Revision u/s 263 - Directions for assessee's income derived from holiday homes under its ownership has to be assessed as income from house property and that from the other holiday homes is to be treated as income from “other” sources - HELD THAT:- We find no reason to sustain the PCIT’s foregoing stand that the assessee's income derived from its holiday homes has to be bifurcated on ownership basis (supra). CIT(DR) fails to dispute that the AO had very examined the very issue and assessed the assessee’s income from the said holiday homes under the business head than that claimed as income from other sources - PCIT’s observations that the assessee could not demonstrate that “the income from holiday homes as disclosed by it was in any manner whatsoever was examined” during assessment; turns ....... + More

TDS u/s 195 - order passed u/s 201(1A) on failure pay the TDS deducted on royalty payments - Time barred proceedings - CIT(A) has invoked Section 201(3)(ii) and holds that the assessee's impugned default had been committed in FY 2002-03 and the AO's notice stood issued on 03.04.2009, the proceedings initiated herein are barred by limitation since instituted beyond a period of six years from the end of the relevant financial year - HELD THAT:- This is very very fair in stating that the assessee herein is not an Indian resident so as to be covered under the foregoing statutory provision describing limitation in initiation of the impugned proceedings. We therefore reverse the CIT(A)'s action holding the impugned proceedings as time barred. Assessing Officer's order dated 10.06.2009 stands restored as a necessary corollary. Revenue's appeal is allowed.

Reopening of assessment u/s 147 - Deduction u/s 80IB(10) - HELD THAT:- AO held a bona fide belief that as the assessee had contravened the provisions of Sec. 80IB(10)(a)(iii), it was thus not entitled for claim of deduction u/s 80IB; and the A.O on the basis of verifications carried out in the course of the assessment proceedings for A.Y 2012-13, had gathered, that the built-up area of some of the residential units in the project viz.”Adityavardhan” was more than the prescribed area of 1000 sq. ft, which being in contravention of the norms prescribed in Sec. 80IB(10)(c) rendered the assessee ineligible for claim of deduction under the said statutory provision. Accordingly, the reopening of the case before us was carried out on the basis of fresh “tangible material” which clearly established that the A.O had a &lsqu....... + More

Depreciation on ‘Content Management Software’ (‘CM Software’) u/s 32 @12.5% - Disallowance of depreciation claimed on ‘webmaster software for which the appellant failed to satisfy the test of ownership for claiming depreciation - alternatively, the expenditure be allowed as Revenue expenditure u/s 37(1) - HELD THAT:- Assessee has given the description of the software, its functionality which was also submitted before the CIT(A) - From the details and the submissions it is the assessee’s contention that the CMS Software has been developed by it, owned by it and it is used for the purpose of business by updating and managing the Income Tax Act and the other Acts and Rules published by assessee each year. The contention of the assessee of having owning the CMS software by it has not been controverted by th....... + More

Disallowance of interest u/s 36(1)(iii) - Investment in the share capital of subsidiary company - HELD THAT:- The undisputed fact is that this is not the first year of business of the assessee. It is also not in dispute that the subsidiary companies of the assessee are also engaged in the same business of production, generation, transmission and distribution and supply of electricity. The facts of the case in hand are on stronger footing in as much as in the case in hand, the appellant did not advance any loan to its subsidiaries but has invested in the shares of subsidiary companies. As mentioned elsewhere, subsidiary companies of the appellant are engaged in the same business as that of the assessee which is also evident from the main object clause in the Memorandum of Association. See SA BUILDERS LTD.[2006 (12) TMI 82 - SUPREME COURT] ....... + More

Revision u/s 263 - Capital gain computation - A.O had failed to appreciate that as the assessee had sold the property for a sale consideration which was less than the value assessed by the stamp valuation authority therefore, the provisions of section 50C were applicable and A.O had erred in failing to verify that now when the assessee for computing the indexed cost of acquisition/improvement had included interest paid on borrowed funds that were utilized for construction of property, therefore, whether the same was claimed by the assessee as an expenditure under any head viz. “business income” or “Income from house property” in the previous assessment years, and if so, the same were to be disallowed during the year under consideration - HELD THAT:- Although both the parties i.e the assessee and the purchaser had e....... + More

Reopening of assessment u/s 147 - validity of the second notice issued by AO under section 148 - HELD THAT:- We note that section 148 of the Act does not authorize the AO to issue fresh notice when proceedings on a previous notice u/s. 148 of the Act are still pending and have not been finally disposed of. Similar view was taken in Commercial Art Press Vs. CIT [1978 (8) TMI 76 - ALLAHABAD HIGH COURT] wherein it was held that when reassessment proceedings commence following the issue of a notice under section 148 and the same are pending, no fresh notice can be issued under the same provision. The Hon’ble Madras High Court while disposing of the order in A.S.S.P. & Co. 1986 (6) TMI 1 - MADRAS HIGH COURT observed that there could also be no dispute that after the reassessment order is made in pursuance of the first notice issued u....... + More

Reopening u/s 148 - Unexplained cash credit u/s 68 - HELD THAT:- Reasons recorded by the AO that the assessee company received share capital from the entry operator proved to be incorrect based on the facts. Attributing the entry of ₹ 7,00,000 /- to the share capital of the company by the AO to the increased share capital of ₹ 99,00,000 /- found to be incorrect based on the details of the share capital received by the company from the five entities. We find that the information available with the Assessing Officer pertains to receipt of ₹ 7,00,000/- from two entities namely, Manimala and Virgin Capital whereas the AO made addition of ₹ 14,00,000/- u/ s 68 of the Act. AO has not mentioned whether this ₹ 14,00, 000/- is on account of share capital or loans or expenses. No details of these entries have been give....... + More

Method of accounting - Completed contract method of accounts - scope of amendment to Section 145 of the Act w.e.f. 01.04.1997 and applicable to the current assessment year - HELD THAT:- Assessee is following mercantile system of accounting and as per notes to the accounts, the assessee is following completed contract method of accounting for contracts. The aforesaid method of assessment has been accepted by the department in the past and therefore, in view of law laid down by the Supreme Court in BILAHARI INVESTMENTS PVT. LTD.[2008 (2) TMI 23 - SUPREME COURT] the Commissioner of Income Tax (Appeals) as well as the tribunal has rightly held that there was no justification on the part of the assessing officer to change the earlier method adopted by the assessee and to determine the income on estimate basis. Assessee was following completed ....... + More

Undisclosed stock - relevant assessment year - survey proceedings u/s.133A - assessee was agreed to pay self-assessment tax on it by accepting that the stock discrepancy noted - HELD THAT:- We observe from the order passed u/s.143(3) of the assessment year 2012-2013, there is no any single word found in regard to survey proceedings u/s.133A of the Act, whereas the documents were available with the same AO i.e. Ward-2(2), Balasore and the assessee accepted some discrepancy in stock and agreed to pay tax thereon. CIT(A) after taking into account of the two branches, enhanced/modified the assessment made by the AO but has given substantial relief after considering all the submissions and documents available before him. As gone through the statements recorded by the survey team of partners of the firm the total discrepancy in stock declared o....... + More

Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As the interest free funds are in excess of the investments, the presumption that arises is that interest free funds have been invested in investments which do not yield taxable income as held in the case of CIT vs. Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT]. We find no infirmity in the order of the ld. CIT(A). Thus, we uphold the deletion of the disallowance made under Rule 8D(2)(ii) of the Rules. Disallowance made under Rule 8D(2)(iii), CIT(A) has directed the AO to consider only those investments which have earned dividend during the year for the purpose of computation of disallowance under the Rules. This direction is in line with the propositions of law laid down in the case of CIT vs. M/s. REI Agro Ltd. [2014 (4) TMI 713 - CALCUTTA HIGH COURT] and in the case....... + More

TP Adjustment - interest due on outstanding receivable from Associate Enterprises - ALP adjustment u/s. 92C(3) towards Interest @ 7% on Outstanding Receivables from AEs on hypothetical and notional basis - HELD THAT:- The assessee during the year under consideration had not availed any loan from AEs or unrelated third parties and was not incurring any interest cost. The agreement between the assessee and its AE vis-à-vis terms of payment within stipulated period of 90 days cannot form basis for holding the existence of International transaction between assessee and its AE, where outstanding is not received within stipulated period. Such is the proposition laid down in Pr. CIT-V vs Kusum Health Care Pvt.Ltd. [2017 (4) TMI 1254 - DELHI HIGH COURT] especially where working capital adjustment has been allowed to assessee. In any case, ....... + More

Addition u/s 68 - Unsecured Loan - Assessee said he has received the above loan from M/s. Maharassa Visions Pvt. Ltd., which is one of the group concerns - HELD THAT:- In this case, the source of money lent is loan from another group company; group company received money from the assessee itself, the transactions is duly reflected in the balance sheets of respective companies. Even the assessing officer himself has stated that source of money lent to the assessee is the assessee itself. If the view of the ld AO is to be believed then, NBFC companies who have limited earning but lent the money out of the money borrowed will never pass the test of section 68 of the act. Thus, merely filing Nil return by lender, if the sources are clearly established with overwhelming evidences of the bank statements of all the concerned parties duly support....... + More

Deduction u/s 80P - claim denied as assessee was essentially doing the business of banking and disbursement of agricultural loans by the assessee was only minuscule - HELD THAT:- The gold loans may or may not be disbursed for the purpose of agricultural purposes. Necessarily, the A.O. had to examine the details of each loan disbursement and determine the purpose for which the loans were disbursed, i.e., whether it is for agricultural purpose or non-agricultural purpose. In these cases, such a detailed examination has not been conducted by the A.O. A.O. has not examined to what extent loans, if any, has been disbursed to non-members. There is a passing statement in the assessment order that there have been disbursement of loans to non-members as well. In the light of the dictum laid down by the Full Bench of the Hon’ble Kerala High C....... + More

Deduction u/s 80P(2)(a)(i) - assessee was essentially doing the business of banking and disbursement of agricultural loans by the assessee was only minuscule - HELD THAT:- The narration in loan extracts / audit reports by itself may not conclusive to prove whether loan is a agricultural loan or a non-agricultural loan. The gold loans may or may not be disbursed for the purpose of agricultural purposes. Necessarily, the A.O. had to examine the details of each loan disbursement and determine the purpose for which the loans were disbursed, i.e., whether it is for agricultural purpose or non-agricultural purpose. In this case, such a detailed examination has not been conducted by the A.O’s. In the light of the dictum laid down in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT [2019 (3) TMI 1580 - KERALA HIGH COURT] we ar....... + More

Exemption u/s 11 - rejecting the application filed by the Welfare Fund u/s 12A - applicant has not established genuineness of the activities of the fund when the memorandum and other documents clearly established the same - exemption u/s 80G - HELD THAT:- Following the order passed by the coordinate Bench of the Tribunal in the case of Bar Council of Delhi vs. CIT (E) [2020 (7) TMI 171 - ITAT DELHI] we are of the considered view that the appellant trustee committee being established under the Bar Council of Delhi being engaged in safeguarding the rights, privileges and interest of the advocates, its dominant purpose is the advancement of general public utility within the meaning of section 2(15) of the Act, as such, genuineness of its activities and object of charitable purpose is proved, thus entitled for registration u/s 12AA and conseq....... + More

Capital asset chargeable to tax u/s. 45 (5) - land in question was situated within Municipal Limits of Faridabad - HELD THAT:- The fact is that the assessment order was framed exparte. The documents filed before us show that the assessee has entrusted his counsel to furnish evidence before the first appellate authority but a perusal of the order of the first appellate authority show that the appellate proceedings were not properly attended. We have also given through the application for the admission of additional evidences. We are of the considered view that these documents go to the root of the matter. Therefore, we deem it fit to restore the entire quarrel to the files of the AO. The assessee is directed to furnish all those documents before the AO and the AO is directed to decide the issue fresh after considering the documents and after giving a reasonable opportunity of being heard to the assessee. - Appeal filed by the assessee is treated as allowed for statistical purpose.

Income accrued in India - Interest income from foreign currency loan and Securities - beneficial ownership of funds - Eligibility of exemption under Article 11(3)(c) of India - assessee placed on record the Tax Residency Certificate (for short “TRC”) issued by the Mauritius Revenue Authority evidencing the assessee‟s tax residence in Mauritius - HELD THAT:- We find that the said issue had been deliberated upon by the Tribunal in the assessee‟s own case for the preceding years [2020 (3) TMI 1242 - ITAT MUMBAI] wherein in the backdrop of identical fact pattern involved in the said years, it has consistently been held that as per Article 11(3)(c) of the India-Mauritius tax treaty the interest income would not be exigible to tax in India. - Decided in favour of assessee.

Deemed dividend u/s 2(22)(e) - assessee company has received the loans from a company in which the substantial shareholder(s) of the assessee company are holding substantial interest in the said concern - CIT-A deleted the addition - HELD THAT:- A payment made by a company on behalf, or for the individual benefit, of any such shareholder is treated by cl. (e) to be included in the expression 'dividend'. Consequently, the effect of cl. (e) of s. 2(22) is to broaden the ambit of the expression 'dividend' by including certain payments which the company has made by way of a loan or advance or payments made on behalf of or for the individual benefit of a shareholder. The definition does not alter the legal position that dividend has to be taxed in the hands of the shareholder. As such, the dividend within the meaning of cl. (e)....... + More

Allowance of expenses u/s 57(iii) against income from “other sources” - depreciation and car expenses - HELD THAT:- As is discernible from the assessment order for A.Y 2013-14, the A.O had disallowed 50% of the assessee‘s claim for car depreciation and car expenses primarily for the reason that he had not furnished any evidence with regard to maintenance of any log book. As the fact situation during the year under consideration in context of the aforesaid issue before us remains the same, therefore, after principally agreeing with the view taken by the Tribunal as regards the entitlement of the assessee towards claim for car depreciation and car expenses, we accept the alternative claim of the assessee and restrict the disallowance of car depreciation, car insurance expenses and car expenses to the extent of 50% of the c....... + More

Disallowance of interest u/s 36(1)(iii) - assessee has utilized the interest bearing fund for capital work in progress - A.O relying on the ground that the owned fund available with the assessee were more than the capital work in progress - CIT-A deleted the addition - HELD THAT:- No infirmity emerges from the order of the CIT(A) who had rightly observed that as the assessee had sufficient self-owned funds to justify the investment made towards capital WIP, therefore, no part of the interest expenditure pertaining to interest bearing borrowed funds could have been disallowed u/s 36(1)(iii) of the Act. Insofar the claim of the revenue that they had not accepted the judgment in the case of CIT Vs. HDFC Bank Ltd. (2014) [2014 (8) TMI 119 - BOMBAY HIGH COURT]and had filed a SLP before the Hon’ble Supreme Court is concerned, we are afrai....... + More

Exemption u/s 11 - Claim denied as activities carried out by the appellant were in the nature of business and confirmed computation of the excess of income over expenditure of previous year arising out of charitable activity of appellant as Income from business as per the manner - HELD THAT:- As decided in own case [2019 (10) TMI 973 - ITAT AHMEDABAD] Activities carried out by the assessee is for advancement of any other object of general public utility without any intention of the profit motive after considering the provision of the Gujarat Maritime Board Act, 1981 and fact of the case, it cannot be said that the activities carried out by the assessee are in the nature of trade commerce or business. Predominant object of the assessee is to administer control on miner ports in the State of Gujarat and there is no profit motive as demonstr....... + More

Disallowance of software expenses - Disallowance is in respect of expenditure claimed towards “repairs - computers-annual maintenance” and “Repairs-computers-others” - AO has treated it as capital expenditure on the reasoning that it was towards purchase of licenses and allowed depreciation at the rate of 25% - HELD THAT:- While deciding identical issue in assessee’s own case in Assessment Year 2009-10 [2019 (5) TMI 689 - ITAT MUMBAI] the Tribunal accepting assessee’s claim has allowed the deduction claimed as revenue expenditure. The same view was reiterated by the Tribunal while deciding assessee’s appeal in Assessment Year 2010-11 [2020 (1) TMI 1200 - ITAT MUMBAI] in the orders referred to above. Facts being identical, respectfully following the decisions of the co-ordinate Bench (supra), we al....... + More

Disallowance u/s 40(a)(ia) - Scope of amendment brought about in the Finance Act, 2010 in Section 40(a)(ia) - retrospectively or prospectively effect of amendment - HELD THAT:- The issue whether the aforesaid amendment being curative in nature has retrospective operation was considered by the Supreme Court in the case of CALCUTTA EXPORT COMPANY [2018 (5) TMI 356 - SUPREME COURT] and it was held that the purpose of amendment made by Finance Act, 2010 is to solve the anomalies and proviso was inserted to remedy unintended consequences and to make the provision workable. A proviso which supplies an obvious omission in the Section is required to be read into the Section to give the Section a reasonable interpretation and requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the Section as a w....... + More

Revision u/s 263 - Reopening of assessment u/s 147 dropped - exemption u/s 11 - non recording any reasons by recording its own reasons for the first time in its order presuming the reasons on which the AO would have passed an order - HELD THAT:- From perusal of the proceeding, it is evident that the assessee was called upon to furnish certain details as well as documents on 28.10.2004 and 06.01.2005, which were supplied by the assessee on 18.02.2005. The Deputy Director, Income Tax (Exemptions) on 23.02.2005 confirmed that the assessee’s consolidation of accounts was done at Mumbai and assessment was completed. After examining the submissions, made by the assessee, the proceeding under Section 147 of the Act were dropped. Director of Income Tax (Exemptions) in its order has found that the assessee for the Assessment year 1997-98 had....... + More

Maintainability of Advance Ruling application - scope of Advance Ruling - Levy of IGST or SGST & CGST - rate of gst - Fixing of Air conditioner & VRV system in Goa for a client (Recipient) registered outside Goa but not registered in Goa - Suppling of Air conditioner to client (Recipient) registered outside Goa but not registered in Goa consisting of Air conditioner (28%) Copper pipe, Drain pipe, Electric cable etc (18%) and fixing rate (18%) - Supplying of Air conditioner (28%) for residential house in Goa consisting of in case require additional item Copper pipe, Drain pipe, Electric cable etc (18%) and fixing rate (18%) - installation of Air conditioner (28%) can be done by sister concern or Third party to client based in Goa or Outside Goa @ (18%) GST for fixing - composite Dealer raise Service Bill for Fixing of Air Condition....... + More

Maintainability of appeal - appealable order or not - Detention of goods alongwith vehicle - Section 129 (3) of the U.P. G.S.T. Act and C.G.S.T. Act, 2017/ Section 20 of the IGST Act, 2017 - HELD THAT:- The instant petition has been filed bye-passing the remedy of appeal under Section 112 of the Act on the ground that the appellate tribunal has not been constituted till date. It has been pointed out by learned standing counsel that the Government, having regard to the difficulty faced by the assessees in filing appeal on account of non-constitution of the Tribunal and its Benches in various States and Union Territories, has issued Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019 notified in the Gazette of India dated 3rd December, 2019 stipulating that in such a situation, the three months' period shall be con....... + More

Profiteering - sale of Flat - allegation that the benefit of input tax credit not passed on - contravention of section 171 of CGST Act - penalty - HELD THAT:- the Respondent has passed on benefit of ₹ 28,22,65,749/- to the home buyers on account of ITC which has been duly confirmed by the DGAP. Therefore, the Respondent is directed to pass on the balance benefit of ITC of ₹ 1,04,77,604/-in case of 908 residential flat buyers including the Applicant No. 1, mentioned at Sr. 1 & 2 of Table-G. as per Annexure-15 of the DGAP’s Report dated 10.12.2019. The details of the profiteered amount and the buyers have been mentioned by the DGAP in the above Annexure. These buyers are identifiable as per the documents placed on record and therefore, the Respondent is directed to pass on an amount of ₹ 1,04,23,791/- and the amo....... + More

Classification of goods - Hand Sanitizers - whether covered under HSN 30049087 or not - rate of GST - HELD THAT:- Hand Sanitizers manufactured by the applicant are of the category of Alcobased hand sanitizers and are classifiable under heading 3808 of HSN to which rate of GST applicable is 18%. Exemption form GST - HELD THAT:- As far as exempting hand sanitizers as essential commodity since it is classified as such by Ministry of Consumer Affairs, Food and Public Distribution, this Authority is of the view that Exempted goods are covered by Notification no.2 /2017/- Central Tax (Rate) dated 28/06/2017. Merely classifying any goods as essential commodity will not be the criteria for exempting such Goods from GST.

Permission to withdraw petition - Legality and validity of para 10 of the ‘Bringing the Directorate General of Anti-Profiteering under Superintendence, Direction and Control of the National Anti-Profiteering Authority -Notification of detailed Guidelines by NAA’ dated 04th October, 2019 issued by the respondent No.2 as well as the validity of all consequential notices and proceedings initiated by the respondents - HELD THAT:- The present writ petition and application are dismissed as withdrawn.

Inaction on the part of the respondents of not disbursing the refund amount was owing to the non-functioning of the GST Appellate Tribunal - HELD THAT:- It is apparent that the petitioner has succeeded in appeal vide order dated 23rd July, 2019. Though nearly a year has passed, yet no proceeding has been filed challenging the said order till date. In the opinion of this Court, the petitioner cannot be asked to wait endlessly for the respondents to challenge the order dated 23rd July, 2019. Consequently, the present writ petition is disposed of with a direction to the respondents to refund the amount as directed by the Commissioner (Appeals) vide order dated 23rd July, 2019 within four weeks. During this period, it shall be open to the respondents to file appropriate proceedings in accordance with law. All rights and contentions of the parties including objection, if any, to the maintainability of such proceedings are left open.

Profiteering - supply of Services by way of admission to exhibition of cinematograph films where the price of admission ticket was above one hundred rupees - benefit of reduction in the rate of GST not passed on - contravention of section 171 of CGST Act - HELD THAT:- The Respondent has resorted to profiteering by way of either increasing the base prices of the service while maintaining the same selling prices or by way of not reducing the selling prices of the service commensurately, despite a reduction in GST rate on ‘Services by way of admission to exhibition of cinematograph films where price of admission ticket is above one hundred rupees” from 28% to 18% w.e.f. 01.01.2019 to 30.06.2019. on this account, the Respondent has realized an additional amount to the tune of ₹ 30,13,058/- from the recipients which included ....... + More

Maintainability of Advance Ruling application - Classification of goods - Glass-fibre Reinforced Gypsum Board - benefit of the concessional rate of tax - Schedule II of Notification no - 1/2017 - Central Tax - HELD THAT:- As per Section 95 of the CGST Act, (a) “advance ruling” means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of section 97 or sub-section (1) section 100, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. Hence for the purpose of applying for advance ruling, one must raise questions specified in sub-section (2) of section 97 or sub-section (1) of section 100, in relation to the supply of goods or services or both being undertaken or proposed to undertake....... + More

Permission for withdrawal of Advance Ruling application - Input Tax Credit - GST charged by the Vendors on expenses specifically incurred by us on behalf of Principal, the claim for which have been denied / disallowed by the Insurance Company - HELD THAT:- The Application in GST ARA Form No. 01 of M/s. Lfonds India Pvt. Ltd., is disposed of, as being withdrawn voluntarily and unconditionally.

Revocation of cancellation order - rejection of first appeal - Section 107 of GST Act - HELD THAT:- The orders dated 27.5.2019 passed by the respondent no. 4 and 22.1.2020 passed by the respondent no. 3 are set aside. The application dated 10.5.2019 which was filed by the petitioner for the revocation of the cancellation order dated 16.4.2019 shall now be decided in accordance with law within a period of 15 days from the date of production of a copy of this order. Petition disposed off.

Reopening of portal for filing of Form GST TRAN-1 - transitional credit - HELD THAT:- List this petition after six weeks alongwith the records of Writ Tax No.887 of 2019 and Writ Tax No.338 of 2020 - Learned counsel for the respondents may seek instructions and if necessary file counter affidavit. The respondents may in the meantime consider reopening of the portal and in the event the same is not feasible the respondents shall entertain the GST TRAN-1 of the petitioner manually and pass orders thereon after due verification of the credits as claimed by the petitioner.

Revocation of cancellation order - rejection of first appeal - Section 107 of GST Act - HELD THAT:- The orders dated 22.1.2010 passed by the respondent no. 4 and 14.2.2020 passed by the respondent no.3 are set aside. The application dated 7.1.2020 which was filed by the petitioner for the revocation of the cancellation order dated 10.10.2018 shall now be decided in accordance with law within a period of 15 days from the date of production of a copy of this order. Petition disposed off.

Interpretation of Statute - Renting of accommodation services - meaning of “Per Unit” as specified under Chapter Section or Heading-9963 under entry no. 7 of the Notification No. 11/2017-Central Tax (Rate) dated 28 June 2017. HELD THAT:- As per the submissions made by the applicant, that they are treating the entire Villa as one unit and therefore will give the same on rent to only one customer for any particular given date. In other words two different clients will not be able to book the same Villa for the same period i.e. if the particular Villa is booked by one client at a given date then another client will not able to book the same Villa on the same day - the applicant has no intention to rent out the rooms inside the Villa, individually and therefore there is no question of the individual rooms being treated as ‘p....... + More

Mapping Services provided to various Municipal Corporation & Councils - Whether the services provided by the Applicant are covered under Clause 1 & 2 of Twelfth Schedule of Article 243W? - HELD THAT:- From the detailed submissions made by the applicant pertaining to supply rendered by them to various Municipal Corporation & Councils, it is found that their supply does not envisage supply of goods. In other words, there is rendering of pure services in the subject case. The next step would be to find out whether services rendered by them are in relation to any function entrusted to a Municipality under Article 243W of the Constitution. The Services are provided by the applicant are the relation to Urban planning including town planning and Planning of land-use and construction of buildings in as much as all the said activities ....... + More

Maintainability of Advance Ruling application - Proportionate reversal of Input Tax Credit - reduction in the value of supply - HELD THAT:- The question with regard to reversal of input tax credit, raised by the applicant is not in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. This question may be raised only by the concerned dealer and not by the applicant. Hence in view of the provisions of Section 95 of the GST Act, this authority is not allowed to answer the question raised by the applicant, being out of the purview of Sec. 95 of CGST Act. Whether commercial credit note can be issued to its dealers for post sale discounts without charging GST? - HELD THAT:- In the instant case, the question which has been raised by the applicant is not pertaining to any of the matte....... + More

Levy of GST - civil and interior work done of M/s Oil & Natural Gas Corporation Ltd. - proposed reimbursement from M/s Oil & Natural Gas Corporation Ltd., toward operational site expenses and claim toward rectification of water damages, pertaining to original civil & interior work contract awarded by M/s. Oil & Natural Gas Corporation Ltd. - rate of GST applicable. Levy of GST - Civil and interior work done of M/s Oil & Natural Gas Corporation Ltd. under provision CGST Act - applicable rate of GST - HELD THAT:- Section 142(10) allows the levy tax on goods or services under GST Act, that are supplied only after appointed day i.e. 01/07/2017: In respect of RA Bill No. 22, (issue in the first two questions raised by the applicant), the applicant has carried out and completed the total work before the appointed day and onl....... + More

Supply or not - Applicant raises funds by collecting contributions, (also called as charges in the bye laws of Applicant Society), from members of the society - If the activities of the applicant are treated as “supply” under CGST Act, 2017 then whether the applicant has correctly discharged the GST as per the illustrative copy of the invoice generated by the Applicant? HELD THAT:- A Reading of Circular No.109/28/2019-GST dated 22.07.2019, issued vide F. No. 332/04/2017-TRU by the Government makes it clearly evident that it is the intention of the Government to tax Housing Societies under GST Laws subjcet to the condition that the reimbursement of charges or share of contribution of the members exceed an amount of ₹ 7500/- per month per member for Supply of service rendered by Resident Welfare Association (unincorporated....... + More

Filing of Form TRAN-1/TRAN-2 - transitional Input Tax Credit - time limitation - Rule 117 of Central Goods and Services Tax Rules, 2017 - HELD THAT:- To await the judgment of the Supreme Court in UNION OF INDIA VERSUS BRAND EQUITY TREATIES LIMITED AND ORS. ETC. ETC. [2020 (6) TMI 517 - SC ORDER]. Issue Notice.

Anti Profiteering Proceedings - Constitutional validity and legality of Section 171 of the Central Goods and Services Tax Act, 2017 and/or Rule 126 of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- This Court is of the opinion that in order to take a holistic view it would be appropriate to hear all the aforesaid matters together. Accordingly, Registry is directed to list the present case as well as all connected matters on 24th August, 2020.

Vires of Rule 117(1A) of Haryana GST Rules, 2017 - permission to upload form TRAN-I in order to avail credit of excess VAT reflected in Returns - HELD THAT:- The Petitioner has challenged vires of Rule 117 (1A) of Rules, however we do not think it appropriate to declare it invalid as we are of the considered opinion that Petitioner is entitled to carry forward Cenvat Credit accrued under Central Excise Act, 1944. The Respondents have repeatedly extended date to file TRAN-I where there was technical glitch as per their understanding. Repeated extensions of last date to file TRAN-I in case of technical glitches as understood by Respondent vindicate claim of the Petitioner that denial of unutilized credit to those dealers who are unable to furnish evidence of attempt to upload TRAN-I would amount to violation of Article 14 as well Article 30....... + More

100% EOU - Debonding of EOU - Commissioner of Customs (Appeals) dismissed the appeal on the ground that, the petitioner had sought to invoke the provisions of Section 35 of the Central Excise Act, 1944 as well as Section 128 of the Customs Act, 1962 and had thereby failed to take recourse to a specific provision - SCN was issued invoking power u/s 28 of the Customs Act, 1962 - time limitation - suppression of facts or not - HELD THAT:- A perusal of Ext.P6 reveals that the order was issued by the third respondent, the Joint Commissioner of Customs. The printed format in which Ext.P6 order is issued indicates that an appeal against the order lies to the Commissioner of Customs. It was in such circumstances that the appeal got to be filed before the fourth respondent. It is true that while filing an appeal, the specific provision under which....... + More

Refund of excess Custom Duty paid through DEPB scrip - finalization of provisional assessment - part amount was withheld on the ground that the same was paid by the appellant from the DEPB Scrip and hence not refundable - section 27(1) of the Customs Act, 1962 - HELD THAT:- The CBEC Circular dt.29.04.2013, solely relied upon by the learned Commissioner (Appeals), for denying the refund, has been declared ultra vires by the Hon’ble Delhi High Court in the case of ALLEN DIESELS INDIA PVT. LTD. VERSUS UNION OF INDIA & ORS. [2016 (2) TMI 247 - DELHI HIGH COURT] and the Hon’ble Madras High Court in the case of M/S ENTERPRISES INTERNATIONAL LTD. VERSUS THE ASSISTANT COMMISSIONER OF CUSTOMS (EXPORTS) , THE DEPUTY COMMISSIONER OF CUSTOMS (REFUNDS) [2016 (10) TMI 24 - MADRAS HIGH COURT] - Besides, the Hon’ble Calcutta High Co....... + More

Classification of goods - water signal / sensors, pressure sensors, heart film air mass meters / air mass sensors and temperature sensors - whether classified under Heading 9026 or under 9032? - HELD THAT:- It is not categorically stated anywhere that the impugned instruments are capable of controlling the main machines; it is stated that the measurement is accurate and improves the engine performance. It is not coming forth from the literature that these are capable of triggering the stop or start of the engines. Thus, the Revenue could not establish the controlling feature of the instruments. Therefore, Revenue has not discharged its final responsibility to establish the correctness of the classification proposed by them. It was open to the Department to investigate the matter further to establish with cogent evidence to substantiate th....... + More

Refund of deposit made by the petitioner - requirement of deposit of documents within the time bound schedule - HELD THAT:- The concerned respondent authorities are directed to decide the claim of refund of the petitioners in accordance with law within a period of four weeks from the date of receipt of the copy of the order of this Court. If the documents as demanded from petitioners are not supplied, even then the respondents shall decide the claim of the refund in accordance with law. Defreezing of the Current Account of the petitioner - HELD THAT:- It is fairly submitted by the counsel for the respondents that they have already written a letter to the concerned bank for de-freezing the bank account. Thus, the grievance about the de-freezing of account does not survive. Release of the goods which were seized - HELD THAT:- It appears tha....... + More

Seizure - Smuggling of Gold - offences under sections 133 and 135 of the Customs Act, 1962 - HELD THAT:- It is seen that the petitioners have committed very serious offence and the offences registered against the petitioners are clearly attracted. Moreover, they have been arrested and remanded to judicial custody. Further, there is apprehension that the accused persons would have continued in indulging in mobilising gold in huge quantity. Therefore, this Court is not inclined to grant bail to the petitioners, and these criminal original petitions are dismissed.

100% EOU - shortage of imported materials and non-movable items - Import of silk yarn and grey silk fabrics without payment of duty availing relevant Notifications 53/2007 & 52/2003 - HELD THAT:- The officers of DRI have found in addition to the shortages detected by the auditors, shortages in respect of goods claimed to have been re-imported by the appellants in consequence to the rejection of the same by the foreign buyer. The appellants have argued that as the warehousing period is not over, the demand is premature. Whereas, we find that Learned Commissioner has confirmed the demand in terms of the Notification No. 53/97 dated 03.06.1997 and 52/03 dated 31.03.2003 as the goods were neither utilized within the prescribed period nor any extension was sought. It is found that among other conditions, Notification No. 52/2003 requires t....... + More

Classification of imported goods - Micropore, Transpore and Tegaderm - whether eligible for exemption contained in notification No. 21/2002-Customs dated 01/03/2002 as amended from time to time or not - contention of the appellants is that their products are rightfully eligible for the exemption contained in the notification under the description “Skin Barriers Micropore Surgical Tapes”, whereas Department contends that there exists a product which suits the description “Skin Barriers Micropore Surgical Tapes” and the notification should not be read as per convenience. HELD THAT:- The department has established that a product named and known as “Skin Barriers Micropore Surgical Tapes” exists. The evidence of the same has been supplied as RUD to the appellants. Under such circumstances, the appellants co....... + More

Valuation of imported goods - LED TV of different models and empty pendent box - enhancement of value of goods based on NIDB data - HELD THAT:- We are convinced with the order passed by the Ld.Commissioner, merely on the basis of NIDB Data without following the provisions of Customs Act and Valuation Rules. In various decisions, it has been held that the NIDB Data cannot be substituted for Customs Valuation Rules. In case of CENTURY METAL RECYCLING PVT. LTD. AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [2019 (5) TMI 1152 - SUPREME COURT], the Hon’ble Supreme Court has given a categorical decision that the valuation has to be ascertained only by complying with the provisions of Section 14 of the Customs Act, 1962 read with Customs Valuation Rules, 2007. As the Ld. Adjudicating Authority has completely ignored the provisions of Customs Act and Valuation Rules, we are of the view that the impugned order is not sustainable. Appeal dismissed - decided against Revenue.

Sealing of Complete Warehouse - grievance of the petitioner is that the rented warehouse of the petitioner, the petitioner has not been able to use the said warehouse despite the petitioner paying the rent to the landlord - HELD THAT:- Mr. Harpreet Singh has taken instructions and he states that the petitioner may approach the respondents today, or tomorrow, and that necessary orders would be passed for placing the goods in question in a bonded warehouse, and deasealing of the petitioner’s warehouse, so that the petitioner could put the same to use. So far as the petitioner’s prayer for a direction to the respondents to pay the rent for the period that the rented warehouse premises have remain seized is concerned, in these proceedings, we are not in a position to pass any such directions as the same would involve determination....... + More

Condonation of delay in filing appeal - Time Limitation - appellant had challenged the order of 4th December, 2012 before Commissioner (Appeals) but after a delay of more than 90 days from the date of order - Section 35 of CEA, 1944 - HELD THAT:- The appellant had challenged the order of 4th December, 2012 before Commissioner (Appeals) but after a delay of more than 90 days from the date of order. It is apparent from the appeal that the Order-in-Original was received by the appellant on the date of order itself, as it is mentioned in para (xii) of the appeal. The delay despite admitted receipt of the order is opined to be highly unreasonable. The only ground taken for the said delay is the change of lawyer. The said ground is not supported by any document nor even the affidavit of any of the lawyers to this effect has been filed. Otherwis....... + More

Revocation of CHA License - forfeiture of security deposit - penalty - fraudulent import of Areca Nuts and Black Pepper - misdeclaration of country of origin and thereby mis-using ISFTA and SAFTA - HELD THAT:- The respondent commissioner passed the impugned order of revocation and penalty without examining any evidence, and without ensuring that the appellant CHA/CB is given proper opportunity of hearing to meet the allegations in the show cause notice. Neither the evidence were seen by the Adjudicating Authority, nor a copy of the same was provided to the appellant, CB. This error is glaring, particularly in respect of the investigation by the DRI, Bangalore, as no report for the same is even cited in the show cause notice or suspension order. It is further evident that when the Adjudicating Authority himself did not have the relied upon....... + More

Smuggling - Gold Bars - concealment of Gold Bars in the socks arriving from the Dubai Airport - Retraction of statements - Absolute Confiscation - Penalties - HELD THAT:- The appellant firstly concealed the gold bars in his Socks and also not declared to the Customs. This clearly shows the intention of the appellant to avoid declaration as well as evasion of duty. There is no evidence to show that the appellant had bona-fide belief and intend to declare the gold bars and pay the Customs duty. In this circumstances the gold bars brought by him from Dubai is clearly liable for confiscation. Confiscation of goods - Retraction of statements - HELD THAT:- even if the statement recorded under 108 is not considered the fact of smuggling of gold by the intercepting by the Customs Officer is not in dispute, therefore, the act of smuggling of gold ....... + More

Levy of Anti-Dumping Duty - Import of the Nylon Multi­Filament Yarn originating in or exported from China PR, Korea RP, Taiwan and Thailand on provisional assessment basis - It is the case of the writ applicants that the failure on the part of the respondent No.1 is causing injury to the domestic industry - Principles of Natural Justice - opportunity of hearing sought - HELD THAT:- We may only say that the respondent No.1, Union of India, shall look into the recommendations made by the designated authority and take an appropriate decision in accordance with law within a period of eight weeks from the date of the receipt of the writ of this order. Application disposed off.

Release of Drawback amount payable to petitioner - HELD THAT:- We are surprised to hear that despite the letter dated 19.03.2019 addressed by the respondent No.2/DRI to respondent No.1/ Commissioner of Customs, no steps have been taken by the latter so far to release the drawback amount payable to the petitioner in respect of the Shipping bill dated 09.10.2015 - Mr. Harpreet Singh, learned counsel for the respondent No.1 states that he may be permitted to obtain instructions from the Department. List on 29.06.2020.

Refund of SAD - Chartered Accountant Certificate which was required to be submitted along with claim of refund in terms of Notification No. 102/2007-Cus. Dt. 14/09/2007 was issued after the death of the said Chartered Accountant - CBEC Circular No.06/2008-Cus. dt. 28/04/2008 - HELD THAT:- It is the request of the appellant that issue may be remanded to the Original Adjudicating Authority to examine the issue regarding non-availment of Cenvat Credit in terms of the Notification and Circular. It is also the fact that the refund was sanctioned by the Refund Sanctioned Authority which was not reviewed and fresh Show Cause Notice was issued for recovery of the refund sanctioned. However, since the request of ld. Advocate is only for remand. It is fair to the both appellant and Department to have a re-look of the Chartered Accountant Certificate and deal with the issue as per law - Appeal allowed by way of remand.

Validity of investigation conducted by a investigating officer - It is the grievance of the petitioner that the respondent have been harassing him under the guise of an enquiry/investigation and hence, has invoked the inherent powers of this Court under Section 482 of Cr.P.C. - HELD THAT:- In the present case in hand, the petitioner has complained of harassment by the respondent based on a complaint and seek for this Court's intervention by way of a direction. The term 'harassment' by itself has a very wide meaning and hence, what could be harassment to the petitioner may not be the same to the investigating officer. While summoning any person named in the complaint or any witness to the incident complained of, the investigating officer shall summon such person through a written summon under Section 160 Cr.P.C., specifying a p....... + More

Habeas Corpus Petition - Validity of Detention Order - Smuggling - Gold - It is the contention of the respondents that earlier, the petitioner was arrested for having smuggled 1200 grams of gold - HELD THAT:- The orders of remand passed against the petitioner were not furnished to her depriving her fundamental right to submit an effective representation to the detaining authority for revocation of the detention order. Therefore, the petitioner is entitled to succeed on this ground and consequently, the impugned order of detention is liable to be quashed. The Habeas Corpus Petition is allowed.

Seizure of Gold - provisional release of goods - Section 110(2) of the Customs Act 1962 - HELD THAT:- The facts with regard to seizure of the gold the extension of time and its communication to the petitioner much less issuance of the ordinance are not in dispute. Sub-Section 2 of Section 110 of the Customs Act and proviso added later on enables the Principal Commissioner of Customs or Commissioner of Customs to give further period of six months by informing the person after recording the reasons which, in the instant case has already been done. However, the extension would not come into play in case the goods are provisionally released under Section 110(a). The equity can be struck by issuing directions to the respondent for deciding the request submitted vide Ext.P5 for provisional release of the goods in accordance with law after affording an opportunity of hearing to the petitioner - Petition disposed off.

Exemption for Customs duty - import of three textile machines - inclusion of new items in the exemption - Amendment is retrospective or prospective - Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 - HELD THAT:- The question whether the relevant customs notification was retrospective in nature becomes academic. However, since the Director General of Foreign Trade had declined to grant relief to the company holding that the said notification had no retrospective effect and the learned Single Judge, on the other hand, allowed the writ petition taking a contrary view, the said issue is also addressed - aforesaid notification dated November 04, 1999, was introduced for further amending the notification No. 29/97-cus dated the 1st April, 1997 and giving a retrospective effect would mean that the same would relate back to ....... + More

Cancellation of summons - Jurisdiction - Import of jewellery in violation of Baggage Rules - High Profile case - Connivance of the Police officers - prohibition on customs authority for initiating enquiry under Section 108 of the Customs Act, 1962 - offence under Section 133 of Customs Act - HELD THAT:- The Commissioner of Customs on 26th March, 2019 prima facie formed his opinion to enquire and seek presence of the petitioners in connection to an incident that occurred on the night of 15/16th March, 2019 and sought aid in enquiry directing Joint/Additional Commissioner of Customs, AIU, NSCBI, Airport, Kolkata to issue summons to the petitioners and the petitioners were directed to appear before Additional Commissioner of Customs (Airport Administration) on 8th April, 2019 for giving evidence and/or produces documents or things in relatio....... + More

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

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

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

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

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

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

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

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

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

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

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

Disqualification from appointment as a Director - change of status of the petitioner in the records of the respondent Nos. 1 and 2 from the list of disqualified directors - unfreezing of Directors Identification Number and the Digital Signature Certificate (DSC) of the petitioner - Section 164(2)(a) of the Companies Act, 2013 - HELD THAT:- It is apparent that the petitioner is seeking a writ in the nature of mandamus directing the respondents No. 1 and 2 not to consider the petitioner as a disqualified director under Section 164(2)(a) of the Companies Act, 2013 and for a further direction to change the status of the petitioner in the records of the respondent Nos. 1 and 2 from the list of disqualified directors and consequently unfreeze the Directors Identification Number and the Digital Signature Certificate (DSC) of the petitioner - The....... + More

Jurisdiction of Writ Court - Transfer of shares - case of petitioner is that the 2nd respondent illegally misused the DP share transfer forms and committed fraud, cheating, breach of trust by transferring the share of 4.5% in their name, though the said transfer was directed to be kept in abeyance - HELD THAT:- The Hon'ble Supreme Court of India in the decision in JAI SINGH AND ORS. VERSUS MUNICIPAL CORPORATION OF DELHI AND ANR. AND VICE-VERSA [2010 (9) TMI 1235 - SUPREME COURT] has considered the nature and scope of power under Article 227 of the Constitution of India and held that The Exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a 'bull in a china shop' to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This corrrect....... + More

Fresh re-auction order - reserve price reduced in fresh auction - Company under liquidation - there was no participant in the first round - No cogent reason is reflected from the orders passed by the learned Company Judge in respect of grant of permission relating to reduction in the reserve price and re-auction was held - HELD THAT:- If the Court feels that the price offered in the auction is not the adequate price, the Court can certainly order for re-auction and in the present case, a person i.e. present appellant has offered ₹ 2,80,00,000/- more in the matter, and therefore, fresh auction is inevitable. Another important aspect of the case is that the sale was confirmed on 02.03.2020 in presence of advocate of respondent No.2 with a direction to deposit entire sale consideration within a period of 60 days from the date of the or....... + More

Reference of matter for arbitration - Works Contract - Invitation for tender for carrying out the balance work - privity of contract or not - Petition had sent pre-termination notice to respondent no.4, on the ground that respondent no. 4 had committed delay and breaches against the contractual delivery date of 12 months i.e. by 17th January, 2014 the respondent no.4 was not in a position to complete the said works - Micro, Small and Medium Enterprises Development Act, 2006 - HELD THAT:- There is no privity of contract between the petitioner and respondents no. 2 and 3 - In view of various clauses of the contract, there is nothing on record to show that respondent no.4 had taken consent of the petitioner to give sub- contract to respondent no.2, who in turn gave further sub- contract to respondent no.3. Moreover, this Court in order dated....... + More

Suppression of facts - Change in management - the petitioners did not seek any permission from BIFR for any change in the management - increase in authorized share capital - HELD THAT:- It appears that there are disputed questions of facts as stated by both the sides on affidavit. Moreover, it is also not in dispute that BIFR was functional when the interim order was passed by this Court. It appears that the petitioners have suppressed the material facts on record when the interim order was passed by this Court by pointing out that resolution dated 27.11.2015 was contrary to the directions of the BIFR in its order dated 18.2.2009. However, the petitioners did not point out that BIFR had already sanctioned the scheme on 17.7.2013 after taking into consideration the order dated 18.2.2009 and subsequent various orders passed from time to tim....... + More

Change of physical status of land - resume of possession of land - HELD THAT:- This Court is of the view that such a prayer cannot be granted at this stage, when there are no specific facts asserted on affidavit by the applicant as to when and by whom was the applicant informed about alleged construction activities on the subject land and the exact nature of such construction activities. Thus, there is no occasion for directing the Official Liquidator to file an affidavit to demonstrate that the physical condition of the subject land as was in existence in August, 2019 continues to be so on date. Application dismissed.

Principles of Res-Judicata - Maintainability of application - Winding up order - physical condition and status of the lands, over which the applicant claims a right - HELD THAT:- It defies comprehension as to how, in the face of the order, dated 24th April, 2020, and the observations entered, by this Court, in para 7 thereof, the applicant could maintain yet another application, with the very same prayer, without curing the defects/defaults highlighted in para 7 of the said order. There is no question, here, of application of the principle of res judicata. The fact of the matter is that an application containing an identical relief, already stands dismissed, by this Court, on the ground that such prayers could not be urged without, in the first instance, placing specific facts, on affidavit, regarding the alleged construction activities, ....... + More

Transfer of shares pending - right to subscribe for rights issue - HELD THAT:- The urgency expressed by the applicants is on account of the rights issue announced by Reliance Industries Ltd (RIL). The applicants claim that certain shares of RIL, which are registered in the name of CRB Capital Markets Limited (CCML) belong to them and their applications for transferring the said shares are pending. They claim that they should also be entitled to subscribe the rights shares of RIL based on their claim to shares of RIL registered in the name of CCML. This Court is not persuaded to accept that the rights entitlement of CCML to subscribe to the shares of RIL ought to be renounced in favour of the applicants. However, it the duty of the Official Liquidator to ensure that maximum value is realised for the assets of the CCML. If the shares of RIL....... + More

Transfer of shares pending - entitlement to subscribe right shares - HELD THAT:- This Court is not persuaded to accept that the rights entitlement of CCML to subscribe to the shares of RIL ought to be renounced in favour of the applicants. However, it the duty of the Official Liquidator to ensure that maximum value is realised for the assets of the CCML. If the shares of RIL are not subscribed or renounced, the entitlement would lapse and the same would be of no benefit to CCML or the applicants. In the circumstances, this Court considers it apposite to direct that its rights entitlement of CCML to subscribe to RIL’s shares be sold at the maximum value as available. Application disposed off.

Seeking exit from CIRP Process - Respondent No. 2 had arrived at a Settlement with the 'Corporate Debtor' - HELD THAT:- The only conclusion deducible is that the factum of Respondents having inter se arrived at a Settlement prior to passing of the impugned order and constitution of the 'Committee of Creditors' is nothing but a ploy designed to defeat the legitimate interests of other stakeholders. This factual position is clearly borne out by the sequence of events unfolded by record. As the 'Corporate Debtor', despite commitments, failed to settle with all seven Applicants, this could probably be the reason for the Respondents not to seek exit from the 'Corporate Insolvency Resolution Process' before passing of the impugned order as the Settlement inter se them, though not proved to have manifested in the ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - service of demand notice - Existence of dispute or not. Whether the demand notice in Form No. 3 dated 11-9-2018 was properly served? - HELD THAT:- The demand notice dated 11-9-2018 was sent at the address as per the master data at Page No. 6-A of the petition in which the registered office is shown at B-XX-550, Ghumar Mandi, Ludhiana, Punjab-141001. The postal receipt in respect of the Demand Notice is at page-82 (Annexure A-12) of the petition. It is observed that no reply has been received in respect of the above demand notice from the side of corporate debtor. Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- Since there has been no representation from the si....... + 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:- Taking into consideration cumulatively clause ‘8 and 9’ of the Franchise Agreement, a sum of ₹ 65 lakhs being an investment on which guaranteed ROI was also promised is required to be treated as a 'financial debt' and that the payment of said 'financial debt' which stood defaulted and hence this Petition will lie before this Tribunal under IBC, 2016 in view of the ROI promised month after month being a consideration for time value to money not being remitted by the Corporate Debtor and in the circumstances the debt will be considered as 'financial debt' falling within the confines of Section 5 (8) (f) of IBC, 2016 and the Petition is hence....... + More

Liquidation of Corporate Debtor - assignemnet of debt by Operational Creditor - section 5 of SARFAESI Act, 2002 - going concern or not - HELD THAT:- The crucial aspect which is noticed is the term "going concern". Admittedly, it has not been defined in the Code though used at many places, hence, to find out the meaning of 'going concern', we have to look into the dictionary, accounting literature and judicial decision An organisation is normally viewed as a going concern when it will be running business or continuing operations for a foreseeable future and such organization has neither any intention nor any compulsion or necessity of shutting down or reducing the scale of operations in a substantial manner. Further, going concern also implies ability of a business to meet its financial obligations. Thus, in the event of ....... + More

Disciplinary proceedings against the IP - Contravention of provisions of the Code, Regulations, and directions issued thereunder by IP - CIRP process - IBBI Circular dated 12-6-2018 - HELD THAT:- The RP acts as a negotiator between the debtor and the creditor. He is an officer of the Court who oversees the entire resolution process and manages information thereby ensuring that the stakeholders are appropriately informed. The RP is appointed by the Adjudication Authority and by virtue of the Code, is given the responsibility to effectively manage the CD as a going concern and is entrusted with the fate of the ailing CD during the process of CIRP. This puts the RP in a central position possessing immense powers however, the RP also has the corresponding responsibility to abide by the Code, rules, regulations and guidelines at all times. Dur....... + More

Approval of Resolution Plan - validity of public notice dated 18-4-2019 issued by the Resolution Professional - Jurisdiction of issuing public notice - HELD THAT:- The Appellant who was an Operational Creditor could not seek intervention after approval of Resolution Plan by the Adjudicating Authority. Admittedly, the Resolution Plan was approved by the Adjudicating Authority on 8-4-2019 and in terms of provision embodied in Section 31(1) of the I&B Code the approved Resolution Plan is binding on all stakeholders involved in the Resolution Plan including the 'Creditors'. It is not in dispute that approved Resolution Plan has not been assailed by the Appellant in appeal under section 61 of the I&B Code and limitation for filing such appeal has already expired. Thus, the approved Resolution Plan has attained finality and is b....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - pre-existing dispute or not - HELD THAT:- The facts as narrated do not establish that the debt and default in question are not in dispute, as contended by the Applicant/ petitioner. The Petitioner, though places work orders in question, has not enclosed all other terms and conditions as mentioned in the work order so as to examine whether the Petitioner is entitled to claim the amount in question or not - The Petitioner got issued notice dated 28.06.2019 to the Respondent in the context of dishonor of cheques issued by the Respondent. In response to this notice also, the Respondent has issued a Reply dated 12.07.2019, through their Counsel, by inter alia pointing out the defective services and the reasons for stopping the payment,....... + 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:- The application is filed three years beyond the date of last Invoice as well as from the date of last payment. There was lot of E-mail correspondence with the Corporate Debtor. Of course, the Operational Creditor filed E-mail correspondence done by it with the Corporate Debtor at pages 46-66 of the Paper Booklet. Such E-mail correspondence is one-sided, viz. it emanates from the Operational Creditor without any acknowledgement in the form of reply from the Corporate Debtor. To constitute an acknowledgement, there must be E-mail reply from the Corporate Debtor to the Operational Creditor. Surprisingly, there is no reply by the Corporate Debtor through E-mail ackno....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor Failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- From the facts and records, it is emphatically clear that there is serious dispute between the parties which are prior to issuance of Demand Notice. Neither the Adjudicating Authority nor this Appellate Tribunal sitting in a summary jurisdiction can go into those issues which otherwise required regular trial. It is mandatory that the Operational Creditor on the occurrence of a default, deliver a Demand Notice of unpaid operational debt, copies of invoices demanding payment of the amount involved in the default to the Corporate Debtor in such form and manner as may be prescribed. The Corporate Debtor shall, within a period of 10 days of the receipt of the Demand Notice or copy of t....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- It is incumbent upon the Financial Creditor while filing this Application to place on record before this Authority, the 'Financial Contract' and demonstrate without any ambiguity from the financial contract, the amount disbursed as per the loan/debt, the tenure of the loan/debt, the interest payable and the conditions of repayment - In the present case, it is evident that the Financial Creditor has not placed on record any Financial Contract or any Financial Agreement, in pursuance of which the loan was disbursed to the Corporate Debtor. As to the aspect of whether any default being committed by the Corporate Debtor, the Financial Creditor contended that in view of the amo....... + 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:- It is evident that the Corporate Debtor has admitted and acknowledged the debt, by way of its e-mails annexed as A4 and A8, wherein the Corporate Debtor has confirmed the Balance outstanding due towards the Applicant - the Corporate Debtor has failed to reply to the Demand Notice issued under section 8 of the I&B Code and has not raised any dispute before the filing of Reply to the present Application. It is also evident from the letter dated 29-4-2018 that the Corporate Debtor have agreed to pay the outstanding amount along with interest and late payment fee and agreed to pay the court fee if any default occurred in payment of the said outstanding amount - the contentions rai....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - Where an Application U/ s. 7 of the Code as filed by the 'Financial Creditor' is already admitted against the 'Principal Borrower', whether another Application under Section 7 of the Code, by the same Financial Creditor can be admitted against the Corporate Guarantor for the same set of claims and default or not? - HELD THAT:- It is pertinent to note here that under the provisions of IBC 2016, there is no bar against filing an application u/ s. 7 either against the Principal Borrower or the Corporate Guarantor. It is also not necessary that an application U/ s. 7 must be filed by the Financial Creditor against the Principal Borrower first, and an application u/ s. 7 against th....... + More

Maintainability of application - initiation of CIRP - Dishonor of Cheque - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - main objection raised by the respondent is that the said Consent Terms could not be acted upon by respondent because the applicant intentionally suppressed the fact that it had already initiated complaints under section 138 of N.I. Act - HELD THAT:- The requirement of sub-section 5(a) of Section 7 of the code stands satisfied as default has occurred, the present application filed under Section 7 is complete, and as no disciplinary proceeding against the proposed IRP is pending - It is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitt....... + More

Approval of Resolution Plan - CIRP process - withdrawal of EOI after the issue of provisional list - HELD THAT:- As approved by a 100% vote by' the COC, this Adjudicating Authority holds that the Resolution Plan of M/s Sabrang Steel Pvt. Ltd, as submitted by the RP is in conformity with the purposes and objects of the IBC, and all Rules and Regulations and the same meets the requirements of provisions of Section 30 of the Code of 2016 and Regulation 37 and 38 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The Plan not only appears to be viable but also takes care of all the stakeholders, notably the financial creditors, Operational creditors, Workmen and employees, Other Current Liabilities and Contingent Liabilities. It appears from clause 11.3 Of the Resolutio....... + More

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- Proceedings under the Code are summary proceedings, where even if there was a debt, the same should be undisputed and the default, as defined under section 3(12) of the Code should be clearly established. While the amounts had been given in December 2016 and January 2017, and became due by June 2017, the demand notice (under section 9 and not under section 7 of the Code) was sent by the Petitioner only on 26.09.2018, that is, after a lapse of more than a year. In the intervening period, when she wielded full powers, took all the decisions and signed all the minutes of the Meetings, there were disputes that led to financial due diligence being undertaken by the Company through an inde....... + More

CIRP - Reimbursement of Compounding fees - Who is responsible for offence or compounding of offence under the Income Tax Act which was committed much before the initiation of CIRP proceedings - HELD THAT:- Admittedly the CIRP commenced vide order dated 7-8-2017 by the Adjudicating Authority under section 7 of the I&B Code and Mr. Savan Godiawala was appointed as Interim Resolution Professional and subsequently confirmed as Resolution Professional of the Corporate Debtor thereafter, vide order dated 27-8-2018 passed by the Adjudicating Authority, the Appellant Mr. Savan Godiawala was appointed as the Official liquidator of the Corporate Debtor i.e., Respondent No. 2. It is also admitted fact that on 31-3-2016 Income-tax Office, Shri Mandip ACIT, Income-tax Department filed complaint under section 276-B read with Section 278-B of the In....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - possession of apartment with stipulated time limit - HELD THAT:- In the present case, the Respondent emphatically contends that it could not commence construction despite approval of the building plan dated 23rd July 2013, as the said approved imposed certain pre-conditions including but not limited to (a) obtaining grant of approval by Ministry of Environment and Forest, (ii) Fire Safety Approval before the commencement of construction. The Respondent obtained environmental approval on 12th December 2013, and the said approval reiterated the requirement for approval of the Fire Department. Therefore, the Respondent applied for Fire Safety Approval on 23rd October 2013, before starting any co....... + More

CIRP Process - scope of Financial Creditor - whether the 'Inter-Creditor Agreement' devising a mechanism for enforcement of rights qua the 'Corporate Debtor' would bar an individual Creditor from triggering 'Corporate Insolvency Resolution Process' in the event of default qua outstanding liability in respect of its financial debt without the consent of other lenders forming the consortium of the same 'Corporate Debtor' - HELD THAT:- The statutory right across the ambit of Section 7 of the 'I&B Code' cannot be curtailed or made subservient to any 'Inter-Creditor Agreement'. The contractual rights, unless recognised by the statute as a permissible mode, would not override the statutory mechanism and right created and enforceable under statute - The language employed in this clause is eloqu....... + More

Approval of Resolution Plan - Section 31(1) of the Code - CIRP process - extension of CIRP period till 3-1-2019 - HELD THAT:- The resolution plan states that upon NCLT Approval Date, an Interim Monitoring Committee will be constituted. The constitution of the Committee is given in para no VIII of the plan. The terms of the plan and its implementation schedule is stated to be 90 days from the approval of the plan by the Adjudicating Authority. The RA will make full and final payment of ₹ 5150 lakhs to secured financial creditor i.e. SBI out of which ₹ 500 lakhs will be deposited at the end of 30 days from the approval of the resolution plan and the balance ₹ 4650 lakhs will be paid in an Escrow Account within 90 days from the approval of the resolution plan. The payment of ₹ 24.43 lakhs to operational creditors is p....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - scope of Financial Creditor - HELD THAT:- On detailed perusal of the clause 64 & 65 it is evident that a transaction will fall in the residuary clause (f) of section 5(8) under the category of financial debt, only if the transaction has commercial effect of borrowing, as such it will not fall within the category of financial debt. Moreover, Hon'ble Supreme Court in this clause 65 made reference to real estate allottee in order to conclude this observation which is not the case here as the transaction is in relation to purchase of land which does not fall within the ambit of real estate transaction. This bench is of the view that the contentions/ or claims being raised by the M/s. Vers....... + More

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.

Bail application - Money Laundering - Scheduled Offences - an amount of ₹ 2.55 Crores was seized/recovered from possession of the co-accused Dhirendra Singh and Sanjay Sethi - HELD THAT:- It is not in dispute that the petitioners have been granted bail by the Coordinate Bench of this Court at Principal Seat, Jodhpur under section 439 Cr.P.C. under the scheduled offences. It is also not in dispute that the petitioners are in custody since 19.02.2020/ 17.03.2020. While dealing with the present bail applications, this court has to see three facts, 1. running away of the accused 2. tempering with the evidence 3. influencing witnesses - the petitioners are entitled to be released on bail for the reasons; firstly the argument of Mr. R.D. Rastogi, ASG that the petitioners failed to appear before the trial court from 21.01.2020 till 17.02.2....... + More

Commitment of scheduled offences - Uttar Pradesh State Industrial Development Corporation (UPSIDC), Varanasi - It is the contention of the present appellant that it is a State Authority and has been erroneously shown to have committed the scheduled offences - HELD THAT:- On perusal of the impugned order & PAO, it is seen that nowhere there is any allegations made by the ED that the present appellant has committed the scheduled offences or has generated proceeds of crime or laundered any proceeds of crime. In fact, it is admitted in the written reply to the appeal filed by ED that this appellant has been made as a party as it was the lessor of the property over which the defendants no(s) 1 to 3 has rights as lessee and the ED has got no objection if the order of the Adjudicating Authority is modified in relation to the contention of th....... + More

Money Laundering - investment of proceeds of crime - Acquiring of Liquor shops - allegation that the investment represent the process of integration of the proceeds of the crime with the main stream economy - Section 5(1) of the PMLA - It has been submitted on behalf of appellant that there is no material whatsoever on the basis of which the competent authority/adjudicating authority could have reasons to believe that movable and immovable properties purchased by the appellants were derived or obtained from proceeds of crime generated from criminal activity relating to schedule offence - right to appeal. HELD THAT:- The predicate offence and the offence of money-laundering are two distinct and separate set of offences. The offence of money laundering is independent of schedule offences. As per section 24 of PML Act, the burden of proof th....... + More

Bail Application - PMLA act - substance of the charge against the petitioner is that he was the person in control and management of one Rose Valley Group of Companies - price of debenture charged as per wishes of petitioner and without permission from statutory authorities - HELD THAT:- This Court is of the view that Section 436A in its application cannot be read de hors its provisos. The object and purpose of the section is to ensure that the person is not detained pending trial for a period that may exceed half of the total punishment prescribed under the Section under which he is charged. Upon exceeding such period, the petitioner is in fact entitled to be granted bail. The right to bail under Section 436A is not absolute. This Court notes that Rose Valley Group of Companies is being prosecuted various other proceedings both civil and criminal - Application dismissed.

Restoration of possession of property - legal question raised by Respondent that this Tribunal is not empowered to restore the possession is not agreed to on the ground that the power of this Tribunal to issue stay order as well as order consequential thereto is inherent - HELD THAT:- The section 35(2)(h) of the PMLA, 2002 has empowered this Tribunal to set aside any order of dismissal of any representation for default or any order passed ex-parte. The restoration of possession in the present case is consequential to the order of restoration of appeal which was dismissed for default. The restoration of possession is an order during the pendency of the appeal and the status of the order of restoration of possession is same as in the case of passing of stay order. The main allegation against the appellant with respect to this property is th....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Failure to make the necessary disclosures regarding creation/invocation/release of certain pledge transactions and off-market transactions/purchase of shares in the company - contention of the appellants is that Regulation 29 of the SAST Regulations is not applicable and is only applicable to the pledgee - penalty has been imposed for violation of Regulation 29(2) and 29(3) which provides that an acquirer who holds shares or voting rights entitling them to 5% or more of the shares or voting rights in the target company shall disclose every acquisition or disposal of shares representing 2% or more within two working days - HELD THAT:- Whenever a share which is pledge is invoked meaning thereby the shares are sold, the necessary consequence which follows is the reduction in the shareholding of that particular entity. In the instant case, wh....... + More

Violation of Section 6A(4)(b)(iii) of the Insurance Act, 1938 - transfer of shares made without previous approval of the authority and, therefore, such transfer of shares are null and void ab initio - HELD THAT:- Referring to communication of IRDAI vide their letter dated February 4, 2020 and their reply filed before this Tribunal, it is apparently clear that damage control measures have been adopted by Respondent No. 1 subsequent to the impugned orders dated December 4, 2019 and December 27, 2019. The communication/order of IRDAI dated February 4, 2020 has largely diluted its own order dated December 4, 2019 and December 27, 2019. The stand of the Respondent No. 1 as depicted in paragraph No. 21 of their reply makes is apparently clear that prior to any transfer of the shares in question, the authority is required to be in a position to ....... + 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

Offence under FERA - fraud on the banking system - mens rea is an essential ingredient as the FERA proceedings - As alleged officers responsible for conduct of the company were ‘negligent' - non specified SCN - HELD THAT:- Show Cause Notice must necessarily establish that the concerned officer was incharge of, and responsible for conduct of the company and further, spell out the offence committed by such officer. Only certain junior officers have been namedin the SCNs who can under no circumstances be said to be incharge and responsible for the bank or for conduct of its business. Further, onus to prove that a person was responsible for conduct of business of company is on the Department, which it has failed to discharge. In the impugned Orders Mr. Rajgopalan Ramkumar, Mr. Sunil G. Sawant, Mr. R.B. Dhage, Mr. Allwyn Roche, Mr. P....... + More

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

Sh. P. Chidambaram seeks bail - proposal for downstream investment - Petitioner, the then Finance Minister, Sh. P. Chidambaram approved the downstream proposal of INX News on 30.10.2008 - FIR alleging commission against Sh. Karti P. Chidambaram [arraigned as accused No. 3 in the said FIR under Section 120-B read with Section 420 of Indian Penal Code, 1860, Section 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to ‘PC Act’) and Section 13(2) read with Section 13(1)(d) of the PC Act.] HELD THAT:- As petitioner instead of joining the investigation approached this Court seeking anticipatory bail and this Court was pleased to pass an interim order protecting the petitioner from arrest. Pursuant thereto, when the petitioner was called for interrogation under the protective umbrella of a pre-arrest bail reducing th....... + More

Canara Bank abetted in the illegal and unauthorized dealing of foreign exchange - penalties against the appellants for the contravention of Sections 6(4), 6(5) r/w Sections 49, 8(1), 9(1)(a) and 9(1)(e) along with Para 10.3 (ii) - HELD THAT:- It is stated that from a conjoint reading of the facts and the definitions that there was neither any commission nor any omission on the part of the Appellant. Cheques issued by BFEA on an account maintained with Canara Bank were presented in the normal course of clearing and these cheques were honoured by Canara Bank. Canara Bank did not know at that point of time that the proceeds of those cheques would be remitted abroad after being credited to a convertible rupee account maintained at the ANZ Grindlays Bank. In any event the Canara Bank had nothing whatsoever to do with the crediting of money to ....... + More

Sum acquired/possessed/held/owned outside India with LGT Bank without any General or Special permission of RBI - contravention alleged by invoking presumption under section 39 of FEMA, 99 - presumption of documents. - Penalty enhanced - Power of special director in the absence of appeal from Revenue side - HELD THAT:- It is stated on behalf of appellants that before the Special Director, the Appellants reiterated their contentions, in addition to submitting that the conclusion of guilt against the appellant is based on no material and that the order passed is perfunctory without application of mind and even contrary to show cause notice where the theory of 1/4th of amount was not even alleged, but the Special Director affirmed the order of the Adjudication Authority on his self-innovated and imaginary reasoning, neither based on any evide....... + More

Rectification of mistake - typographical order - errors are impressed upon to be the error apparent on record - HELD THAT:- The very perusal makes it ample clear that once an activity is not taxable, the order confirming the tax liability cannot be passed and thus is an error. Hence, there is no hesitation to hold that the word “upheld” in the is a typographical error. It should be read as " the order to that extent is hereby set aside". With respect to the remaining mistakes as pointed out by the applicant since those have been objected as being out of scope of the rectification, we first need to highlight the scope of rectification. The Tribunal no doubt can recall its order in view of Section 129 B (1) of Central Excise Act, 1944. Anything to become the subject matter of rectification it has to be self evident, ob....... + More

Condonation of delay in filing appeal - appeal filed after a period of 3 months and 10 days - power of Commissioner (Appeals) to condone delay - sufficient cause for delay present or not - HELD THAT:- The appeal was filed on 02.12.2014 though it was to be filed on or before 22.08.2014 thereby causing a delay of 3 months and 10 days in filing the same before Commissioner (Appeals). We observe that the applicant had, therefore, filed an application praying for condonation of delay before Commissioner (Appeals) and order of Commissioner (Appeals) is in respect of the said application praying for condonation of delay. In view of Section 35 of Central Excise Act, delay was not condoned. As a result where of the appeal could not have sustained. The ground of death as taken is also not sufficient in explaining the impugned delay as admittedly th....... + More

Condonation of delay in filing Rectification of Mistake application - time limitation as provided in Section 35 C of the Central Excise Act - HELD THAT:- The limitation was applicable to the Tribunal for taking suo moto action for rectification of mistake, but the aggrieved party can file an application for rectification of mistake at any time, but showing the reasons for causing the delay, that there has been injustice done to them due to error in the order of this Tribunal - further, the decision of the Apex Court in the case of Sunita Devi Singhania Hospital Trust [2008 (11) TMI 249 - SUPREME COURT] was not available to the Larger Bench of the Tribunal. The delay in filing the Rectification of Mistake Application as the delay has been reasonably explained, is condoned - ROM application allowed.

Delay in adjudication of SCN over 6 years - Validity of adjudication proceeding initiated by the impugned show cause notice dated 10th September, 2013 and also the personal hearing notice dated 12th December, 2019 - time limitation - challenge on the ground that the adjudication proceeding has become barred by limitation in view of the limitation period of six months/one year, which is maximum time period for adjudication, from the date of issuance of show cause notice as prescribed under Clause (b) of sub-Section (4B) of Section 73 of the Finance Act, 1994. HELD THAT:- Issue Notice. List on 26th August, 2020.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection on the ground that the quantification of tax liability has not been done completely and investigation is still pending - HELD THAT:- Issue Notice. List on 26th August, 2020.

Levy of Service Tax - Broadcasting service - service provided by Intelsat (situated outside India) to the Appellant - whether under the Agreement Intelsat has leased out 8MHz bandwidth of its transponder or Intelsat is engaged in transmitting signals? - HELD THAT:- The Transponder Segment Service refers to two bandwidths and Attachments 1(a) and 1(b) each refer to allocated bandwidth 4.00 MHz bandwidth, thus making a total of 8MHz bandwidth. It is also clear from clause 1.0 of Attachment 2 to the Service Order that unless otherwise specified in the Service Order, that portion of the service transponder which comprises the Service to the Appellant shall be power and bandwidth limited, consisting of a Transponder Segment equivalent to the amount of bandwidth specified in the Service Order and associated power on the service transponder. Thu....... + More

CENVAT Credit - common input services used for taxable as well as exempt goods - It appeared to Revenue that while calculating the percentage of ineligible credit under Rule 6(3A), appellants have not included the amount of cenvat credit availed on Information Technology and Software Services contending that such ITSS is also a taxable output service, which contention appears to be incorrect - Rule 6(3A) of Cenvat Credit Rules - HELD THAT:- The allegations in the present case for the period 2008-09 are similar to the allegations for the earlier period 2015-16, and further taking notice that now Revenue, taking notice of the substitution of Rule 6 vide Notification No. 13/2016, which is by way of clarification and ease of doing business, hence the issue is held in favour of the appellant. The appellant shall be entitled to consequential benefits including disposal of the rebate claim in accordance with law, if the same is still pending - Appeal allowed - decided in favor of appellant.

Maintainability of application for restoration of case - Bench observed that the Appellant was no longer interested in pursuing the matter and, therefore, dismissed the Appeal in default - HELD THAT:- The records indicate that the order dated 22 June, 2018 was sent to the Appellant by registered post with acknowledgement due on 03 July, 2018. A copy of the letter was sent to the Authorized Representative of the Department who has also stated that he received the copy of the order/letter. There is no averment in the Application that this letter sent to the Appellant by registered post was not received by the Appellant. This apart, and as has also been stated in the Application, orders/final orders were uploaded on the website of the Tribunal. This fact has been admitted by the learned Counsel for the Appellant. Such being the position, the....... + More

Extended period of limitation - Validity of Show cause notice where service tax has been paid before issuance of SCN - Section 73(3) - Demand of service tax - reverse charge mechanism (RCM) - notification dated 03 March, 2009 - It has been contended on behalf of the Appellant that since the ECB facility for setting up the power project was to be consumed within the SEZ, it was entitled to exemption from service tax on the taxable services provided to the Appellant under the notification dated 31 March, 2004 - Circular dated 18 May, 2011 - extended period of limitation - validity of issuance of SCN - HELD THAT:- Though sub-section (1) of section 73 of the Act provides that where service tax has not been paid, the Central Excise Officer may serve notice on the person chargeable with the service tax requiring him to show cause why he should ....... + More

Commercial Training or Coaching Services - appellant is a PSU mainly engaged in the activity of ship building and repair works - period from April 2007 to June 2012 - Department entertained a view that the appellant is liable to pay service tax on the fee income earned from the students under the category of Commercial Training or Coaching Services - pre-negative and post negative list regime - HELD THAT:- The lower appellate authority has upheld the demand on the premise that the course offered by the appellant cannot be said to be statutory in nature and hence, cannot be said to have been recognised by law, which in our view is factually incorrect. The lower authority seemed to have lost sight of the factual position that the subject courses have been approved by the Director General of Shipping, Ministry of Surface Transport, Govt. of ....... + More

Works contract service - Commercial Construction or Industrial Service - period from September 2004 to September 2007 - HELD THAT:- The issue is squarely covered by the Hon‟ble Supreme Court“s decision in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] relied by the appellant wherein it has categorically been held that no service tax can be demanded on construction services prior to introduction of “Works Contract Service” in June 2007 wherein there is a supply of goods and service. The services provided by the appellant is a composite service involving supply of goods and not construction service simpliciter and hence, the same is legally classifiable under the category of “Works Contact Service”. Therefore, the as....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Petitioner have declared Service Tax liability but the same could not be deposited while filing the return, which was deposited belatedly, but interest on delayed payment remained unpaid - HELD THAT:- On similar issues a Coordinate Bench has already disposed of a similar writ petition in ASSAM CRICKET ASSOCIATION VERSUS THE UNION OF INDIA AND 4 ORS., THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE PRINCIPAL COMMISSIONER, THE DESIGNATED COMMITTEE, ADDL. DIRECTOR GENERAL [2020 (6) TMI 38 - GAUHATI HIGH COURT] - it is submitted that by this order this Hon’ble Court has remanded the matter back to the authorities concerned. The matter is remanded back to the authorities to reconsider the application/declaration furnished by the petitioner being and pass appropriate orders thereon in terms of the scheme and the rules framed thereunder - Petition allowed by way of remand.

Business Auxiliary Services - distributor’s margin received by the Appellant from BSNL for Re-sale of cellular products - HELD THAT:- While dealing with the similar facts and circumstances in the case of COMMISSIONER CENTRAL EXCISE, LUCKNOW VERSUS M/S CHOTEY LAL RADHEY SHYAM [2017 (9) TMI 509 - ALLAHABAD HIGH COURT], it is held that there is no agency service or sales promotion service provided in such transactions, but it is a case of sale/purchase of item from BSNL on principle to principle basis which is pure trading activity and on the cellular products, the BSNL has already discharged Service Tax, hence, demanding service tax again from the trader would amount to double taxation. Appeal allowed - decided in favor of appellant.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection of first declaration made by the petitioner on the ground of Incorrect Declaration - rejection of second declaration/application filed by the petitioner on the ground that since earlier application on the same issue has been disposed of, this cannot be accepted - HELD THAT:- On similar issues a Co-ordinate Bench of this Court has already disposed of writ petition being WP (C) No. 2149/2020 passed in Assam Cricket Association Vs. The Union of India & 4 Ors. Mr. Keyal [2020 (6) TMI 38 - GAUHATI HIGH COURT ] submits that by that order this Hon’ble Court has remanded the matter back to the authorities concerned for consideration afresh. Appeal allowed by way of remand.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - penalty figure not declared - Evasion of service tax - suppression of material facts with intent to evade payment of Service Tax - HELD THAT:- The matter is remanded back to the authorities to reconsider the application/declaration furnished by the petitioner being ARN LD14012000001159 filed on 14.01.2020 and pass appropriate orders thereon in terms of the scheme and the rules framed there under. If the authorities require a fresh declaration then they shall permit the petitioner to file such declaration afresh. Petition allowed by way of remand.

Classification of services - Works Contract Service or not - Construction / Building of Multi-Level Car Parking (MLCP) built by the appellant at New Delhi Airport (Terminal-III) - whether the same forms part of the Airport and hence exempt or is separate from the airport and taxable as works contract service? - HELD THAT:- Multi- Level Car Parking constructed by the appellant at IGI Airport, New Delhi, is part of the Airport, as is evident from the definition of Airport in clause (b) of Section 2 of the Airport Authority of India Act, 1994, read with clause (2) of Section 2 of Aircraft Act, 1934. We further find that “Aerodrome” has been defined in clause (2) of Section 2 of Aircraft Act, means any definite limited ground or water area intended to be used, either wholly or in part for the landing and departure of aircraft and ....... + More

Principles of Natural Justice - rejection of declaration filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - petitioner had not placed the entire correspondence exchanged between the parties - HELD THAT:- This Court had directed the petitioner to place on record the entire correspondence exchanged between the parties. Petitioner has filed a supplementary affidavit dated 01st July, 2020 in which it is stated that the present case is of delayed payment of service tax for which the petitioner had filed the application under the Scheme 2019. It has also been stated in the affidavit that the respondents’ reference to communication dated 26th September, 2019 is incorrect as no such communication was sent to the petitioner.

Waiver of Interest - Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - scheme rejected without affording any opportunity of hearing by stating “the date of communication declared is 05.09.2019 which is beyond the cut-off date (i.e. 30.06.2019) - HELD THAT:- This Court finds that the impugned communication dated 05th March, 2020 has been issued by the respondents without giving an opportunity of hearing to the petitioner and without considering the case put forward by the petitioner. The present writ petition and pending application are disposed of by setting aside the order/communication dated 05th March, 2020 and by directing the respondent No.2 to give a hearing to the petitioner on 09th July, 2020 at 11.30 a.m.

Works Contract Service - Nature of activity - service or manufacture - levy of VAT or service tax - Construction Service - period from 10.9.2004 to 31.12.2005 - HELD THAT:- The appellant was paying VAT on the amount during the impugned period of the activity undertaken by the appellant. Therefore, in terms of decision of Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], wherein Hon’ble Supreme Court has held that any activity pertains to construction of service where material has also been supplied alongwith the service, the merit classification of the service is under works contract service and no service tax is payable prior 1.6.2007. Admittedly, in the case in hand, the appellant is engaged in the activity wherei....... + More

CENVAT Credit - duty paying invoices - photocopies of invoices, audited Trial Balance, Advice of Transfer/Transfer Advice Note - valid documents as specified in Rule 9 of Cenvat Credit Rules, 2004 or not - HELD THAT:- The existence of original invoice and its genuineness is not disputed by Revenue. In fact such documents were produced before the lower authorities. Therefore, the duty involved has been paid and there is no dispute that the equipment in question has been used at the sites where credits were taken. In such circumstances, considering the commercial practice which was necessary for efficient procurement of the equipments in question, this procedural lapse cannot be considered a reason to deny Cenvat credit involved. Appeal dismissed - decided against Revenue.

SSI Exemption - clubbing of clearances - Two independent companies within same complex (factory premises) and common shareholders / directors / management - benefit of N/N. 8/03-CE dated 1.3.2003 as amended from time to time - HELD THAT:- It is a fact on record that M/s. NCPL was established in the year 1993 as private limited company and M/s. NAPL as a private limited company. As per the CBEC Circular No.6/92 dated 29.5.1992, the Board has clarified that private limited companies are treated as separate, therefore, we have no hesitation to hold that both the units are separate units. As (i) both are private limited companies, (ii) both are manufacturing different products, (iii) both are having separate electricity connection, (iv) both are having different raw material which is separately stored, (v) both are having separate work force,....... + More

Implementation of order regarding Grant of interest on delayed refund - HELD THAT:- The order of rejection of interest passed by the Mr. Shubh Agarwal, Assistant Commissioner, amounts to interference in the process of justice delivery system. Mr. Shubh Agarwal was bound to implement the order of this Tribunal or in the alternative file an appeal before the Higher Court alongwith stay application. Thus, not following the order and direction of this Tribunal, Mr. Shubh Agarwal committed insubordination, by sitting in appeal on the order of this Tribunal. Accordingly, Mr. Shubh Agarwal, Assistant Commissioner is hereby directed to show cause as to why not the statement of contempt be drawn against him and referred to Hon’ble Rajasthan High Court for further action in the matter, under the contempt of Court Act. Mr. Shubh Agarwal is her....... + More

100% EOU - Benefit of N/N. 22/2003-CE dt.31.3.2003 and Para 3(e) of Notification No.52/2003-Cus dt.31.3.2003 - clearance of waste and scrap of HDPE drum, MS & GI, Polymer, Paper, BOPP Tapes materials and other non-usable scraps, to DTA without payment of duty - Rule 9(b), 13, 14 & 192 of erstwhile Central Excise Rules, 1944 - HELD THAT:- Admittedly, as per the show cause notices, the items cleared by the appellant are waste and scrap of HDPE drums, MS & GI, Polymer, Paper, BOPP Tapes materials and other non-usable scraps. All these items are cleared as waste and scrap. In these circumstances, the appellant has rightly claimed the benefit of exemption notification No.52/2003-Cus dt.31.3.2003 Clause 4(c) and Notification No.22/2003-CE dt.31.3.2003 Clause 8(ii). The appellant has also relied on the decision of this Tribunal in th....... + More

CENVAT Credit - duty paying documents - credit denied on the ground that the appellants have received only cenvatable invoices and not the goods - HELD THAT:- Considering the fact that similar investigation has been conducted by the DGCEI against Shri Amit Gupta and show cause notices were issued to the recipients of goods against whom the invoices were issued by Shri Amit Gupta to various firms, one such firm M/s. Unnati Alloys Pvt. Ltd. Neither cross examination of Shri Amit Gupta nor Shri Amit Gupta was made party to the show cause notice which shows that the investigation conducted against the appellant is not proper. Moreover, the transporters were also not examined at all nor made party to the show cause notice. The benefit of doubt goes in favour of the appellants that they have received the goods against cenvatable invoices issued....... + More

Sabka Vishwas (Legaly Dispute Resolution) Scheme, 2019 - validity and legality of the rejection of the petitioner's scheme - Last date for making payment arrived - HELD THAT:- It would not be appropriate for us to confirm the quantification of balance final estimated amount payable under the scheme at ₹ 55,56,045.00, especially when it is the petitioner's case that respondent No. 3 Committee has failed to consider the petitioner's case in the light of the interpretation and application of the above provisions and has not heard the petitioner before confirming the balance final demand. Learned counsel for the petitioner submitted that the petitioner is ready and willing to deposit the amount of ₹ 55,56,045.00 with the revenue within a period of one week from today. The order dated 23.6.2020 records the last date for....... + More

Refund of CENVAT Credit - export of goods - input services or not - Outward Freight Charges i.e. Indian Customs Ports to foreign destination for transportation of export goods - HELD THAT:- The appellant have been exporting their goods and in context of export of goods they had claimed refund in respect of Input Services used in relation to the export of goods under Rule 5 of Cenvat Credit Rules, 2004 - It is obvious that the refund claim under Rule 5 is sanctioned only after ascertaining the admissibility of Cenvat Credit in respect of Input Service for which the refund is sought for. Therefore, the issue of admissibility of Input Service has been clearly examined by the refund sanctioning authority and the issue attained finality therefore, subsequently issue the Show Cause Notice on the same Input Service Credit is not proper and legal....... + More

CENVAT Credit - inputs/capital goods - immovable goods or not - goods permanently embedded to earth - M.S. angles, channels, plates, defective plates, M.S. Rounds/Rods, Chequered coil, Liquid Oxygen/Oxygen Gas, Paints, pipes & tubes of steel, spare for control valve Aluminium sheet, Casting materials, Coupling, HR coil/plate, joist, cement etc. - HELD THAT:- Reliance can be placed in the case of COMMR. OF C. EX., VISAKHAPATNAM-II VERSUS SAI SAHMITA STORAGES (P) LTD. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] where it was held that credit is allowed on such items - appellant is entitled to CENVAT Credit. The second contention in the show cause notice is that the appellant could have taken only 50% of the CENVAT Credit during that year and another 50% has to be taken in the following year - HELD THAT:- This issue is no longer releva....... + More

Maintainability of appeal - requirement to make pre-deposit - Section 35F of Central Excise Act - HELD THAT:- Section 35F requires cash deposit of 7.5% of the dues and there is no provision for adjustment of any other security. Tribunal being a creature of the Act is bound by the provisions of the Act and has no powers or jurisdiction to convert the mandate of Section 35F into any other act. As such, for entertaining the appeals appellants are required to deposit the amounts in terms of Section 35F. At this stage, learned advocate submits that his clients have no finance to deposit the amount in question even if some more time is given to them. He accordingly prays that the appeals may be disposed of as not maintainable for non-compliance of Section 35F. Appeal dismissed as not maintainable.

Condonation of delay in filing appeal - sufficient cause for delay present or not - HELD THAT:- The order in appeal as has been proposed to be challenged was earlier accepted by the Committee of Commissioners and the Commissioner Jaipur gave the acceptance on 19 December, 2018. The extract of office note-sheet annexed with the time chart reveals that the order in appeal was directed to be reviewed on 15 May, 2019 without stating any reason for proceeding against the acceptance, which was made five months prior to the directions of the review. The limitation statute when specifically provides a time period for filing the appeals, the purpose requires adherence of time line for the same. Irrespective of the fact that Tribunal is empowered to condone the delay in filing the appeal but the sufficient cause has to be shown by the appellant see....... + More

Condonation of delay in filing appeal - time limitation - as against the order dated 10.06.2014, the appeal has been filed on 15.09.2016 - Section 35 of Central Excise Act, 1944 - HELD THAT:- In this case the adjudication order dated 10.06.2014 is not received by the appellant. In reply to the RTI filed by the appellant it has been answered that mode of dispatch of Order-In-Original could not ascertained. In these circumstances, the benefit of doubt goes in favour of the appellant that they have received the adjudication order on 04.08.2016 and they have filed appeal on 15.09.2016 which is well within time limit prescribed under Section 35 of the Central Excise Act, 1944, therefore, there are no force in the impugned order, the same is set aside. The appeal is allowed by way of remand with the direction to the Ld. Commissioner (Appeal) to decide the issue on merits after affording the reasonable opportunity to the appellant to present their case.

Clandestine removal - sponge iron - shortage in stock of coal and sponge iron - no corroborative evidences - HELD THAT:- From the show cause notice, it is observed that existence of weighbridge is admittedly within the factory premises. The weighbridge slips are considered as one of the important documents by the adjudicating authorities below providing the alleged clandestine removal. Once the weighbridge exists within the factory premises, the factum of clearance of goods from said weighbridge does not at all arise. This observation is sufficient to hold that weighbridge slips cannot be the evidence for proving that the goods were cleared from the appellant’s factory clandestinely. The weighbridge being within the factory premises, the weighment of any commodity or any entry in outgoing register from the said weighbridge cannot re....... + More

100% EOU - Refund of unutilised cenvat credit - Revenue’s arguments in their appeals that the respondent is not manufacturing any excisable goods is devoid of any merit and is contrary to the facts on record - HELD THAT:- From the impugned order and the orders of the original authority as well as the documents submitted by the Counsel for the Respondent, we find that the respondent is indeed registered for manufacture of excisable goods by the department themselves. Central excise tariff heads of the goods which are manufactured are also indicated. We are sure, if the department had gone through these documents, they would have had no doubt that the respondent is manufacturing excisable goods. It is also not in dispute that the respondent has been filing ER-1 returns and also been clearing some manufactured goods on payment of excis....... + More

Clandestine manufacture and removal - finished goods, Iron & Steel Ingot - period from March, 2007 to March, 2008 - demand based on documents recovered and statements recorded - HELD THAT:- The entries in the loose sheet might have created doubt in the minds of the Revenue, but it could not have been taken as a piece of evidence by itself. It would, at best, only create suspicion to further investigate the matter. Other evidence regarding procurement of raw material, manufacture of goods by engaging labour, usage of electricity, dispatch and transport of final goods, destination of final goods and receipt of sale proceeds etc, could have probably substantiated the allegation even if not proved with arithmetical accuracy. No such evidence has been produced by the revenue - In such circumstances, it cannot be held that the clandestine r....... + More

De-freezing of petitioner's Bank Savings Account - after waiting for over three months, the petitioner has approached this Court with a grievance that the respondent has failed to take appropriate action of defreezing its Saving Bank Account and releasing its lien on the LIC policy in question - HELD THAT:- Mr. Harpreet Singh, learned counsel for the respondent accepts notice and informs this Court that the file of the petitioner has been put up to the Competent Authority and the same is under process. However, he is unable to inform this Court as to when was the file put up before the Competent Authority and how much more time would it take to defreeze the petitioner's Saving Bank account and release the lien on its LIC policy particularly when more than three months have already expired after issuance of the Discharge Certificat....... + More

Redemption of confiscated goods - Process amounting to manufacture or not - activity of affixing holograms on the CFLs (revalidation process) carried out by the appellant in its warehouse - Section 2(f)(iii) of the Central Excise Act, 1944 - HELD THAT:- All the proceedings initiated against the appellant pertaining to all the warehouses including Kolkata warehouse, have been dropped on merits. All the proceedings against the appellants have been dropped by the Commissioner by passing a common order holding that the said activity cannot be constituted as amounting to manufacture in terms of Section 2 (f)(iii) of the Central Excise Act, 1944. Since the main appeal has been allowed on merits in favour of the appellant, the present proceedings are only in respect of confiscation of the goods valued at ₹ 87,17,157/- with an option to red....... + More

Time Limitation - removal of capital goods during the period September 2011 in contravention of Notification no. 22/2003- CE dated 31.03.2003, as amended, read with para 6.13(c) of the FTP 2009-14 and Para 25 of the Customs Law Manual, 2013 - HELD THAT:- The impugned order cannot sustain on limitation in as much as the Show Cause Notice was issued in September 2016 for the period in dispute of September 2011. Appeal allowed - decided in favor of appellant.

Pending appeal or not - HELD THAT:- Since, it is submitted by the learned Advocate for the petitioner that service has already been effected upon the respondents, the respondents are at liberty to file affidavit-in-opposition within a period of three weeks from date, affidavit-in-reply thereto, if any, be filed within two weeks thereafter. Matter to appear in the monthly list for the month of August, 2020 under the heading ‘for hearing’. In the meantime without prejudice to the rights and contentions of both parties, the petitioner shall deposit a sum of ₹ 15 lakhs with the learned Registrar General of this Court by a bank draft within 15 (fifteen) days from date.

Demand of Central Excise Duty - demand against the appellant on the ground of denial of self-credit by denying the benefit of exemption Notification No.01/2010-CE dt.6.2.2010 to the appellant - HELD THAT:- In this matter, the demand has been raised consequent to denial of exemption Notification No.01/2010-CE dt. 6.2.2010 by the Commissioner (Appeals). As the said order of the Commissioner (Appeals) has already been set aside by this Tribunal vide order dt.20.5.2019, in that circumstance, the benefit of exemption Notification No.01/2010-CE dt.6.2.2010 is available to the appellant. Therefore, the proceedings were not warranted against the appellant. Appeal allowed - decided in favor of appellant.

Classification of goods - Light Diesel Oil (LDO) - it was held by Tribunal that While it is wrong to test the product LDO against the parameters prescribed in IS 1460:2000 which applies solely to HDO after 2008, it is seen that the test reports of the appellant do not cover a large number of parameters prescribed in IS 1460:2000. The same also applies to the parameters available in IS 15770:2008. HELD THAT:- The appeal is without any merits - appeal dismissed.

CENVAT Credit - manufacture of taxable as well as exempt goods - iron ore fines - period April 2015 to June 2016 - Rule 6 (3) of the Cenvat Credit Rules, 2004 - HELD THAT:- The issue is no longer res-integra as it has already been decided in several decisions of this Tribunal that iron ore fines which emerges during the course of manufacture of sponge iron ore are in unavoidable and inevitable by-product and therefore same does not fall under the category of manufacture goods and accordingly same are not excisable. Thus, such goods cannot be considered as exempted goods and provisions of Rule 6 of the Cenvat Credit Rules, 2004 are not applicable - reliance can be placed in the case of CCE, RAIPUR (CG.) VERSUS M/S. SARDA ENERGY AND MINERALS LTD. [2013 (12) TMI 859 - CESTAT NEW DELHI]. Appeal allowed - decided in favor of appellant.

Levy of cost of ₹ 50,000 on the petitioner / Deputy Commissioner - Passing a whimsical order against the assessee - The Single Judge observed that the petitioner had passed an order which “is therefore nothing less than suffering from malice-in-facts as well as malice-in-law”. - Validity of reassessment order - HELD THAT:- The setting aside of the reassessment is not in question in the present proceedings nor is the direction imposing costs. The direction to recover costs from the petitioner and the observations against her are in question - there are no reasonable justification to hold that the petitioner had passed a whimsical order and that it suffered from malice in fact and in law. These observations were unnecessary for the adjudication of the merits of the dispute raised by the assessee. The conduct of the petitio....... + More

Validity of assessment order - Kerala VAT Act - Revenue Recovery Proceedings - consideration of stay petition - HELD THAT:- This Court in W.P.(C) No.3800/2020 had passed a detailed order after having called the Assistant Commissioner of Law in court with regard to the numbering of appeal and hearing of the stay application. Several writ petitions are pending in this Court seeking redressal of grievance for non-hearing of the appeal, along with stay applications - This writ petition is also of the similar nature and the petitioner is in dilemma. In such circumstances, this Court cannot sit as a mute spectator without coming to the rescue of such litigants. This writ petition is disposed off with a direction to the appellate authority to consider the application of stay within a period of two months from the date of receipt of a copy of thi....... + More

Issuance of C-Forms - purchase of High Speed Diesel from the suppliers in other States - CST Act - HELD THAT:- The Hon'ble Division Bench in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] had clearly directed the State and the Revenue Authorities not to restrict the use of “C” Forms for their inter-State purchases of six commodities by the assessees and other registered dealers at concessional rate of tax and they are further directed to permit online downloading of such declaration in “C” Forms to such dealers. The circular letter of the Commissioner dated 31.05.2018 was quashed and the Hon'ble Divis....... + More

Revision of assessment order - certain C-Declaration Forms submitted by the petitioner were cancelled and that the petitioner had made corrections in the said declaration forms - HELD THAT:- Sri J.Anil Kumar, Special Counsel for Commercial Taxes appearing for respondents is not in a position to say why in spite of the letters dt.31.01.2020 and dt.12.02.2020 addressed by the petitioner to the 2nd respondent for return of the original C-Declaration Forms, the 2nd respondent did not return them to the petitioner for rectification/clarification by the petitioner’s vendors, who had issued them to him - Unless the petitioner is returned the original C-Declaration Forms by the 2nd respondent, petitioner would not be in a position to explain whether the said C-Declaration Forms were defective in any manner and he cannot get them rectified b....... + More

Principles of Natural Justice - purchases made by the petitioner during the said Assessment Year on Electrical Goods (Electrical Motors And Oil Engines) from registered dealers in their States against ‘C’ Forms - COVID-19 pandemic situation - petitioner contends that knowing fully well the impossibility on it’s part to file objections / reply to the pre-Assessment show-cause notice, the 1st respondent had passed the impugned assessment order and the rectification order and that there has been a gross violation of principles of natural justice - HELD THAT:- When there is a severe restriction imposed by the State in the nature of lockdown on account of COVID-19 pandemic it is unreasonable on the part of the 1st respondent to inform the petitioner to file a response to the show-cause notice dt.16.03.2019 served on 20.3.2020....... + More

Unblocking of portal to enable the petitioner to access and procure Forms C and Forms F - Sections 6 and 6A of the Central Sales Tax Act, 1956 - petitioner submits that neither CST Act nor the rules framed therein provide for blocking of a portal due to pendency of assessment orders - HELD THAT:- This Court is of the opinion that by virtue of power conferred under Rule 5(4)(ii) of the Central Sales Tax (Delhi) Rules, the Commissioner can withhold issuance of declaration Form C to an assessee/applicant provided he passes a reasoned order after affording an opportunity of hearing to the assessee/applicant - However, in the present case, despite the petitioner highlighting its grievances vide letters dated 25th March, 2019 and 17th May, 2019, the notice under Section 59(2) has been issued on 03rd July, 2020 and that too after receipt of an a....... + More

Concessional rate of tax - difficulty in obtaining C-Forms - HELD THAT:- The State has, after the date of the above order, filed a Writ appeal in W.A.No.3403 of 2019 challenging the decision in the case of THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] that has been considered and dismissed by a Division Bench of this Court on 09.03.2020. Mr.Shaffiq agrees that there is complete identity on facts and in law in the matter before me as well as in the matter considered earlier. Petition allowed.

Reopening of assessement - compounding of tax - reversal of tax under Section 25(1) of the 2003 Act - HELD THAT:- It is a matter of record that the second appeal is pending adjudication before the Tribunal. On going through Ext.P4, the demand was stayed subject to deposit of 20% way back in February 2020 and the amount ordered to be deposited in one month expired on 19.03.2020. The petitioner prima facie do not require any concession but, the Tribunal ought to have imposed the condition of 20% as envisaged under Section 55(4) of the 2003 Act, though strictly not applicable to the second appeal, particularly owing to the fact that there was complete lock down and hardy any business carried out during this period and it was very difficult to generate money and pay the amount. The percentage of amount reduced from 30% to 20% which would come....... + More

Bidding of attached Property - priority of charge over the secured assets - Section 26E of the SARFAESI Act - HELD THAT:- The writ application bringing it to the notice of the respondent No.1 i.e. the Commercial Tax Officer (4) - Ahmedabad that the subject property was a secured asset of the respondent No.2 - Bank of India under the SARFAESI Act. Being a secured asset under the provisions of the SARFAESI Act, the respondent No.2 cannot claim preference over the subject property for the purpose of recovery of the dues towards tax. It is not in dispute that the first charge was created in favour of the bank and the bank, in exercise of its powers under the SARFAESI Act, put the subject property to auction. All these developments took place way back in the year 2015. The disputed entry No.16521 came to be mutated on 24th January 2017 for sho....... + More

Interpretation of Statute - Section 7-A of the Tamil Nadu General Sales Tax Act, 1959 - Levy of Purchase Tax - purchase turnover, with respect to the purchase of empty bottles from unregistered dealers under bought note - Clarifications dated 09.11.1989 and 27.12.2000 - HELD THAT:- For applicability of Section 7-A (1) of the Act, all the six ingredients need to be cumulatively satisfied. The ingredient (6) has three alternatives viz., the dealer has either (a) consumed or used the goods in question in the manufacture of other goods for sale or otherwise, or (b) has disposed of such goods in any manner other than by way of sale in the State, or (c) has despatched or carried them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce. It is not in dispute that clauses (b) or....... + More

Principles of Natural Justice - non-service of notice but assessment order served - suppression of sales turnover on the basis of electricity consumed during the assessment year in question - case of petitioner is that the respondent before making revised assessment, has not provided reasonable opportunity to the petitioner to furnish the books of accounts maintained for the relevant year - HELD THAT:- It is also an undisputed fact that the respondent, while passing the revised assessment order, has not verified the books of accounts maintained by the petitioner for the relevant year - It is well settled that the electricity consumption cannot be adopted as the sole basis for rejecting the accounts of the assessee and for making an estimate of the taxable turnover of the assessee. The matter is remanded back to the respondent for fresh co....... + More

Levy of VAT - certain defects and estimated visible loss and invisible loss - reversal of ITC for exempted sales - HELD THAT:- Since the refund order is relating to the assessment year 2011-12, the second respondent shall decide the issue afresh, after issuing show cause notice to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objection. Such notice be issued by the second respondent within a period of four weeks from the date of receipt of a copy of this order. On receipt of such notice, the petitioner shall submit their objections along with the required documents, if any, within a period of two weeks thereafter. The second respondent shall consider the same and pass appropriate orders, on merits and in accordance ....... + More

Reversal of ITC - alleged invisible loss - validity of circular dated 20.10.2011 - HELD THAT:- Since the notice issued is relating to the assessment year 2012-13, the second respondent / Assessing Officer shall decide the issue afresh, after issuing show cause notice to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections. Such notice be issued by the second respondent within a period of four weeks from the date of receipt of a copy of this order. The second respondent shall consider the same and pass appropriate orders, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of four weeks therefrom.

Levy of VAT - 4% on the invisible loss at 5% of yarn purchase and on the sales of cutting waste and rejected export garments at 0.5% - HELD THAT:- Since the assessment orders are relating to the years 2006-07 and 2007-08, the respondent / Assessing Officer shall decide the issue afresh, after issuing show cause notices to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections. Such notices be issued by the respondent within a period of four weeks from the date of receipt of a copy of this order. On receipt of such notices, the petitioner shall submit their objections along with the required documents, if any, within a period of two weeks thereafter. Petition allowed.

Levy of VAT - Inter-state Branch Transfer - petitioner contends that there is no element of sale involved in this transaction and the petitioner was not liable to pay any tax on it and did not report it in its CST-VI returns - HELD THAT:- The petitioner had raised substantial contentions both on law and on facts and the 1st respondent ought to have provided a personal hearing after the COVID-19 pandemic situation resolves to enable the petitioner to submit the documentary evidence regarding its defence that the turnover of ₹ 40,68,01,526/- relates to inter-State purchase of goods under inter-State branch transfer and there is no element of sale involved in it - there has been denial of opportunity to the petitioner by the 1st respondent in view of the COVID-19 pandemic and the consequent lockdown and therefore, the impugned order of....... + More

Violation of Principles of Natural Justice - petitioner was denied a fair opportunity of being heard even on merits - baseless presumption that petitioner had effected sale of its assets to ‘MHPL’ at Book Value and that there is no sale as a ‘going concern’ - HELD THAT:- It is not in dispute that the 1st respondent issued show-cause notice dt.12.02.2020 proposing to levy additional VAT of ₹ 82,04,233/- for the periods 2014-15 to 2017-18 (up to June, 2017) and gave a mere seven (07) days’ time to the petitioner to file a reply - In such a short time, it is not possible for the petitioner to file all the documentary evidence and also file a detailed reply covering a period of more than five (05) years. It is not in dispute that petitioner filed a letter dt.20.02.2020 seeking additional time of two (02) mo....... + More

Maintainability of appeal - failure to make pre-deposit as per Section 62(5) of the Punjab Value Added Tax Act, 2005 - request for waiver of pre-deposit - HELD THAT:- The petitioner had exercised the right of appeal which is subject to the condition. The mere fact that its account has been declared as Non- Performing Asset would not empower the Appellate Authority to waive off pre-deposit - The petitioner has failed to make out any case for interference under Article 226 of the Constitution of India. Petition dismissed.

Maintainability of Review Petition - time limitation - no sufficient ground has been given in the Application for condonation of delay - HELD THAT:- There is limitation prescribed for six months for filing the review application. Even thereafter, for more than 500 days, the review application was not filed. The issuance of notice in the remand proceedings by the Assessing Authority itself cannot be a ground for condoning the delay. The issue that the assessment was not finalised within the reasonable time is not a pure question of law but would depend upon the factual aspect of each case. In the present case, apart from six months prescribed limitation, there is delay of 505 days, the explanation put forth is not worth acceptance. Appeal dismissed.

Classification of goods - Black Disinfectant Fluid (BDF) - whether covered by Entry 25 of Schedule C of HVAT Act and is therefore leviable to tax at concessional rate as Schedule C item, whereas the Entry 25 of the HVAT Act deals with specific items and BDF does not found mentioned therein - HELD THAT:- The conclusion arrived at by the Tribunal is in consonance with common parlance test. The assessee produced letter dated 7.1.2016 received from the Assistant State Drug Controller, Haryana under the Right to Information Act,2005. The letter stated that BDF is manufactured under Schedule O of the 1940 Act and falls in the category of 'drugs' defined in Section 3(b) of the said Act. The information is provided by the official of the office dealing with the said product and issuing licence under the 1940 Act for manufacture of BDF - T....... + More

Rate of tax - classification of goods - sales of ‘sports shoes’ and ‘sports apparel’ - whether taxable under Entry 46 and Entry 52 of IV Schedule respectively, or they fall under the residuary entry falling under V Schedule? - HELD THAT:- The term ‘Footwear’ in Entry 46 of IV Schedule includes ‘sports shoes’ and the D.C.T.O.- II (Enforcement Wing) could not have held that they fall under residuary entry under V Schedule, and he ought to have held that they fall under Entry 46 of IV Schedule; and the Tribunal was right in not only relying on the certificates of the suppliers that the shoes were made of plastic but also on the Government Memo dt.17.10.2008 holding that ‘moulded plastic footwear’ described in Entry 46 also includes not only the ‘footwear’ of one moulded ....... + More

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

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

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

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

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

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

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

Dishonor of Cheque - discharge of legally enforceable debt or liability - Section 138 of the Negotiable Instruments Act - HELD THAT:- It appears that the learned Additional Sessions Judge, while making observations in respect of enhancement of the compensation, forgot to see that there was no order of compensation at all by the learned Magistrate which could be enhanced. The enhancement presupposes awarding of some amount as compensation. In fact, there ought to have been, in such circumstance, a discussion as to whether awarding of compensation is necessary or not, as compensation can be awarded under Section 357(1) or 357(3) of Cr.P.C. If the compensation is to be should be from the fine amount and if it is to be in view of Section 357(3) of Cr.P.C., then fine should not be part of sentence. Further, the entire provision of Section 357 ....... + More

Dishonor of Cheque - Framing of Charges - Vicarious Liability against the company or not - HELD THAT:- Section 141 of N.I. Act deals with the offences committed by the companies and say that if an offence is committed by a company under Section 138 of the Act, every person, at the time, the offence was committed, was in-charge and responsible to the company in the conduct of the business of the company, is liable along with the company to be proceeded against and punished accordingly. Further, it is provided that no person shall liable to be punished if he proved that an offence was not committed under his knowledge or he has exercised all due diligence to prevent the commission of such offence. In the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] it has been held that when the compan....... + More

Dishonor of Cheque - dispute is with regard to the actual amount borrowed and the period during which it was borrowed - legally enforceable debt or not - HELD THAT:- The trial court and also the appellate court has appreciated the facts and circumstances in a correct perspective and there is no illegality or irregularity in the finding of guilt under Sec.138 of the N.I.Act. Sentence - HELD THAT:- The sentence passed by the V Additional Sessions Judge, Ernakulam is to undergo simple imprisonment for three months and to pay compensation for ₹ 1,00,000/- in default to undergo simple imprisonment for two months - the sentence passed is modified to fine of ₹ 1,00,000/- in default to undergo simple imprisonment for three months. Fine amount, if realized, shall be paid to PW1 complainant as compensation under Sec.357(1)(b) Cr.P.C. Revision allowed in part.

Prescription of lower percentage of eligibility marks - prospective or retrospective - it was held by the High Court that the applicant is deemed to have been succeeded in the Examination for Income-Tax Officers held in 2003 and eligible to be promoted as Income-Tax Officer in the available vacancy in preference to his juniors, with consequential fixation of pay - HELD THAT:- There are no ground warranting interference with the impugned order in exercise of our jurisdiction under Article 136 of the Constitution of India. SLP dismissed.

Arbitration agreement - Applicability on the party who is not the signatory of the agreement - Scope of Section 9 of the Arbitration and Conciliation Act, 1996 - Securing of money received from the sale proceeds of the auction of the hotel in Goa - Bidding Process - whether the relief claimed by the Petitioner for directing Respondent No. 2 to deposit the amount of ₹ 85 crores along with accrued interest, lying in the banks in the form of FDRs, in the custody of Respondent No.2, in this Court and a further direction not to disburse the same to Respondent No.1, can be granted? HELD THAT:- the scope of power of a Court under Section 9 of the Act is not limited to parties to an Arbitration Agreement and the Court can issue interim directions even against a third party. The distinction between the powers under Section 9 of the Act and S....... + More

Compensation on account of death caused by accident - HELD THAT:- On a perusal of the documentary evidence on record i.e. the ITRs for the assessment years 2005-06 and 2006-07, filed prior to the death of the deceased, which reflect the income of approximately ₹ 1,00,000 p.a. (as assessed by the MACT in its Award dated 22.12.2009), we make this the basis for computing the compensation payable to the Claimants - We award future prospects @40% of the income of the deceased. Given the fact that the deceased left behind five dependents, the deduction towards his personal expenses would be 1/4th. Even though the Claimants/Appellants herein did not file an Appeal against the Award dated 22.12.2009 passed by the MACT before the High Court, we deem it appropriate to enhance the compensation by exercising our jurisdiction under Article 142 o....... + More

Dishonor of Cheque - Section 138 of the NI Act - trial of summon case - seeking that complainants be directed to produce documents and accounts - HELD THAT:- From the provisions contained in Sections 251 to 259 of the Code, it is quite clear that in a summons case what the Court does on the appearance of the accused is to state the particulars of the offence, and to ask him whether he pleads guilty or has any defence to make. If the accused does not plead guilty the Court will proceed to record the evidence on the side of the prosecution, hear the accused and take the evidence that the defence may produce. The Court will then either hold the accused not guilty or convict him. Section 255(3) of the Code empowers the Court to convict the accused of any offence which from the facts admitted or proved he appears to have committed, if the Magi....... + More

Grant of mandatory injunction - Raising finances to meet the requirement of deposit of ₹4 crores in terms of the decision of the Hon’ble Supreme Court by creating an appropriate security in respect of such number of unsold units - raising of funds by way of issuance of non-convertible debentures (NCD’s) on a private placement basis in two tranches - HELD THAT:- Applicants in the present application are defendant No.1 and 3 in the suit who are acting in representative capacity of defendant No.4. As noted above, the present suit has been filed by the plaintiffs for recovery of a sum of ₹448,75,58,347/- from defendant Nos. 1 to 4 jointly and severally and for permanent and mandatory injunction. The dispute between the parties is investment of the plaintiff No.2 in defendant No.4 of which defendant No.3 is 99% sharehol....... + More

Custodian appointed under the Special Court (Trial of Offences Relating to Transactions in Securities) Act 1992 - diversion of large amounts from banks and financial institutions - Whether respondent no.1 proves that the claim in this petition is barred by law of limitation? - HELD THAT:- No submissions have been made on behalf of respondent no.1 on this aspect. Although Mr.Mehta did support the Respondent no.1’s plea of the claim being barred, the issues have not been recast but considering the defence in Respondent no.4’s written statement, although the claim against Respondent no.4 may appear to be barred, the issue as framed will have to be answered in the negative. Save and except for the 4th Respondents contention in the written statement no submissions with reference to facts have been made on this aspect on behalf of R....... + More

Direction for refund of unused FAR - directions in respect of the sale of balance FAR available within the sanctioned plan, unused FAR up to the permissible limit of 2.75 or more and FAR beyond 2.75 up to 3.5 under the purchasable scheme and other FAR which may be available due to metro projects, etc. - HELD THAT:- The rates of SBI MCLR is reduced to 7.45 % in the year 2020 from 8.95% in the year 2016. It is clear that the Noida and Greater Noida Authorities, on the outstanding dues, are realizing the dues from all such projects, interest at exorbitant rate such as 15% per annum with half-yearly compounding and in addition are also realizing penal interest on the amount as fixed from time to time. The Noida and Greater Noida Authorities are not issuing completion certificates to such projects and they are not able to realize their outstan....... + More

Seeking Donations for the trust illegally - offence under Sections 13(2) r/w 13(1)(b) of the Prevention of Corruption Act, 1988 - acquittal of the accused - rebuttal of presumption - contention of the learned Special Public Prosecutor appearing for the appellant/state is that the trial Court failed to consider the oral evidence and also the documentary evidence let-in by the prosecution to substantiate the case - HELD THAT:- The respondent, is not connected with UPUS trust. Only for the reason that the Managing trustees was residing in village, the respondent’s father who is Auditor of the CCCB Limited (Bank) was authorized to operate the trust account to facilitate the transaction. The amounts which have been properly accounted for the functioning of the trust is not in dispute. The house of the respondent was searched and no incri....... + More

Recovery of Death-cum-Retirement Gratuity of the petitioner - HELD THAT:- The petitioner while serving as a Commercial Tax Officer has failed to verify the effect of corresponding taxable sales / transit sales of the dealers Tvl Uco Agency, merely because under Charge No.3, there was no loss for the Government, it is paramount duty of the petitioner, while he was serving as a Commercial Tax Officer, who ought to have verified by holding detailed enquiry about the turnover of a particular company, but the act of the petitioner who failed to verify such effects and corresponding sales / transit sales was only to aid and help the particular agency which is not warranted from the petitioner, who was working as a Commercial Tax Officer.' Our Country is run only by the tax paid by the assesses made by the individual or from the companies. T....... + More

Grant of Bail - Smuggling - whether prayer for grant of bail under Section 167(2) of Cr.P.C. can be considered after the learned Trial Judge takes cognizance of offences alleged in the complaint filed under Section 36A of Narcotic Drugs and Psychotropic Substances Act, 1985? - HELD THAT:- It is settled that once a challan is filed, an application under Section 167(2) of Cr.P.C. for grant of bail does not survive for consideration or remain enforceable. Though Mr.Hashmath Pasha, strenuously contended that NCB’s complaint having been filed without completing investigation, is a defective one, it cannot be gainsaid that the learned Special Judge has already taken cognizance of the offence and trial is in progress. There is no challenge to the validity of compliant nor the order of taking cognizance. Mr.Hashmath Pasha has relied only on....... + More