....... + More

Reopening of assessment u/s 147 - Validity of reasons to believe - HELD THAT:- Reasons recorded by the ld. AO should speak for itself and there cannot be any addition or alteration to the said reasons and the understanding of the AO at the time of recording reasons cannot be supplemented / strengthened by the subsequent investigations carried out by the department or by subsequent materials that were made available to the department. What is relevant at the time of recording the reasons by the ld. AO is that he should have fresh tangible material without any change of opinion , to enable him to have a live link to form a belief that income of the assessee had escaped assessment and if the reopening is made beyond a period of four years from the end of the relevant assessment year then, it is the incumbent duty on the part of the ld. AO to....... + More

TP Adjustment - comparable selection - HELD THAT:- The assessee provides back office support functions to its associated enterprises. The transactions of IT Enabled Support Services to its associated enterprises and the arms length price computed by the assessee was accepted by the revenue in A.Y. 2005 - 06 and A.Y. 2006-07. Companies functionally dissimilar with that of assessee need to be deselected from final list. Rejection of comparable who fails the export filter of 75% which has been adopted by the transfer pricing officer. Rejecting the persistent loss making companies - Though some of the companies have suffered loss in the current assessment year the average of two years showed the robust positive figure. Hence, it cannot be said that the companies are persistently loss making company. Furthermore, we note that these comparables....... + More

Grant of Interim Bail - Input Tax Credit availed on the basis of invoices without there being actual sale of goods - HELD THAT:- Keeping in view the custody period and also the fact that the maximum sentence provided for the offence in question is 5 years and that the vires of the Act is itself under challenge, the petition merits acceptance and is hereby accepted. The interim directions dated 20.7.2020 are hereby made absolute on the same terms and conditions.

Grant of Interim Bail - offences u/s 132(1)(b)(c) of the Punjab Goods and Service Tax Act, 2017 - Input Tax Credit availed on the basis of invoices without there being actual sale of goods - HELD THAT:- Keeping in view the custody period and also the fact that the maximum sentence provided for the offence in question is 5 years and that the vires of the Act is itself under challenge, the petitions merits acceptance and are hereby accepted and the interim directions dated 10.7.2020, 18.5.2020 and 6.7.2020 are hereby made absolute on the same terms and conditions.

Filing of TRANS-I Forms - transitional credit - transition to GST regime - HELD THAT:- The writ petition is disposed of in terms of the aforesaid judgment, directing the competent authority to take steps to immediately permit the petitioner to revise their TRANS-I Forms either electrically or manually without much delay, preferably within a period of two months from the date of receipt of a copy of this judgment or within such time limit as they deemed fit appropriate, as manual filing is insisted only in such circumstances where electronic filing is not possible. Petition disposed off.

Vires of Rule 117 of the Central Goods and Service Tax Rules, 2017 - time limitation - transitional credit - Circular bearing No.39/13/2018-GST in F.No.267/7/2018-CX.8 - HELD THAT:- The requirement for an assessee to establish technical difficulty as expressed in Circular dated 03.04.2018, is reiterated in the provision. I am however, unable to understand as to how the assessee would have anticipated this requirement in order that it collects proof by way of screen shots and otherwise establish the factum of technical glitches. Though Goods and Service Tax has been introduced to streamline multiple revenue enactments, the mass of litigation that Rule 117 has generated, has defeated the very object and purpose of the enactment. Transition, by itself, does not vest any right in the assessee. It is only utilisation of credit that does, and s....... + More

Levy of 1% court fee on filing of Appeal before the appellate authority under GST - The constitutional validity of Section 76 of the Kerala Court Fees and Suit Valuation Act, 1959 as extended to GST laws - Levy of non-discriminatory tax per se constitute infraction of Article 301 of the Constitution of India - HELD THAT:- The notification cannot be seen to be in violation of Article 14 or suffering from the character of tax. Petition dismissed.

Maintainability of petition - availability of alternative remedy - Release of detained goods alongwith vehicle - mistake on the part of the transporter in filing of the part B with reference to the E-Way bill - HELD THAT:- The petitioner submits that the issue regarding the legality of the penalty requires to be considered. This issue has to be assailed by the petitioner by way of the statutory appeal provided to the petitioner under the provisions of Section 107 of the Central Goods and Service Tax Act, 2017. This writ petition is consequently disposed of with liberty to the petitioner to invoke the appropriate remedy by way of the statutory appeal before the competent authority - Petition disposed off.

Release of detained goods alongwith truck - Section 129 and 130 of CGST Act - HELD THAT:- While issuing notice, this Court directed that the vehicle as well as the goods be released, upon payment of the tax, in terms of the impugned notice. The writ applicant availed the benefit of the interm-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount. The proceedings, as on date, are at the stage of show cause notice, under Section 130 of the Central Goods and Services Act, 2017. The proceedings shall go ahead in accordance with law - reliance can be placed in the case of SYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [2020 (2) TMI 1159 - GUJARAT HIGH COURT]. It is now for the applicant to make good his case that the show cause notice, issued in GSTMOV-10, deserves to be discharged - petition disposed off.

Provisional attachment of Bank Account - Section 83 of Punjab Goods and Service Tax Act and Central Goods and Service Tax 2017 - HELD THAT:- It is accepted fact that against CC Account, limit was ₹ 25 lakhs and the petitioner has withdrawn more than ₹ 26 lakhs. The petition is disposed of with the direction that all the accounts of the petitioner be defrozen and the petitioner would maintain the amount which was present in the accounts on the date of provisional attachment.

Grant of Regular Bail - issuance of fake invoices with the intention of availing fraudulent ITC and from GSTR-3B - HELD THAT:- The maximum sentence for the offence alleged is 5 years and the petitioner has been in custody for the last 16 months and the fact that it is a case of rotating the turn over for availing credit facility from the Banks and further the tax after adjustment of ITC was also paid, without commenting on the merits of the case, it is deemed appropriate to grant regular bail to the petitioner. Bail application allowed.

Maintainability of petition - right to appeal - Validity of assessment order - Bihar Goods and Service Tax Act, 2017 - HELD THAT:- There are no reason as to why the appropriate appellate authority would not accept a hard copy of the appeal and decide the same in accordance with law. We only hope and expect the appropriate authority to consider and decide the appeal expeditiously on its merit and with reasonable dispatch. Petition disposed off.

Maintainability of appeal - Release of detained goods - HELD THAT:- There are no reason as to why the appropriate appellate authority would not accept a hard copy of the appeal and decide the same in accordance with law. We only hope and expect the appropriate authority to consider and decide the appeal expeditiously on its merit and with reasonable dispatch. Petition disposed off.

Validity of proceedings initiated under the Kerala Goods and Service Tax Ordinance 2017 - permission to approach competent authority - a competent Appellate Authority has already been constituted by the respondents - HELD THAT:- In view of the submission made by the counsel for the petitioners, liberty is granted to the petitioner to approach the Appellate Authority. Petition disposed off.

Refund of electronic cash ledger along with interest as notified in Notification No. 13/2017- Central Tax dated 28th June, 2017 - Applicability of proviso to Section 54(1) of the Central Goods and Services Tax Act and proviso to Rule 89(1) of the Central Goods and Services Tax Rules. HELD THAT:- List on 12th October, 2020.

Profiteering - sale of refrigerator Whirlpool FP313D PROTTON ROY MIRROR - contravention of provisions of Section 171 of CGST Act - HELD THAT:- Petitioner is directed to deposit ₹ 4,07,451/- with Central and State Consumer Welfare Boards within two months - The interest amount as well as penalty and further investigation with regard to other impacted products as well as the letters dated 02nd July, 2020 and 23rd July, 2020 issued by the DGAP are stayed till further orders. Issue Notice - List the matter on 28th September, 2020.

Permission for withdrawal of petition - Cancellation of registration - CGST Act - HELD THAT:- The Commercial Taxes and Registration Department of the Government of Tamil Nadu has passed G.O.Ms.No.102 dated 26.06.2020 consequent upon the above CBIT Notification. The petitioner is so permitted to withdraw the Writ Petition and in addition is granted liberty to approach the Appellate Authority by the cut-off date provided in the Notification seeking restoration of registration. Petition dismissed as withdrawn.

Classification of services - Works Contract Services - rate of GST - EPC Contract in respect of power distribution and Transmission company - Government Entity or not - GST notification number 1/2018 - Central Tax(Rate) - HELD THAT:- It is evident from the website of OPTCL it is understood that with the enactment of the Electricity Act, 2003, the Government of Orissa through notification of a Transfer Scheme transferred the transmission business of GRIDCO and vested the same with OPTCL with effect from 01-04-2005. OPTCL, registered on 29th March, 2004 under the Companies Act, 1956, is a wholly owned Government Company. Under the Transfer Scheme, OPTCL has been notified as the State Transmission Utility (STU) and is also mandated to discharge the State Load Dispatch functions - Under the provisions of the Electricity Act, 2003, OPTCL is a ....... + More

Levy of GST - supply of food by the applicant to hospitals on outsource basis - health care services provided by a clinical establishment and food supplied to the patients - Circular No.32/06/2018-GST, dt. 12-022018 at Si. No. 5(3) - HELD THAT:- In the case at hand, the Applicant is engaged in supplying food and beverages at the canteen of their customers. The Applicant himself does not get paid for by the consumers of the food and beverages. The Recipient of the services are hospitals who enter into contract with the applicant. The charges are received from the hospitals on monthly basis on the coupons collected. In short, it is deciphered that the Applicant is vested with management of the canteen facilities. Supply of food is classified under Service Code No. 9963. We have examined the relevant notifications providing exemption to serv....... + More

Input Tax Credit - GST paid on payment of “lease premium charges (one-time charges) - land lease for business purpose - annual lease rentals”(recurring) towards supply of land on lease for business purpose - maintenance charges collected by the lessor - HELD THAT:- Sections 16 to 19 of the CGST Act, 2017 contain the provisions relating to allowance of Input Tax Credit subject to the conditions stipulated there under. Sec. 16(1) allows every registered person to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business subject to such conditions and restrictions as may be prescribed - Sec. 17(5) of the Act lists the circumstances wherein input tax credit in r/o goods/services shall not be available. It is pertinent to not....... + More

Classification of goods - HSN Code - rate of tax - poultry meal - poultry fat - whether classfiable under HSN Code 2309 9020 or under HSN code of 1501 9000? - N/N. 01/2017-CT (Rate) dated 28.06.2017 & 02/2017-CT (Rate) dated 28.06.2017 - HELD THAT:- The supply of animal feed, poultry feed and cattle feed including grass, hay & straw, supplement & husk of pulses, concentrates & additives, wheat bran & de-oiled cake are covered under the said entry. The aforesaid entry covers different types of products which are basically in the nature of feeds.This entry does not apply to raw material/inputs like fish meals or meat cum bone meal (MBM) falling under heading 2301 - the product manufactured by the applicant is not a feed but raw materials for feed and therefore the same are not covered under the domain of the above entry........ + More

Profiteering - supply of “Duracell Battery AA/6” - allegation that benefit of reduction in GST rate was not passed on to the recipients by way of commensurate reduction in the price - contravention of Section 171 of the CGST Act, 2017 - HELD THAT:- The Respondent did not reduce the selling price of the products when the GST rate was reduced from 28% to 18% w.e.f. 15.11.2017 and hence. the benefit of reduction in GST rate was not passed on to the recipients by way of commensurate reduction in the prices, in terms of Section 171 of the CGST Act, 2017 and therefore, he has contravened the provisions of Section 171 of the CGST Act, 2017 - the Respondent has acted in contravention of the provisions of Section 171 of the CGST Act, 2017, and has not passed on the benefit of reduction in the rate of tax to his recipients by commensura....... + More

Grant of Equipment Type Approval (ETA) applied by the petitioner - import of Wireless Communication Module - release of consignment without insistence on the ETA - HELD THAT:- The respondent No.2 are directed to release the said consignment in accordance with law, rules, regulations and Government policies applicable to the facts of the case as expeditiously as possible and practicable, within a maximum period of one week from today. Petition disposed off.

Waiver of pre-deposit - section 129E of CA - Classification of imported goods - satellite/viewing cards and others parts of set up boxes - classified under CH85235290 or under CH85299090? - HELD THAT:- In view of the amendment in the Act, especially Section 129E thereof, there is no question whatsoever of the waiver of pre-deposit. The statute itself has waived 90% or 92.5% of the duty amount, as the case may be, assessed by the authorities under the Customs Act, 1962. The petitioner-assessee has to deposit only 7.5% or 10% (as the case may be) of the duty assessed. Thus, there is no question of further waiver of the amount which is required to be deposited under Section 129E of the Customs Act, 1962. The amount to be deposited by the petitioner before CESTAT, New Delhi in their statutory appeal under the Customs Act, 1962 comes to ₹....... + More

Provisional release of imported seized goods - Dry Dates - it is submitted by petitioner that it would suffice for the disposal of this writ petition, if the respondents are directed to grant provisional assessment of the goods in question at the earliest - HELD THAT:- The respondent authorities are directed to conduct provisional assessments of the goods in question (Dry Dates) which have been imported, in accordance with law, rules, regulations and Government policies applicable to the facts of the case, within a period of two weeks from today. Petition disposed off.

Provisional assessment of imported goods - Dry Dates - it is submitted by petitioner that it will suffice for the disposal of this writ petition, if the respondents are directed to conduct provisional assessment of the goods in question at the earliest - HELD THAT:- The respondent authorities are directed to conduct provisional assessments of the goods in question (Dry Dates) which have been imported against Bill of Entry No.8025279 dated 29th June, 2020 in accordance with law, rules, regulations and Government policies applicable to the facts of the case, within a maximum period of two weeks from today. Petition disposed off.

Levy of ADD - initiation of New Shipper Review - Notification dated January 01, 2018 - determination of individual margins of dumping for them - litigant himself fails to avail opportunity to bring the correct facts to the notice of the authority - violation of principles of natural justice or not - HELD THAT:- In the present case, it was the producer/exporter who had filed an application for determination of individual margins of dumping for them since anti-dumping duty on the subject goods from the subject country had already been levied earlier in the original investigation and the two sunset reviews. The producer/exporter came out with a case that they had not exported the product to India during the original period of investigation or the sunset reviews and, therefore, instead of imposing the anti-dumping duty as was contained in the....... + More

Revocation of Custom Broker license - forfeiture of security amount - imposition of penalty - export of prohibited goods - NDPS goods - It appeared to Revenue that appellant had not obtained any authorisation from the exporting firm M/s Hindustan Exim India and further allowed CB licence to be used for exporting of NDPS goods - validity of relied upon documents - HELD THAT:- Customs has blindly relied upon the investigation by the Delhi Police, but at the same time have erred in not referring to the charge sheet submitted by Delhi Police under NDPS Act before the Additional Special Judge, Patiala House - the relied upon documents have not been supplied to the appellant. Ashish Sharma, Prop. of M/s Hindustan Exim India, whose statement has been heavily relied in the present proceedings (which was recorded by the Delhi Police) was never exa....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Purchase of property - Issuance of direction or order to the effect to set aside or not to accept the recommendation made by the learned Mr. G.P. Thareja - the Presiding Officer of the One Man Committee constituted by this Hon’ble Court in its XIIIth Report dated 05.02.2007 - completion of process of registration/execution of the Sale Deeds of the land - providing of all necessary documents - violation of principles of natural justice - HELD THAT:- Both the reports, namely, the Thareja Committee Report and the SFIO Report have rejected the claim of the applicant. It is not in dispute that the agreement to sell and power of attorneys were executed. The Thareja Committee report however concludes that material evidence has not been produced and that the transaction is not genuine and bona fide. The report gravely doubts that any consid....... + More

Penalty u/s 383(1A) of the Companies Act, 1956 - non-application of mind - the company did not have a Whole-time secretary - order passed only on the basis of a bare complaint without any supporting documents - allegation is that despite having share capital of more than ₹ 50 lacs as on 31.03.1996, the company did not have a Whole-time secretary from 18.09.1997 - HELD THAT:- The respondent in this case as well, chose to file the criminal complaint without any supporting documents despite referring to them in the body of the complaint - A perusal of the complaint would show that in Para 4, it was stated that the criminal complaint had been filed only on the basis of an Inspection Report, conducted at the behest of the respondent which revealed the alleged contravention. However, neither the contents of any Inspection Report were repr....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appointment of RP/IRP - whether an ex-employee of the ‘Financial Creditor’ having rendered services in the past, should not be permitted to act as ‘Interim Resolution Professional’ at the instance of such ‘Financial Creditor’, regard being had to the nature of duties to be performed by the ‘Interim Resolution Professional’ and the ‘Resolution Professional’? HELD THAT:- It is not in controversy that Mr. Shailesh Verma proposed as ‘Interim Resolution Professional’ by the ‘State Bank of India’ is an exemployee of the ‘Financial Creditor’ having served the organisation for 39 years in the past and retired as the Chief General Manager in 2016. Merely, because Mr. Shailesh Verma continues to draw pension for services rendered in past does not clothe ....... + More

Vires of Section 196 of the IBC - power of IBBI to levy fees on IP - excessive delegation - whether Regulation 7(2)(ca) is ultra vires Section 196 and 207 of the IBC? - HELD THAT:- Section 196(1)(a) expressly confers power on the IBBI to register insolvency professional agencies and IPs, and to renew, withdraw, suspend and cancel such registration. Section 196(aa) expressly empowers the IBBI to regulate the working of IPs, insolvency professional agencies and information utilities and Section 196(c) thereof expressly empowers the IBBI to levy fees or other charges including for registration of insolvency professional agencies and IPs and for the renewal of such registration. In addition, it is found that Section 207(1) mandates that every IP should register himself with the IBBI within such time, in such manner, and on payment of such fee....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Failure to close the trading window - provisions of Clause 4 of Minimum Standards for Code of Conduct to Regulate, Monitor and Report Trading by Insiders mentioned in Schedule B read with Regulation 9(1) of PIT Regulations, 2015 - As alleged that the acquisition of AIMIN by Ecap was a price sensitive information which had come into existence on January 25, 2017 upon signing of Term Sheet - HELD THAT:- Price movement of the scrip of EFSL at the relevant point of time. Corporate announcement was made on the platform of BSE at 18:56:48 hours on April 05, 2017 i.e. after the market had closed on the said day. The scrip of EFSL had closed at ₹ 167.90 on the said day. However, I note that the scrip had opened at ₹ 175.95 the next day. This shows that the price of the scrip of EFSL had registered a spike of 4.79% on April 06, 2017. E....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proceeding against a Director of a company for contravention of provisions of FERA, 1973 - Non-executive Director responsibility for the conduct of business of the Company - notice dated 19.02.2001 was issued by the Deputy Director, Enforcement Directorate to decide as to whether the adjudication proceedings as contemplated in Section 51 should be held against the Directors for contravention - HELD THAT:- The appellant had not submitted any reply to show cause notice dated 19.02.2001 which though was addressed to the Company and all Directors and the reply was sent only by the Company Secretary on 26.03.2001. The representation dated 29.10.2003 was the first representation submitted by the appellant before the adjudicating officer during course of personal hearing. What is said by a person who is called for personal hearing even though gi....... + More

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

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

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

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

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

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

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

Validity of SCN - Export of services or not - Services provided outside India - Parent Company / 100% holding company - Distinct Person or not - POPOS Rules - services rendered by the Petitioner No.1 to Linde AG, Germany - extended period of limitation. HELD THAT:- Rule 6A of the Rules, 1994 provides that services rendered would be treated as “Export of services” when clause (a) to clause (d) refers to provider of service is located in the taxable territory and recipient of service is located outside India and the service is not a service specified in Section 66D of the Act and the place of the provision of the service is outside India and as per clause (e) the payment for such service has been received by the provider of service in convertible Foreign Exchange. It emerges that the petitioner is fulfilling all the conditions, ....... + More

Extended period of limitation - - Manpower Recruitment or Supply Agency Services - two views of the Tribunal itself in two different orders - HELD THAT:- The Tribunal has not at all assigned proper reasons for its order on the said issue no. 4, regarding taxability of the manpower services provided by the Assessee, and whether in those facts and circumstances of the case, the extended limitation could be invoked by the Department or not. Without discussing the relevant facts and ratio of its two judgments, referred to and relied on by the learned Tribunal, and the facts of the case of the respondent/Assessee, merely writing these citations in the said order itself is not enough. The order of the final fact finding body at the level of Tribunal has to be self contained and should discuss the relevant facts and reasons for arriving at a par....... + More

Direction to the respondent no.2 to consider the petitioner’s representations dated 29th January, 2020, 31st January, 2020 and the email dated 24th June, 2020 - amendment/modification of the categorization of her application as “litigation” instead of “voluntary” in the statement filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The petition is disposed of with a direction to the respondent no.2 to decide the petitioner’s representations dated 29th January, 2020, 31st January, 2020 and the email dated 24th June, 2020, after giving an opportunity of hearing to the petitioner, within three weeks in accordance with law. Issue Notice.

Rejection of declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejected on the sole ground that the demand was neither quantified nor communicated to the petitioner on or before 30th June, 2019 - HELD THAT:- In the opinion of this Court, a liberal interpretation has to be given to the Scheme as its intent is to unload the baggage relating to legacy disputes under the Central Excise and Service Tax and to allow the businesses to make a fresh beginning - Since it is the petitioner’s case that she had admitted her liability to pay service tax on 18th May, 2018 itself, this Court is of the view that the respondents should have given an opportunity of hearing to the petitioner before rejecting the declaration dated 29th December, 2019 under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. The impugned ....... + More

Reverse charge mechanism - Banking & other financial services - recipient of services or not - services provided by the Foreign Banks situated outside India - extended period of limitation - October, 2010 to March, 2015 - whether the Foreign Banks have provided any service of transfer/exchange of documents and transfer of money relating to exports made by the exporters in India, who receive money through the Appellant Bank against the said export? HELD THAT:- The nature of the transactions that take place when an exporter in India exports goods to an importer outside India has been described in the preceding paragraphs. The Appellant Bank provides service to the exporters by sending the export documents to the bank of the importer abroad and collects payment. Thus, the role of the Appellant Bank is to settle the payment relating to ex....... + More

Levy of service tax - Franchisee Service - Representational right - receiving and distribution of communication signals. - Sharing of 20% revenue to Siti Cable - amendment made in the definition of “franchise” under section 65(47) of the Finance Act with effect from June 16, 2005 - amendment is for the reason that has persuaded the Principal Commissioner to drop the demand of service tax for the period from July 1, 2003 up to June 16, 2005 - extended period of limitation. Whether the service contemplated under the agreements is a “franchise” service as contended by the Department or a service in the nature of “supply of tangible goods for use” w.e.f. May 16, 2008, as contended by Siti Cable? HELD THAT:- Franchise service has been defined under section 65(47) of the Finance Act to mean an agreement by wh....... + More

Condonation of delay of 289 days in appeal before the tribunal and delay of 24 days before the commissioner (appeals) - The company were under liquidation proceedings - 100% EOU Software Technology Park Scheme - refund of input service tax credit used in the export of output services - October to December 2013 - HELD THAT:- the delay in filing the appeal has been satisfactorily explained. After going through the grounds of appeal, I find that there is no intentional and deliberate delay in filing the appeal and the delay occurred on account of the reasons stated in the application which is satisfactorily explained. In view of this, I condone the delay by allowing the COD application. Delay of 24 days before the commissioner (appeals) - Held that:- The Department has not brought any evidence on record to prove that the Order-in-Original No....... + More

Duplication of demand by issuing two show cause notices (SCN) for the same period - Sabka Vishwas Legacy Disputes Resolution Scheme, 2019 (SVLDRS) - remission of differential service tax - short payment of tax - periods December 2008 to January 2010 - whether there was a duplication of demand in the two SCNs dated 12.10.2011 and 09.02.2012? - HELD THAT:- There is an overlap between the period covered under SCN1 and SCN2, the former covering the period December 2008 to January 2010 and the latter the period April 2008 to March 2010. The periods December 2008 to January 2010 are thus common under both SCNs - revenue agrees in counter that the demand of ₹ 19,15,941/- is duplicated. Hence, according to them, the demand under OinO2 stands reduced to ₹ 10,00,775/-of which 30%, as per the Scheme, is a sum of ₹ 3,00,232.50. Ther....... + More

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

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

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

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

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

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

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

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

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

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

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

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

Effect of amendment in the notification - Scope of the term "Substitute" - Refund of Cenvat credit - time limitation - relevant date for filing refund claim - one year from the relevant date and the relevant date would be the date of receipt of payment in convertible foreign exchange with regard to the export - whether the reckoning of the relevant period brought about through the notification No.14/16 dated 01.03.2016 by substitution would be prospective or retrospective in nature? HELD THAT:- Originally, Notification No.27/12 dated 18.06.2012 prescribed the procedure for filing the refund claims, by which, the claimant was required to file the application before the expiry of period specified in Section 11B of the Central Excise Act. Clause 3(b) of the Notification No.27/12 dated 18.06.2012 came to be “substituted”....... + More

CENVAT Credit - input services - tour packages provided to dealers - nexus with sales promotion or not - HELD THAT:- Hon’ble Gujarat High Court in the case of GUJARAT STATE FERTILIZERS AND CHEMICALS LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, SURAT-II [2016 (1) TMI 1063 - GUJARAT HIGH COURT] had examined the particular agreement and it was clear that as per the said agreement the agents were appointed as stockiest - in the present case the tour packages were arranged for dealers. Further, this Tribunal in the case of SIMBHAOLI SUGAR LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT-II [2018 (4) TMI 1657 - CESTAT ALLAHABAD] have held that if commission is paid to sales commission agent for effecting sale of goods manufactured by the assessee then service tax paid on such commission would be available as ....... + More

Maintainability of appeal - non-compliance of pre-deposit under section 35F of Central Excise Act, 1944 - HELD THAT:- The petitioners have not been able to make out any exceptional grounds of undue hardship for waiver of mandatory pre-deposit under section 35-F of C.E.A, 1944, as amended with effect from 06th August 2014 in exercise of writ jurisdiction. Petition dismissed.

Refund of duty accumulated on account of export - Export of goods - Rule 5 of Cenvat Credit Rules, 2004 - Rebate of duty u/r 18 of CER claimed - HELD THAT:- As per Rule 5 of the Cenvat credit Rules, 2004, a manufacturer who has cleared his final product for export without payment of duty under bond or letter of undertaking can file refund claim under Rule 5 of Cenvat Credit Rules, 2004 - Admittedly, none of these conditions has been satisfied by the appellant as they have neither cleared the goods under bond without payment of duty or through letter of undertaking. therefore, fundamentally, the appellant has not complied with the condition of Rule 5 of Cenvat Credit Rules, 2004. Further, as per the proviso of the said rule, no refund of Cenvat credit shall be allowed if manufacturer avails drawbacks allowed under customs duty or Central E....... + More

CENVAT Credit - violation of Section 5A(1A) of the Act and Rules 3(1) and 6(1) of the Central Excise Rules, 2002 - applicability of N/N. 65/95 dated March 16, 1995 - whether Notification No. 65/95-CE is a notification which grants exemption “absolutely” as envisaged under Section 5A(1) of the Act and consequently sub-section (1A) of Section 5A is attracted and therefore the appellant was bound to avail exemption granted by the said notification and the Cenvat credit availed was irregular, being impermissible as per Rule 6(1) of the Cenvat Credit Rules? HELD THAT:- Section 5A (1) of the Act confers power upon the Central Government to exempt “either absolutely or subject to such condition” which are to be fulfilled “before or after removal”. Notification No. 65/95-CE comes under the second limb of Sectio....... + More

Jurisdiction - power to remand the case to authority for fresh adjudication after taking additional evidence - CENVAT Credit - credit for the same services allowed for previous years/period - input services - Manpower, Fabrication & Erection services - WCT SERTX services - Repairs & Maintenance service - interpretation of definition of input services - initiation of Recovery Proceedings on completely wrong implication of law - HELD THAT:- The assessee having lost the opportunities before the three authorities below, namely the Assessing Authority, the Commissioner of Central Excise (Appeals) as well as Tribunal, all of them being fact finding body and who could have allowed such evidence to be brought on record by the assessee to examine the claim of CENVAT Credit of the assessee on merits, the only submission which has impressed ....... + More

Classification of goods - Kaoline Coated Paper - whether aluminum coated paper/metalized paper cleared by the appellant during the disputed period merits classification under Central Excise Tariff Heading 48101390 or 48115900? - HELD THAT:- To qualify classification under Tariff Item No.48115900, the goods should be other than “bleached, weighing more than 150 g/m2” and should either be coated with plastic or should be impregnated with plastic or covered with plastic. Also, CRCL vide its report dated 24.11.2011 have categorically reported that the samples were free from plastic material - thus, the classification arrived at by lower authorities is not sustainable. Appeal allowed - decided in favor of appellant.

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

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

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

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

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

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

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

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

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

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

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

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

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

Recovery of tax arrears from the Directors - Resignation from the post of Directors - respondent company wound up - HELD THAT:- Section 19(b) of the Tamil Nadu General Sales Tax Act as well as Section 18 of the Central Sales Tax Act makes, such of those Directors of the Company at the time of winding up, liable for the tax imposed. The said provisions would apply only if a Company had wound up and the Directors, who held the status during the time of winding up of the Company, could be held liable for the tax liability. In the present case, all the petitioners, who held the status of a Director of the fifth respondent Company, had resigned much prior to the assessment years, when the Sales Tax arrears were due or the winding up of the Company. As such, by no stretch of imagination, can the petitioners herein be deemed to be the Directors ....... + More

Refund alongwith interest - petitioner states that the respondents have not issued the refund due to the petitioner although the assessments of the petitioner up to 30th June, 2017 under Central Sales Tax Act, 1956 have been finalised. HELD THAT:- The present writ petition is disposed of with a direction to the respondents to decide the petitioner’s refund application along-with interest within ten days in accordance with law. Issue notice.

Principles of Natural Justice - violation was sought to be corrected by permitting the petitioner to approach the Assessing Officer within one week from date of receipt of a copy of that order - copy application made after a period of six months from the date passing of the order - mismatch between the turnover disclosed in the returns filed by the petitioner and those in the annexures of the selling/purchasing dealers - benefit of Circular No.3 of 2019 rejected - HELD THAT:- The learned Single Judge has opined that no opportunity was extended to the petitioner to substantiate the turnover reported by him in the revised returns to correct which, an opportunity was directed to be extended to the petitioner. Neither the petitioner nor the Department has availed of this opportunity as extended by the court, and there has been considerable de....... + More

Maintainability of appeal - refusal to exercise discretion under Article 226 for reason of efficacious alternative statutory remedies - the original penalty order issued on the basis of an inspection was set aside in a statutory revision by the 3rd respondent and remanded for fresh consideration - HELD THAT:- The 3rd respondent Commissioner would, on an appeal being filed, immediately constitute another Deputy Commissioner as the appellate authority for consideration of this particular appeal, if the very same person who passed the impugned order is now the Appellate Commissioner - The appellant would be entitled to raise that contention before the First Appellate Authority or the recovery Officer if any such recovery is attempted. Appeal disposed off.

Reopening of assessment - levy of tax on turnover - tax on sale of Duty of Entitlement Pass Book (DEPB) - it was claimed that since the relevant exports have been transacted at Chennai, the transfer of DEPB credit had to be in Tamil Nadu - HELD THAT:- The object of DEPB scheme is to neutralize the incidence of customs duty of the import content of the export product. The neutralization is granted by way of grant of duty credit against the export product, thereby enabling the exporter to claim set-off of the customs duty component at the time of import. The petitioner was granted the DEPB under the provisions of the MVAT Act at Mumbai and the sale and delivery of the pass book was completed in Maharashtra - Section 2(33) of the Tamil Nadu Value Added Tax Act restricts levy of tax on sales that takes place outside the State of Tamil Nadu. T....... + More

Validity of assessment order - appeal dismissed in default - benefits of the limitation as per provisions of Section 25(1) of KVAT Act - HELD THAT:- Appeals preferred against the assessment orders Exts.P1 to P3 and appeals Exts.P4 to P6 were filed have been dismissed in default vide order dated 16.03.2020 Exts.P9 to P11 - Section 55(5) of the Kerala erstwhile Act, 2003 do not specifically envisage any said provisions for appellate authority to dismiss appeal in default but said provisions as contended by the Government Pleader empowers the appellate authority to pass such an order it may deem appropriate. Nothing prevented officer to follow principles of natural justice which are conspicuously absent from the impugned order as it reflects only of affording two opportunities - It is also matter of concern that during the period when the ap....... + More

Constitutional validity of Section 3(1A) of the Kerala Surcharge on Taxes Act, 1957 - Levy of surcharge on sales and purchase taxes - additional levies on the “big chains” coming into the “retail sector” - HELD THAT:- It is by now a settled law that the surcharge is in the nature of tax and that being so, levy of surcharge is not only violative of Article 301, but unconstitutional, unless similar levy of surcharge is also imposed on goods manufactured or produced in the State of Kerala. Section 3(1A) does not satisfy the first limitation prescribed under Article 304(a), i.e., similar levy on dealers engaged in sale of local goods and the second limitation permitting the State to levy a tax under Article 304(a) to be not discriminatory - The levy should not create any discrimination between the goods so imported or ....... + More

Service of notice - time limitation - Escaped assessment of tax - escaped turnover - stand of the respondent is that the surprise inspection held in the business premises of the petitioner revealed certain suppressions - Section 27 (1) (a) of the TNVAT Act, 2006 - HELD THAT:- The stand of the learned Special Government Pleader is that since the surprise inspection took place in the year 2016, this Court ought not to compute the limitation period from 30.06.2012. I am not able to agree. Even according to the respondent, the inspection took place in the year 2015; nothing stopped the respondent from taking action for assessing the escaped turnover immediately thereafter. Even if the respondent had taken action in the year 2016-2017 that would have been within the limitation period. Not having done so, the issuance of notice on 28.08.2018 af....... + More

Assessment in the name of merged company - Violation of Principles of Natural Justice - service of SCN - SCN was allegedly issued by the 1st respondent proposing to levy tax on turnover of ₹ 31,21,764/- allegedly for inter-State sales effected by MAPL, but the petitioner contends that it did not receive it - Levy of turnover tax - inter-State sales - HELD THAT:- The impugned assessment order has been passed by the 1st respondent on 23.09.2020 with respect to the assessee, MAPL. But, MAPL had been merged with the petitioner, MEPL vide order dt.03.05.2017 of the NCLT, Hyderabad w.e.f. 01.04.2015. This fact had been informed by the petitioner by e-mail dt.26.11.2019 to the 1st respondent enclosing copy of the order of the NCLT - the 1st respondent, who is the Assessing Officer of the MAPL, ought to have dropped further proceedings sinc....... + More

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

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

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

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

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

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

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

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

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

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

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

Dishonor of Cheque - amount in words and figures differs - the amount written in words is also uncertain - ambiguity in amount to be paid - very factum of the instrument in dispute - valid cheque or not - application seeking discharge was moved - application for discharge was dismissed and the framing of notice u/s 251 Cr.P.C. was ordered - HELD THAT:- In view of section 6 of the NI Act, a cheque is a bill of exchange which is drawn on a specified banker and is payable otherwise than on demand. Therefore to be a cheque, an instrument has to satisfy the conditions of being a bill of exchange first and thereafter, if it is a valid bill of exchange and directed to a banker, it will become a cheque. There could have been no dispute about this instrument being a cheque within the definition of section 6 of the NI Act but for its failure to mee....... + More

Smuggling - cannabis (ganja) - contraband item - rebuttal of presumption - presumption against the accused of culpability under Section 35 - fabricated and fictitious document - HELD THAT:- In view of the nature of evidence available it is not possible to hold that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt - The police investigation was very extremely casual, perfunctory and shoddy in nature. The appellant has been denied the right to a fair investigation, which is but a facet of a fair tr....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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