Entitlement to claim deduction u/s.80IA - old unit situated at Tumkur, manufacturing electrical cables - Whether the assessee is entitled to claim deduction u/s.80IA of the Act, in respect of old unit situated at Tumkur, manufacturing electrical cables, which claim was not considered by taking into account the entire evidence recorded by the AO? - HELD THAT:- The aforesaid substantial questions of law which are involved in this appeal have already been answered in favour of the revenue by a Bench of this Court M/S. DEEPAK CABLES (INDIA) LTD. [2014 (6) TMI 1045 - KARNATAKA HIGH COURT] - Decided against assessee.

TDS u/s 194J - payment made by the assessee with reference to the services - bifurcation of a composite payment - assessee in default u/s 201(1A ) - Tribunal held that provisions of Section 194J has to be applied only to the payments which assume the nature of fee for professional services and not on the entire composite payments, when the bill contains charges for various services rendered by the hospital, as such payment or for services rendered as a whole? - shifting the burden on the revenue to verify the payment of tax by the deductee on the payments received from the assessee in order to quantify the amount of default committed by the assessee - HELD THAT:- Substantial questions of law are answered as answered in M/S. TTK HEALTHCARE TPA PVT. LTD.[2020 (10) TMI 857 - KARNATAKA HIGH COURT] and the order of the Tribunal to the extent i....... + More

Deduction u/s 80IA - only the profit making power generating unit of the assessee should be taken into account and not the loss making units in computing the total income of the assessee for its eligible business to allow deduction - HELD THAT:- As decided in E ASST. COMMISSIONER OF INCOME-TAX CIRCLE-11 (5) , BANGALORE [2020 (5) TMI 333 - KARNATAKA ] similar issue involved in this appeal is squarely covered by an order in the case of SWARNAGIRI WIRE INSULATIONS P. LTD. [2013 (2) TMI 202 - KARNATAKA HIGH COURT] - Decided against revenue. Disallowance u/s 14A - Substantial question of law - HELD THAT:- CIT (Appeals) as well as the Tribunal has recorded a finding that the assessee has invested a sum of ₹ 26,61,011/- from its own capital and the claim of the assessee for an amount of ₹ 14,40,471/- under Section 14A of the Act has ....... + More

Grant of approval for exemption u/s.10(23C)(vi) - admitted fact that the assessee was granted permission to run the school by the Director of School Education Chennai since 1997 - HELD THAT:- We are not inclined to admit the present Appeal as we find that no substantial question of law arises in the present Appeal filed by the Revenue. The position of law is very clear. Undisputedly, the Assessee has been filing its Return of income as Association of Persons (Educational Institution) with the Respondent/Income Tax Department. Assessee (AOP) is also undisputedly covered by the definition of 'Person' as defined in Section 2(31) of the Act. Since the AOP is recognised as a "person" for the purpose of Income Tax Act, 1961 and Section 10(23C) of the Act also grants exemption to a person engaged in deriving income from specifi....... + More

Addition u/s 69 - unexplained investment made in purchase of land - ITAT deleted the addition - HELD THAT:- There is a concurrent finding of fact recorded by the two authorities, namely the CIT(A) as well as the Appellate Tribunal, that there is no material on record to prove conclusively that the investment made by the assessee had not been shown in the books of accounts. - Decided against revenue.

Scope of Limited scrutiny - Addition on account of cash borrowings from agriculturists and interest received on compensation in respect of agricultural land - assessee is an agriculturist - Assessee treated the interest on compensation as additional compensation and shown as exempt income in his return of income - Assessee contended that the interest on an enhanced compensation granted under section 28 of the Land Acquisition Act is accretion to the value of land acquired and therefore, are non-taxable; and that the assessee being an illiterate and not conversant with the grievances of the Tax Law did not realise the implications in receiving the loan in cash - First contention of the assessee is that although the case was selected for “ limited scrutiny" under CASS but the Ld AO did not concentrate only on the reasons for whic....... + More

Depreciation u/s 32 claimed on self valued, unsubstantial intangibles declared as ‘customers contract’ & ‘goodwill’ - HELD THAT:- Hon’ble Supreme Court in CIT vs. Smiffs Securities Ltd. [2012 (8) TMI 713 - SUPREME COURT] held that, ““goodwill” is an asset under Explanation 3B to section 32 of the Act and is eligible for depreciation” Hon’ble Delhi High Court in Areva T&D India Ltd. [2012 (4) TMI 79 - DELHI HIGH COURT] has held that when goodwill in books of account comprises inter alia business claims, business information, business records, contracts, skilled employees & knowhow has been purchased for a consideration to acquire the running business, it is comparable to a licence to carry out the existing transmission and distribution business of the transferor and in....... + More

Adjustment u/s 145A - Whether unutilized CENVAT credit was to be included in the value of closing stock in pursuance to the provision of section 145A? - assessee has shown less income by not including unutilized CENVAT credit in the value of closing stock shown as on 31/03/2006 AO added the same to the total income of the assessee - HELD THAT:- The provisions of section 145A of the Act mandate to follow the exclusive method of accounting which requires to record the transaction of purchase, sales of the stock after including taxes incurred in relation to purchase/sales of goods. But in the case on hand we find that the assessee has not included such taxes in the amount of purchases, sales and closing stock. We note that if such taxes are included in the opening stock, purchase, sales and closing stock then there will not be any difference....... + More

Revision u/s 263 - Deduction u/s. 80P(2)(a)(i) - HELD THAT:- Though there is justification for invoking powers u/s. 263 of the Act to make verification as to whether the principle of mutuality is satisfied in the case of assessee in Citizen Co-operative Society Ltd. [2017 (8) TMI 536 - SUPREME COURT] the other directions contained in our view, is uncalled for. When the assessment is set aside for examination of the claim of assessee u/s. 80P(2)(a)(i) of the Act in the light of the decision of Hon’ble Supreme Court in Citizen Co-operative Society Ltd. (supra), the exercise to be done would be restricted to verification of nature of membership of the society as per the bye laws and as to whether the income derived by the assessee on which deduction u/s. 80P(2)(a)(i) has been claimed, is attributable to the business of providing credit....... + More

Non-genuine purchases - CIT- A restricted addition to 12.5% - HELD THAT:- We fully agree with Commissioner (Appeals) that under the given facts and circumstances, the entire purchases made by the assessee could not be disallowed but only the profit element embedded in such purchases can be considered for addition. No hesitation in upholding the decision of the learned Commissioner (Appeals) in restricting the disallowance to 12.5% of the alleged non-genuine purchases. As rightly observed by Commissioner (Appeals), the purchases worth ₹ 39,88,556, made from Sharp Print having been proved through confirmation and supporting evidences, cannot be treated as bogus. Accordingly, we uphold the decision of learned Commissioner (Appeals) by dismissing the grounds raised by the Revenue.

Estimation of income - bogus purchases - NP estimation - CIT-A directed the AO to estimate profit @12.5% on the disputed purchases - HELD THAT:- Assessee has filed before the AO copies of (i) bank statements for the financial year 2010- 11, evidencing the payments made to these parties; (ii) ledger account of all the parties; (iii) purchase invoices from these parties and (iv) sale invoices as issued by the assessee against the purchases made. AO could have made further verifications /enquiries. Without making any verification /enquiry, the AO has made the full addition. In such a situation like the above one, the Ld.CIT(A) has rightly relied on the judgment of the Hon’ble Gujarat High Court in Bholonath Poly Fab (P) Ltd. [2013 (10) TMI 933 - GUJARAT HIGH COURT] and directed the AO to estimate the profit @ 12.5% embedded in the disputed purchases - Decided against revenue.

Reopening of assessment u/s 148 - non-issuance of notice u/s. 143(2) - HELD THAT:- Both the parties agreed that the issue of non-issuance of notice u/s. 143(2) of the Act may be set aside to the Ld. CIT(A) to decide the same as per law, after examining the assessment records and give adequate opportunity of being heard to the assessee. Non-issuance of notice u/s. 143(2) after examining the assessment records, and give full opportunity of being heard to the assessee, as per law. Even otherwise, after perusing the orders passed by the revenue authorities, we find that the revenue authorities have decided the issues in dispute against the assessee exparte and Ld. CIT(A) has not passed the speaking order on merits also. CIT(A) has not elaborately discussed the evidences filed by the assessee and decide the issues in a summary manner. Therefor....... + More

Unexplained deposits - genuineness of gift received by the father from his daughter - plea of the assessee that the said amount was received by the assessee through cheque from his daughter as gift which was received to her from her mother-in-law through banking channel out of amount of the accident claim of daughter's first husband - HELD THAT:- As per the provisions of section 56 the father and daughter comes in the definition of relatives and there is no bar for giving or taking gift inter se by them. The amount has been transferred to the account of the assessee from bank account of the daughter of the assessee - Also not been disputed that the daughter of the assessee namely Dr. Richa has been settled at USA, therefore, the assessee could not produce her before the AO - assessee has further explained the source of the donor also ....... + More

Reopening of assessment u/s 147 - case is reopened on the basis of information contained in audit objection - 'change of opinion' or 'fresh information' brought to the knowledge of AO - HELD THAT:- If there is an application of mind, it should be apparent from the material placed before the Tribunal. The VAT returns and details of purchases were available before the Assessing Officer at the time of original assessment proceedings under section 143(3) of the Act and no new material had come to the knowledge of the Assessing Officer to take recourse of the reassessment proceedings. Hence, it is merely a change of opinion and CIT (Appeals) has considered the issue in a right perspective. Even otherwise, as canvassed by AR that the tax effect is below the prescribed limit fixed by the CBDT and the Department should have not ha....... + More

Exemption u/s 11 - rejecting the application for registration u/s 12A - applicant has merely submitted the MOA and no material has been provided that could throw light on the activities, if any, carried out by the applicant, as claimed in the trust deed - HELD THAT:- Submission of the assessee was that the assessee furnished the copies of balance sheet for the year ended on 31/3/2019, the details of tuition fees received, from the assessment year 2019-20, bank statement with Punjab National Bank for the financial year ended on 31/3/2019, the details of students in Mission Nursing School and the copies of receipt books for assessment year 2018-19 and 2019-20, before the ld. CIT(A). We, therefore, set aside the order of the ld. CIT (E) and restore the matter to his file with a direction to decide the issue afresh - Decided in favour of assessee for statistical purposes.

TDS u/s 194J - payment made by the assessee with reference to the services - bifurcation of a composite payment - assessee in default u/s 201(1A) - Tribunal held that provisions of Section 194J has to be applied only to the payments which assume the nature of fee for professional services and not on the entire composite payments, when the bill contains charges for various services rendered by the hospital, as such payment or for services rendered as a whole? - shifting the burden on the revenue to verify the payment of tax by the deductee on the payments received from the assessee in order to quantify the amount of default committed by the assessee - HELD THAT:- What is covered and falls within the ambit of professional services are all services rendered in the course of medical profession or other professions. A corporate hospital offers....... + More

Rectification of mistake u/s 154 - petitioner has prayed for deletion of the interest charged under Section 234A as well as for giving credit of prepaid tax to the tune of ₹ 1,17,54,723/- instead of ₹ 1,10,79,251/- - petitioner states that the respondent has grossly erred in not passing the order on rectification application within the time limit prescribed under Section 154(8) - HELD THAT:- Keeping in view the limited prayer, the present writ petition is disposed of with a direction to the respondent to decide the petitioner’s rectification applications dated 15th January, 2020, 05th September, 2020 and 07th September, 2020, in accordance with law, by way of a reasoned order within four weeks after giving an opportunity of hearing to the petitioner.

Reopening of assessment u/s 147 - assessment was reopened after a period of four years on the ground that income chargeable to tax has escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of the assessment for the concerned - Tribunal held that on going through the orders passed by the AO and the CIT(A) and the materials, which was placed before the Tribunal, AO has reopened the assessment based on the materials, which were already available on record and it is a mere change of opinion - HELD THAT:- Revenue seeks to re-argue the factual position, which is impermissible in an appeal under Section 260A of the Act, where, we are required to decide only Substantial Questions of Law, which arises for consideration. The power conferred on this Court under Sec....... + More

Condonation of delay - ITAT refusing to condone the delay of 317 days, without considering the restoration application filed by the Appellant before CIT(A) was duly acknowledged by CIT(A) - HELD THAT:- We are convinced that the assessee had filed an application before the CIT(A) on 24.07.2018 for recalling the order, dismissing the appeals for default and the date seal is sufficient proof of filing such application. It appears that this record was not placed before the Tribunal when it passed the impugned order. That apart, this Court has always been lenient, more particularly, to the Revenue when appeals are filed with inordinate delay. The reason being this Court is required to take a decision on a Substantial Questions of Law and it would be inequitable to reject the appeal on the ground of delay and also bearing in mind the legal prin....... + More

Refund of interest u/s 244A - PCIT directing the petitioner to pay entire tax demand pertaining to the disallowance made on account of ‘other provisions’ and provisions of contingencies pending the disposal of the appeal - HELD THAT:- Petitioner has no objection if the amount directed to be deposited by the Principal Commissioner of Income Tax-06 is adjusted against the aforesaid refund of interest pending disposal of the appeal filed by the petitioner and the balance amount is paid within reasonable time. This Court is also of the view that the prayer made by the petitioner is fair and reasonable. Accordingly, respondents are directed to adjust the demand raised vide impugned order dated 10th August, 2020 against the refund of interest u/s 244A for assessment year 2008-2009 and pay the balance amount to the petitioner within eight weeks.

Revision u/s 263 - differences between actual sale consideration paid and market value fixed by the Registering Authority - proposal of the PCIT to invoke Section 56(2)(vii) - HELD THAT:- Commissioner has not dealt with the aspects with regard to the argument that 'transfer' within the meaning of Section 2(47)(v) had taken place as there has been part performance of the Contract of Sale. Commissioner interfered with the Assessment Order and directed the AO to assess differential amount of ₹ 24,00,000/-. On appeal before the Tribunal, the Tribunal in our considered view took a correct decision by examining the factual aspects in its entirety and also noted the legal position as to the effect of guideline value fixed by the Government. The settled legal position is that the guideline value has been fixed by the Government for ....... + More

TP Adjustment - comparability of Sasken Communication Technologies Ltd with that of assessee - HELD THAT:- This comparable cannot be compared with a contract service provider like assessee and accordingly direct Ld. AO/TPO to exclude this company from finalist. Indexation for computing capital gains on slump sale - Rectification of mistake - Tribunal inadvertently mentioned section 55 instead of section 50 B - HELD THAT:- AO to compute the quantum of capital gains in accordance with law as slum sale. Ld. AO is directed to decide the cost of the undertaking for the purpose of computing capital gains that is arisen on transfer of asset as a going concern and is directed to value as per section 50 B of the act. Ld. AO is also directed to decide the depreciation on the block of assets and capital gain has to be computed in accordance with sec....... + More

Penalty u/s. 271(1)(c) and 271AAB - Defective notice - HELD THAT:- In the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained. The plea of assessee which is based on the decisions referred to in the earlier part of this order has to be accepted. We therefore hold that imposition of penalty in the present cases cannot be sustained and the same is directed to be cancelled. The above discussion will equally apply to imposition of penalty u/s.271AAB for AY 2015-16 because in terms of section 271AAAB(3) of the Act, provisions of Sec.274 of....... + More

Correct head of income - Income from sale and purchase of land - chargeable to tax under the head capital gain instead of business income - HELD THAT:- Tribunal in the own case of the assessee [2016 (10) TMI 1319 - ITAT AHMEDABAD] has decided the issue in favor of the assessee involving identical facts and circumstances and after considering the order of the Tribunal [2013 (4) TMI 950 - ITAT AHMEDABAD] pertaining to the Assessment Year 2006-07 where the activity of purchase and sale of lands was held as business income. Unexplained unsecured loan u/s 68 - CIT- A deleted the addition - HELD THAT:- Assessee has justified the conditions applicable with respect to cash credit u/s 68 i.e. identity, creditworthiness of the parties and the genuineness of the transactions of the loan taken from the parties as discussed above during the appellate ....... + More

Deduction u/s 10A - CIT(A) submitted that the provisions of Section 10A of the Act does not require the assessee to be situated within the area of Software Technology Park - Whether the assessee should be registered with the Software Technology Park scheme and it should commence manufacturing & producing computer software on or after 1stApril 1994 which has been duly fulfilled? - HELD THAT:- It is transpired that it is not necessary for the assessee to be situated within the area of Software Technology Park. As such unit/undertaking located within the jurisdiction of the designated officer of Software Technology Park can be registered on standalone basis. Delhi Tribunal in the case of Xerox India Ltd. [2009 (10) TMI 71 - ITAT DELHI-B] has taken a view that the registration with Software Technology Park is sufficient compliance for cla....... + More

Refund of ITC - refund rejected without without issuing a Show Cause Notice in Form GST RFD-08 and without granting any opportunity of personal hearing - Principles of Natural Justice - HELD THAT:- In the instant case neither a show cause notice was issued nor opportunity of personal hearing was granted to the appellant before passing the order and also no reason for rejection was given. Passing of such non speaking order is against the principle of natural justice - Adjudicating Authority should have passed the speaking order by granting proper opportunity of personal hearing and detailing the factor leading to rejection of refund claim. The case of rejection shall be reconsidered by the adjudicating authority and a proper speaking order should be passed by following the principle of natural justice as provided under Rule 92(3) of CGST Rules, 2017 - Appeal allowed by way of remand.

Seeking Direction to the respondents (GSTN) to make necessary changes in the portal so as to enable the petitioner to file returns - benefit of compouding scheme under new registration after cancellation of earlier registration - period from October 2018 to December 2018, January 2019 to March 2019, April 2019 to June 2019, July 2019 to September 2019, October 2019 to December 2019 and January 2020 to March 2020 - HELD THAT:- Inasmuch as it is not in dispute that the petitioner had applied for a cancellation of its earlier registration as early as on 22.05.2018 and had applied for a new registration on 19.06.2018, the mere fact that the respondents took time to process the said applications, and pass orders thereon approving the cancellation application as also granting the new registration, cannot be a reason to treat the interim period ....... + More

Demand of GST alongwith interest and penalty - refund of penalty amount - Detention of vehicle alongwith the goods - HELD THAT:- While goods which were on their way from New Delhi to Gorakhpur being intercepted at Sikandara Toll Plaza by the mobile squad of the taxing authorities found the papers, accompanying the goods, not being in conformity, a show cause notice was given by the authorities and was served upon the driver of the vehicle in question and a reply was submitted. On the same day the penalty order was passed and was served upon the driver itself and the amount of tax demand as well as penalty was deposited by the petitioner on the same day i.e. 14.08.2018, pursuant to which the goods and vehicle were released. The petitioner neither in the present writ petition nor in the grounds of appeal before the first Appellate Authority....... + More

Confiscation of goods alongwith vehicle - Areca Nuts - writ applicant is here before this Court with a prayer that the goods and the vehicle may ordered to be released pending the confiscation proceedings - HELD THAT:- As the confiscation proceedings are pending, we are not inclined to grant any relief as prayed for at this point of time. It is expected that the writ applicant to participate in the confiscation proceedings and make good his case that no case for confiscation is made out. If the writ applicant wants provisional release of the goods and the vehicle, it is always open for him to prefer an application before the concerned authority under Section 67(6) of the Act, 2017. This writ application stands disposed of.

100% EOU - Refund of unutilized ITC (Inputs & Input Services) - zero rated supplies - period October to December-2017 - Circular No.110/29/2019-GST, dated 03rd October 2019 issued by CBIC - HELD THAT:- The appellant was required to file refund claim online in terms of Circular No.17/17/2017-GST dated 15.11.2017 and 24/24/2017-GST dated 21.12.2017 which provides that every refund should be filed online on common portal but the appellant has failed to file their claim online - the Appellant has not followed the proper procedure, as laid down in the above circulars dated 15.11.2017 and 27.12.2017 respectively, as they have filed the refund claim manually instead of online. The appellant has filed the said refund claim as revised claim in respect of the refund claims already filed vide ARN No.AA0811176066919 for the period of October-2017....... + More

Refund of GST - excess GST paid on canteen services to vendors" during the period November-2017 to July-2018 - whether the appellant i.e. M/s Honda Motorcycle and Scooter India Private Limited, Bhiwadi is eligible for refund or not as per the provisions of Section 54 of the CGST Act, 2017 read with Rule 89 of the CGST Rules, 2017? HELD THAT:- As per Section 54(1) of the Central Goods and Service Tax Act, 2017 and as per Rule 89(1) of the Central Goods and Service Tax, 2017 for making a refund claim a person should first have to pay/deposit the tax with the government which is clear from the word "any person . . paid by him" means that any person who has paid the tax - In the instant case the GST has been deposited to the Govt. account by the Service Providers namely M/s Caterman Cuisine Concepts P Ltd., Tapukra, Bhiwadi and....... + More

Permission to withdraw the appeal - refund of accumulated Input Tax Credit - Zero rated supplies - period July to March 2017-2018 - HELD THAT:- The appellant has now requested to allow them to withdraw their appeal. Since, the appellant has requested to allow them to withdraw their appeal, the appeal is allowed to be withdrawn and the instant appeal is dismissed as withdrawn.

Permission for withdrawal of application - Revocation of cancellation of registration - non filing of returns timely - non submission of reply to the show cause notice within the time specified - HELD THAT:- The appellant has now requested to allow them to withdraw their appeal. Since, the appellant has requested to allow them to withdraw their appeal, they are allowed to withdraw their appeal. Appeal dismissed as withdrawn.

Permission for withdrawal of appeal - revocation of GST registration - HELD THAT:- The appellant has now requested to allow them to withdraw their appeal - Since, the appellant has requested to allow them to withdraw their appeal, they are allowed to withdraw the appeal. Appeal dismissed as withdrawn.

Detention of goods alongwith conveyance - supply or not - transfer of a going concern - detention of goods on the ground that E-way bill not produced - HELD THAT:- Section 7 of the CGST Act, 2017 defines the Scope of Supply, Section 7 (1) provides that 'Supply' includes activities such as sale, transfer, barter, exchange etc. made for a consideration in the course or furtherance of business. This implies that the activity undertaken shall be an action which takes place in the course of regular conduct of business, such as sale or it should have the effect of furtherance of the business. Therefore, the activity to be called as supply should be such that undertaking that activity shall amount to conduct of business or enhancing 'the business. The transfer of a going concern, either as a whole or an independent part thereof, for ....... + More

Refund of GST - inverted tax structure - adjudicating authority had noticed that the appellant had wrongly taken Net ITC in RFD-01 which included ineligible ITC of Capital Goods - Allegation that the appellant has suppressed/mis-declared value of Net ITC resulting in excess claim of refund - Section 54 (3) of the CGST Act, 2017 - Refund under the provisions of “receipt under deemed export” - penalty - HELD THAT:- Refund of unutilized ITC in case of inverted tax structure, as provided in Section 54 (3) of the CGST Act, 2017 is available where ITC remains unutilized even after setting off of available ITC for the payment of output tax liability. Where there are multiple inputs attracting different rate of tax, in the formula provided in Rule 89 (5) of the CGST Rules, the term ‘Net ITC’ cover the ITC availed on all in....... + More

Jurisdiction - appropriate forum to file appeal - Detention of goods alongwith conveyance - HELD THAT:- The adjudicating authority Sh Kailash Ram Jodhawat, STO, Circle-lll, Bhilwara has passed the impugned order on 04.02 2019 which is not in the jurisdiction of this appellate authority as well as the appellant also stated at the time of personal hearing that the appeal has been filed wrongly. Section 6(3) of the CGST Act specifically mandates that any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under CGST Act shall not lie before an officer appointed under the SGST or UTGST Act. Similar provisions exist in SGST/UTGST Act also. In this case, appeal shall lie before the jurisdictional authority of SGST, Hamirrgarh, Bhilwara. The appeal filed by the appellant is dismissed for the reason being beyond jurisdiction of this appellate authority.

Release of Confiscated Goods - Department had made the case against the appellant on the ground that the Valid E-way Bill was not available with the conveyance at the time of interception - Penalty - HELD THAT:- The person in charge of the vehicle provided an e-way bill at the physical verification stage. After verification it was found that the said e-way bill updated with the conveyance No. RJ-14-GF-6831 at 05.27 PM. Hence, the valid e-way bill was not available with the intercepted vehicle at 05.19 PM i.e. time of interception and cleared impugned goods without e way bill and the person-in-charge of the vehicle provided an E-way Bill at the physical verification stage. The E- way- Bill No.731043011329 was got generated prior to the commencement of movement of the goods at 04.38 PM which was contained all details i.e. details of the goo....... + More

Levy of tax and penalty - Detention of Goods - allegation that Some material/goods were found without invoice and E-way Bill and the rest of the material were also without valid E-way Bill as the vehicle number was different in the said E-way Bill - HELD THAT:- The adjudicating authority in impugned order dated 06.12,2018 no where mentioned that how much quantity was without invoice, without E-way bill and further no specific mention has been made in impugned order' about the rest of tree material/goods which was without valid E-way bill, only the adjudicating authority has mentioned in order that the vehicle number is different in the said E-way bill. The adjudicating authority in impugned order in the column Conveyance Number has mentioned RJ-32-GA-8579 whereas in the column details of conveyance detained has been mentioned as R3-14....... + More

Classification of supply - supply of goods or supply of service - the transaction of printing of content provided by the customer, on Poly Vinyl Chloride (PVC) banners and supply of such printed trade advertisement material - classification of such trade advertisement material if the transaction is supply of goods? - applicable rate of CGST on the supply of such trade advertisement material - CBIC Circular No. 11/11/2017-GST dated 20.10.2017 - challenge to AAR decision. HELD THAT:- The activity of printing the content provided by the customer is what transforms the PVC material from being just a blank PVC material into a trade advertisement. It is this finished product (i.e. either in the form of a Billboard, banner, free-standing display unit, etc) which is supplied by the Appellant. Without the printing activity, the process of making t....... + More

Classification of supply - Pure Supply of goods or a Pure Supply of Services - Composite Supply of goods and services being a works contract or not - street lighting activity under the Energy Performance Contract dated 05.12.2016 - rate of tax - benefit of exemption under entry 3 or 3A of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended - time of supply of services - Whether KEONICS is liable to tax only once the energy saved is certified by the energy auditor? Whether amount credited in joint ESCROW account can be termed as 'receipt' especially because the said amount is not under control of KEONICS until the conditions are met? - challenge to AAR decision. Whether the activity undertaken by the Appellant for the Thane Municipal Corporation amounts to a supply of goods or a supply or service or is it a com....... + More

Maintainability of appeal - Rectification of Mistake - Classification of services - Licensing services for Right to use minerals including its exploration and evaluation or not - royalty paid in respect of Mining Lease - Classified under the heading 9973 attracting GST or not? - statutory contributions made to District Mineral Foundation (DMF) and National Mineral Exploration Trust (NMET) as per MMDR Act, 1957 - “Supply“ or not - Doctrine of Merger. HELD THAT:- Even in cases where a rectification of mistake application is admitted and a mistake apparent on record is corrected, the original order is not set aside. The original order remains on record and only the mistakes are corrected therein. The principle of doctrine of merger will not apply in such cases. Any appeal can be made only against the original order which will be ....... + More

Classification of goods - rate of tax - supply of Soft Beverages (Aerated Water) and Tobacco (Smokes) when these items are supplied independently and not as composite supply in the restaurant - rate of GST if these items alone are supplied and not along with food as Composite supply to the guest - supply of liquor - exempt supply or not - proportionate reversal of ITC as per Rule 42 of CGST rules 2017 - reversal of ITC on free supply of food. What is the rate of tax applicable on the supply of Soft Beverages (Aerated Water) and Tobacco (Smokes) when these items are supplied independently and not as composite supply in the restaurant? In other words what is the rate of GST if these items alone are supplied and not along with food as Composite supply to the guest? - HELD THAT:- In the instant case, the hotel being a 5 star hotel has a decla....... + More

Supply or not - supply of educational aids to students such as school bags, footwear, geometry box, wooden colour pencils, crayons, woollen sweater to government and government aided schools - supply of Rain Coats, Ankle Boots and Socks to students without consideration to Government/Government Aided schools located in Hilly areas - eligibility to avail input tax credit - exemption from payment of GST in respect of services received from printers engaged by them for printing of text books - levy of GST on Penalty and Liquidated damages levied by them on suppliers due to violation of the contract terms for supply - rate of GST. Whether the supply of educational aids to students such as school bags, footwear, geometry box, wooden colour pencils, crayons, woollen sweater to government and government aided schools based on the State Governmen....... + More

Direction to the Respondents to allow/extend the time limit for submitting Forms GSTR-9 and 9C for the Financial Year 2018-19 upto 31st December, 2020 without any adverse consequences to the assessees. HELD THAT:- Stand over to 27th October, 2020. High on board.

Application for early hearing - Confiscation - penalty - electronic item - case of appellant is that such item would become obsolete and non-useable if not released early - HELD THAT:- The issue involved in this appeal is not having any relation to the rate of duty of Customs or to the value of goods for the purpose of assessment that would prohibit the Single Member Bench to hear the appeal as contemplated in Section 129C(4)(b) of the Customs Act, 1962. On the other hand, it is concerned with the requirement of production of a certificate from BIS Authority for release of goods - Therefore, having regard to the fact that the goods are live consignment on which earliest possible hearing is to be afforded to the appellant, the early hearing application is allowed. List the appeal on 13th October 2020 for hearing.

Validity of Notification dated 29.03.2019 - the notification was amending the import policy in respect of peas (pisum sativum) including yellow peas, green peas, dun peas and kaspa peas having Exim code 0713 1000 - goods were put into restricted category via the said notification - Rajasthan High Court by order dated 20.07.2019 issued notice and stayed the operation and effect of the aforesaid notification and trade notice qua the petitioner. HELD THAT:- The jurisdiction conferred on the Principal Commissioner of Customs or Commissioner of Customs under sub-section (2) of section 129 D is revisional and not review; it is a suo-motu revisional jurisdiction which is exercised by either of the above two officers for the purpose of satisfying himself as to the legality or propriety of any decision or order of an adjudicating authority subordi....... + More

Prohibition on export of all varieties of onions with immediate effect - Validity of N/N. 31/2015-20 dated 14.09.2020 issued by Director General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry, Government of India - basic grievance of the Petitioners are that their bills for export of onions were prior to issuance of notification dated 14th September, 2020 whereby export of onions has been prohibited; yet those are not being permitted to be exported. HELD THAT:- A conjoint reading of sections 50 and 51 of the Customs Act would prima facie indicate that a great deal of sanctity is attached to a shipping bill and a bill of export, shipping bill in the present case. While presenting a shipping bill the exporter has to disclose all the relevant information pertaining to the export and has to make a declaration as t....... + More

Benefit of concession/exemption - N/N. 158/95/Cus - goods re-imported for repair/reconditioning of the goods, when again re-exported beyond the prescribed period of one year including the extension of six months permitted in the Notification - HELD THAT:- Since there is no dispute before us from the side of the Assessee that the reimport of the goods which had taken place to repair/recondition the goods in question were re-exported beyond the prescribed period of one year including the period of six months of extended period and therefore, the Assessee had admitted the breach of the condition of exemption from custody duty under the said Notification No.158/95/Cus. Merely because the Assessee could claim the duty drawback later on, and it may give rise to a revenue neutral situation, it cannot be said that the period of one year prescribe....... + More

Validity of Search and Seizure - Smuggling - Gold - cross examination of the panch witnesses - Whether the Revenue establish the existence of reasons to believe that the impugned gold was smuggled? - HELD THAT:- It was incumbent upon the Department to prove the smuggled nature of the gold also. The only effort revenue seems to have made is to mention in the show-cause notice that as no valid import documents could be produced by the person carrying the gold, the same are deemed to be smuggled goods. Show cause mentions that ‘it seems settled fact that the seized gold were illegally brought into India from abroad by any route other than the route specified under Clause (c) of Section 7 of Customs Act, 1962. No meaningful inquiry and investigation appear to have undertaken to prove the smuggled nature of the gold; it is also not menti....... + More

Levy of penalty on Customs Broker - Regulation 20(7) and 22 of CBLR, 2013 - mis-declaration both at the time of import and again at the time of export as regards description, country of origin and value - HELD THAT:- The charge of violation under Regulation 11(n) as regards compliance of KYC norms is not established as admittedly the appellant have received several documents from their client viz. PAN card, KYC details in prescribed format, authorisation, self attested copy of IEC etc. which corroborate the genuineness of their client - M/s AAA Impex Services and their working at their given address. Further, there is no document which raises suspicion. Accordingly, the charge under Regulation 11(n) is not established. Charge under Regulation 11(e) - HELD THAT:- There is no act of omission or commission which indicates lack of due diligen....... + More

Refund/rebate claim withheld - no stay order obtained - Circular bearing No.276/186/2015-CX.8A dated 01.06.2015 - HELD THAT:- If no interim order has been obtained by the department within a specified period, refund has to be allowed and of course the same will be subject to the outcome of the appeal. In the case on hand, the appellate authority passed the order dated 18.02.2020. We are now on 01.10.2020. More than seven full months have elapsed in the meanwhile. If the department was aggrieved, the department should have expeditiously filed an appeal and pursued the matter and obtained interim order. The petitioner cannot be made to wait indefinitely. The department cannot take its own sweet time to file the appeal and pursue the same. The department ought to have acted expeditiously in the matter. The respondents herein are directed to ....... + More

Smuggling - Gold Biscuits - offence punishable under Section 135 (i) (i) of the Customs Act - acquittal of the accused - whether the acquittal order passed by the trial court is correct or not? - HELD THAT:- The trial court considered the oral and documentary evidence in detail and acquitted the accused. This is an appeal against acquittal. The Apex Court observed that the presumption of innocence attached to every accused persons got strengthen on acquittal of an accused by a trial court - This principle was laid down by Hon'ble Supreme Court in SAMPAT BABSO KALE AND ORS. VERSUS THE STATE OF MAHARASHTRA [2019 (4) TMI 1911 - SUPREME COURT] and CHANDRAPPA AND ORS. VERSUS STATE OF KARNATAKA [2007 (2) TMI 704 - SUPREME COURT]. The trial court considered all the oral and documentary evidence in detail and came to a definite conclusion tha....... + More

Imposition of penalty - designation of appellant on the company - non-executive Chairman of the Company or not - existence of mens rea - reliability of statements recorded - rectification of mistake - HELD THAT:- In view of the dictum of law with regard to the statement recorded under section 108 of the Act coupled with concurrent findings of fact arrived at by the adjudicating authority and the CESTAT, we are not inclined to interfere as no perversity is pointed out in such factual findings arrived at by the both the authorities. For the foregoing reasons and considering section 112(a) of the Customs Act which provides that penalty against person who in relation to any goods does or omits to do any act which act or omission would render such goods liable to confiscation under section 111 or abets the doing or omission of such an act, pen....... + More

Exotic species - Constitutional Validity of Section 108 of the Customs Act, 1962 - vires of Article 14 and 21 of the Constitution of India - issuance of suitable Circular/Instructions to enable the citizens in domestic possession of exotic species to make declaration under the voluntary disclosure scheme without any fear of actions under the customs Act, 1962 - summon of petitioner for seeking any information relating to the acquisition of the exotic species in possession of the petitioner in respect of which the petitioner is contemplating filing of a declaration under the Voluntary Disclosure Scheme - prohibition on officers of the Respondents from taking any action of summoning the petitioner in connection with inquiry or seizure/confiscation of exotic species in domestic possession, under any law. HELD THAT:- The writ jurisdiction und....... + More

Restriction on export of KN96 masks - RBI prohibited Merchanting Trade Transactions (MTT) / Receipt of consideration in foreign currency - Validity of circular issued by the Reserve Bank of India dated 23/01/2020 which is in respect of Merchanting Trade Transactions (MTT) - Reserve Bank of India has refused the permission for the subject MTT contract for supply of KN95 masks from China to United States of America - petitioner's contention is that prohibition imposed by Reserve Bank of India is a total prohibition which violates petitioner's fundamental rights guaranteed under Section 19(1)(g) and 21 of the Constitution of India and therefore, Clause 2(iii) deserves to be struck down by this Court. HELD THAT:- The Government of India has issued a notification dated 28/07/2020 and later on 25/08/2020 which has already been reproduce....... + More

Jurisdiction - power of adjudicating authority to question the action of Director General of Hydrocarbon, Government nilegaonkar 1/3 5-wp-1794.2017.odt of India in making the amendments to the Essentiality Certificate dated 4/11/2013 - HELD THAT:- After having minutely considered the impugned order in original as well as the judgments cited at the bar, prima facie we are of the view that the adjudicating authority was not justified in discarding the amendments to the Essentiality Certificate; thus imposing customs duty, interest and penalty on the petitioner who is a subcontractor of Oil and Natural Gas Corporation (ONGC), engaged in providing offshore drilling and production services in relation to oil exploration at various sites in Mumbai High. Since pleadings are complete, list the matter for final hearing on 26/11/2020.

Refusal to issue the Detention Certificate - waiver of Demurrage Charges - HELD THAT:- We are satisfied that while the matter has been remanded back to the learned Commissioner, the demand made under the said order, on account of Detention Certificate not being issued by the Commissioner of Customs, cannot be sustained for the time being and therefore, payment thereof, in favour of the respondents 3 and 4 viz., Deputy General Manager Cargo, Airport Authority of India, Chennai, and the Assistant General Manager (F&A), Airport Authority of India, Chennai, cannot arise. Such payment can be made, if, only after such reconsideration on remand, the concerned Commissioner again passes a fresh order and sustains the order against the Appellant. The said order obviously has to be passed after giving due and reasonable opportunity of hearing to....... + More

Condonation of delay of around 4700 days in filing the appeal before the Tribunal - HELD THAT:- There is no denial in the communication dated 30.8.2019 placed on record by Revenue, about the aforesaid date of service of the impugned order by the department on the applicant. Thereafter as per the case records, the appeal has been filed by the applicant immediately on 26.7.2018 with the instant application. No doubt the Tribunal can condone the delay on showing the sufficient cause for not filing the appeal within the normal period of limitation. The Hon’ble Supreme Court in the matter of Perumon Bhagvathy Devaswom v. Bhargavi Amma [2008 (7) TMI 836 - SUPREME COURT] has laid down that the words “sufficient cause for not making the application within the period of limitation should be understood and applied in a reasonable, pragm....... + More

Grant of Bail - offence punishable under Section 27(b)/27(d)/28 of the Drugs and Cosmetic Act, 1940 - Section 7/11/46/47 of the Customs Act - Section 21/22(c) of the NDPS (Amendment) Act - HELD THAT:- Medicines have been recovered from the house of the petitioner in an alleged search. Without disclosing the source from where he had obtained the medicines, the petitioner was selling the same illegally. Let the petitioner, above named, be released on bail on furnishing bail bond of ₹ 10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of the learned District & Sessions Judge, Madhubani, in connection with Laukaha P.S. Case No.162 of 2020 (G.R. No.12 of 2020), subject to the conditions imposed - bail application allowed.

Grant of Bail - Sections 135 of Custom Act, 1962 - Smuggling - Gold biscuits - valuation of the gold biscuits is below one crore - section 102 of and 104 of Custom Act - HELD THAT:- Having considered the material on record, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of DATARAM SINGH VERSUS STATE OF UTTAR PRADESH AND ANR. [2018 (2) TMI 410 - SUPREME COURT] and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with certain conditions imposed. Bail application allowed.

Refusal of grant a P5 licence to the Appellant - Section 6 F of the Explosives Act, 1884 (the Explosives Act) read with Rule 121 of the Explosives Rules, 2008 (the Explosives Rules) - whether the Appellant was entitled to import ammonium nitrate? - HELD THAT:- It is clear that an existing importer is entitled to apply for a licence within six months from the date of entry into force of the Ammonium Nitrate Rules and to comply with the provisions of the Rules within one year from the date of publication thereof. In the case on hand, the Appellant applied for a P5 licence on 05.08.2015, and the said application was rejected on 19.08.2015. Once the application for a licence was rejected, in our view, the Appellant is not entitled to rely upon the proviso to Rule 5, which provides for additional time during the transitional period to enable p....... + More

Misdeclaration of imported goods - import of huge tonnes of “Used Rubber Tyre Cut into Two Pieces” (used Rubber Tyre with one cut in bead wire) in containers - restricted goods or not - It is the specific case of the respondent/writ petitioner that the said goods are freely importable under policy conditions and also under CTH 40040000 and they had satisfied the conditions of the Exim Policy and they are one of the actual user of the said goods imported - HELD THAT:- In the considered opinion of this Court, in the light of the non taking of stand by the appellants/responds as to the applicability of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and in the light of the stand taken in the Writ Petitions, it cannot be concluded as a restricted item, for which, provisional release is not prohibited....... + More

Waiver of charges in accordance with the existing policy of Container Corporation of India Limited. - HELD THAT:- The petitioner undertakes that the aforesaid balance amount along with any additional demurrage shall be paid within four weeks. He craves leave and liberty to file an application (after making the aforesaid payment) with respondent no.2-Container Corporation of India Limited for waiver of charges in accordance with the existing policy of Container Corporation of India Limited. - The aforesaid undertaking and statement is accepted by this Court and the petitioner is held bound by the same. The petitioner is also given liberty to file an application for waiver and the same shall be decided by the Container Corporation of India Limited in accordance with law. 6. In the event of breach of the aforesaid undertaking, respondent no.2Container Corporation of India Limited shall be at liberty to auction the nine containers of the petitioner forthwith. Petition disposed off.

Misdeclaration of imported goods - Aluminium Scrap Tread - old and used pipes were found - restricted goods or not - Special Import License (SIL) for the import not submitted - rejection of transaction value - Confiscation - redemption fine - penalty - HELD THAT:- Since, correct information was not furnished in the import documents, the transaction value was appropriately rejected under Rule 12 of the Customs Valuation Rules, 2007 and the value was re-determined considering the same as serviceable goods. The appellant had not submitted any plausible evidence either before the authorities below or the Tribunal that the goods in question were corresponding to the declaration made in the Bill of Entry. Thus, the appellant is exposed to the consequences provided under the statute for payment of differential duty, fine and penalty. Appeal dismissed.

Grant of Interim Relief - Amounts representing tax/Tax Deducted at Source (TDS) on the price of the FCDs and interest payable to the Respondent, which was required to be deposited in Court, is withheld - HELD THAT:- The purchaser’s liability to pay this amount (namely, the Holdback Amount) into the treasury towards the tax liability of the seller is essentially a matter of their inter se agreement, which is contained in clause 4.5.1 of the SDPA. The payability of the tax for the consideration received under the SPDA may be a matter between the assessee i.e. (the Respondent seller) and the revenue, but so far as the deposit of the Holdback Amount into treasury towards the tax liability of the Respondent is concerned, it is certainly a matter as between the Respondent and its contracting counter party, namely, the Appellants. There is....... + More

Condonation of delay in filing appeal - time limitation - Appellant states that there was delay beyond 90 days because of the age factor of the Appellants and that the Appellants are senior citizens and distance from Guwahati to Delhi - HELD THAT:- Under Section 421 of the Companies Act, the period of Appeal is 45 days and we can entertain the Appeal after expiry of the said period but within a further period not exceeding 45 days. In the present matter, the Appeal was filed on 20th July, 2020. There was lockdown from 23rd March, 2020. But then, it can be seen that before that itself, more than 90 days period had been consumed. By end of February 2020, 98 days appear to have been consumed. The Appeal is time-barred and the Appeal is dismissed.

Transfer of land and machinery of 1st Respondent Company - Section 241 of Companies Act, 2013 - HELD THAT:- The waiver, extension, relaxation of conditions precedent to the Asset Transfer Agreement are at the instance of the purchaser i.e, Respondent No.2 herein and in case the purchaser agrees for the said waiver, the Agreement may be carried forward by the parties concerned. The Petitioners herein have not been able to establish in all their pleadings and oral arguments as to how their interest have been prejudiced with the said three transactions relating to transfer of land as mentioned in the prayer Clause (2) of their petition. The petitioners also have not been able to establish as to how the said transactions constitute an act of oppression as against them and what tangible loss was caused to the Company with the said transactions....... + More

Pledge of property - existence of two subsisting status quo orders on the properties of the Company which is restricting the Company to pledge its properties to raise funds from Banks and other Financial Institutions - threat from the lenders to surge the interest rate and take coercive legal steps if the dues of corporate lenders are not cleared. HELD THAT:- CLB missed a most basic principle of Section 397, namely, that mere unfairness does not constitute oppression. When the petitioners were given the right to subscribe to the 'rights issue' along with all others in the same proportion, no prejudice, whatsoever, could have been caused to them. It is not in dispute even by the petitioners that the need for more funds was an admitted position - In fact, no unfair prejudice has been caused to the petitioners. The CLB failed to take....... + More

Reduction of share capital - Section 66 of the Companies Act, 2013 and NCLT (Procedure for Reduction of Share Capital of Company) Rules, 2016 - HELD THAT:- The present position of law, while dealing with the provisions of Section 66 is that if none of the shareholders are objecting for the proposed reduction, then after considering the merits of the case as also connected facts and circumstances such petition generally deserves to be admitted - Further, observed that while reducing the share capital, company can decide to extinguish some of its shares without dealing in the same manner as with all other shares of the same class. The company limited by shares is permitted to reduce the share capital in any manner, thereby a selective reduction is permissible within the framework of law. On the question of valuation as well, an observation ....... + More

Approval of the Scheme of Amalgamation - Sections 230 and 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - HELD THAT:- Upon considering the approval accorded by the members and creditors of the Petitioner company to the proposed Scheme, and the report filed by the Regional Director, Northern Region, Ministry of Corporate Affairs, report filed by the official liquidator and also as no objection from any quarter against the Scheme has been received; there appears to be no impediment in sanctioning the present Scheme - sanction is hereby granted to the Scheme under Section 230 to 232 of the Companies Act, 2013 in respect of the Petitioner Company. The scheme is approved - application allowed.

Oppression and mismanagement - Removal of Director - nomination of a new director - submission of Audited Balance Sheet - time limitation - HELD THAT:- The averments made by the petitioner in the petition are not supported by relevant documents. In fact, the petitioner has not annexed any documents to support his case and prima facie we are of the view that the petitioner has failed to make out a case of oppression and mismanagement as against the Respondents. It can be seen that the averments made by the petitioner in the petition are that he had infused some funds into the 1st Respondent Company after which he had been tricked into by the Respondents and resigned as a Director of the 1st Respondent Company on 17.11.2012. Now, after the lapse of almost 5 years, the petitioner has filed the present petition to induct him as the Director o....... + More

Oppression and Mismanagement - appointment of Managing Director - continuation of lease - appointment of Board of Directors of the Company - It is alleged by the Petitioners that on 19-09-2017, these added Directors without any authority and without serving notice to the Petitioners held Extra Ordinary General meeting of shareholders for enhancing shareholding by allotting those shares to the Respondent Nos. 5 to 37, illegally reducing the Petitioners as minority shareholders. Whether the Respondent Nos. 2 to 4 were appointed as the additional Directors and their appointments as Directors have been confirmed? - Whether the Petitioners were illegally removed from the posts of Directors/Managing Director by the Respondents? - HELD THAT:- The law prescribes that if Article of Association of the Company allows the Board of Director to appoint....... + More

Permission to withdraw, from time to time, such amounts as may be required for the educational expenses of his son - HELD THAT:- The son of the Applicant has received intimation letter from the Institute of Management and is desirous of taking admission there. It cannot be disputed that the expenses of admission and the course which the son of the Applicant wishes to undertake cannot be met from the limited/fixed amount that the applicant is allowed to withdraw every month from his bank account(s). The Applicant would not be in a position to meet the educational expenses of his son from the amount that the Applicant is allowed to withdraw, nor has he any other resources for the purpose. The objection by the Respondent (UOI), that the Applicant is involved in the financial irregularity of the Gitanjali Gems Ltd and that is being invested b....... + More

Restoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies, Kochi - Section 252(1) of the Companies Act, 2013 - HELD THAT:- This Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies and consider shareholder to be the member of the company to file this appeal. The Registrar of Companies, the respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the company has not been struck off from the Register of Companies and take all consequential actions like change of company’s status from ‘Strike off’ to Active (for e-filing) - Name restored - application allowed.

Contravention of Section 96 R/w Section 99 & Section 441 of Companies Act, 2013 - compounding of offences relating to contravention - HELD THAT:- The ROC has not opposed the instant Petition but stated material facts regarding violations and maximum prescribed and number of days in complying with violations. The Petitioners have satisfactorily explained the reasons for delay in complying with violations in questions and filed the instant Petition suo motto, that too after making good violations in question. The Petitioners have not committed similar violations earlier and these are the first violations committed by them. The Report of ROC mentioned maximum penalties prescribed under the extant sections. Therefore, depending on the facts and circumstances of the case, the Tribunal is empowered either to impose suitably penalty or even ....... + More

Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- This Company Petition is allowed, and the Scheme of Amalgamation annexed with the Petitions is hereby sanctioned. The Scheme approved shall be binding on the Shareholders, Creditors and employees of the Companies involved in this Scheme. The Appointed date of the Scheme is 1st April, 2019. Scheme approved.

Sanction of a Scheme of Amalgamation - section 230 to 232 of the Companies Act, 2013 - HELD THAT:- On perusal of the documents produced on record, it appears that provisions of Section 230-232 of the Companies Act, 2013 are satisfied. This Tribunal finds that in the Scheme of amalgamation the Petitioner Transferor Company's entire business including assets, liabilities, rights, obligation get transferred and get merged with the Petitioner Transferee Company and the Petitioner Transferor Company shall get dissolved without winding up and hence the revenue's interest is duly protected and the apprehension of the Official Liquidator about the revenue's interest shall get adversely affected, is without merits as the liabilities, obligations if any of the Petitioner Transferor Company does not get diluted even remotely and become t....... + More

Approval of Scheme of Amalgamation - Sections 230 and 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Amalgamation, as approved by the Petitioner Company, is hereby sanctioned, as prayed. The Scheme of Amalgamation (enclosed as Annexure-A to this Company Petition) is hereby sanctioned and the Appointed Date shall be 01st April, 2013. The effective date of the Scheme shall be the date of this order - Application allowed.

Approval of Scheme of Amalgamation (Merger by Absorption) - Section 230-232 of Companies Act - HELD THAT:- Directions regarding holding and dispensation of various meetings issued - directions regarding issunce of various notices also issued - application allowed - scheme is approved.

Restoration of name of the Company namely M/s. SRK Sugars Private Limited in the Register of Companies maintained by the Registrar of Companies - section 252 of the Companies Act, 2013 - HELD THAT:- It is not in dispute that the Registrar of Companies is conferred with power U/s. 248(1) to strike off the Company, if the Company has failed to commence its business within one year of its incorporation or a Company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any Application within such period for obtaining the status of a dormant Company U/s. 455. However, Section 248(6) states that the Registrar of Companies, before finally striking off Company, has to satisfy himself that sufficient provision has been made for the realization of all amounts due to the Company and f....... + More

Approval of Composite Scheme of Amalgamation and Arrangement - Sections 230 to 232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 R/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- It has been stated by the Regional Director that, on a consideration of the materials on record, the Scheme appears to be fair, reasonable and is not detrimental against the Members or Creditors or contrary to public policy and the same can be approved - In his report the Regional Director, MCA has concluded that the Scheme appears to be fair, reasonable and not detrimental against the Members or Creditors or contrary to public policy and the same can be approved. The procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with. It a....... + More

Sanction of Amalgamation Scheme - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of Law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, Joint Company Petition filed by Petitioner Companies are made absolute in terms of prayer clause (a) thereof. The Scheme is hereby sanctioned, and the Appointed Date of the Scheme is fixed as 1st August 2018. The Transferor Company is ordered to be dissolved without winding up - Application allowed.

Sanction of scheme of amalgamation - sections 230-232 of the Companies Act 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy - The Appointed Date of the Scheme is fixed as 1st April 2018 - The Transferor Company shall be dissolved without winding-up. The Petitioner Companies are directed to lodge a certified copy of this Order and the Scheme with the concerned Superintendent of Stamps, within 60 working days from the date of receipt of certified copy of order, for adjudication of stamp duty payable, if any - The Petitioner Companies are directed to lodge a certified copy of this Order along with a copy of the Scheme with the concerned Registrar of Companies, electronically in Form INC-28 within 30 days from the date of issue of the order by the Registry, duly certified by the Deputy/Assistant Registrar of this Tribunal. Application allowed.

Winding up order - Prevention of any withdrawals, transfer, disposal/diversion of funds or closure of the said accounts; to direct to disclose moveable and immovable properties/assets, including bank accounts, owned by the Company in India or anywhere in the world - restraint on Respondents from accepting further deposits/money from existing members or fresh deposits/money from the Public etc. - Whether the Central Government is empowered and justified to order investigation into the ownership of any Company, under provisions Companies Act, 2013 in public interest? - Whether the Petitioner proved that affairs of the Company are being conducted in a fraudulent manner or the Company was formed for fraudulent and unlawful purpose or the persons concerned in the formation or management of its affairs have been guilty of fraud, misfeasance or ....... + More

Direction to Respondents to keep the payment of the electricity bills of the Applicant in abeyance till either the (i) end of the moratorium period of the Applicant's insolvency proceedings as per the Hon'ble NCLT's Order dated 09.04.2019, or (ii) final disposal of the Writ Petition No. 38107 of 2014, whichever is earlier - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is not in dispute the Applicant / Corporate Debtor already filed writ petition in the Hon'ble High Court bearing Writ Petition No. 38107/2014. Thus already the Corporate Debtor moved the Hon'ble High Court even before CIRP started against Corporate Debtor. Having filed writ petition in the Hon'ble High Court and when matter is sub-judice, it is not open to the Applicant / Corporate Debtor to move the Tribunal again on the....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - unpaid License Fee - Operational Creditor - existence of debt and dispute or not. Whether the unpaid Licence Fee arising out of Licence Agreement with regard to immovable property falls under the definition of Operational Debt as defined under the provisions of the Insolvency and Bankruptcy Code, 2016? - HELD THAT:- Only if the claim by way of debt falls within one of the three categories as listed above can such a claim be categorized as an operational debt. In case if the amount claimed does not fall under any of the categories mentioned as above, the claim cannot be categorized as an operational debt and even though there might be a liability or obligation due from one person, namely Corporate Debtor to another, namely Creditor....... + 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 clearly seen from the material on record that the operational creditor raised invoice for a sum of ₹ 9,26,600/-. The operational debt itself is disputed by the corporate debtor. The corporate debtor also showed as to why and as to how the amount claimed towards professional charges is exorbitant. It has pointed out that the amount payable by it towards submission to West Bengal Labour Welfare Board is just ₹ 324/- page 27 (affidavit-in-reply) but the operational creditor in his invoice has claimed sum of ₹ 7,000/- towards labour welfare fees (page 19 of the application) - It is not necessary for us to go through all entries in detail. Suffice to say is that....... + More

Directions to Respondent Bank to release, refund and transfer the amount of the fixed deposit along with accrued interest till date of payment, to the bank account of the Corporate Debtor - It is submitted by the RP that as per Section 18(1) of the IB Code, the RP is required to take control and the custody of any asset over which the Corporate Debtor has ownership rights as recorded in the Balance Sheet of the Corporate Debtor - HELD THAT:- It is a matter of record that the above said fixed deposits are of Corporate Debtor and once the CIRP is initiated the RP has to comply Section 18(1)(f) of the IB Code. This Adjudicating Authority hereby directs the Respondent Bank to release the aforesaid amount of ₹ 65,02,500/- to the account of the Corporate Debtor and/or pool amount, if any, opened/ maintained by the RP for the purpose of CI....... + More

Application for condonation of delay in filing restoration application - issuance of appropriate directions to the Resolution Professional to ensure the payment of dues of Applicant as Secured Creditors as provided under the provisions of the Part II, Chapter II of the Insolvency & Bankruptcy Code 2016 - HELD THAT:- The dues of the Government, Central Government and/or State Government or any legal authority fall under the category of "Operational Debt". That apart, the applicant is claiming that in view of the provision of section 48 of Gujarat Value Added Tax, 2003, he may be treated as Secured Creditor. This contention of the Applicant is also not maintainable in view of section 238 of the IBC. Any dues and services of the Government Departments are considered as "Operational Creditor". Under such circumstances,....... + More

Approval of Resolution Plan - Section 60(5)(b) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The corporate debtor invoked the Arbitration Proceedings against the applicant, even before initiation of CIRP and consequently in the books of corporate debtor, no liability towards applicant was shown and RP acted accordingly - In the instant CA the COC has already approved a resolution plan and that the CA filed by the RP seeking approval of this Adjudicating Authority for the said resolution plan is pending. The applicant is allowed to file its claim in terms of the sub-section (6) of Section 60 before the appropriate court of law or may file appropriate application against the corporate debtor if the resolution plan is approved and do not take proper care of the applicant - application disposed off.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - Civil Suit for specific performance - non-allotment of 39100 sq. ft. built-up area of land or not - default in terms of Section 3(12) of the I&B Code, 2016 - HELD THAT:- Under Section 5(8)(f) of I&B Code, any amount raised from ‘allottee’ under a real estate project shall be deemed to be an amount having the 'commercial effect of borrowing' and thus, would be covered under the definition of 'Financial Creditor' as defined under Section 5(7) of the Code. It is thus, clear that the Appellant can claim a Financial debt as an 'allottee' only when the amount raised from it as an 'allottee' is used for a real estate project. In the facts and circumstances, the A....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor had committed default in repayment and thereby the loan was recalled by issuing of Section 13(2) notice under the SARFAESI Act 2002 on 20th November 2017 by classifying the account of the Corporate Debtor as NPA - existence of debt and dispute or not - time limitation - HELD THAT:- Admittedly, the Corporate Debtor has issued the letter dated 11.11.2016. It is a letter addressed to the CEO and Managing Director of ARCIL, in reply to the letter dated 19.9.2016 issued by the ARCIL to the Corporate Debtor. A reading of the letter reveals that it was issued by the Corporate Debtor without any prejudice. The subject matter of this letter is related to a proposal for settlement and acceptance of the proposal for the settlement. As per the letter, the Corporate Debtor along wi....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - whether the claim of the financial creditor is barred by law of limitation? - HELD THAT:- The default had admittedly occurred on 31.08.2012 and the present application has been filed on 26.10.2018, prima facie, this application is barred by limitation since it has been filed beyond limitation period. A look at the statement of accounts related to the account of the Corporate Debtor indicates that the above said deposit was not part payment towards the loan amount liable to be paid by the Corporate Debtor but was deposited by the Allahabad Bank. Accordingly, the submission on the side of the Financial Creditor that fresh period of limitation would start from 18.03.2016 is found devoid of any merit - No other argument was advanced o....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - time limitation - HELD THAT:- The time begins to run in this case for filing this application was on 21st July, 2009 and nothing in this case to hold that the period of 3 years starting from the said date can be extended to 29.06.2018 as attempted to establish on the side of the Operational Creditor - thus, the application filed on 29.06.2018 is hopelessly barred by limitation. Pre-existing dispute or not - HELD THAT:- The Corporate Debtor has raised dispute regarding the non compliance of terms in the work orders and the Ld. Additional District Judge had been given the liberty to the Corporate Debtor to raise the dispute again if the Operational Creditor preferred a fresh claim before the Micro, Smal....... + 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:- This Adjudicating Authority has to satisfy itself with the facts of the case and especially the fact that a clear case is made out for the initiation of CIRP under this provision and then exercise its discretion as to the fitness of a case for triggering the same. In this exercise, the Adjudicating Authority has to tread carefully to keep a balance between the Financial Creditor to whom monies are owed, and on the other hand, the Corporate Debtor and his business, and that its value should be maximised or at least not diminish to the detriment of all stake holders, including the financial creditor. It is also well settled that the provisions of the Code cannot be invoked for recov....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Respondent has sent an email on 15.11.2018, complaining about the delay in completion of work and quality of service provided by the petitioner and on perusal of the E-mails sent by respondent to the applicant dated 02.11.2017, 20.11.2018 and 02.06.2018 it can be concluded that the respondent has requested several times to the applicant for the timely completion of work and has complained about the delay in the completion of work. The project hand over report dated 13.08.2018 submitted by the neutral third party to certify the construction site submitted by the applicant in the petition also contains the fact that major leakage has been found in the work as well as work was no....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Financial Debt - existence of debt and dispute or not - HELD THAT:- Resolution Plan/Restructuring Package, which was submitted by the Corporate Debtor, was rejected, as is evident from the Minutes of the Consortium Meeting dated 28.03.2018, not only on account of the revised RBI Guidelines but also due to non-routing of sales of the Corporate Debtor through cash credit account. Details on record, more particularly the Minutes of the Meeting of the Consortium on 05.04.2019, wherein the forensic audit report of the account of Corporate Debtor were considered, various irregularities have been recorded. Thus, prima facie, the Financial Creditor has succeeded in establishing that the proceedings initiated by them against the Corporate ....... + 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 corporate debtor has tried to create and establish a preexisting dispute by asserting that the materials were neither delivered nor received. However, no documentary evidence or correspondence is placed on record by the corporate debtor to support the contentions. No documentary evidence is placed on record to manifest that there is a pre-existing dispute but the said dispute was raised for the first time only after notice under Section 8 of IBC was issued. In reply only statements are made by Corporate Debtor which has not been substantiated with any proof. The corporate debtor has not placed on record any document which exhibits the plausible dispute betwee....... + More

Approval of the sale of Corporate Debtor as a going concern to M/s. Geosoft Distributors Private Limited by way of private sale without any liabilities and with immunity from existing litigations, if any, against the Corporate Debtor - private sale be allowed to be distributed as per order of priority specified in Section 53 of the Insolvency and Bankruptcy Code, 2016 and remaining outstanding liabilities be extinguished - HELD THAT:- It is worth noting that no valuation by any of the valuers of licences/brand owned by the Corporate Debtor has been done although it is being sought to be transferred. Legal validity of the proposal made by the liquidator - HELD THAT:- First of all, sale of Corporate Debtor as a going concern without transfer of liabilities is not in consonance with the provisions of Regulation 32A(3) read with Regulation 32....... + More

Direction to Resolution Professional to call for a meeting of the COC and to further direct the COC to invite the Applicant to the said meeting - discussing, negotiating and finalising last revised bid submitted by the Applicant for the purpose of deciding the successful resolution applicant - stay on approval of Resolution Plan. The main prayer of the applicant herein, who is the unsuccessful Resolution Applicant, is that this Adjudicating Authority should direct the RP to conduct another CoC meeting to consider its revised Resolution Plan for the purpose of deciding the successful Resolution Applicant, keeping in view, the objects of the Code. HELD THAT:- Various allegations have been levelled by the Applicant alleging bias in favor of the successful Resolution Applicant on the part of the CoC. It is also alleged that CoC accepted the b....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Whether this application is filed by the proprietary firm or proprietor of the firm? - HELD THAT:- In this proceeding, we noted that the application is filed by one Mr. Sanjay Kumar, the proprietor of M/s. Sri Ram Constructions (in Form-5). Notice under section 8 of IBC was also sent by Mr. Sanjay Kumar, proprietor on behalf of the firm. So, on facts the order relied on by the Ld. Sr. Counsel for the corporate debtor is not applicable. Moreover, we have elaborately discussed the provisions of section 5(20) read with section 3(23) of IBC and held that even application filed by the proprietary firm through its proprietor is maintainable - On the basis of facts in this case and evidence on recor....... + More

CIRP process - Orders/directions to treat the applicants as 'Financial Creditor' - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 readwith Rule 11 of the NCLT Rules, 2016 - HELD THAT:- It is an admitted fact of the parties that the applicants had entered into an agreement with the Corporate Debtor on 17.05.2011 and on the basis of that agreement the developer will get 55 per cent whereas the owner's share was 45 per cent and as per the agreement, the land shall be under the possession and control of the applicants but thereafter a subsequent agreement was executed on 18.03.2013 and according to the supplementary agreement in terms of Clauses 8, 9 & 10, new terms and conditions were fixed and the terms and conditions - From the perusal, it appears that by subsequent agreement, both the Applicants are allotted 9 f....... + More

Liquidation process - Priority of settlement of dues - Payment of dues of Applicant as Secured Creditors as provided under the provisions of Part II Chapter II of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- It is clear that the dues of the Government, Central Government and/or State Government or any legal authority fall under the category of "Operational Debt". That apart, the Applicant is claiming that in view of the provision of section 48 of Gujarat Value Added Tax, 2003, he may be treated as Secured Creditor. This contention of the Applicant is/are also not maintainable in view of the definition stated hereinabove as also in view of section 238 of the IBC. While deciding the issue of 'Operational Creditor' and 'Financial Creditor', the Hon'ble Supreme Court observed in SWISS RIBBONS PVT. LTD....... + More

Liquidation process - Priority of settlement of dues - Payment of dues of Applicant as Secured Creditors as provided under the provisions of Part II Chapter II of the Insolvency & Bankruptcy Code, 2016 - main contention in the application are that the Petitioner is claiming to be a secured statutory creditor in view of the provision of section 48 of the Gujarat Value Added Tax and accordingly they want to be considered as Secured Statutory Creditor in petition which is under CIRP - HELD THAT:- The dues of the Government, Central Government and/or State Government or any legal authority fall under the category of "Operational Debt". That apart, the applicant is claiming that in view of the provision of section 48 of Gujarat Value Added Tax, 2003, he may be treated as secured statutory creditor. While deciding the issue of &qu....... + More

Release of Provisional Attachment of properties/funds - relief prayed proceeds on the premise that the petitioner was a young boy and a student of Purdue University, Indiana, United States of America and, was in no manner connected with the commission of the scheduled offence or in possession of proceeds of crime and therefore, the attachment of his properties was illegal - HELD THAT:- In terms of the directions passed by this Court vide order 17.08.2020, the Adjudicating Authority, under the provisions of Prevention of Money Laundering Act, 2002, has finally adjudicated the provisional attachment orders No.02/2020 dated 18.02.2020 and 06/2020 dated 30.06.2020, vide their orders dated 21.09.2020 and 25.09.2020, respectively - It is an admitted position that the said orders dated 21.09.2020 and 25.09.2020 respectively, rendered by the Adju....... + More

Disposal of representations dated 21.08.2018 by passing a reasonable and speaking order, within a reasonable time period that may be fixed by this Court - HELD THAT:- The interest of the petitioner is only private and if the same is a public interest, the locus will be tested in a different way. The term dual test is whether the petitioner is a person aggrieved, as admittedly, he is an advocate and had never traded with the NSE nor had suffered any loss on account of the alleged co-location service. The petitioner being a complete stranger, there is no cause of action for him to maintain a writ petition, much less, any cause of action that arose within the jurisdiction of this court to maintain a writ petition here. Therefore, on the ground of maintainability itself the petitioner has to be nonsuited. Admittedly, there were issues when co....... + More

Recording of the ECIR - it is contended that the recording of the ECIR is itself bad in law since the Directorate of Enforcement (‘ED’) has not followed the procedure prescribed under law, including the mandatory provisions of Chapter XII of the Cr.P.C. HELD THAT:- List on 14th October 2020.

Validity of provisional order of attachment - statutory appeal before the first respondent, along with the petition for condonation of delay - HELD THAT:- This Court directs the appellate Tribunal/Prevention of Money Laundering, New Delhi, to accord priority and give disposal to petition and the connected petitions, in accordance with law, as expeditiously as possible and not later than three months from the date of receipt of a copy of this order. Petition disposed off.

Money Laundering- proceeds of crime - It has been alleged that Sri Manoj Singh had acquired proceeds of crime and placed the said proceeds of crime in the form of fixed deposit and other deposits - HELD THAT:- In course of investigation by the Vigilance Bureau, it was detected that so far as the valuation of gold and diamonds are concerned, the jewellery was not physically taken to the Valuer, but instead the Valuer had given a back dated valuation report and in lieu thereof, he was given an amount of ₹ 1,26,042/-. Sri Ramesh Kumar Soni, the Valuer in his statement under Section 15 of the Prevention of Money Laundering Act has specifically stated about the valuation being made after the gold and diamonds were brought before him by the accused which is contrary to what has been stated by him before the Vigilance Bureau. In course of ....... + More

Provisional attachment order - assets in respect of which the said attachment order has been passed are certain fixed deposits - said fixed deposits are currently lying with the HDFC Bank - HELD THAT:- In the peculiar facts and circumstances of this case where the amount, if frozen or attached, would continue to remain under the custody of the ED, this Court deems it appropriate to direct the said amount of ₹ 42,85,32,698.63/- from the provisionally attached bank account to be transferred to the account of the NHB by the HDFC Bank. Remaining amounts provisional attachment order shall continue and the Petitioner would be free to agitate its pleas before the Adjudicating Authority under the PMLA. Payment to the NHB shall be a pro-tem measure in the peculiar facts and shall abide by the final orders of the Adjudicating Authority. If th....... + More

Provisional attachment order - It is alleged that the police without any justification and cause have implicated the petitioner in a frivolous case on the basis of a disclosure statement made by one Mushfiq Ahmad Lone in FIR No.254 /2009 for offences under Section 120, 120-B, 121, 121/A RPC and 11, 18, 20 and 40A of ULA(P) Act of Police Station, Saddar, Srinagar - HELD THAT:- It is clear that whosoever, directly or indirectly, attempts to indulge or knowingly assists or is knowingly part or is actually involved in any process or activity connected with the proceeds of crime etc. etc. is guilty of offence of money laundering. The expressions used in the provision are “directly” and “knowingly assists”. These expressions convey that it is not necessary that proceeds of crime should have been actually and directly con....... + More

Grant of Bail - fraudulent high value forex outward remittances/transactions exceeding ₹ 3500 crores, taken place in the current accounts - outward remittances made without making corresponding imports into the domestic tariff area and without disclosing the beneficial owners inside the country and outside the country and end-use of the proceeds of crime in the other country - HELD THAT:- The petitioner have committed very serious offence in nature and there are ample chances to tamper the evidences and hamper the witnesses. Now the respondent laid charge sheet and the same has been taken cognizance in C.C.No.26 of 2019 on the file of the Principal Session Judge, Chennai and it is pending. This Court already dismissed the bail petition on two occasions and this Court does not find any change of circumstances to consider the bail app....... + More

Grant of Order of Status Quo - provisional attachment order - Ad-interim stay of the operation of impugned order - Eviction notice - HELD THAT:- There is no dispute that the aforesaid appellants are either FIR or ECIR named accused and that there is no allegations against these appellants that the aforesaid amounts that have been paid to the builders are out of proceeds of crime and that it is not denied by the Respondent that the aforesaid amounts have not been paid by these appellants and that it is an admitted fact that the appellants are not physically residing in the aforesaid flats and the flats are under lock and key. Having due regard to the facts and circumstances of the case, justice would be served, at this stage, if the conditional order of status quo is passed with respect to the aforesaid properties. Both the parties are dir....... + More

Money Laundering - Release of petitioner from Jail - allegation of extortion - keeping in jail custody beyond the period the maximum sentence which could be awarded pertaining to alleged offence though he has been remanded in judicial custody by a judicial order passed by the Court of competent jurisdiction - judicial order of remand - valid order of remand beyond the period of maximum sentence could have been awarded to the accused (the petitioner) in view of the protection provided under Article 20 and 21 of the Constitution of India or not - period of custody in jail. Maintainability of application - availability of alternative remedy - HELD THAT:- There is no absolute bar to entertain the writ application in the event of availability of alternative remedy subject to the condition mentioned herein above. If the issue falls under the af....... + More

Permission for withdrawal of petition - Validity of provisional attachment order - Proceeds of crime - petitioner seeks to withdraw the writ petition today on the ground that the provisional order of attachment no longer remains in force by efflux of time under Section 5 of The Prevention of Money-Laundering Act, 2002 - HELD THAT:- his Court is of the view that under Section 5(1)(b) of the PMLA, an order of provisional attachment remains in force only for a period of 180 days from the date of the order passed by the Director with regard to the proceeds of crime which the concerned Director has reasons to believe are likely to be concealed, transferred or dealt with in a manner which may frustrate any proceedings relating to confiscation of such proceeds of crime under Chapter III of the PMLA - Section 8(3) deals with a situation where the....... + More

Money Laundering - illegal collection of money - Grant of Anticipatory Bail - corruption and criminal conspiracy in which the ACB/EOW raided few offices and residences - allegation that Applicant Anil Tuteja received an amount of ₹ 2,21,94,000 and Applicant Alok Shukla received an amount of ₹ 1,51,43,000 illegally during the period from 30.5.2014 to 18.2.2015 and 1.7.2014 to 18.2.2015, respectively - HELD THAT:- There is concurrent jurisdiction of the High Court and the Court of Session for entertaining an application preferred under Section 438 Cr.P.C. and an application filed by the Applicant under Section 438 Cr.P.C. directly before the High Court is maintainable. From the speech of the then Finance Minister, it is also clear that the provisions of Section 24 of PMLA only apply after framing of a charge against the accused ....... + More

Contempt petition - release of freezed Bank accounts of petitioner - contention of petitioner is that despite order dated 14.11.2019 quashing the freezing of the bank account, respondent Bank had not permitted the operations of the bank account - HELD THAT:- There is no wilful default on part of the respondent bank in not permitting operation of the bank account for the period that they were seeking clarification from the Enforcement Directorate as well as the Income Tax Department. The bank seems to have acted only by way of an abundant caution in seeking a clarification from the Enforcement Directorate as well as from the Income Tax Department. The cautious approach of the bank seems justified in view of the fact that the Enforcement Directorate has passed a further provisional attachment order attaching the amount of ₹ 19,22,11,271/-, which was the credit balance in the subject account. Petition dismissed.

Grant of Regular bail - Money Laundering - siphoning of funds - the allegation is that the amount was given by RFL to entities which were, directly or indirectly, owned or controlled by the applicant, or in which the applicant otherwise had financial interest, including companies linked to RHC - it was held by High Court that this court is persuaded to the applicant to regular bail in the proceedings registered under sections 3/4 of the Prevention of Money Laundering Act 2002. HELD THAT:- Issue Notice - List for hearing in the next week.

Grant of Interim Bail/Parole - categorization by way of exclusion of UTPs lodged in the jails in Delhi as under trial prisoners qua the alleged commission of offences - allegations levelled against the petitioner herein through the alleged commission of economic offences inter alia punishable under the PMLA Act, 2002 as also qua an offence punishable under Section 409 of the Indian Penal Code, 1860 which is punishable with the imprisonment for life or that which it may extend to ten years and to a fine - HELD THAT:- The Hon’ble High Powered Committee whilst considering the representation of the applicant observed also to the effect that the submissions made in the representation, related to the applicant only, but, that the Committee, was not formed to look into merits or demerits of an individual case for being released on interim ....... + More

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

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

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

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

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

Whether the Board obliged to grant a personal hearing to the petitioner while considering an exemption application under the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014 - HELD THAT:- It is a settled position that the requirement of compliance with the principle of natural justice can vary in different situations and conditions. Even where situations where principles of natural justice require an opportunity of hearing, it does not in all circumstances mean a personal hearing. A “reasonable opportunity of being heard” to the applicant before deciding exemption application. Therefore whenever it is found necessary to provide for an opportunity, SEBI has expressly incorporated it in such provisions. No such stipulation is found in the Regulation at hand. Apprehension expressed by the S....... + More

Interpretation of Statute - Whether Section 14 and 238 of IBC 2016 have an overriding effect on the provision of Section 28 of SEBI Act? - HELD THAT:- IBC which is a complete code in itself was enacted in the year 2016 and the law makers after considering the various acts prevailing at that time have framed the IBC to have a faster resolution process at par with developed countries with the primary objective of maximisation of value of assets to all stake holders. The preamble of IBC clearly mentions that the objective of the Code is maximisation of value of assets, to promote entrepreneurship, availability of credit and balance the interest of all stake holders in a time bound manner, whereas the primary object of SEBI is to protect the interest of the investors in securities market and to promote the development to regulate the securiti....... + More

Credit Rating Rationales - factors required to be considered by ICRA while deciding the rating - praying for a decree of declaration, declaring the Credit Rating Rationales dated 24th April, 2020 and 30th April, 2020 passed by the defendant or any other similar credit rating rationale downgrading the plaintiff’s credit rating from BBB+ (stable outlook) to BBB (negative outlook) as null, void, unenforceable and ineffective - also seeks decree of mandatory injunction directing the defendant to withdraw the said credit rating rationales from the physical as well as electronic records of the defendant including on the world wide web - charge of Violation of rating methodologies or the CRA Regulations or the Master Circular - Whether the defendant-ICRA has a right to publish the rating despite being objected to by the plaintiff/JPL? HELD....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CENVAT Credit - capital goods or inputs - Dumpers/trippers - time limitation - period in dispute is May, 2008 to March, 2009 - HELD THAT:- The present case can be disposed off on limitation itself without going into the merit of the case. The appellant have bonafidely availed the Cenvat Credit in respect of Dumpers/trippers and the details of the credit was declared in their ST-3 Returns. Moreover, on the query from the Range Officer, the appellant have submitted invoice wise details of credit which contained the Cenvat Credit taken on invoices of Dumpers/trippers also. Therefore, there is no suppression or wilful suppression of facts to take the undue benefit of Cenvat Credit on the part of the appellant. It is also observed that the issue involves interpretation of Cenvat Credit Rules - On the same issue number of judgments were passed ....... + More

Rejection of application under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection on the ground of inadvertent mistake as regards the penalty imposed being not correctly stated in the SVLDRS-1 form - HELD THAT:- The issue as to whether an inadvertent mistake as regards the penalty imposed being not correctly stated in the SVLDRS-1 form, has been decided by this Court in its judgment 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] where it was held that When we look into the Scheme 2019, we do not find any provision which provides that a person upon whom a penalty is imposed would not be entitled to the benefit given under the scheme. Infact on t....... + More

Rectification of error - error apparent on the face of record - Section 74 of the Finance Act, 1994 - GTA service or Supply of Tangible Goods without transfer of right to use - reverse charge mechanism - summons issued for production of documents which were not done - evasion of pre-deposit - HELD THAT:- There are no grounds to substantiate that part of the service were that of goods transport agent services. The petitioner had also not co-operated during the investigation and therefore DRI was able to issue the Show Cause Notice only after procuring records through Income Tax/Service Tax Commissionerate its recipient of the recipient of services. If the petitioner is aggrieved, the petitioner should only file a statutory appeal. The petitioner cannot expect the court to exercise extraordinary jurisdiction under Article 226 of the Constit....... + More

Maintainability of appeal - appropriate forum - Classification of Services - Business Auxiliary Services or Erection, Commissioning or Installation? - sales commission received by the appellant from M/s. Electrosteel Castings Ltd., M/s. Lanco Industries Ltd., and M/s. Pacific Pipe Systems Pvt. Ltd. - HELD THAT:- Having regard to the subject-matter and the issue decided by the Tribunal, the appeal would lie to the Supreme Court in terms of Section 35L of the Act 1944. Without entering into the merits of the matter, this appeal is disposed off on the ground that the same is not maintainable before this Court. It would be open for the Revenue to avail appropriate legal remedy before appropriate forum in accordance with law.

Classification of services - Business Auxiliary Services or not - Sales Promotion Agency - extended period of limitation - penalties - HELD THAT:- “Business Auxiliary Service” is defined during the relevant period included the services related to promotion or marketing or sales of goods produced or provided by or belonging to the client. The agreements which have been entered into clearly state that the appellant has been employed as a promoter of the products of their clients - It is true that there is only one customer viz; APBCL in the State of Andhra Pradesh who purchases IMFL from various distilleries and in turn would sell it in retail. Therefore, it is in the interest of every distillery to ensure that they sell more to the customer of APBCL. This is sought to be done, inter alia, by close coordination with the retailer....... + More

CENVAT Credit - reverse charge mechanism - It appeared to Revenue that the said amount of cenvat credit amounting to ₹ 49,91,539/- is not admissible to appellant, as cenvat credit is admissible only when such input service/ inputs are used in providing any output service - HELD THAT:- The appellant is entitled to input service credit of ₹ 49,91,591/- in dispute. All the services in question are eligible input services for rendering of output services. There is no dispute as regards receipt of any of the input services. Demand of short paid service Tax - GTA service - recipient of service - non-payment of service tax for renting of immovable property service for the period April, 2011 to September, 2011 - HELD THAT:- The said amount is also not tenable as the said demand was prima facie raised under the impression that the appe....... + More

CENVAT Credit - input/input services - renting of immovable property service - advertisement service - business support service - security service - legal consultancy service, etc. - period April, 2010 to June, 2012 - HELD THAT:- The issues in this appeals are no longer res integra and the same have been decided in favour of the appellant by the ld. Commissioner (Appeals) - credit on all services allowed. Appeal allowed - decided in favor of appellant.

100% EOU - Rejection of refund of Service Tax - rejection only ground on which the refund has been rejected is that the closing balance of cenvat credit at the end of the quarter as per ST-3 return was ‘nil’ which was less than the refund amount for respective quarter - HELD THAT:- The objection of the Department that the appellant has not debited the cenvat credit account before filing the refund claim is not factually correct, in fact the appellants have debited the cenvat credit account before filing the refund claim and the same is clearly shown in the ST-3 returns also - Further, the respondent while rejecting the refund claims has not properly appreciated the condition/limitation envisaged in paragraphs 2(g) and 2(h) in Notification No.27/2012-CE(NT) dt. 18/06/2012. The said paragraph only provides that the amount of ref....... + More

Maintainability of petition - availability of alternative remedy of appeal - Recovery of tax arrears due to Central Government - HELD THAT:- Considering that the petitioner has alternative remedy of appeal, it is not deemed appropriate to entertain the writ petition directly. The applicant-petitioner shall be liable to make pre-deposit cannot be a reason to bye-pass the alternative remedy. While disposing of the writ petition with liberty to the petitioner to file appeal before the Commissioner (Appeals), the petitioner is directed to make prayer before the appellate authority citing the aforesaid reasons seeking waiver of pre-deposit and also for appropriate interim relief. The writ petition is disposed of with liberty to the petitioner to file an appeal before the Commissioner of Central Excise (Appeals) within a period of ten days from....... + More

Permission for withdrawal of appeal - Benefit under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- In view of the detailed submission made by the learned Advocate, the prayer for withdrawal of the appeal is allowed. However, it is made clear that in case the settlement under the Scheme fails, the appellant assessee can file an application before the Tribunal for restoration of their appeal. Appeal allowed.

CENVAT Credit - input service - Deposit Insurance Service provided by DICGC - denial on the ground that such services have no nexus or connectivity with the actual performance of the banking service provided by the assessee-appellant - HELD THAT:- The issue with regard to availment of cenvat credit on the disputed service was highly debatable and there were conflicting views by different benches of the Tribunal. For resolving the dispute, the Larger Bench was constituted. In the case of South Indian Bank Vs. Commissioner of Customs, Central Excise & Service Tax, Calicut, the Larger Bench of the Tribunal vide order dated 20.03.2020, reported in 2020-TIOL-861-CESTAT-BANG-LB has answered the reference in the following terms: “The insurance service provided by the Deposit Insurance Corporation to the banks is an “input service....... + More

CENVAT Credit - non-reversal of proportionate credit availed on ‘input services’ that was attributable, mathematically, to rendering of services by the appellant on which tax liability was not required to be discharged - endowment policy and unit linked insurance plan (ULIP) policy - period between 2008-09 to 2010-11 - HELD THAT:- Considering that it has been held in INDIAN NATIONAL SHIPOWNERS' ASSOCIATION VERSUS UNION OF INDIA [2009 (3) TMI 29 - BOMBAY HIGH COURT] by the Hon’ble High Court of Bombay, and duly affirmed by the Hon’ble Supreme Court in UOI VERSUS INDIAN NATIONAL SHIPOWNERS ASS. & ORS. [2010 (12) TMI 12 - SUPREME COURT], that no taxable service can, by inference, be presumed to exist until specifically enumerated in section 65 (105) of Finance Act, 1994, this proposition advanced by, and on be....... + More

Fastening of tax liability by combination of the legal fiction in Finance Act, 1994 for deeming ‘provider’ and ‘recipient’ - inclusion of a particular business model within the compasses of that very fiction by way of a clarificatory circular of the Central Board of Excise & Customs that was deployed by the adjudicating authority - attribution of certain expenditure of the appellant to one of their business ventures sufficed for it to be ‘consideration’ for service rendered - HELD THAT:- There are no doubt that agreement among entities for rendering of service to another entity is the essence of ‘joint venture’; however, it is doubtful if ‘joint operation agreement’, mandated by the terms of the ‘production sharing contract’, can be deemed to be one such in the ab....... + More

CENVAT Credit - exempt service or not - portion of payments (premium) received by the assessee that remains untaxed at the appropriate rate - subsequent failure in neutralizing the credit to the extent of not being attributable to taxable ‘output services’ - rule 6(3) of CENVAT Credit Rules, 2004 - HELD THAT:- The present dispute has its genesis in not subjecting the entirety of premium to tax from the time that service in relation to ‘life insurance’ was incorporated in section 65(105) of Finance Act, 1994 but was, by a series of amendments, expanded within the premium payable by the policy holder. Even after the last of the changes before that tax regime ended on 30th June 2012, the entirety of premium was not subject to tax as a certain portion therein could not be attributed to service. Even the two inclusions,....... + More

Classification of services - Export of service or not - Management, Business Consultancy Services or Real Estate Agent service - appellant is engaged in providing non-binding investment advisory service to SITQ Mauritius Advisory Services and other such entities - export of services in terms of Rule 3(1)(iii) of the Export of Service Rules, 2005 - period from 2007-08 to 2010-11 - HELD THAT:- the appellant renders investment advisory services in relation to investment and not to any particular real estate / project. It is advising in respect of investment in Companies in real estate sector in the form of equity / debt and not in real estate property per se. Further, the advisory services provided by the appellant are not restricted to advising in respect of investments. It is wider in scope and also includes general economic and market con....... + More

Short payment of Service Tax - CHA Services - period Oct.’08 to Dec.’08 - non-inclusion of reimbursable expenses in taxable value for paying the service tax for the period Apr.’06 to Mar.’08. Short payment of service tax - HELD THAT:- The appellant has paid-up the amount and also filed service tax returns in 2009. Only an amount of ₹ 9,073/- with interest stands to be discharged as calculated by the adjudicating authority. Taking note of this fact that the appellant has discharged the service tax for the said period before show-cause notice, the imposition of penalties in this regard is unwarranted - appellant has to pay the balance amount of ₹ 9,073/- with interest if not paid. Inclusion of reimbursable expenses - Apr.’06 to Mar.’08 - HELD THAT:- The demand is made on the expenditure incurr....... + More

Withdrawal of appeal when declaration filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - As per the Scheme, on filing of a declaration, it is deemed that the appeals is withdrawn - HELD THAT:- Taking note of the fact that the appellant has filed declaration under the said scheme, the appeals is dismissed as withdrawn with liberty for the appellant to approach the Tribunal to restore the appeals in case discharge certificate is not issued for the dispute pertaining to this appeals. Appeals dismissed as withdrawn.

Levy of service tax - Banking and other financial services - ‘third party payments’ for exports effected by M/s AKR Textiles to buyer outside India - negative list regime - POPOS rules - applicability of 29/2004-ST dated 22nd September 2004 - HELD THAT:- It has been pointed out that the levy of tax on charges deducted by overseas banks, in identical situation, has been held by the Tribunal, in Rogini Garments and ors v. Commissioner of Customs, Central Excise & Service Tax, Coimbatore [final order no. 41819-41832/2017 dated 29th August 2017], to be unsustainable in law - the issue is no longer res integra and that demand pertaining to ‘other financial services’ has been erroneously confirmed in the orders impugned. On the amounts retained by M/s Amsco Finance Ltd, which is sought to be taxed under ‘cash m....... + More

Refund of CENVAT Credit - input services - Club or Association membership service - Design Service - Sponsorship Service - denial on account of Nexus. Sponsorship Services - HELD THAT:- It is clear that the Adjudicating Authority granted relief to the appellants qua sponsorship service proportionately and the same was neither challenged by the Appellant nor by the Revenue before the Commissioner, but the learned commissioner still chooses to give findings on the said service also that too in the Appeal filed by the Appellant. Therefore in view of the decision of a co-ordinate Bench of the Tribunal in the matter of COMMISSIONER OF C. EX., BANGALORE VERSUS MAVENIR SYSTEMS PVT. LTD. [2012 (11) TMI 868 - CESTAT, BANGALORE], the findings recorded by the learned Commissioner on the said service is beyond his jurisdiction and hence liable to be ....... + More

Accrual of Service Tax liability - ‘mobilization advance’ paid to the appellant - payment to be made on which stage? - on receipt or on issue of the bill? - HELD THAT:- The several contracts provide for the payment to be made at different, pre-determined stages of performance and are, generally, subject to evaluation of the work undertaken. It is also seen that such appraisal, as a prelude to making payments, is not undertaken until after the execution of the work in relation to the taxable service has commenced and that all the contracts, while linking such measurable stages, provide for payment of only 90% of contracted amount for the entirety of the work. The ‘mobilization advance’ is adjusted against the final payment due and is not linked to the work but as a pledge of the contract between the appellant and pr....... + More

Refund in terms of N/N. 33/99-CE, dated 08.07.1999 - denial only on the ground that the claim was not filed within a reasonable time - other substantive requirement of expansion in the installed capacity has been complied with - HELD THAT:- The issue came up for consideration before the Tribunal in the case of Vernerpur Tea Estate vs. CCE, Shillong [2016 (4) TMI 17 - CESTAT KOLKATA] which was decided against the assessee on the ground of limitation since refund claim was filed after a period of 6 years - the decision of the Hon’ble Gauhati High Court in the case of Vernerpur Tea Estate, being directly on the point, has to be respectfully followed in the instant case inasmuch as the basic criterion of increase in the installed capacity has been duly fulfilled by the appellant and therefore, there is no reason to deny the refund. Appeal allowed - decided in favor of appellant.

Imposition of the oil cess and National Calamity Contingent Duty (NCCD), education cess (EC), secondary and higher secondary education cess (SHE) - condensate which emerges out during the process of processing of the natural gas in the appellant‟s natural gas processing plant - it was held by CESTAT that the oil cess is not leviable on the “condensate” and under OIDA. HELD THAT:- The Civil Appeal is dismissed on the ground of low tax effect.

Levy of Penalty - disallowance of CENVAT Credit - supplementary invoice raised by job worker - suppression of facts or not - revenue neutrality - extended period of limitation - HELD THAT:- Admittedly the transaction between BALCO and VAL is duly documented and properly recorded in the books of accounts of both the companies. Further, the method of valuation adopted for clearance of calcined alumina from VAL to BALCO was under a business like formula based on the price of aluminium at LME. Further, from the facts on record, we find that there is no incentive for VAL to suppress the clearance value or pay lower tax. Whatever duty was payable as per the invoice, the same was to be paid by BALCO to VAL. Secondly, it has been demonstrated from the appeal paper book, being the extract of cenvat credit, that VAL alone had sufficient credit bala....... + More

CENVAT Credit - inputs procured by themselves and used in the manufacture of job work goods and cleared under Notification No. 214/86-CE dated 25.03.1986 - credit denied on the ground that goods manufactured on job work basis, wherein the subject inputs were used, have been cleared under Notification No. 214/86-CE, without payment of excise duty - HELD THAT:- The issue is no longer res-integra as in various judgments including the judgments in the appellant’s own case, BANCO ALUMINIUM LTD VERSUS C.C.E. & S.T., VADODARA-I [2019 (7) TMI 1691 - CESTAT AHMEDABAD] this Tribunal has held that inputs used in the manufacture of job work goods, under Notification No. 214/86-CE dated 25.03.1986, particularly by virtue of specific provision under Rule 3(1), in the appellant’s own case, the Tribunal held that even though the job work goods are exempted under notification 214/86-CE, the credit is allowed. CENVAT credit allowed - appeal allowed - decided in favor of appellant.

Condonation of Delay in filing the miscellaneous application for restoration of appeal - rectification of mistake - HELD THAT:- There is no delay in filing the miscellaneous application for restoration of appeal inasmuch as upon receipt of the Final Order, the applicant /respondent had filed the appeal before the Hon’ble Bombay High Court, which was withdrawn with liberty to file a rectification application before the Tribunal. Hence, the miscellaneous application is disposed of, holding that there is no delay in filing the said application before the Tribunal. Rectification of Mistake - error apparent on the face of record or not - HELD THAT:- The submissions made in the said miscellaneous application was considered by the Tribunal in specifically observing at paragraph 5 therein that during the disputed period 2005-06, the respond....... + More

Valuation - inclusion of transportation charges received by the appellant in the assessable value - proviso to sub-section (4)(b) of section 11A of the Central Excise Act, 1944 - HELD THAT:- This Bench in a number of cases has, after following the decision of the Hon’ble Apex Court in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT], consistently decided identical issue and held that , "Hon’ble Apex Court has categorically held that under no circumstances can the buyer’s premises be the place of removal. It also made it clear that this fact was not brought to the attention of the Court when the earlier orders were passed. In view of the above, we find that it is now well settled that the buyer’s premises can never be the place o....... + More

Direction to the opposite party to communicate/provide/supply a copy of the order within a stipulated time - HELD THAT:- Since the dispute pertains to classification of the intermediary parts of hoists/gates of River barrages, radial gates, Penstock pipes, Embedded parts, Hoists and Hoist Supporting structures, which will have recurring effect on the petitioner, we deem it appropriate to allow the writ petition with a direction to the opposite party to provide a fresh certified copy of the order dated 21.12.2017 passed by the Commissioner of (Appeals) to the petitioner, within a period of fifteen days hence, with liberty to the petitioner to now file their appeal against the said order within a period of 30 days from the date of receipt of the order dated 21.12.2017 before Central Excise, Service Tax Appellate Tribunal, Kolkata. Petition allowed.

Rectification of Mistake - According to learned counsel for the applicant/appellant, there are some contradictions in the order of the Tribunal and the said contradictions have been mentioned in the instant application - HELD THAT:- The grounds raised by the applicant are not sufficient for any kind of rectification. It is settled legal principle that the Tribunal cannot take up exercise on re-appreciating the evidences and to embark on an act of reviewing the decision under the guise of rectification of mistake. An error apparent on the face of the record means an error which strikes on the mere looking and does not need long drawn-out process of reasoning on points where there may conceivably be two opinions. Such effort should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest a....... + More

Jurisdiction - Whether the single member bench of this tribunal is having the jurisdiction to decide the issue involving only interest irrespective of any amount in terms of Sec. 35D (3) of Central Excise Act, 1944 or not? - HELD THAT:- Section 35D (3) of Central Excise Act, 1944 restricts the powers of Single Member Bench of this Tribunal to hear the cases where the dispute is other than determination of any question having a relation to rate of excise duty or value of goods for the purpose of assessment is in issue or the fine or penalty involved does not exist ₹ 50 Lakhs which means a case where the case is determination of any issue in relation to the rate of the duty and valuation of the goods or differential duty, fine or penalty involved are more than ₹ 50 Lakhs, the Single Member Bench of this Tribunal have no jurisdic....... + More

Maintainability of appeal - requirement of pre-deposit - section 35F of CEA - this is a second round of litigation - appellant had earlier complied with the requisite pre-deposit - HELD THAT:- Hon’ble High Court of Delhi in the case of SUPER TYRES PVT. LTD. VERSUS UNION OF INDIA [2005 (1) TMI 119 - HIGH COURT OF DELHI], have held that once the appellant assessee has made compliance of the provisions of section 35F of the Central Excise Act, 1944, it would be appropriate for the authorities concerned to hear the appeal without pre-deposit condition as the appellant had already complied with the provisions of section 35F and that should be the adequate amount of compliance with the provisions of section 35F. It would be appropriate to remand the matter to the lower appellate authority to decide the appeal on merits without insisting on any further pre-deposit - Appeal allowed by way of remand.

Refund of excess paid excise duty - finalization of provisional assessment - Department had credited the same to the Consumer Welfare Fund, created under Section 11D of the Central Excise Act, 1944 - amount credited to the Consumer Welfare Fund on the ground that the incidence of excess duty has been passed on to the dealers of the excisable goods - Principles of Natural Justice - HELD THAT:- The amount in question, for which the refund claim was filed by the appellant was all along been reflected “as claims receivable from the government authorities”. The said entry made in the balance sheet for the period 31.03.2009 was all along reflected in the balance sheet prepared as on 31.03.2019. It is an admitted fact on record that the excess paid central excise duty by the appellant during the provisional assessment of the excisabl....... + More

CENVAT Credit - input services or not - appellant availed various services at Kandla Port as that of C&F, Testing, Sampling, etc. as were necessary in relation to the export of goods - rejection on the ground that the services which are availed only upto the place of removal are input services eligble to credit - contravention of the provisions of Rule 3 & 4 of Cenvat Credit Rules 2004 - period January 2008 to September 2008 - HELD THAT:- The availability of cenvat credit to the manufacture of goods floats from rule 3 (1)(2) of CCR Rules which provides that the manufacturer or producer of final product or provider of taxable service shall be allowed to take credit of any input service received by the manufacturer of final product or by the provider of output service. This rule clarifies that to avail Cevnat Credit the services rec....... + More

Extended period of limitation - it has been argued by Revenue that the extended period of limitation has been invoked as the appellant neither disclosed the facts to the department voluntarily that they were undertaking the trading activity nor they paid the amount as per the provisions of Rule 6(3) ibid - reversal of CENVAT Credit - HELD THAT:- It was detected by the officers of the department on scrutiny of their records and this lead to the inference that the facts were suppressed and in the absence of detection by the officers of the department, they would have gone unnoticed. So far as suppression is concerned after going through the case records I do not find any suppression on the part of the appellants. As per records, audit of their records has been regularly done by the Central Excise Department during the years in question and ....... + More

Principles of Natural Justice - Levy of Penalty u/r 26 of the Central Excise Rules, 2002 - Appellants submits that there is gross violation of the principle of natural justice and despite the remand by this Tribunal for denovo adjudication, the cross-examination was not permitted by the revenue - HELD THAT:- The writer of the chits/private documents was not examined therefore it raises doubt whether the same can be used against the appellants. Mere recovery of private records is not sufficient to prove clandestine removal and a concrete and clinching evidence is required to prove such allegation and it is for the department to discharge the burden and prove the charges of clandestine removal against the appellants. The department has to prove the allegation on the basis of cogent corroborative evidence which in the facts of the present ca....... + More

Allowability of ‘common registration’ - doctrine of merger - HELD THAT:- Revenue have accepted the order dated 31.01.2014 passed by the jurisdictional Commissioner, granting common registration and have not filed any appeal against the same. Further, the issue of revocation of amended registration certificate has also attained finality by the order of the Hon’ble Rajasthan High Court in favour of the respondent-assessee. Accordingly, the present show cause notice proceeding is hit by both ‘doctrine of merger’ and also under the ‘doctrine of in - subordination’. There is no merit in the appeal of the Revenue - Appeal dismissed.

Imposition of penalty - CENVAT Credit - electricity sold by the Respondent to the Electricity Board - reversal of CENVAT credit on inputs used in the plant for generating power that was partly sold to the Electricity Board - HELD THAT:- It is clear from a perusal the documents enclosed with the cross-objections, particularly the letter dated January 25, 2012 sent by the Respondent to the Superintendent of the Excise Department - The Supreme Court in CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT] and COMNR. OF CENTRAL EXCISE & CUSTOMS VERSUS M/S. PRECOT MERIDIAN LTD. [2015 (11) TMI 323 - SUPREME COURT] held that reversal of credit means that the party has not availed the input service credit. Such being the position, the imposition of penalty of ₹ 30,00,000/- upon the Respondent in respect of the electricity sold to the Electricity Board is bad in law - cross-objections is allowed.

Imposition of penalty of ₹ 1,00,000 under rule 209A of erstwhile Central Excise Act, 1944 - physical handling of the goods that were allegedly removed without payment of duty - HELD THAT:- On a perusal of the decision of the Hon’ble High Court of Bombay in COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. BANSAL STEEL CORPORATION & OTHERS, SHRI ASHOK KUMAR NAGESHWAR SINGH, PARTNER OF M/S. BANSAL STEEL CORPORATION [2017 (9) TMI 704 - BOMBAY HIGH COURT], while the facts leading to the dispute is, as narrated by Learned Authorised Representative, the principle laid down therein is that any of the enumerated activities in rule 209A of the erstwhile Central Excise Rules, 1944 must necessarily involve physical handling. In the circumstances of the lack of evidence of physical dealing by the appellant of the impugned goods, the penalty is set aside - Appeal allowed - decided in favor of appellant.

Classification of goods - Di Calcium Phosphate Animal Feed Grade manufactured by the appellant by using rock phosphate - classified under Chapter 2309 as declared by the appellant or under chapter 2835 has claimed by the Revenue of the Central Excise Tariff Act, 1985? - HELD THAT:- Whether the Di Calcium Phosphate Animal Feed Grade is classifiable under chapter heading 2309 or under 2835, it is prima facie covered under exemption Notification No. 04/2016-C.E. (N.T.) issued under section 11C of the Central Excise Act, 1944. The applicability of this notification 04/2016-C.E. (N.T.) is vital, to decide the issue in hand, however, both the lower authorities have passed the order before issuance of the Notification No. 04/2016-C.E.(N.T.). Therefore, they did not have occasion to deal with this notification which has retrospective effect and i....... + More

Jurisdiction - Rejection of Rebate Claim - case of Revenue is that as the issue relates to rebate of duty, the Tribunal has no jurisdiction to entertain the appeal whereas the right forum is Revisionary Authority, Additional/ Joint Secretary to the Government of India - HELD THAT:- There is no dispute that appellant have claimed rebate of duty paid on the goods exported through merchant exporters. Therefore, even though the Commissioner has given findings as regards unjust-enrichment, the nature of rebate is not altered. As against the export of goods, the duty is refunded as rebate claim and not as a normal refund. Therefore, we are of the clear view that this case relates to rebate of duty paid on export of goods. As per Section 35B (1) proviso (b), the Tribunal has no jurisdiction in the cases relates to rebate of duty. The appellant h....... + More

SSI Exemption - clubbing the clearances of job worker with that of the appellant - period April, 2008 to August, 2009 - benefit of N/N. 8/2003-CE dated 01.03.2003 - HELD THAT:- The similar issue has been decided in favour of the appellant under the similar facts and circumstances in the case of M/s.Mewar Hi-Tech Engg. Ltd.[2019 (8) TMI 1363 - CESTAT NEW DELHI], wherein this Tribunal held that the taxable event for the central excise duty is the manufacture of excisable goods, and the moment, there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes, ‘manufacture’ takes place and liability to duty is attracted. Thus, the sale or the ownership of the end product is absolutely irrelevant ....... + More

Recall Petition - validity of sale notices - HELD THAT:- The assessment order itself attained its finality and writ petition, which was filed challenging the assessment order, was dismissed as withdrawn in the year 2016 itself, there is no reason to interfere with the sale notices only on the plea that a recall petition was filed by the petitioner for recalling of order of Writ Court dated 19.10.2016, which was filed on 05.03.2019. The said recall petition itself reflects that it was verified on 07.05.2018. The law is settled that one who slumbers over his right may not claim any equity also. In that view of the matter, we do not find any ground to entertain the writ petition. Petition dismissed.

Principles of Natural Justice - case of petitioners is that that the Assessing Officer, who is a Quasi Judicial Authority, has not independently applied his mind while dealing with the impugned proceedings, but had adopted the averments and proposals of the Enforcement Wing/ISIC Authorities, who are their higher authorities - HELD THAT:- In view of the Circular No.3 dated 18.01.2019 issued by the Commissioner of State Tax, Chennai, all the impugned proceedings in these batch of Writ Petitions, which proceeds on the basis of the proposals/reports of the Enforcement Wing/ISIC, are set aside and consequently, the matters are remanded back to the Assessing Officer. The Assessees are granted liberty to file their objections with all supporting documents, within a period of 30 days from the date of receipt of a copy of this order. On receipt of....... + More

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate. Let this exercise be carried out within a period of four (4) weeks from date of uploading of this order. The request of the petitioner for issuance of ‘C’ Forms is allowed as a consequence thereof. Issue decided in the case of M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] where it was held that benefit is allowed. Petition allowed.

Scope of Section 7(1)(a) of the Tamil Nadu Value Added Tax Act - allegation that the petitioners had claimed ITC while effecting local sales of food and drinks, they would fall under Section 7(1)(a) - whether the Department was right in bringing the petitioners, which are Hotels, of non-star category, under the purview of Section 7(1)(a) of the Tamil Nadu Value Added Tax Act, on the ground that they have claimed the Input Tax Credit (ITC). HELD THAT:- Perusal of the Act clearly reveals that while Section 7(1)(a) applies to Star Hotels, Section 7(1)(b) would be made applicable for the Hotels, which are not under the Star Category . The distinction is very clear on a bare reading of the section itself. As such, the very basis on which the petitioner has been brought under the purview of Section 7(1)(a), is contrary to the provision. As righ....... + More

Levy of Entertainment Tax - “online booking charges” charged by a Cinema Hall Owner besides the “cost of ticket” for entry into the cinema hall and enjoy the entertainment in the form of a movie - HELD THAT:- It is well, say, settled legal position that unless all the following four components are satisfied and clearly defined, the levy of tax would fail viz., (i) taxable event; (ii) object of taxation; (iii) rate of taxation; (iv) measure or value on which rate will be applied for computing the tax liability. Unless all the four parameters are clear and unambiguous and uniformly applied to the taxable event chargeable under a taxation enactment, the levy is bound to fail. Entertainment Tax was a State subject and before the said levy of Entertainment Tax being subsumed under the GST Laws enforced in the country wi....... + More

Violation of principles of natural justice - recovery of TDS - Service of notice - HELD THAT:- We are not inclined to interfere with the order passed by the learned Single Judge in any manner because the allegation of breach of principles of natural justice made by the Assessee has already been found in favour by the learned Single Judge in the impugned order passed by setting aside the order dated 9.2.2017 which was passed after the Show Cause Notice dated 1.9.2016 - When challenge was raised before the learned Single Judge, the Petitioner/Assessee was able to satisfy the learned Single Judge that the notice and the impugned order were never served on the Assessee and therefore, opportunity of hearing was not given to the Assessee. Since the matter has been remanded back to the Assessing Authority to give an opportunity of hearing to the....... + More

Payment of tax at compounding rate - alleged suppressed sale - Section 3(4) of the TNVAT Act - HELD THAT:- Section 3(4)(b) of the Tamil Nadu Value Added Tax, (Fourth Amendment) Act 2011, enables the dealer to pay tax for a year on his turnover relating to taxable goods upto ₹ 50 lakhs at 1% and for the sales turnover over and above ₹ 50 lakhs, he is liable to pay tax under Section 3(2). The aforesaid amendment came into effect from 01.04.2012 and a bare reading of the provision explicitly permits the dealer to pay tax at the compounded rate of 1% under Section 3(4) for the sales turnover below ₹ 50 lakhs and for the turnover that exceeds ₹ 50 lakhs, they are liable to pay tax under Section 3(2) of the TNVAT Act. In view of the amendment, the respondent may not be justified in bringing the dealer out of the purview ....... + More

Rectification of Mistake - error apparent on the face of record - it is the contention of the petitioner that the assessment was completed against him by making huge additions on account of non-filing of audit report in Form 13 & 13A - HELD THAT:- The reasoning of the assessing authority in Ext.P7 order is legally flawed. While it may appear at first blush that what the petitioner was seeking was essentially a review of the assessment order, in the light Ext.P2 judgment that was passed by this Court as early as in 2014 and which has not been the subject matter of any appeal before the Supreme Court, the assessing authority has to be seen as having ignored a binding precedent while completing the assessment. The said mistake occasioned by the assessing authority has therefore to be seen as an error apparent on the face of the record, w....... + More

Levy of tax within the state - Interstate sale or an interstate works contract? - transaction carried out by the respondent-assessee, pursuant to a contract entered into with M/s.KMC Construction Ltd. - HELD THAT:- The works contract executed by the respondent-assessee is an interstate works contract and the State of Kerala, merely for the reason that the plant was erected within the State, cannot levy tax on the transfer of goods in the form of goods or in any other form by accretion of such goods in the works; when the goods were sourced from abroad and another state, the latter of which was taxed in the State from which the purchase was made. The question is answered in favour of the assessee and against the Revenue.

Non-speaking order - allegation that the respondent No.2, without considering any of the points raised by the petitioner in its reply, proceeded to pass a non-speaking order - HELD THAT:- Learned Assistant Government Pleader Shri Chintan Dave could not justify in any manner that the impugned order is a reasoned order or that it was not a non-speaking order - Law is well settled that a non-speaking order suffers from arbitrariness which goes to the root of the matter and as such, alternative remedy may not come in the way of this Court in entertaining this petition. The impugned order dated 3rd June, 2020 passed by respondent No.2 is hereby quashed - Petition allowed.

Non independent application of mind by AO - Proceeding made on the basis of the Audit Reports/Inspection Proposals proceeded from the Enforement Wing or from ISIC Authorities - HELD THAT:- Assessing Officer has to independently consider the same, without being influenced by such proposals of the higher officials. Commissioner of State Tax, Chennai had issued Circular No.3 dated 18.01.2019, empowering the Assessing Authority to deviate from the proposals, without seeking for approval from the Enforcement Wing/ISIC Authorities. AO can independently deal with the assessment without being influenced by the proposals of the higher officials. See Madras Granites (P) Ltd. [2002 (10) TMI 767 - MADRAS HIGH COURT] and Narasus Roller Flour Mills Vs. Commercial Tax Office, (Enforcement Wing), Sankagiri and another [2015 (4) TMI 361 - MADRAS HIGH COUR....... + More

Requirement of pre-deposit - Is it necessary to consider the merit of the matter while making interim order - direction to deposit 10% of the disputed tax demand and interest along with 5% of disputed penalty involved in the appeal pending before it, for the year 2008-09 - Legality of the interim (impugned) order passed by the Tribunal, having regard to the wording of section 76(4) of the Act and the law governing the stay of recovery of tax during the pendency of appeals. HELD THAT:- The first proviso to Section 76(4), gives discretion to the Tribunal to entertain an appeal against an assessment order, without payment of whole or part of the amount in dispute, on the furnishing of security by the Appellant. First and foremost, we must give due regard to the fact that the proviso in question, conferring power to the Tribunal for dispensat....... + More

Prayer for stay of interim order - cancellation of registration certificate of petitioner - petitioner had not sold any of the products covered by the Maharashtra Value Added Tax Act, 2002 during the relevant period - HELD THAT:- The decision in the case of Carpo Power Limited [2018 (4) TMI 146 - PUNJAB AND HARYANA HIGH COURT] is applicable to the facts of the present case where it was held that Also, Special Leave Petition filed by the State of Haryana against the aforesaid decision was dismissed by the Supreme Court holding that there was no legal and valid ground for interference. There shall be stay of the impugned order dated 05.03.2020 till the returnable date and as a consequence respondents are directed to issue the necessary ‘C’ forms on the basis of the registration certificate - Stand over to 27.10.2020.

Condonation of delay in filing second appeal - no sufficient cause shown for delay - HELD THAT:- The delay is to an extent of 329 days. The reason assigned is that the copy of the impugned order was served to the junior staff of the senior advocate for further course of action by the authorized representative of the assessee. Thereafter, the file went missing. Later on, when the representative of the company intended to know what has happened to the matter, then they searched the file and it was found - there are no reason to disbelieve the affidavit filed. The assessee is a joint stock company and is involved in various activities. Therefore, it cannot be said that the reason assigned by them does not constitute sufficient cause. On considering the reasons, the explanation offered by the assessee-company constitutes sufficient cause. Hon....... + More

Rejection by respondent authorities of petitioner’s request for correction of the return filed for first quarter of Year 2017-18 - refusal to give statutory forms under Central Sales Tax (Delhi) Rules - HELD THAT:- This Court is of the view that no useful purpose would be served by keeping the petition pending. Consequently, this Court directs the respondent no.2 to allow the amendment sought by the petitioner in its return of first Quarter for the Financial Year 2017-18. However, this direction shall remain suspended till the Civil Appeals pending before the Supreme Court, taken note of hereinabove, are decided and this direction shall abide by the decision that the Supreme Court renders. Petition disposed off.

Principles of Natural Justice - Levy of Turnover Tax - rate of tax - SCN proposed to tax the turnovers pertaining to certain transactions at higher rate of tax of 14.5% alleging that the transactions are inter- State transactions, and are not supported by any documentary evidence / statutory forms - opportunity of hearing not provided to petitioner - HELD THAT:- A perusal of the impugned assessment order passed by the 1st respondent indicates that there are no reasons contained in the said order except that it is recorded that petitioner did not avail personal hearing and did not respond to the show-cause notice or the reminder notice dt.16.11.2019 or the final notice dt.06.03.2020 - There is no consideration by the 1st respondent of the legal contention raised by the petitioner that the said commodity being dealt with by the petitioner i....... + More

Classification of goods - lever files made of cardboards - whether taxable under the Residuary Entry No.40, Part-B of the First Schedule of the TNGST Act or under Section Entry 40(iv) of the First Schedule to the TNGST Act, which is taxable at 10%? - HELD THAT:- The lever files dealt with by the petitioner, which also contains print, would squarely fall under the Entry 40(iv). The reasoning of the respondents that printing of just a few words alone in the file is unacceptable, since the Entry does not define what the nature of print should be. Moreover, when other materials like folders and file covers have been brought under the purview of Entry 40(iv), the claim by the respondents that lever files made of cardboards has to be brought under the Residuary Entry under 40 Part (B) is far-fetched. The intention of the legislature while bring....... + More

Maintainability of petition - availability of alternative remedy under the Tamil Nadu Value Added Tax Act - interpretation of Section 63A and furnishing of Form 'WW' by the Chartered Accountant - HELD THAT:- The present writ appeals do not have any merit and deserve to be dismissed. The well settled legal position about exercising writ jurisdiction against appealable assessment orders has been settled by a catena of decisions by the Hon'ble Supreme Court and various High Courts. While alternative remedy is not a bar to the jurisdiction of the High Court under Article 226 of the Constitution of India, it is certainly a rule of discretion given to the Writ Courts and therefore if the learned Single Judge has not entertained the writ petitions even on the grounds, interalia, raised before the Writ Court viz., the breach of princi....... + More

Inter-state sale or local sale - inter-State sales to other States by the petitioner, in pursuance to agreement of sales - assessable under CST Act, 1956 or TNGST Act, 1959 - fall under section 3(a) or 3(b) of the CST Act? HELD THAT:- The Seller in the present case is only M/s.Baynee Trading Company, who made the inter-State Sales and as per the pre-existing contract only the goods were transited by the Assessee to M/s.Gayathri Trading Company of Pondicherry and freight was also borne by the Assessee. In view of this admitted and clear facts, we are of the clear opinion there is nothing to establish that the sales in question are intra-State Sales leviable with local sales tax under TNGST Act and when the same transaction having already been taxed under the previous CST Act in the hands of M/s.Baynee Trading Company at 4% against 'C&#....... + More

Attachment of property - creation of encumbrance in the property - case of petitioner is that he is a bona fide purchaser, who had purchased the property prior to the encumbrance being created and therefore is entitled to protection from the charge created over the subject property - Section 24-A of The Tamil Nadu General Sales Tax Act, 1959 - HELD THAT:- Under Section 24 of the TNGST Act, the arrears of the tax will become immediately due on default of the outstanding taxes and consequently, a charge would be created on the properties of the person liable to pay the tax or the interest. Section 24-A of the TNGST Act provides that all charges or transfers made by the dealer during the pendency of any proceedings under the Act, shall be void. The intention to defraud the revenue requires to be derived from the manner in which the defaulter....... + More

Validity of order passed by Lower Court, which has been stayed by the Hon’ble High Court, Bombay - HELD THAT:- We must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially. We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same. The order dated 04.12.2019 is set aside with a direction to the learned Additional Chief Judicial Magistrate, Pune to set down the case for hearing immediately - application disposed off.

Violation of Principles of Natural Justice - Cancellation of second tender - E-Tender notice for unloading/loading of foodgrains/fertilizer bags from/into railway wagons, trucks etc., stacking the foodgrains/fertilizers in bags, bagging, weighment, standardisation, cleaning of foodgrains/fertilizers etc. and transporting of foodgrains/fertilizers etc. from Railway Station to Corporation godowns or vice versa - Managing Director of the Corporation cancelled the aforesaid tender apparently on the ground that it was “impractical” to go ahead with such tender. HELD THAT:- Despite the fact that the prayer in the Writ Petition filed by Respondent No.1 was set out in the very beginning of the impugned judgment, confining itself to the cancellation of the second tender, the impugned judgment went ahead and not only set aside such canc....... + More

Dishonor of Cheque - insufficiency of funds - discharge of a legally enforceable debt or not - offence punishable under section 138 of NI Act or not - HELD THAT:- It is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant. It is well settled law that in a revision against con....... + More

Dishonor of Cheque - the accused was directed to pay a sum of ₹ 3,25,000/- as compensation. Default sentence was also imposed - HELD THAT:- The learned counsel appearing for the petitioner states that the petitioner is now aged about 60 years. He is said to be suffering from old age related ailments. Therefore, the learned counsel appearing for the petitioner wanted this Court to show some indulgence. The petitioner had remitted a sum of ₹ 50,000/- at the time of obtaining suspension of sentence. The petitioner has no objection for the legal heirs of the complainant to take the said amount. The petitioner is also willing to deposit a further sum of ₹ 50,000/- to the credit of S.T.C.No.449 of 2011 on the file of the Judicial Magistrate, Aundipatti, within a period of eight weeks from the date of receipt of a copy of this ....... + More

Dishonor of Cheque - maintaining prosecution under section 141 of N.I. Act for arraining the company as an accused - main contention of the petitioner is that the prosecution could not launch unless and until the firm arraign as accused - whether in sole proprietorship firm indictment of firm arraign as parties is necessary or not? - HELD THAT:- The phrase "association of individuals" necessarily requires such entity to be constituted by two or more individuals i.e. natural persons. On the contrary a sole-proprietorship concern, by very description does not allow for ownership to be shared or be joint and it defines, restricts and dictates the ownership to remain with one person only. Thus, "associations of individuals" are absolutely opposed to sole-proprietorship concerns, in that sense and aspect - A 'partnershi....... + More

Grant of Bail - Dishonor of Cheque - applicant in his application has submitted that the applicant although is the director of the company Auby Satellite Pvt. Ltd, he did not indulge in any financial dealings and all financial matters were looked after by the co-accused Neeraj Shukla only - HELD THAT:- It has been admitted by the counsel for the applicant that the cheques were indeed given to the complainant. However, it has been submitted that application is pending under Section 138 of N.I. Act and that applicant has appropriate explanation which shall be divulged while defending his case under Section 138 of N.I. Act. It has been stated that the aforesaid cheques were given only for security purposes of the transaction. Despite these arguments the fact remains that applicant admits to have given the cheque to the complainant which coul....... + More

Dishonor of Cheque - insufficiency of funds - whether entire amount has been settled by the petitioner? - HELD THAT:- It is seen the respondent is the complainant who lodged a complaint for the offence punishable under Section 138 of Negotiable Instrument Act as against the petitioner and others. The petitioner herein arrayed as A3 who is representing the first accused company, as Managing Director. On purchase of the Electrical goods, the petitioner and others issued 4 cheques to the tune of ₹ 3,25,687/- to the respondent. All the cheques were returned dishonoured, and the respondent proceeded with the complaint for the offence punishable Under Section 138 of Negotiable Instruments Act. According to the petitioner, pending the complaint the petitioner issued another seven cheques to the tune of ₹ 3,25,689/- and all the cheque....... + More

Grant of Bail - Dishonor of Cheque - cheque is alleged to have bounced in the year 2015 and no efforts were made by the informant to file complaint. After three of years, FIR has been lodged on the basis of false allegation against the applicant - HELD THAT:- Larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of DATARAM SINGH VERSUS STATE OF UTTAR PRADESH AND ANR. [2018 (2) TMI 410 - SUPREME COURT] and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the conditions imposed - application allowed.

Dishonor of Cheque - insufficiency of funds - offences under Section 138 r/w 142 Negotiable Instrument Act - petitioner also filed application for declaring him insolvent - HELD THAT:- The petitioner is an accused in the complaint lodged by the respondent under Section 138 of NI Act. The respondent lodged complaint alleging that the respondent is a manufacturer of crackers and supplying the same to the wholesalers and retailers. The petitioner is being retailer of cracker, purchased the crackers on various dated from the year 2017, thereby the petitioner is liable to pay a sum of ₹ 1,86,00,000/- to the respondent herein. Hence, the petitioner had entered into an agreement on 24.04.2018 and he agreed to pay the due amount. In order to pay the part of the above amount, the petitioner issued cheque for a sum of ₹ 15,00,000/-. The....... + More

Dishonor of Cheque - Offences punishable u/s 138 of NI Act - rebuttal of resumption - Sections 118 and 139 of the Act - HELD THAT:- Section 118 of the Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. That apart, Section 139 of the Act provides that it sh....... + More

Dishonor of Cheque - Territorial Jurisdiction for initiation of proceedings - payee/complainant bank is having account only at Calcutta, the presentation of cheques at Chennai - offence u/s 138 of NI Act - HELD THAT:- Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015 vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account) - In this case, the petitioners are doing business at Calcutta and they are residing only at Calcutta. Further, they availed loan from the respondent bank at Calcutta branch and issued the cheques only to the C....... + More

Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - whether the judgment of conviction and order on sentence passed by the trial court and confirmed by the session judge's court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this court? HELD THAT:- Both the trial court as well as the session judge's court have rightly held that the defence of the accused that he had paid a sum of ₹ 1,00,000 to one Sri Ramesh Kumar at the behest of the complainant is not proved which is a properly reasoned correct finding. Thus, both the trial court as well as the session judge's court have rightly rejected the defence taken up by the accused and have rightly convicted the accused for the alleged guilt. I do not find any illegality, impropriety or perversity in the sai....... + More

Release of attached bank accounts of petitioner - dishonor of Cheque - HELD THAT:- Since Respondent No.3 in his email dated 02.03.2020 has relied upon Section 44(6) of MVAT Act and which is the basis for attachment of the bank account of the Petitioner, it would be apposite to advert to the said provision at the outset - Sub Section (6) of Section 44 of MVAT Act is subject to the provisions of Companies Act, 2013. When a provision is made subject to another provision or another statute, it would mean that the other provision or the other statute would prevail over the provision in question, in case of any conflict or inconsistency between the two. When the draftsman uses the expression “subject to” in a statute in contradistinction to the expression “notwithstanding”, it means that the other provision or the other ....... + More

Grant of Bail - Dishonor of cheque - present applicant has been made accused because he is father of the proprietor of the said firm and looking after his business - applicant submits that the applicant is nowhere connected with the said firm - HELD THAT:- The dispute of the complainant is with the son of the present applicant i.e. Manoj Chouksey who is sole proprietor of the firm - Deepti Construction in respect of the payment of certain amount for the material supplied by him. From the face of it, the present applicant is not concerned with the said dispute. Hence, the application deserves to be allowed. Without commenting on the merit of the case, this application is allowed - It is directed that in the event of arrest of the applicant in connection with the aforesaid crime number, he shall be released on bail upon his furnishing perso....... + More

Priority of settlement of claims - payment to secured creditors - Section 26(E) of The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and Section 31-B of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - HELD THAT:- In the judgement relied on by the learned senior counsel for the petitioner reported in Manu/KE/3448/2019 [State Bank of India v. State of Keral dated 30.07.2019] [2019 (7) TMI 1684 - KERALA HIGH COURT], the scope and ambit of Section 26(E) of The Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and Section 31-B of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 were considered in extenso. Accordingly, it was concluded that a secured creditor under the above said provisio....... + More

Dishonor of Cheque - Section 138 of Negotiable Instruments Act, 1881 - the respondent/complainant issued statutory notice to the petitioner and since he has not paid the amount within the stipulated time, he filed the complaint - HELD THAT:- It is no doubt that the subject cheque was issued by the petitioner himself as an authorized signatory of M/s.Sri Constructions in favour of the petitioner himself, of course to his S.B. Account No.40280101000996 and the cheque was not directly issued in favour of the respondent/bank. However, the claim of the respondent/bank is that the subject cheque was tendered by the petitioner along with a covering letter requesting the bank to credit the cheque amount in his S.B. Account No.40280101000996 and appropriate the said amount towards part payment of loan amount. Neither party produced the said coveri....... + More

Dishonor of Cheque - section 138 of NI Act - benefit of presumption - blank cheque issued for obtaining loan or not - whether a revisional court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in absence of any jurisdictional error or error of law? - Whether the payee of a cheque is dis­entitled to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, of a cheque duly drawn, having been issued in discharge of a debtor or other liability? HELD THAT:- From the evidence of the witness examined by the respondent­accused, case of the prosecution is supported that money transaction was carried out between the parties. An agreement to sell of the land in question was executed before the Notary on 5th December 2012 and it appears that photographs of the parties as wel....... + More

Claim for damages - reduction in the rate of interest from 16% per annum to 9% per annum as applicable to future interest i.e. from the date of the Award, 16.03.1998, till the date of the judgment - nonpayment of commission and failure to handover the vacant possession of the premises to the respondents - HELD THAT:- As per Clause 10 of both the Agreements, in case of any dispute, it was incumbent on the appellants to handover vacant possession of the premises to the respondents. On this issue, it is clear that disputes had arisen between the parties. However, it is an admitted position that possession of the premises was not handed over to the respondents by the appellants until the arbitration proceedings had commenced and has, in fact, only been handed over on 13 March 2000. Therefore, the Arbitrator framed Issue No. 15A regarding dama....... + More

Application of early hearing - Leave to appeal - Dishonor of Cheque - trial of Scheduled Offence - acuittal of respondents - whether the petitions for leave to appeal should be heard at an early date or not? HELD THAT:- The interest of justice demands that so far as possible, part-heard matters should not be left inconclusive and if the Bench has the time to hear further arguments, those should be heard and decided as expeditiously as possible - Great pains have been taken by the learned counsels for the respondents to explain to this court that there are other matters which require the attention of this court. In some of the cases, convicts are languishing in jail and their appeals should be heard and decided first. It is good on the part of the learned counsels for the respondents to apprise this Court that how it should proceed with th....... + More

Dishonor of Cheque - Time Limitation - decree for money in favour of the respondent was confirmed - HELD THAT:- It is true that the cheques were presented to the Bank for encashment after passage of hardly seven years, since the date of delivery. As per Section 84(2) of the NI Act, the reasonableness of time to be taken for presentation from the date of issue of cheque, shall be determined with due regard to the nature of the instrument, the banking and trade usage and also the facts of each particular case. In this case, the cheques were postdated to 10.12.2017. They became payable only from the dates endorsed therein. Even though the dates of presentation and dishonour were not specifically pleaded, it is clear from the averments made in the plaint that the cheques were presented within the period of two months since they became payable....... + More