Validity of the application filed u/s 245(C) - consequential order passed by the Settlement Commission - maintainability of the writ petition filed by the Commissioner of Income Tax, challenging the order passed by the Settlement Commission - As contended that in the eventuality of no pendency of case during the relevant assessment year, the application under Section 245(C) of the Act is not maintainable before the Settlement Commission - HELD THAT:- In the instant case, the power of the Settlement Commission is well enumerated under Section 245C and 245D of the Act. The manner in which settlement is to be arrived is also contemplated under the Act. Certain preconditions are also stipulated. Thus, the Settlement Commission cannot enter into the venture of assessment, which is the power of an Assessing Officer under Section 153A. Therefore....... + More

Reopening of assessment u/s 147 - Claim of deduction under Section 80-IA - assessee is eligible only for 30% pay of the deduction claim and remaining 70% is to be taxed - HELD THAT:- As there is a definite 'reason to believe' that the deduction of ₹ 61,10,78,973/- is excess deduction to the tune of income chargeable to tax as escaped assessment. When it is categorically stated that on account of certain informations provided by the assessee, a wrong assessment has been made and the excess deduction was made, so as to cause loss to the Revenue, then it is to be construed that the assessee has not disclosed fully and truly all material facts. Facts regarding the deduction claim u/s 80-IA, all would have stated by the assessee in the return of income. However, during the scrutiny and while passing that the final order of assess....... + More

Reopening of assessment u/s 147 - Bogus LTCG - Assessee earned long term capital gain on shares and claimed it as ‘exempt income’ under Section 10(38) - whether the revenue is justified in reopening the assessment for the year under consideration? - HELD THAT:- At the stage of issuing the notice, the court cannot investigate into adequacy or sufficiency of the reasons. When no scrutiny assessment made under section 143(1) of the Act, the requirement for reopening is only reason to believe. Considering the facts of the present case, the Assessing Officer has caused of justification that, the alleged transaction of penny stock, claiming amount of long term capital gain has escaped assessment - the word “reason” in the phrase “reason to believe” in Section 147, would means cause or justification. If the as....... + More

Disallowance u/s 14A - dividend amount received - HELD THAT:- It is a settled position that disallowance of expenditure u/s. 14A read with Rule 8D shall not exceed exempt income earned for the year as per case law Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT], Chettinad Logistics Private Limited [2017 (4) TMI 298 - MADRAS HIGH COURT] and CIT vs. Corrteck Engineering Pvt. Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT]. Therefore, we direct the AO to restrict the disallowance u/s 14A rwr 8D to ₹ 4,99,674/- in AY 2013-14 and ₹ 4,28,292 in AY 2014-15.

Capital gain on sale of land - Nature of land - capital asset u/s 2(14) or agricultural land - whether land is used solely for agricultural purposes? - HELD THAT:- We note that during the course of assessment proceedings, the Assessing Officer noted that the assessee has sold agricultural land bearing R. S. No. 12/1, B 17/1 located at village Nava Gam. Tal. Kamrej. Dist. Surat during the year under assessment, for sale consideration of ₹ 4,41,00,000/-. The population of village Navagam is less than 10,000 therefore, one of the conditions of section 2(14) of the Act, has failed, and hence such land is not a Capital Asset, consequently capital gains provisions are not attracted. Based on the other conditions, as mentioned by the ld Counsel in his arguments, the said land is an agricultural land. The assessee, right from the beginning,....... + More

Capital receipt chargeable to tax u/s.45 - claim of exemption u/s.10(2A) - amount received by the assessee partner from the partnership firm - amount received by partner on retirement from a firm - HELD THAT:- Similar ground of appeal was raised in the case of co-partner of the said firm PLA, M/s Rahas Investments Private Limited (now merged with the assessee i.e Lupin Investments Private Limited) [2020 (2) TMI 564 - ITAT MUMBAI] there cannot be any levy of capital gains or any levy in the nature of income within the meaning of Section 2(24) of the Income Tax Act in the hands of the assessee. There was no transfer of relinquishment of rights in favour of the continuing partners. We find that in the instant case the firm i.e. Pranik Landmark Associates had only paid the amounts lying to the credit of the partner i.e. the assessee and had n....... + More

Unsecured loans u/s 68 - AO observed that the assessee had shown unsecured loans from various parties in its balance sheet - CIT-A deleted the addition and directing the ld AO to allow interest paid on such unsecured loans - HELD THAT:- Once the assessee has furnished the complete details about the loan creditors together with their latest addresses as available with it and affidavits from directors duly notarised including details of loan repayments made to those companies and confirmations from them for the loans advanced to the assessee, the onus cast on the assessee u/s 68 of the Act stands duly discharged and no addition could be made in its hands merely on because the lenders fail to appear before the ld AO or the assessee failing to produce them before the ld AO. See M/S. ORCHID INDUSTRIES PVT. LTD. [2017 (7) TMI 613 - BOMBAY HIGH ....... + More

Rectification u/s 254 - Transfer pricing adjustment on account of comfort guarantee - HELD THAT:- We hold that this Tribunal had duly adjudicated the ground of appeal raised by the Revenue which was enclosed alongwith Form No.36 and which was also duly signed by the ld. AO. In any case, the Tribunal is expected to adjudicate the grounds raised before it by the ld. AO that has been duly done in the instant case. Hence, we hold that this is not a fit case warranting any rectification u/s.254(2) of the Act, hence, the grounds raised in the Miscellaneous Application are dismissed.

Addition u/s 36(1)(iii) - bad debts written off - assessee had debited a sum against the head sundry balances written off - assessee nowhere explained the transaction essential during the course of business - assessee also received the loan - HELD THAT:- As the assessee failed to prove this fact that the loan was given in the ordinary course of business of banking or money lending carried out by the assessee. Out of the amount of ₹ 2,31,02,343/-, ₹ 36,35,000/- was advanced to employees which undoubtedly would be in the ordinary course of business of the assessee. The assessee was not in the business of banking or money lending. The condition in view of the provisions u/s 36(2)(i) of the Act has not been satisfied. The facts are not distinguishable at this stage. No material of any kind has been produced to which it can be assumed that the finding of the CIT(A) is not justifiable. We dismiss the appeal of the assessee.

Deduction u/s 80P(2)(d) - interest received from co-operative bank - assessee is a Co-Operative Housing Society deriving income from interest from Saving Bank Account and interest on fixed deposits - Whether Scheduled Co- operative banks are at par with commercial banks and therefore interest earned there from is not covered by the concept of mutuality and it not allowable for deduction u/s 80P(2)(d)? - CIT(A) has held that the interest income from the deposit with the Co-operative Bank is liable to be exempt u/s 80P(2)(d) - HELD THAT:- CIT(A) has considered the number of decisions such as Totgars Co- operative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT], PCIT Vs. Totagars Co-operative Sale Society [2017 (1) TMI 1100 - KARNATAKA HIGH COURT], PCIT Vs Totagars Co-operative Sale Society [2017 (7) TMI 1049 - KARNATAKA HIGH COURT], Stat....... + More

Estimation of income - Bogus purchases - CIT(A) restricting the addition to the extent of 12.5% - HELD THAT:- CIT(Appeals) has decided the matter of controversy on the basis of the decision of Gujarat High Court in the case of CIT vs. Simit P. Sheth [2013 (10) TMI 1028 - GUJARAT HIGH COURT] and on the basis of the decision in case of Ratnagiri Steels [2017 (4) TMI 402 - ITAT MUMBAI]. The CIT(A) has restricted the addition to the extent of 12.5% on the basis of the gross profit (G.P.) of the Assessee under year consideration shown in the regular books of accounts. Thus finding of the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with - Decided against revenue. Disallowance u/s 14A r.w.r. 8D - assessee has voluntarily disallowed the expenses to earn the exempt income - HELD THAT:-....... + More

Exemption on dividend income u/s 10(34) - computing the income of insurance company - CIT-A allowed exemption considering the fetters prescribed in Section 44 - HELD THAT:- As decided in own case [2020 (11) TMI 601 - ITAT MUMBAI] CIT(A) has relied upon host of binding decisions to arrive at the conclusion that exemption u/s 10(34) with respect to dividend income would be available to the assessee and further, the provisions of Sec. 14A would not apply to insurance company. Thus Exemption u/s 10(34) could not be denied to the assessee - Decided against revenue. Addition on account of negative reserves - CIT(A) has allowed the claim of the assessee - HELD THAT:- As decided in own case [2020 (11) TMI 601 - ITAT MUMBAI] Assessee’s income was to be computed as per Sec. 44 of the Act and the assessee would be required to take Actuarial va....... + More

Estimation of income - Bogus purchases - CIT(A) restricting the suppressed profit to the extent of 12.5% of the purchases made from the bogus entities - HELD THAT:- We noticed that the CIT(A) has allowed the claim of the assessee on the basis of decision of Hon’ble Bombay High Court Nikunj Eximp [2013 (1) TMI 88 - BOMBAY HIGH COURT] and Balaji Textile [1993 (8) TMI 100 - ITAT BOMBAY-B] and Bholanath Polyfab Pvt. Ltd. [2013 (10) TMI 933 - GUJARAT HIGH COURT] In the instant case, sale is not doubted, therefore, the CIT(A) has restricted the addition to the extent of 12.5% of the total bogus purchase . The facts are not distinguishable at this stage. Taking into account, all the facts and circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage. Appeal filed by the revenue is hereby dismissed.

Penalty u/s. 271(1)(c) - Bogus purchases - As onus was on the assessee to establish the genuineness of such purchases by producing such parties before the Assessing Officer and the assessee failed to discharge his onus - CIT-A deleted the penalty - HELD THAT:- CIT(A) has decided the matter of controversy on the basis of decision in the case of Naresh Chand Agarwal [2013 (6) TMI 68 - ALLAHABAD HIGH COURT] and M/s. Manohar Manak Alloys P. Ltd. [2017 (1) TMI 1698 - ITAT MUMBAI] and M/s. Yashraj Films Pvt. Ltd. [2015 (7) TMI 1363 - ITAT MUMBAI] and Simit P. Sheth [2013 (10) TMI 1028 - GUJARAT HIGH COURT]. Moreover, the Hon’ble Gujarat High Court in the case of National Textiles [2000 (10) TMI 19 - GUJARAT HIGH COURT] has held that the penalty is not leviable when the profit was added on estimation basis. Taking into account all the fact....... + More

Disallowance u/s 14Ar.w.r.8D - Assessee had suo moto made the disallowance - HELD THAT:- We find that the exempt income of the assessee was of ₹ 6,300/-. The assessee has suo-moto disallowed the expenses to earn the exempt income in sum of ₹ 2,03,136/-. There are number of decisions of the higher authorities in which it has been specified that the expenses to earn the exempt income should not be more than exempt income. In the present case assessee disallowed the expenses to earn the exempt income to the tune of ₹ 2,03,136/- suo-moto which is more than the exempt income. We also find in support of the decision of Hon‟ble Delhi High Court in the case of Vireet Investment Pvt. Ltd. Vs. CIT . [2017 (6) TMI 1124 - ITAT DELHI] in which it is specifically held that the disallowance could not be exceed more than the exemp....... + More

Addition u/s 69 - Transfer pricing adjustments - extending loan facility to Tata Tea UK as part of consortium/syndicate - letter written by one of the employee indicating that the assessee has extended loan of GBP 37.50 million as per part of syndicate and the participation/commitment fee of GBP 1,50,000 has been received by the assessee - HELD THAT:- Apart from the said letters, there is no other material on record to corroborate that the assessee in any manner participated in extending loan facility to Tata Tea UK as part of consortium/syndicate. The findings of the TPO and the Assessing Officer in draft assessment order that the assessee has advanced loans from undisclosed sources is merely based on surmises and conjunctures. It is a well settled legal proposition that suspicion, howsoever strong, cannot take place of evidence. Except ....... + More

Unexplained cash credit u/s. 68 - assessee group was subjected to search action as triggered on the basis of pre-search enquiries conducted by the department that the assessee received accommodation entries from various concerns being run /operated by Shri Pravin Kumar Jain Group and Shri Mukesh Choksi Group - HELD THAT:- The key person of the assessee agreed to offer the said amount in various years to tax. However, the said statement was retracted immediately upon receipt of copies of statement from the department - Upon filing of retraction, another statement on oath u/s 131 has been recorded by Ld. AO from Shri Kishore P. Agarwal on 27/01/2016 wherein it has been reiterated that earlier confessional statement was given under force and in a state of confusion. AO has termed the retraction made after approx. 18 months as mere afterthoug....... + More

Assessment u/s 153C - denial of natural justice - statement of Mr. Prasesh Arya, Chief General Manager of the JBM Group of companies, qua which search was being carried out under Section 132 of the Act, was not furnished - HELD THAT:- As perused the record, the petitioner has, according to us, at least at this stage, established a prima facie case in his favour concerning infraction of the principles of natural justice by the revenue. The record shows that the petitioner was served with only an extract of the statement made by Mr. Prasesh Arya. Mr. Sharma, in this behalf, when queried, submitted that the crucial part of the statement was furnished to the petitioner, and therefore, the petitioner can have no grievance. Even if we assume that, the stand taken by Mr. Sharma is sustainable, what concerns us at this stage, is the absence of an....... + More

DTVSV Act - declaration of the petitioner under the Direct Tax Vivad Se Vishwas rejected - HELD THAT:- Having regard to the provisions and the scheme of the DTVSV Act, it appears that the submissions on behalf of the petitioner carry lot of weight and it is difficult to consider the authority under the DTVSV Act would be able to go into the merits/grounds or legality of the appeal filed by the declarant. The Petition is allowed. The rejection of declaration of the Petitioner is set aside. The declaration of petitioner be processed in accordance with the DTVSV Act and the rules thereunder.

Bogus LTCG - Penny stock purchases - Tribunal remitting the issue back to the file of the Assessing Officer wherein the onus has been shifted to the Revenue with a direction that the Assessing Officer is to bring on record the role of the assessee in promoting the company and the relation of the assessee, if any with that of the promoters and role of inflating of prices, etc. - HELD THAT:- An identical issue has been considered by a Division Bench of this Court in the case of CIT Vs. Manish D.Jain [HUF] [2020 (12) TMI 740 - MADRAS HIGH COURT]and held Not only the Assessing Officer, but also the CIT(A) examined the modus operandi of the assessee and held that the shares were purchased through off market and not through Stock Exchange and that the selling rates were artificially hiked later on. The above findings have not been set aside by ....... + More

Revision u/s 263 - deduction u/s 80IA(4)(iii) - HELD THAT:- We find force in the contention of the ld. AR of the assessee that when deduction u/s 80IA(4) has been granted in first year of claim the same cannot be denied in subsequent years, unless the assessee has changed the original terms and conditions in the first year while fulfilling for the granting deduction in the first year of operation. On perusal of the documents, we did not notice any deviation from the first year of operation. The revenue side also could not bring any such deviation to establish that the assessee has changed the original terms and conditions from the first year of operation. Even the coordinate benches of this Tribunal in assessee’s own case in earlier AYs has allowed the assessee’s claim of deduction u/s 80IA(4) of the Act. In view of this, in o....... + More

Effect of Coronavirus pandemic - statutory timelines provided under the Income Tax Act, 1961 qua the assessees' need to be extended - case advanced on behalf of the petitioners', is that the recent surge in the Coronavirus pandemic has debilitated them as also those who are similarly circumstanced, making it difficult, to comply with the statutory obligations within the timelines provided under the Act - HELD THAT:- We are of the view that the matter requires examination and, therefore, a response on behalf of the respondents, on the issues raised in the petition, would be in order. Accordingly, issue notice.Mr. Jeevash Kuamr Tiwari accepts service on behalf of respondent no. 1 while Ms. Sonu Bhatnagar accepts service on behalf of respondent nos. 2 and 3. Likewise, Mr. Abhishek Maratha accepts notice on behalf of respondent no. 4 ....... + More

Unexplained income as reflected in the seized material in search -.on money receipts - Before the ld CIT-A, the assessee explained initially that the notings do not relate to the assessee and they do not reflect income of the assessee - HELD THAT:- We find that the ld AR before us had completely owned up the entire entries as noted in the seized materials on behalf of the assessee Shri Haresh Mohanlal Mehta by reaffirming the earlier stand taken before the ld AO and at the time of search proceedings before the Investigation team. Hence the receipts mentioned in the loose papers represent on monies received by the assessee from his business. It is a settled principle that what can be taxed in respect of on money is only a profit element since the seized material clearly shows evidences of expenditure out of the said receipts.The summary of....... + More

Adjustment made by the CPC (Centralized Processing Centre) u/sec. 143(1) - assessee filed it’s return of income declaring total income at NIL after set off of current year’s business loss and also brought forward business loss - CPC did not allow set off of brought forward losses against the short term capital gain and hence, made the adjustment and raised a demand - HELD THAT:- As the issue in question is debatable, which needs to be considered in detail both the legal aspects and factual aspects and decision has to be arrived at. Such legal issues are not permissible to decide u/sec. 143(1) as decided by this Tribunal in the case of M/s. VisakhaJilla Nava Nirmana Samithi [2020 (2) TMI 1489 - ITAT VISAKHAPATNAM] Even otherwise, the ld. CIT(A) has followed the decision of this Tribunal in PADMAVATHI SRINIVASA COTTON GINNING AN....... + More

Assessment u/s 153A - whether an addition can be made an assessment order passed u/s 153A read with section 143(3) of the Act, in the case of unabated assessment, when no incriminating material was found or seized during the course of search? - HELD THAT:- It is well settled that the Assessing Officer has to confront the assessee with the material collected behind the back of the assessee, if he chooses to use the material against the assessee and that he should provide the assessee an opportunity of crossexamination. Not having done so makes the evidence in question bad in law. In this case, the assessee has furnished all the bills evidencing the purchase of shares, copies of contract notes of the brokers, copies of the bank accounts disclosing the transaction etc. The transactions that they have taken place through banking channels. Dem....... + More

Grant of Bail - Constitutional Validity of section 132 (1)(b) of the Central Goods and Services Act, 2017 - power of arrest under Section 69 of the Central Goods and Services Act, 2017 to be exercised only after the proper assessment/ determination of liability - de-attachment of Bank Accounts of petitioner - Fraudulent availment of ITC - HELD THAT:- The concerned officer has on the basis of the information given so far by the Petitioner is in the process of identifying other key conspirators/ master mind in the fraudulent availment of ITC, the concerned officer has recorded her reasons to believe that Petitioner has floated the two firms with the core objective to defraud the Government Ex-chequer; that Petitioner is only doing paper transactions involving 66 Crores of revenue which is huge by any standards and, has authorized his arrest....... + More

Refund of CGST alongwith interest - period from April, 2020 to May, 2020 - HELD THAT:- The concerned respondent authorities are directed to decide the claim of the petitioner for refund as stated in the memo of this writ petition, in accordance with law, rules, regulations and Government policies applicable to the facts of the case. Petition disposed off.

Grant of Bail - Validity of section 132(1)(b) and (c) of the Central Goods and Services Tax Act, 2017 - power under Section 69 of the CST Act - arrest for alleged non-payment of GST and alleged illegal availment of ITC - HELD THAT:- The court having regard to factual position that the petitioners therein had responded to the summons and attended the dates, in the circumstances found that there could not have been justification to arrest the petitioner. Apart from that the court also found that there had not been any evidence about petitioner’s tampering with the documents or trying to influence the witnesses, observing that mere allegation is not sufficient. The court also went on to consider section 167 and had considered that under said provision a person cannot be kept in detention beyond a total period of 60 days where investiga....... + More

Validity of SCN - Carried forward Input Tax Credit in TRAN-1 from the era of Service Tax under Finance Act, 1994 to the era of GST - Eligible services or not - HELD THAT:- A perusal of the notice indicates that there was a verification of the Form TRAN-1 by the Audit Department of the GST and it was noticed that Cenvat credit had been availed on various services relating to investments in shares, debentures, mutual fund, securitization etc. The officer was of the opinion that since the receipts from the aforesaid avenues was exempted, the availment of the credit was itself not in order. The availment of Cenvat credit on services related to the provision of food, accommodation and travels was also questioned by the Officer on the ground that it is not eligible. The same goes with regard to the credit related to registry operations, custodi....... + More

Grant of Anticipatory Bail - fraudulent ITC - Fake invoices - evasion of GST - HELD THAT:- In this case when accused has already joined the investigation, he is not required for any custodial interrogation and on being inquired it is also submitted by the IO that as on today, there is no requirement of the arrest of the accused. There is no arrest since the recording of his statement on 15.12.2020. The firms which obtained the fraudulent ICT are not booked as they have deposited some of the amount. Any amount which is required to be deposited by the applicant is not disclosed. Applicant's involvement is not being the office bearer or the employee of these firms which have availed fraudulent ICT. There is no allegations from the side of the department of tampering of evidence or hampering the investigation by the accused after the gran....... + More

Violation of principles of natural justice - validity of assessment order - Assessing Authority has noted certain discrepancies in the invoices accompanied by e-way bills - TNGST Act - HELD THAT:- The petitioner has replied to the Officer on 23.12.2020 specifically requiring a copy of the statement relied upon by the respondent. In the show cause notice, the Assessing Authority states that the supplier had admitted in his statement recorded by the Central GST Authorities, stating that they had neither received any inward nor engaged in outward supply. The officer thus proposes to arrive at a conclusion that the transaction was not genuine and the petitioner was engaging in bill trading. In response, the petitioner has specifically sought the statement recorded by the third party dealer reserving his right to cross examine the dealer as we....... + More

Rejection of request for carry forward of Input Tax Credit (ITC) into the Goods and Service Tax regime - argument by Revenue is that there had been several opportunities for rectification of the mistake as time had been extended till 31.03.20201 - HELD THAT:- In the present case, the error is seen to be inadvertent, constituting a human error. The Revenue does not dispute this either. Moreover, the era of GST is nascent and thus a rigid view should not be taken in procedural matters such as the present one. The petitioner is thus be permitted to transition the credit. After all, the consequence of such transition is only the availment of the credit and not the utilization itself, which is a matter of assessment and which can be looked into by the Assessing Officer at the appropriate stage - The third respondent, i.e., Deputy Commissioner ....... + More

Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 - seeking to extend the date of payment towards full and final settlement of tax dues under the GST amnesty scheme - HELD THAT:- It is unfortunate that despite seeking adjournments on 04.02.2021 and 09.03.2021, on the ground that petitioner wishes to file a rejoinder on two occasions, no rejoinder has been filed till date - Cost not imposed. Petition dismissed.

Levy of Central GST and State GST - use of motor cycles, as contract carriages - N/N. 17 of 2017-Central Tax (Rate) dated 28.06.2017 - Section 2(22), (25) and (26) of the Motor Vehicles Act, 1988 - HELD THAT:- The position in law, as laid down in Notification 12 of 2017, specifically Sl. No.15 (b), would apply in regard to the taxability of the transaction, and the petitioner as well as other similarly placed stakeholders appear to have acquiesced with this position. The apprehensions levelled by the petitioner to the effect that other operators are adopting differing positions in regard to the taxability of business receipts stands assuaged, the respondent stating that necessary action would be taken to ensure that there is compliance, across the board. Petition closed.

Bail Application of co-accused - fake/inadmissible ITC on the strength of such fake invoices - issuance of goods less invoices - not habitual offenders - admittedly 57 days are already passed since arrest of the applicants/accused persons and as per information received from IO Sudhir, Department is still not in a position to precisely tell as to whether the complaint/charge-sheet would be filed within statutory period of 60 day - HELD THAT:- The fact that main accused Kabir Kumar is already released on bail, period of incarceration of both the accused persons coupled with the fact that the Department is still not forthcoming in filing complaint/charge-sheet in this case. Both applicants/accused persons namely Manish and Vikas are admitted to bail on furnishing bail bonds in the sum of each with one surety of like amount, subject to conditions imposed - bail application allowed.

Bail application - issuance of bogus invoices without actually transferring the physical goods - prosecution under section 132(5) of CGST Act, 2017 - HELD THAT:- This court is of considered view that the present accused does not deserves to be released on bail. This is a economic fraud going to the root of the economy as this Court does not see any justifiable ground for grant of bail. It is settled preposition of law that economic offences in itself are considered to be gravest offence against the society at large and hence are required to be treated differently in the matter of bail. It seems that the entire community would aggrieved if the economic offenders who ruin the economy of the State are not brought to book as such offences affects the very fabric of democratic governance and probity in public life. Further if a murder committe....... + More

Uploading of an order of assessment under Section 62(1) as well as the summary thereof - HELD THAT:- The instant summary order dated 14.03.2020 must statutorily have been accompanied by a speaking order and it is only such speaking order that would be liable to be challenged, as there would be no reasoning on the basis of which the summary of order would be amenable to challenge. The counter at paragraph 13 states that the prayer for refund sought by the petitioner, for excess payment of ₹ 5,46,641/- and 1,35,584/- are found to be correct and orders had been passed by the State Tax Officer, Thiruvallur Assessment Circle on 12.02.2021, as the assessee is assessed in that circle. The aforesaid Assessing Officer has not been arrayed as a respondent and it is only the Deputy State Tax Officer, Sriperumbudur Circle, who has been arrayed as a respondent. Petition closed.

Validity of attachment order - Seeking interim relief sought, that is for lifting of attachment of bank account pending appeal - service of speaking order duly made or not - HELD THAT:- Service by e-mail is thus an accepted mode of service and in the present case, I am given to understand by the learned Government Advocate that the order has been served by e-mail. I am not inclined to go into this disputed question of fact, since the petitioner, at this juncture, would state that it wishes to file a statutory appeal challenging order of assessment. The petitioner may do so within a period of four (4) weeks from today in view of the decision of the Supreme Court in a series of judgments, viz., IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] and IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC....... + More

Grant of Bail - issuance of fake invoices of other firms without accompanying the goods - economic offence or not - huge loss to the tune of ₹ 7-8 crores - non-bailable offence or not - HELD THAT:- In the present case also in the reply itself it has been mentioned that accused has admitted of causing loss to the tune of ₹ 7-8 crores to the exchequer. Accused is in custody since 25.03.2021. To decide whether or not admit accused on bail or not abovesaid parameters as held by Hon’ble Supreme Court of India have to be measured/have to be assessed. The fact that accused was straightaway sent to judicial custody is prima facie indicative of the fact that accused is not required for custodial interrogation. Further, no previous involvement of accused in any similar offence has been brought on record which implies that it is hi....... + More

Revocation of cancellation of registration - Rejection of application for revocation of cancellation of registration as appellant did not discharge their interest liability of ₹ 55,018/- against cash payment for delay filing of return and the reply to the show cause notice not found to be satisfactory - HELD THAT:- Central Board of Indirect Taxes & Customs, New Delhi has clarified the issue vide circular No.99/18/2019-GST dated 23.04.2019 wherein it has been clarified that in terms of the second proviso to sub-rule (1) of rule 23 of the said Rules, all returns required to be furnished in respect of the period from the date of order of cancellation till the date of order of revocation of cancellation of registration have to be furnished within a period of thirty days from the date of the order of revocation. The appellant has now....... + More

Grant of Bail - generation of e­way bills of 16 firms by concealing the identity of the real purchaser and real seller tax evasion and revenue loss - offence punishable under sections 132(1)(a) of the CGST Act and the CGST Act - HELD THAT:- A close perusal of the complaint prima facie reveals that there are 16 firms, which were part of scrutiny by the investigating agency. As per the case of the prosecution, the applicant is involved in misusing the registration numbers of these 16 firms and the total tax evasion by generating e­way bill without revealing the true identity of the real purchaser or real seller is stated to be ₹ 96,047253/­-. The applicant is also ready and willing to deposit some of the amount as per the instructions received by learned advocate Mr.Pandya from the applicant. Taking into consideration the ....... + More

Maintainability of appeal - requirement of compliance with mandatory pre-deposit - Section 107 of the Orissa Goods and Service Tax Act (OGST Act), read with Rule 108 of Orissa Goods and Service Tax Rules (OGST Rules) - HELD THAT:- Section 107 of the OGST Act is a mandatory provision and there is no discretion with the appellate authority to waive the requirement of pre-deposit. Even this Court cannot direct the appellate forum to do so contrary to the statute - It is noticed that under Section 107 of the OGST Act upon making a pre-deposit of 10% there is an automatic stay of the balance 90% of demand, which cannot, in the circumstances, be said to be unfair or unreasonable. In that view of the matter the Court is not inclined to entertain the present petition - Petition dismissed.

Cancellation of registration of petitioners - fake ITC - TNGST Act - HELD THAT:- The contention of the respondents herein that the revival of registration is conditional upon the petitioner satisfying tax dues and substantiating its claim of ITC, is misconceived. What is sought for by the petitioner is revocation/revival of registration only, and in the guise of considering the application for revocation, the authorities cannot embark upon the process of assessment - An assessment would have to be made by the authority in terms of Section 73 or other applicable provision after following the procedure set out therein, and it is only in the course thereof that the officer may consider and decide questions of leviability of tax and claim of input tax credit. Thus to state that registration will not be revived since the petitioner has incorre....... + More

Detention of goods alongwith vehicle - Intention to evade GST - petitioner alleges that the 1st respondent did not consider the reply of the petitioner and demanded the petitioner to pay tax and penalty for release of the vehicle - HELD THAT:- The 1st respondent had acted mechanically without application of mind to the operational convenience of the transporter - Also for the bonafide action of the transporter, the 1st respondent cannot mulct the petitioner with tax and penalty. The petitioner cannot be said to have any intention to evade tax if any mistake is, for the sake of argument without conceding it, has been committed by the transporter - The finding of the officer, the 1st respondent, in the impugned order that the transaction involving the petitioner was 'suspicious' and that the transporter was found 'without proper....... + More

Provisional attachment of Bank accounts of petitioner - despite repeated requests, no information was disclosed by the authority concerned as to why the GST authority exercised such powers - principles of natural justice - HELD THAT:- There are no proceedings against the present petitioner under Sections 62, 63, 64, 67, 73 and 74 of the Act. There is no reason therefore, to invoke section 83 against the writ applicant and proceedings. Since the proceedings are initiated by the authorities in connection with the third parties, invocation of powers under Section 83 are not available with the respondents. Therefore, the order of the provisional attachment in connection with the bank account No.3785569992 of M/s. Global Corporation be interfered with. It is also necessary to note that despite of due service to the bank the bank has chosen not....... + More

Validity of detention and seizure of goods - allegation is that scraps in different forms seized from the premises were found to be imported without payment of appropriate customs duty - classification of goods - discarded and non-serviceable semi-broken/broken motor under CTH 7204 49 00 under the Other Ferrous Waste and scrap or not - jurisdiction to entertain this petition in wake of the availability of the alternative efficacious remedy - HELD THAT:- The law on the point if is regarded, it is quite clear that jurisdiction under Article 226 of the Constitution of India is not to be resorted to ordinarily when the alternative and efficacious remedy is available, unless of course the very issuance of notice is not sustainable under the law - The writ jurisdiction under Article 226 is not to be entertained against the show cause notice whe....... + More

Release of imported goods - used ventilators - non-hazardous goods - HELD THAT:- The petitioner has relied upon a certificate of the chartered engineer in support of its contention that the used ventilators imported constitute non-hazardous goods. In my view, the appropriate authority to confirm the nature of goods would not be the chartered engineer. Thus, in the course of adjudication, the assessing authority shall make a reference to the competent authority either under the Hazardous Substance Management Division/R1 or any other authority competent for this purpose, to determine whether the used ventilators imported by the petitioner would constitute hazardous material, bearing in mind the definition of the term in the Hazardous Waste Management Rules 2016. Petition dismissed as withdrawn.

Maintainability of appeal - Smuggling - Gold - baggage goods - Absolute Confiscation - HELD THAT:- It is a fact on record that the gold in question has been seized when the appellant was travelling in domestic flight from Jammu to Srinagar, in that circumstances, the goods in question cannot be said as imported goods. The revenue is heavily relying on Section 123 of the Customs Act say that when any goods on the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the appellant. Admittedly, if revenue is having a reasonable belief that they are smuggled goods, then the burden of proof that the goods are not imported lies on the appellant. But firstly, there should be a reasonable belief that the gold in question is smuggled one is to be established by the revenue to invoke Sec........ + More

Exemption from imposition of IGST - oxygen concentrators imported by the State Government - N/N. 30/2021-Customs, dated 01.05.2021 - HELD THAT:- The petitioner states that he will deposit the requisite amount with the Registry of this Court within the next three days - In the meanwhile, in case, the oxygen concentrator, sought to be imported by the petitioner, reaches the concerned customs barrier, the same will be released, subject to the petitioner depositing, with this Court, an amount equivalent to IGST presently payable by him, in accordance with the impugned notification, within three days from today. Since the requisite IGST will be deposited by the petitioner, with this Court, the respondent will not levy a charge qua the same on the importing agency, i.e., FedEx Corporation. List the matter on 18.05.2021.

Refund of the redemption fine and penalty remitted - Department application for revision is pending but no stay / interim protection sought against the order of Commissioner (appeals) - HELD THAT:- Admittedly, no interim protection has been obtained by the respondents - Though the provisions of Section 129DD do not expressly provide for seeking or grant of interim protection, such provision for interim protection is implicit in any provision for appeal or revision and this is a position settled by several decisions including a decision of this Court in the context of the Income Tax Act 1961, in the case of Paulsons Litho Works vs. Income-Tax Officer [1993 (11) TMI 50 - MADRAS HIGH COURT]. Thus, in cases where the Customs Department takes re-course to revision before the Government, it is incumbent upon them to also seek interim protection....... + More

Exemption from IGST - Oxygen concentrators imported by the State Government - N/N. 4/2021 - Customs dated 03.05.2021 - HELD THAT:- notification has exempted imposition of IGST on oxygen concentrators imported by the State Government, or via any entity, relief agency or statutory body, authorised by the State Government. This exemption, according to the learned ASG, is, presently, available till 30.06.2021. Since the respondent has gone this far, it could move further, and extend the exemption, to even individuals, to enable them to obtain imported oxygen concentrators by way of a gift, albeit, without having to pay IGST. List the matter on 06.05.2021.

EPCG Scheme - Amendment in Shipping Bills - mention of the EPCG licence number on the shipping bill, mandatory or not - right to seek to explain, by virtue of other contemporaneous and supporting evidences, the factum of export - HELD THAT:- No doubt requires the mention of both the name of the supporting manufacturer as well as the EPCG authorization number on the shipping bill and in this case both are absent. However, the requirements, though mandatory, are capable of being satisfied constructively as well and non-mention is not fatal to the claim of concessional rate of duty. The provisions of Section 149 of the Customs Act provides a forum to the petitioner to establish this by way of contemporaneous records. Thus, an opportunity must be extended to the petitioner to prove the factum of export through Glovis by way of supporting mate....... + More

Principles of natural justice - seeking Mandamus directing the respondents to pass a speaking order in terms of Section 17 (5) of the Customs Act, 1962 in respect of the Bill of Entry within the time frame as fixed by this Court - HELD THAT:- Respondents would not object to the grant of Mandamus and would assure the Court that a speaking order as prayed for will be passed within a period of six (6) weks from today. As the mandamus sought for stands achieved and nothing further survives in this writ petition, the same is disposed as aforesaid.

Recovery during pendency of litigation - pre-deposit was made - Circular No.1053/2/2017-CX dated 10.03.2017 - Absolute Confiscation - imported branded Watches - HELD THAT:- The Central Board of Excise and Customs has specifically addressed the question of recovery during pendency of litigation in the said circular and has held that Once the amount is paid, no coercive action shall be taken for recovery of the balance amount during the pendency of the appeal proceedings before these authorities. In the light of the categoric statement of the Board to the effect that no coercive action shall be taken for recovery of any balance of disputed dues, once the pre-deposit is made, the present communication has no legs to stand - petition disposed off.

Service of notice - change of address which was notified too - notice sent to an old address - delay in filing appeal or not - Classification of imported goods - HELD THAT:- The Note given by the Administrative Officer of the Custom House, Chennai also shows that there were instructions given for verification of the new address of the appellant. There is nothing to disbelieve these documents. After intimating the change of address in July 2012, the Department has issued the Order-in-Original in February 2013 to the old address of the appellant. As per Section 128 as well as Section 153 of the Customs Act, 1962, any decision/order has to be communicated/served upon the person to whom it is addressed. In the instant case, there is no actual ‘service’ or ‘communication’ of the decision/order upon the appellant - There....... + More

Confiscation - Gold - Seeking interim protection - HELD THAT:- This writ petition is closed. Status quo granted by this Court on 09.03.2021 will continue for a period of two (2) weeks from today.

Maintainability of appeal - time limitation - appeals were filed before the Commissioner (Appeals) beyond the period of 90 days, which is an admitted fact - HELD THAT:- The appeal before the Commissioner (Appeals) was filed beyond 90 days. As per the provisions of Section 128, learned Commissioner (Appeals) has power to condone the delay of 30 days after the normal period of 60 days. Since the appeal was filed beyond 90 days, learned Commissioner (Appeals) has no power under the statute to condone the delay over and above 90 days, accordingly the appeal was dismissed. This issue has been considered by various Courts including the Hon’ble Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT] and it was consistently held that the statutory time period of 90 days i.e. 60days plu....... + More

Refund of SAD - Process amounting to manufacture or not - sterilization, re-packing, re-labelling etc. - refund of SAD under Notification No.102/2007-Cus dated 14.09.2007 when the importer has not fulfilled the conditions 2(d) and 2(3)(ii) stipulated in the said Notification - CBEC Circular No.34/2010- Customs, dated 15.09.2010 - HELD THAT:- The effect of Circular No.34/2010 has not been considered by the Tribunal. The learned Senior Standing Counsel for the Revenue lays emphasis on the Circular, which clarifies the position that there is no intention to omit / delete the words “as such” from the Notification, which continues to remain as condition though implied. The Circular is not under challenge in any of the proceedings, nor its applicability has been questioned by the assessee. The Adjudicating Authority, namely, Commiss....... + More

Bail application - Smuggling - Gold - value of gold is more than one Crore rupees - non-bailable offence or not - HELD THAT:- Taking into consideration the fact that, Mr. Penkar and Mr. Zamane have been enlarged on bail by the Learned Magistrate, and upon taking into consideration the value of the gold which was seized on 7th December 2019 the applicant, in the facts of the case, also deserves to be enlarged on bail upon imposing certain conditions. Application allowed.

First time violation of import condition - relaxation from the requirement to produce Phytosanitary Certificate - Auction of imported goods which were not cleared despite two notices served - HELD THAT:- It is true that the importer cannot demand relaxation of the requirement of production Phytosanitary Certificate as a matter of right. It is equally true that in matters such as this, the Court should be extremely cautious as there are environmental and ecological implications. It is equally true that the petitioner was found to have committed violation of the requirements of Plant Quarantine Regulation of Import in India Order, 2003 on one occasion earlier. It is true that the goods is question have been imported to India without having been fumigated by Methyl bromide at the country of export. The petitioner had imported as many as four....... + More

Release of delivery order and original bill of lading of re-import shipment to enable the release of the subject consignment in favour of the plaintiff subject to payment by the plaintiff within 3 days from the date of the order - ex-parte order - HELD THAT:- It is not in dispute that on the date when arguments on interim application were heard by the Ld. Trial Court, the reply filed by the contesting defendant nos. 5 and 6, was already on record but surprisingly in the impugned order not even one single sentence has been mentioned about the stand taken by the present appellants before the Ld. Trial Court and the impugned order dated 19.11.2020 was passed only on the basis of submissions made on behalf of the plaintiff without considering any argument advanced on behalf of the present appellants, who were vehemently opposing defending the....... + More

Grant of Anticipatory Bail - search procedure - allegation of gross under-valuation of the white paper roll imported - Allegation of Hawala Transactions as well - case of Revenue is that petitioner is a habitual offender - HELD THAT:- All the documents are in the custody of the Customs. When specifically asked as to why Customs Authorities require the custody of the petitioner, no specific answer is forthcoming. As stated earlier, all the documents are in custody of the Customs Department. This particular case involves violation of Section 132 and 135 of the Customs Act, 1962. The allegation that the petitioner is involved in transfer of money through non-banking/hawala channels is a subject matter of investigation by another authority and as and when and if and when investigation in this regard is initiated by other authorities to prove ....... + More

Reassessment of the Bill of Entry - dues are within the Operational debt under IBC or not - It is the case of the petitioner that the amendment to Serial No. 55 to Notification No. 12/2012-Customs dated 17.3.2012vide Notification No. 46/2015- Customs dated 17.9.2015 which increased the rate of duty from 7.5% to 12.5% cannot be said to have come into force on the date of assessment on 17.3.2012 as per the Section 25 of the Customs Act, 1962 as it stood on the date - Alternative remedy of appeal - HELD THAT:- The petitioner has an alternate remedy to file an appeal against the assessment before an Appellate Commissioner under Section 128 of the Customs Act, 1962 against the reassessment in the impugned Bill of Entry - There are no point in relegating the petitioner to work out the remedy before the Commissioner of Customs (Appeals) at this ....... + More

Interpretation of statute - Paragraph 3.09(2)(i) of the FTP in so far as it excludes “Service Providers in Telecom Sector” from the benefit of SEIS - Benefit under Service Exports from India Scheme (SEIS) - Duty Drawback Scrips on foreign exchange remittance - HELD THAT:- The “Service Providers in Telecom Sector” meant and included only the Telecom Service Providers of services mentioned therein. The ambit and scope of such exclusion was not of Service Providers who render services to such Telecom Service Providers - Though, a similar list is not appended to FTP or HBPv1, there is no reason for a different interpretation to be placed to FTP 2015-20. Clearly, what was made ineligible for availing benefit of SEIS in terms of paragraph 3.09(2)(i) are the Telecom Service Providers and not the Service Providers who prov....... + More

Verification regarding the Certificate of Origin produced - Concessional rate of Customs Duty - whether the verification is random verification falling under Rule 6(1)(c) of the CAROTAR, 2020 or the verification falls under the category leveled by Rule 6(1)(b) of the CAROTAR, 2020? - HELD THAT:- The petitioner has brought categorical allegation against the respondents that he has furnished all requisite documents and information for clearance but the imported goods have been ware-housed without any reason being disclosed to the petitioner whether those goods were held up for any verification regarding the Certificate of Origin produced by the petitioner for availing the concessional rate of the customs duty or for any other reason. This allegation has been levelled in para-7 of the writ petition and in reply thereof, the respondents have ....... + More

Seeking for adjournment - entire office of the Counsel is struck with COVID, they are not in a position to appear before this Tribunal today and have instructed Ld. Counsel for RI to R4 to seek for an adjournment - HELD THAT:- The mediation efforts between the parties are still going on. Taking into consideration the same, post this matter on 05.05.2021.

Oppression and Mismanagement - illegal allotment of shares - exclusion of petitioner from the management of the company - siphoning of funds - illegal resolution passed by the company - non sending of notices to the board and general meetings of the company - HELD THAT:- In terms of the MOU, it is clear that Keer Hotels Pvt. Ltd. will be operated jointly by Mr. Sarabjeet Singh Keer and Amarjeet Singh Keer. The ownership rights in Fulcrum property shall be equally shared by Jaswinder Singh Keer and Sawinder Singh Keer. The MOU also talks about division of other properties. The sanction of demerger on 07.03.2019 further demonstrates or acknowledges the intention of the parties for filing an application for demerger in the Tribunal. According to sanction, in terms of the demerged scheme, it cannot be disputed that the MOU dated 18.02.2019 cr....... + More

Recall of order - seeking prosecution of the Respondents for allegedly committing perjury in relation to the proceedings before this Court by making false and contradictory averments in the counter affidavit - HELD THAT:- There cannot be any debate on the proposition raised by Mr. Savla that a review petition does not lie under the Code of Criminal Procedure, 1973, except for clerical and arithmetical errors. However, after much cogitation, the judgement deserves to be recalled for the reason set out hereinafter - Finding that the allegations of perjury levelled in the present petition directly or indirectly touched upon the issues pending before the NCLT, this Court was of the view that the issues raised in the present petition ought to be raised before the NCLT, being intrinsically linked. Application allowed.

Non-inclusion of principles of natural justice especially audi alteram partem (giving opportunity of hearing to the other side) in the Master Directions on Fraud dated 01.07.2016 - Section 35-A of the Banking Regulation Act, 1949 - borrower Company is holder of fraudulent account or not? - resolution of the Fraud Identification Committee (FIC) dated 31.07.2019, whereby both the JLF and the FIC have classified the account of M/s. B. S. Limited, of which the petitioner was the former Chairman and Managing Director, as ‘fraud’ and ‘willful defaulter’. HELD THAT:- The argument of urgency is belied by the record. For, the Company’s account was declared as NPA on 29.06.2016; the JLF declared the Company’s account as fraud on 15.02.2019, yet the FIC did not declare the Company’s account as fraud till 31........ + More

Oppression and Mismanagement - Arbitral Award rendered during the pendency of the present ‘Appeal’ - whether the National Company Law Tribunal was justified in passing the impugned order dated 22.01.2021 leaving the valuable properties of the First Respondent/Company unprotected, despite manifest urgency and large scale under valued sales by the Respondents? - HELD THAT:- An order on Section 241 Petition under the Companies Act, 2013 seeks reliefs with a view to end the matters complained of in the petition. Section 242 of the Companies Act, 2013 vests in the ‘Tribunal’ very wide powers for granting a suitable relief to the concerned Petitioner(s). Section 242(1) of the Act gives the ‘Tribunal’ an unfettered power to make such Order as it thinks fit, with a view to bringing to an end the matters complai....... + More

Approval of scheme of Amalgamation - section 230 -232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 - HELD THAT:- There is no apprehension that any of the creditors would lose or be prejudiced if the proposed scheme is sanctioned - The Petitioner Companies have filed Affidavit, stating that the scheme Proposed does not fall within the ambit of sections 4 and 5 of the Competition Act, 2002. The scheme does not require any modification, except to the Appointed Date as mentioned supra, as it appears to be fair and reasonable, not contrary to public policy and also not violative of any provisions of law. All the statutory compliances have been made under section 230-232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The Scheme of A....... + More

Wilful, deliberate and contumacious violation of a common order - allegations are primarily against HVL and consequently against the directors of the companies who have allegedly aided and abetted HVL in committing the contempt - HELD THAT:- The allegations do not fall within the definition of criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971. The proceedings have not been initiated by the court suo moto or on the consent of the Advocate General. The court must be satisfied about the guilt of the alleged contemnor (HVL) beyond reasonable doubt. Contempt being in the nature of quasi-criminal proceedings, the allegations should be strictly construed. The standard of proof to establish contempt, is akin to a criminal proceeding. In this case, mere allegation of violation based on surrounding circumstances and observati....... + More

Reduction of share capital - Section 66(1) of the Companies Act, 2013 - HELD THAT:- It is seen from the Application and the annexures filed therewith, the shareholders of the Applicant Company has approved the scheme of Reduction of Capital in the Extra ordinary General Meeting held on 16th October, 2019 by way of Special Resolution, passed at this meeting. The Company Petition is allowed for reduction of the share capital of the Company, as per the directions given - Application allowed.

Initiation of contempt proceedings against the Respondents/Contemnors for wilful disobedience - Section 425 of the Companies Act, 2013 read with the Contempt of Courts Act, 1971 - HELD THAT:- The Respondents especially Respondent Nos. 4 & 5 have breached their own undertakings given by way of Affidavit of undertaking before the Tribunal, and the interim orders passed by NCLAT in question. It is general principle of law that any one, who intentionally violate orders of Court/Tribunal, whether they are party to proceedings or not in question, are liable to be hauled up for Contempt. However, principles of natural justice demands that those parties to be given opportunity before initiating action against them to defend. Since Respondent Nos. 4 & 5, have furnished their undertakings in question, and basing on that NCLAT passed interim....... + More

Sanction of the proposed Scheme of Demerger and Arrangement - Section 230 to 232 read with Section 66 of the Companies Act, 2013 and the Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - HELD THAT:- Considering the entire facts and circumstances of the case and on perusal of the Scheme, reports of the Regional Director and reply/undertakings of the Petitioner Companies thereon and the documents produced on record, the Scheme of Demerger and Arrangement appears to be fair and reasonable and is not contrary to public policy and does not appear to be violative of any provisions of law. All the statutory compliances have been made under Section 230 to 232 of the Companies Act, 2013. The Revised Scheme of Demerger and Arrangement (which is enclosed at Page No. 17 to 42 to the Reply affidavit dated 12.03.2021) is hereby sanct....... + More

Application for amendment in the scheme of amalgamation - HELD THAT:- The proposed amendment is allowed and the applicant nos. 1, 2, 3, 4 and 6 are directed to file the amended petition along with amended scheme of amalgamation within 2 weeks from the date of this order. Application disposed off.

Approval of scheme of Amalgamation - section 230-232 of Companies Act - HELD THAT:- This Tribunal is of the considered view that the scheme as contemplated amongst the petitioner companies seems to be prima facie in compliance with the provisions of the Companies Act, 2013. Further there seems to be no objection on the part of the shareholders that the Scheme is in any way detrimental to the interest of the shareholders of the Company. In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal sanctions the Scheme of Amalgamation appended as Annexure "4" as well as the prayer made therein. The scheme is approved - application allowed.

Reduction of capital of the petitioner - Section 66 of the Companies Act, 2013 - HELD THAT:- The Authorized Share Capital of the Company is ₹ 1,50,00,000 divided into 15,00,000 Equity Shares of ₹ 10 each, which have been issued and have been fully paid-up or credited as fully paid. In compliance of the requirements of proviso to sub section 1 of Section 66 of the Companies, Act, 2013 the petitioner has filed a declaration dated 07.11.2020 affirming that the Petitioner Company as on date has not accepted any deposits and accordingly there is no arrears or repayment due with respect to deposits - Besides the certificate of statutory auditor dated 05.11.2020 has been placed on record which certifies that the accounting treatment proposed by the Company for the reduction of share capital is in conformity with the accounting standa....... + More

Validity of Section 272(1)(e) of Companies Act, 2013 - seeking declaration that the second proviso to Section 272(3) of the Act, must be read to be applicable to the petitions presented by persons falling under Section 272(1)(e) of the Act - Whether Section 272 (1)(e) is ultra vires Constitution of India? - HELD THAT:- It is settled that when a provision of law is challenged, Courts are required to exercise restraint and be cautious in striking down a provision. It may be profitable to note the decision of the Apex Court in Government of Andhra Pradesh and others Vs. P. Laxmi Devi (Smt) [2008 (2) TMI 850 - SUPREME COURT] where it was held that Constitutional validity of the amended Section 47A of the Stamp Act is upheld. The impugned amendment is an economic measure, whose aim is to plug the loopholes and secure speedy realization of stam....... + More

Application for reservation of the name “Reef Center for Wellness and Excellence LLP” - Rule 18(5) of the LLP Rules - HELD THAT:- The petitioner had applied for reserving the name REEF Wellness and Excellence LLP and the name was reserved for the petitioner for three months. True, the petitioner could not make an application for registration of LLP within three months. However, the petitioner submitted an application for incorporation of LLP in the said name as per Ext.P3 on 23.01.2020. Defects in the application were noted by the respondents in instalments as per Exts. P4, P5, P7, P9 and P10 and the petitioner was made to file fresh applications time and again - t is evident from Ext.P16 that the word REEF is now included in the names of entities dealing in Class 05 goods in Fourth Schedule to Trade Marks Rules, 2002, namely,....... + 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:- It is seen from the records that the Petitioners have filed an affidavit on 23.11.2020 affirming compliance of the order passed by the tribunal dated 13.10.2020. A perusal of the affidavit disclose that the Petitioners have affected the newspaper publication as directed in one issue of the ‘Business Standard’ (English Edition) and (Hindi Edition) both on 13.11.2020 in relation to the date of hearing of the petition. Further, the Petitioners have also affirmed that the copy of petition have been duly served upon the Registrar of Companies, Regional Director, Northern Region and Income Tax Departme....... + More

Sanction of scheme of arrangement - not-for-profit Companies registered under Section 8 of the Companies Act, 2013 - Petitioner Companies belonging to the same management group or not - HELD THAT:- On perusal of the Scheme and the proceedings, it appears that the requirements of the provisions of section 230 and 232 of the Companies Act, 2013 are satisfied. The Scheme of Arrangement envisaging amalgamation of UNM Foundation, the Petitioner Transferor Company with Tornascent Care Institute, the Petitioner Transferee Company, which is at Annexure- T to the petition is hereby sanctioned and it is declared that the same shall be binding on the Petitioner Companies, their shareholders and unsecured creditors and all concerned under the scheme - this Bench is of the opinion that in respect of any change in name, the Petitioner/Transferee Company shall comply Section 13 of the Companies Act separately/independently. Petition disposed off.

Right to apply u/s 241 of Companies Act - petitioners do not hold minimum percentage of shareholding in the capital of the Respondent No. 1 on which is require to file a petition - whether this Tribunal can exercise its discretion which is vested with it in terms of the provisions of Section 244 of Companies Act, 2013? - HELD THAT:- From the perusal of Section 241, it is noted that as per proviso to Section 244(1), the word "may" has been used as regard to waiver of all or any of the requirements specified in Clause (a) or Clause (b) so as to enable the members to apply under Section 241 of Companies Act, 2013. Clause (b) is not applicable as Respondent no. 1 is having a share capital. As far as the fact of the petitioners are not having requisite number shareholders or holding not less than one tenth of issued share capital are....... + More

Winding up of company - name of company struck off u/s 248 of Companies Act - award of costs and expenses to the petitioners, incurred by them for filing the winding up petition - HELD THAT:- From a reading of Sub-Section (8) of Section 248, it is clear that Section 248 in no manner will affect the powers of this Tribunal to wind up the Company, the name of which has been struck off from the Register of Companies. Therefore, even after removal of the name of the Company from the Register of Companies this Tribunal can proceed with the petition for winding up under Section 271 of the Companies Act, 2013 - It also appears from the record that the Company got struck off on 29.08.2018 due to non-filing of Statutory Returns since 2001. Hence the criteria fixed under Section 271 (d), that the Company failed to file Financial Statements or Annua....... + More

Seeking to restore the name of the Company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The Company has not deposited heavy cash in its Bank Account during the period of demonetization. Copy of Bank statement along with demonetization affidavit is enclosed to the Application. We are satisfied with the reasons shown by the Applicant for restoration of the name of the Company in the register of companies maintained by the Respondent - By exercising the powers conferred on this Tribunal under Section 252 of the Companies Act, 2013, and Rule 87-A of NCLT (Amendment) rules 2017, R/w. NCLT Rules, 2016 and basing on the assurance given by the Learned representative for Applicant Company would be making good all pending statutory compliances on restoration of the Company, it seems to be a fit case to order r....... + More

Approval of Resolution Plan - RP has filed an application alleging preferential, undervalued and fraudulent transactions - alleged transactions in favour of related parties - HELD THAT:- To file an application alleging preferential, undervalued and fraudulent transactions, the RP has to adhere to sections 43 and 46 of the Code read with regulation 35A of the CIRP Regulations. Section 43 and 46 envisage that the alleged transactions in favour of related parties should be within two preceding years, while in the case of non-related parties it should be within one year. Further, under regulation 35A the RP has to form an opinion whether there has been any avoidable transaction in the Corporate Debtor company on or before seventy-fifth day of the CIRP commencement date. Thereafter, on or before one hundred and fifteenth day of forming such op....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is an admitted liability and that the documents submitted by the operational creditor are enough to establish the debt upon the corporate debtor and hence the contentions made by the corporate debtor cannot be relied upon. Also, they defaulted in repaying the debt amount which is more than the threshold of ₹ 1,00,000/- to each individual operational creditor. Hence, all the requisite conditions for admission of a petition under Section 9 have been found to be fulfilled and therefore, this petition deserves to be admitted. Application admitted - moratorium declared - petition allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It is a fact that the Financial Creditor has supplied the material as per the purchase order issued by the Corporate Debtor. Due to non-payment as per the terms of the invoice, the Financial Creditor herein has converted the due amount into a loan and accordingly the Loan Agreement has been entered into between the parties on 05.03.2018 to repay the amount claimed to be in default in twelve (12) equal instalments commencing from 05.03.2018. The present Financial Creditor has supplied the goods as per the purchase order issued by the Corporate Debtor. However, the amount due under the purchase order issued by the Corporate Debtor was not paid even though the g....... + More

Classification of applicant - unsecured creditors or not - Direction to opponent to rectify the erroneous classification of claim of Applicant as 'Unsecure' and categorize the same as 'Secured' - time limitation - HELD THAT:- On perusal of the record, it is found that on 5th July 2019, the liquidator classified the Applicant as Unsecured Financial Creditor in the liquidation process of the Corporate Debtor and in view of Section 42 of the Insolvency and Bankruptcy Code, the creditor may appeal before the Adjudicating Authority against the decision of the liquidator within 14 days on receipt of such decision. However, the present application is filed after around 551 days - The instant application is admittedly filed in much belated stage. In view of such express provisions of section 77(3) of the companies Act, 2013 and Re....... + More

Seeking of hearing - unsuccessful Resolution Applicant claims that they are not only a necessary party but also a proper party and is required to be heard while disposing of application for approval of Resolution Plan - HELD THAT:- The Supreme Court in various judgments has noted that a view has to be taken on a liberal side. This Adjudicating Authority is not hesitant to say that the unsuccessful Resolution Applicant i.e. Applicant is not only a necessary party but also a proper party for adjudication of the lis involved between the parties. It is not out of place to mention that this Bench has a doubt on the legal point whether an Asset Reconstruction Company can be a Resolution Applicant or not. This aspect of question of law can also be cleared by the unsuccessful Resolution Applicant or any person once they are impleaded as a party a....... + More

Condonation of delay of 796 days delay in filing the claim before the Liquidator - Regulation 39 of the IBBI (Liquidation Process) Regulations, 2016 read with Section 60(5) of the Insolvency and Bankruptcy Code - HELD THAT:- Section 40 of the I&B Code, 2016 mandates the Liquidator to record the reason in writing for rejection of the claim and the same is also required to be communicated to the Applicant. In relation to his decision of admission or rejection, the Liquidator is required to communicate to both the creditors and the Corporate Debtor within seven days of such admission or rejection of the claim. As against the rejection of the claim, Section 42 of I&B Code, 2016 provides for a time window of 14 days upon receipt of such decision to the creditor to file an appeal to the Adjudicating Authority against the said decision o....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - High Seas Sale - HELD THAT:- It is crystal clear that projecting this High Seas Sale Agreement as the source document by the Applicant their claim as Financial Debt and the Applicant claiming themselves to be the Financial Creditor is misconceived and we are not inclined to treat this transaction as Financial Debt. The Corporate Debtor have obtained a Letter of Credit for the payment of the said amount opened in Corporation Bank which is said to have been honoured. Since there appears to have been a dispute between the parties they referred the matter to the sole Arbitrator and an award had been passed in favour of the Applicant which is appealed before the Hon'ble H....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Service of notice - HELD THAT:- The notice of summons issued to respondent was returned with the endorsement "left". Hence notice by way of publication was ordered. As per the order of this Tribunal dated 10.02.2021, the operational creditor was directed to take fresh notice to the respondent in the leading newspapers and same was effected in leading newspapers one in English and another in vernacular Tamil both dated 26.02.2021. Inspite of this, the Corporate Debtor remained absent. On 23.03.2021, the respondent was called absent and set ex-parte. Upon perusal of pleading, documents and submission, this Adjudicating Authority is of the view that debt and default has been established by the Operational Creditor - application admitted - moratorium declared.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors or not - Existence of debt and dispute or not - HELD THAT:- Till the date of this order, no payment was made by the Corporate Debtor to the Applicant/Operational Creditor. All other requirements is complied with, which are required for a complete application - Application is admitted - moratorium declared.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- The period of limitation prescribed under section 137 of the Limitation Act is 3 years - In the present case, the debit notes raised by the Corporate Debtor is more than 3 years from the date of filing this application on 24.10.2019 and last payment received from the corporate debtor on 23.02.2016. Even, in this case, the Operational Creditor has not filed condone delay in filing application on the cause of action. By taking into consideration the facts, this application is hit by the limitation - Application dismissed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- In the Purchase Order dated 19.10.2018 enclosed at Page 13 of the application, it is clear that the Respondent placed a Purchase Order for a sum of ₹ 62,31,780/-. On perusal of the Purchase Order, it clearly shows that there is no Clause mentioned in respect of interest for the delayed payments - As per the Purchase Order also, it was mutually agreed between the parties that the materials plus or minus 5% shall be adjusted after transactions. The Applicant failed to quantify the "debt amount" and "default". Thus, it is clear that there is a pre-existing dispute between the parties - In the matter of MOBILOX INNOVATIONS PRIVATE LIMI....... + More

Condonation of delay in submitting the claim before the Liquidator - direction to Liquidator to accept the claim of the Appellant and grant such other further orders which are deemed fit - HELD THAT:- It is to be noted here that the provisions of IBC, 2016 mandate that the Claimants are required to submit the claim to the Liquidator in such form and in such manner along with such supporting documents as specified by the Board. Thereafter, upon submission of the claim, the Liquidator is required to verify the claims within the time limits specified by the Board and in this connection referring to the relevant Regulations namely, IBBI (Liquidation Process) Regulations, 2016 and more specifically under Regulation 30, the Liquidator is required to verify the claim submitted within a period of 30 days from the last date of receipt of the claim....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- In the instant case, though there is an authority letter issued by other partners of the firm (page 40), it does not bear any date in order to make out as to whether the said authorisation is given prior to the issuance of demand notice. In absence of such vital information i.e. the 'date' on which such authority letter is/was executed, it is difficult to come to the conclusion that the demand notice is/was issued on the basis of the authority letter. In the result, the application so filed gets vitiated. The petition is not maintainable and deserves to be dismissed - Petition dismissed.

Seeking release of title deeds before the CoC of the respondent - title deeds of the assets/rights of the Corporate Debtor - Resolution Applicants are not banking company, but a private organization, while the Financial Creditors have facilities to securely hold the same under safe custody - HELD THAT:- The Tribunal was constrained to summon the Resolution Professional as well as the Financial Creditors. They were asked to produce original title deeds. Today, they were present before the Tribunal along with the original title deeds as directed by the Tribunal. The Resolution Professional and the Financial Creditors have represented their respective cases. The Financial Creditors have submitted that the holding company too is under CIRP and they have apprehension that if the original title deeds are handed over to the successful Resolution....... + More

Liquidation process - priority of settlement of claim of creditors - Financial Creditors or not - prior to the commencement of CIRP against the Corporate Debtor, the maturity date of the subject CCCDs has long expired - consideration of CCCD holder as Financial Creditor or other Creditor/stakeholder? - HELD THAT:- The Applicant has issued a letter to AMW Auto Component Limited on 28.07.2016, whereby the Applicant confirmed the role over of the CCCDs on or after 01.07.2017 on the request made by the Corporate Debtor (Auto Component Limited) with respect to CCCDs held by Essar Steel India Limited that are compulsorily converted into equity shares of AACL on or after 01.07.2017. All the other terms and conditions of CCCD's will remain same. Admittedly, the same was not converted into equity share till Corporate Debtor went into CIRP. Fur....... + More

Maintainability of application - initiation of CIRP - Failure to pay outstanding salary dues to the employees - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - no sufficient proof submitted by Corporate debtor with regard to their claim - HELD THAT:- The arguments made by the Corporate Debtor is that incurring of losses due to the failures in managerial decisions and downfall in the business area of the Corporate Debtor had added more impact on the financial position of the Corporate Debtor and faced numerous difficulties to arrange funds and pay salaries to its employees. The counsel has not submitted any proof that they raised this service issues in response to Form-3 notice or demand notice nor thereafter. It appears to be an afterthought that they are raising this issue in their counter. ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time limitation - service of notice - HELD THAT:- The notice was not delivered to the Corporate Debtor. It has been mentioned in the track-report "Out for delivery." In-short, there is not clear and convincing evidence produced on record by the Operational Creditor to prove the fact that before filing this application against the Corporate Debtor, the demand notice under Section 8 of the IB. Code was being served. For want of such evidence, it is held that this application is not maintainable. Time Limitation - HELD THAT:- It is a time barred debt because, according the Operational Creditor himself, the debt was due on 23.01.2013 when default occurred. This a....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Assignment of debt - existence of debt and dispute or not - HELD THAT:- The Petitioner being the assignee under the assignment deed dated 30.03.2019 and 05.11.2019 have taken over the loan the term loans of DNSB(original Lender), cash credit facilities granted by DNSB. The said term loan and cash credit loan accounts of the Corporate Debtor were declared as NPA as on 31.01.2019 and 31.03.2019. The Petitioner post assignment of debt issued Recall Notice dated 10.01.2020 to the DNSB demanding the outstanding liabilities of ₹ 8,60,09,164.14/- in the term loan and outstanding dues of cash credit dues of ₹ 27,83,07,159.48/-. The Corporate Debtor filed its reply admitting the liability and granted loan ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - pre-existing dispute or not - HELD THAT:- It is seen that the Petitioner had entered into Directors on Employment Agreement dated 01.08.2015 and worked as a Director in the Board of the Respondent Company. The present application has been filed for claiming unpaid 15 months' salary. The Petitioner has filed minutes of the meeting which has not been dated but has been signed by various parties. Pre-existing dispute between the parties based on the settlement has been arrived at. Since this matter is ex-parte, there are no complete facts before this Adjudicating Authority. On perusal of documents, it is clear that various meetings between both parties were held, to arrive at amicable settlement. Since the....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The Bench is of the view that the contention of the Corporate Debtor that 51% approval of Debenture-holders should have been taken in writing is incorrect. The very fact that the Debenture Trustee has written to all debenture-holder to give their consent and that a non-receipt of any response would constitute as 'deemed approval', is totally correct. Hon'ble Supreme Court in M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT] has clearly mentioned that in case where a Corporate Debtor commits a default of financial debt, the Adjudicating Authority has to merely see the records of the Information Utility ....... + More

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

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

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

Money laundering - proceeds of crime - huge difference between the said cash deposit and the income of the petitioner - creation of benami Funds - shell companies - Validity of arrest of petitioner - Guilt standard - charge against the arrested person for having committed the predicate offence. Whether in terms of Section 19 of PMLA, the Investigating Officer or the Arresting Officer is required to inform the grounds of arrest to the person being arrested, if so, is it oral information or does it have to be in writing? - HELD THAT:- The term 'Arrest' has not been defined under the Cr.P.C. or under the IPC, nor for that matter has it been defined under the PMLA. Arrest, as generally understood, is to restrain to stay, and in relation to a person connected to an offence or suspected to be connected to offence, an arrest would mean t....... + More

Grant of Regular Bail - case of applicant is that she was only employee and started her career as data entry operator and was working under main director - HELD THAT:- In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. The applicant is ordered to be released on regular bail on executing a personal bond of ₹ 10,000/- - Bail application allowed.

Grant of Bail - schedules offences - Legal source of income - disproportionate assets of the petitioner and his family - misuse of post and office made up properties worth of more than ₹ 14 Crores - HELD THAT:- In the present case, the allegation against the petitioner is that he has earned properties, according to the complaint, valued more than ₹ 14 Crores, which was considered to be disproportionate assets of the petitioner and his family. The ACB, Jaipur calculated that the petitioner has earned properties which were 372.16% more than of his known/legal source of income. Further as per the statement made by the learned Additional Solicitor General on the instructions received from officers of the department, properties worth ₹ 30 Crores have been identified by the E.D. during further investigation. Therefore, without....... + More

Release of provisionally attached properties - Seeking release of goods and hand over to respondent no.4 liquidator in order to reimbursement of the deposit/investment of the investor/depositor of ACCSL - seeking process of winding up and appointment of liquidator under the provisions of MSCS Act, 2002 - direction to to respondent no.1 and 2 to immediately to frame guidelines with regards to loopholes of the Multi State Co-coperative Society Act, 2002 - HELD THAT:- It is pertinent to note that winding up of Multi-State Cooperative Societies is governed by the provisions contained in Chapter X of the Act of 2002. If the Central Registrar on the basis of the audit, special audit, inquiry or inspection conducted under the provisions of the Act of 2002 is of the opinion that any society ought to be wound up may after giving the society a reas....... + More

Money Laundering - siphoning of funds - petitioners prayed for withdrawal of the writ petition on the ground that the order of provisional attachment had expired by efflux of time under the provisions of Section 5(1)(b) of PMLA - The petitioners were opposed on the ground that the order of provisional attachment according to the said respondents did not expire by efflux of time - bifurcation of offence under PMLA into "Scheduled Offence" and "Offence of money-laundering" - HELD THAT:- The Director or an Officer not below the rank of Deputy Director while exercising jurisdiction under Section 5(1), therefor, has the discretion either to provisionally attach the property or not to do so. If the officer chooses to provisionally attach the property, he has to forward a copy of the order along with materials in his possessi....... + More

Scheduled offence - proceeds of crime - Indian citizen or not - offence under Section 420 IPC - DEPB Scheme - HELD THAT:- From a reading of Section 2(u) of the PML Act which defines the expression “proceeds of crime”, it is limpid that the profit derived or obtained must be a result of a criminal activity which relates to a schedule offence. Even if we take the allegations in the FIR in Cr.No.123 of 2008 as gospel truth and that Viswanathan (A.1) had committed a criminal activity of obtaining an Indian passport and has thereby committed an offence under Section 420 IPC, there is no scope for him to obtain or derive any property as a result of the said criminal activity. To put it more plainly, Viswanathan (A.1) represented to the passport authorities that he is an Indian citizen and obtained passport suppressing the fact that ....... + More

Validity of Look-Out Circular (LOC) issued against the petitioner - company defaulted in repayment of a term loan availed from the State Bank of India (SBI) - the petitioner was a Director of the borrower-Company - HELD THAT:- The only reason disclosed in the request of the Bank as well as in the LOC itself was that the petitioner was a Director of the borrower-Company. Such allegation was made in the present tense in both the request and the LOC. However, such allegation is, by itself, insufficient to fall within any of the grounds for issuance of LOC, as contemplated in the relevant Office Memoranda - The petitioner has clearly shown that the petitioner had resigned long back, even before the discovery of alleged fraud in 2014 by the Bank. Economic offence or any other ground contemplated in the relevant Office Memoranda was not disclos....... + More

Maintainability of petition - petition challenged on the premise that the petitioner has filed the case in his individual capacity cannot hold good - prohibition under Section 195(1)(b)(i) of Cr.P.C - HELD THAT:- Undoubtedly, the writ petition is filed by the petitioner in his capacity as the Investigating Officer in ECIR/ACZO/31/2020. The fact that, the writ petition is filed with official sanction is evident from the appearance of the learned Solicitor General. At the same time, I find substance in the objection raised by the Sri. Raval against the manner in which the documents pertaining to the ED case is produced and persons, who are not made parties, named in the writ petition. The explanation offered for production of the documents is that they form part of Exhibit P5 complaint. If that be so, the petitioner ought to have produced t....... + More

Provisional attachment of property - allegation of diverting huge amounts of money given to the loanees and used the diverted funds for purchase of some of the properties - proceeds of crime - scheduled offences - HELD THAT:- At the inception, the legislative intent was to bring within the fold of the definition, such property, whose source of acquisition can be traced, directly or indirectly, to the benefits obtained from the commission of the scheduled offences. At that stage, the question of the proceeds of the crime not being available for being attached/confiscated, either on account of their dissipation in the hands of the person holding the property or on account of the property being moved out of India and the reach of the authority under the Act, does not appear to have been contemplated. This issue was addressed by Act 20/2015, ....... + More

Money Laundering - incriminating materials against the petitioners to connect the petitioners in the involvement of the offence under PMLA Act, present or not - HELD THAT:- Admittedly, the respondent authority filed the complaint against 15 persons u/s.245(2)Cr.P.C., read with Sections 3, 4 and 8 (5) of PMLA Act, in which these petitioners have been arrayed as A-14, A-15 respectively - A reading of the averments made in the complaint in paragraph 7.14 reveals that there is allegation against A-14 and in paragraph 7.15 prima facie there is allegation against A-15. In order to support the said allegation, the Government Advocate produced copy of the statements given by A-14, A-15 and further statement given by A-4, which clearly reveal the role of the present petitioners. Therefore, once prima facie allegations against these petitioners are....... + More

Seeking release of public amenities such as road, garden, STP plant, club, electricity grid, etc. from the purview of attachment order - property involved in money- laundering - Proceeds of crime - HELD THAT:- The petitioners are having remedy to appear in the proceedings pending before the adjudicating authority and they can put their claim before the adjudicating authority. The order passed by the adjudicating authority is appellable u/s. 26 of the PMLA Act, therefore, the petitioners are not remedy-less against the impugned order. They are having alternative and efficacious remedy. The PMLA Act is a complete code in itself. This petition is disposed of with liberty to the petitioners to remedy available to them in law.

Seeking enlargement on Bail - Money Laundering - fraudulent transfer of funds abroad - HELD THAT:- As it appears from record, the applicant has floated various bogus entities, several money transactions/transfers, have been traced between the companies/firms owned by applicant and accused companies. Prima-facie, evidence suggests, applicant was managing and controlling financial affairs of accused and beneficiary companies. Whereas, one co-accused was an employee of a beneficiary company and another, was director. Besides, evidence suggests, both co-accused had joined the investigation; soon after they were summoned and co-operated investigation. Reply fled by the Enforcement Directorate suggests, that the investigation is not complete and non-co-operation of the applicant has resulted into lack of financial information available with the....... + More

Attachment of various property belonging to the petitioner - Applicability of PML Act to the erstwhile State of Jammu and Kashmir - action of the Authorities under the PML Act - HELD THAT:- It can be seen that the proceedings initiated against Ahsan Ahmad Mirza were challenged by him in a petition AHSAN AHMAD MIRZA AND OTHERS VERSUS ENFORCEMENT DIRECTORATE & ANOTHER [2019 (10) TMI 1408 - JAMMU AND KASHMIR HIGH COURT], which petition was, however, dismissed by a Coordinate Bench of this Court vide Judgment and Order dated 15.10.2019. Counsel for the parties state that a Letters Patent Appeal is filed and is pending before a Division Bench of this Court. Having gone through the writ petition as also the Judgement of the Coordinate Bench in Ahsan Mirza’s case, it can be seen that some of the issues raised by the petitioner in the p....... + More

Rejection of prayer of applicant to grant custody of respondent Nos.2 and 3 for further period of 7 days for the purpose of investigation - Section 420 of the Indian Penal Code - HELD THAT:- The respondent Nos.2 and 3 were in custody of the applicant from 6 pm of 27th January 2021 to 2nd February 2021. According to this Court, five complete days period for confronting the respondent Nos.2 and 3 with the alleged devices is sufficient. During the course of arguments, the learned Special P.P. produced a file of investigation carried out by the Investigating Agency containing statements of the respondent Nos.2 and 3/accused allegedly recorded under Section 50 of the said Act. Even if the respondent Nos.2 and 3 are remanded to judicial custody, the Investigating Agency can confront them with the aforesaid documents in jail, after taking necess....... + More

Extension of judicial custody of both the accused - alleged crime of money laundering done by both the accused - HELD THAT:- It is proceeds of crime which construes an offence of money laundering under Section 3 punishable under Section 4 of P.M.L.Act, if such a person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following process or activities connected with proceeds of crime namely concealment or possession or acquisition or use or projecting as untainted property or claiming as untainted property in any manner whatsoever, the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession o....... + More

Remittance of huge money abroad - fake/forged bill of entries - Accusation of committing offences punishable u/s 3 of the Prevention of Money Laundering Act - HELD THAT:- It is a matter of fact that the offence pertains to the year 2014 and as of now, trial has not proceeded. There is no any possibility or likelihood of completion of trial in near future or at least say 3 years. There is no disagreement on this fact situation. Secondly, though 7 to 8 years have passed, there is no any possibility of completion of investigation even in near future or say at least for 3 to 5 years. These facts are not in dispute since the prosecution agency was not in a position to state at bar as to what further period would require to complete the remaining investigation in the offences alleged against private respondent and other co-accused persons - Sin....... + More

Provisional attachment order - money laundering - siphoning of funds - scheduled offence as per the Schedule-A of the Act or not - reason to believe present or not - HELD THAT:- Looking to the fact that presently the petitioner has only been served with a show cause notice in which we are told 20th April, 2021 is the next date fixed and the fact that the order of attachment is provisional in nature which is valid for a period of 180 days only, we do not consider it to be an appropriate case to pass any interim order at this stage particularly when the laundering of 43.69 crores of the amount is not in dispute which in all fairness ought to be returned to the public body i.e., JKCA. The petitioner, in addition, is faced with an order of dismissal of an identical writ petition and as such, has to overcome all the findings returned and the r....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Principles of natural justice - service of order in original - levy of service tax - refund of amount paid under protest - HELD THAT:- This Court is of the view that the dispute, as to whether the petitioner was earlier communicated or not communicated the order dated 20.3.2017 cannot be considered by this Court in writ jurisdiction, particularly when it has been recorded in Annexure 11 that the same was earlier delivered to the petitioner at their business address as well as residential address. However, if the petitioner is disputing the delivery, it is for the petitioner to demonstrate the same before the appropriate authority. This Court is not inclined to entertain the present writ petition against the order in original dated 20.3.2017 Accordingly, the present writ petition is dismissed as not maintainable.

Reversal of excess availed CENVAT Credit - inadvertent mistake/clerical mistake of the appellant while filing ST-3 return ending March 2014 - HELD THAT:- It is a fact on record that for the period ending 31.03.2014, the appellant shown the balance in cenvet credit as 1,05,705/- in their ST-3 return and opening balance on 01.04.2014 was shown as 4,71,397/-. In these circumstances, it is crucial to examine the records of the appellant pertaining to cenvet credit account whether the appellant has inadvertently made a mistake while filing the ST-3 return for the quarter ending March 2014 or intentionally has taken the excess cenvet credit on 01.04.2014. These facts can be verified from the records of the appellant. The said ascertainment of the said fact was to be done by the adjudicating authority which the adjudicating authority has not don....... + More

Recovery of admitted dues of service tax to be paid by the petitioners - petitioner would fairly state that the arrears are admitted and the orders of assessment giving rise to such demands have attained finality - HELD THAT:- In light of the fact that the impugned notice is only for collection of admitted dues that have become final and no legal flaw or infirmity has been raised in this regard, this writ petition has no merit and is dismissed.

Rate of interest on delayed payment of service tax - at what rate petitioner is liable to pay interest i.e. 15% or 24%? - HELD THAT:- Admittedly, the petitioner firm started its service after completing registration formalities in July, 2011 and the respondents have calculated the interest liability from the first quarter of Financial Year 2011-12. If the petitioner firm has started its services in July 2011, there cannot be any demand for the first quarter of 2011-12. As per the contention of respondents, petitioner made delayed payment of service tax between August, 2016 and February, 2017, i.e. the time when aforesaid notification was in force i.e. 14.05.2016. The notification fixed the rate of simple interest @ 24% in case where any amount is specifically collected as service tax and still not deposited with the Central Government on ....... + More

Validity of confirming demand of service tax - discount received from the manufacturers by way of credit notes - principal to principal relationship or not - Adjudicating authority did not follow the decisions of Tribunal since the revenue appeal is pending before the Apex Court - HELD THAT:- A perusal of definition of “service” would indicate that there must be (i) service provider, (ii) service recipient and (iii) consideration for providing a service. The aforesaid definition also clearly exempts the activity of transfer of title in goods by way of sale - A mere reading of the dealership agreement entered into between the assessee on the one hand and the manufacturers on the other would indicate that the petitioner purchases the goods from the manufacturers by way of sale - Even though the document may be styled as a dealer....... + More

Demand of Differential Service Tax - laboratory testing of chemicals and materials for MSME and Government departments - no service tax was remitted for the period from 01.07.2003 to 13.10.2004, (after which petitioner duly registered themselves with the respondent on 14.10.2004 and thereafter, the petitioner has been remitting the service tax and also filing the necessary returns) - HELD THAT:- The learned counsel for the petitioner in KASHMIRI LAL VERSUS GOVT. OF NCT OF DELHI AND ORS. [2011 (3) TMI 1811 - DELHI HIGH COURT] passed by the appellate authority in Appeal No.170 of 2010. In the said appeal, the regional testing laboratory, K.Pudur, Madurai, was the appellant. The petitioner is identically placed. The petitioner is also a regional testing laboratory. Therefore, whatever applied to the appellant therein would apply to the petit....... + More

Refund of CENVAT Credit - claim filed within the time limitation or not - date of filing of refund claim originally to be taken or the date on which rectified claim is submitted is to be taken into account? - HELD THAT:- The authorities below have computed the period of limitation from the date of re-submission of the refund claims. This is against the provisions of law. The date on which the refund claims has been originally submitted is the relevant date that has to be reckoned for computing the limitation of one year - When computed in such a manner, all these refund claims are well within time. The finding in the impugned order that these refund claims are time-barred is, therefore, set aside. Refund claim - denied on the ground that the balance in the Cenvat Account has been brought below the refund claim and, therefore, is not in co....... + More

Refund of Service tax - Requirement to debit the amount to be claimed as refund claimed on 30.6.2017 or not? - refund denied on the ground that on 30.6.2017 while shifting to GST regime, they have not debited the refund amount from the Cenvat Credit account in terms of Notification No.27/2012-CE (NT) dated 18.6.2012 - HELD THAT:- The provisions of Notification No.27/2012-CE (NT) dated 18.6.2012 are very much clear that the assessee is required to debit the amount of refund claim in Cenvat credit account at the time of filing of refund claim. Therefore, the observations made by both the authorities below are contrary to Notification No.27/2012-CE (NT) dated 18.6.2012. As the appellant has complied with the conditions of Notification No.27/2012-CE (NT) dated 18.6.2012 is evident from the facts of the case. There are no merit in the impugned order rejecting refund claim filed by the appellant, therefore, the same is set aside - appeal allowed - decided in favor of appellant.

Refund of Service Tax - service tax on the petitioner for utilizing the storage facility - period between September 1999 to March 2000 - Section 35(a) of the Central Excise Act, 1944 as made applicable to Appeals against orders of the Tribunal under Section 83 of the Finance Act, 1994 - HELD THAT:- The Hon’ble Supreme Court in UOI Vs. Mafatlal India Ltd., [1996 (12) TMI 50 - SUPREME COURT], while dealing with refund of tax, classified refunds into two categories. The first one on account of unconstitutional levy and second one on account of illegal levy - Explaining the second category of refund, the Court also held that where a duty of tax has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order (whether it is an order of assessment, adjudication or any other ord....... + More

Levy of Service Tax - appellant is a partner and the service recipient is a partnership firm - service recipient having relationship of partner and partnership firm can be categorised as service provider and service recipient or not - refundable or not even when the assessment of payment of service tax was not challenged - HELD THAT:- In a partnership firm, partner‘s capital can be in the form of cash/asset. It can also be in the form of contribution of skill and labour alone without contribution in cash. This issue has been considered by Hon‘ble Supreme Court in the case of CHANDRAKANT MANILAL SHAH AND ANOTHER VERSUS COMMISSIONER OF INCOME-TAX [1991 (10) TMI 1 - SUPREME COURT]. In the said case, the issue for deciding was the validity of the partnership between the Karta of a Hindu undivided family and one of his sons. The so....... + More

Levy of service tax - reimbursement of the damage of the municipal roads due to such work - section 174 (2)(e) of the CGST Act - HELD THAT:- There is no scope for passing any interim order, as prayed for, in the writ petition as the same will amount to passing of final order in the writ petition. An issue, however, remains to be adjudicated as to whether the petitioner is liable to pay service tax in view of the notification and the fate of ₹ 18,90,432/- paid by the petitioner as GST. Let this matter appear under the heading “Hearing” on 25th February, 2021.

Revenue neutrality - issue is revenue neutral without involving of any out flow of net tax to the Government - suppression with intent to evade tax or not - extended period of limitation - reimbursement of actual expenses paid to another service provider - service also ought to have been provided by the appellant - pure agent services - omission to mention certain details in the periodical returns to be filed with the authorities - constitutes evidence of suppression of facts with a deliberate and wilful intention to evade tax or not. When actual expenses paid to another service provider are reimbursed by the service receiver, can still the authorities hold that that service also ought to have been provided by the appellant and therefore, the charges in this regard cannot be excluded as charges paid in the capacity as a 'Pure Agent....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - entitlement to take advantage of CENVAT credit on input tax under the scheme or not - whether the same has to be treated as pre-deposit under the Scheme or not? - after issuance of show cause notice on 7.9.2018, the respondent did file service tax returns and claimed CENVAT credit - HELD THAT:- The dispute in the present case is that the appellants have disallowed the pre-deposit of ₹ 1,45,87,081/- i.e., amount of CENVAT which is the subject matter of the show cause notice while considering the application preferred in the SVLDR Scheme. The learned Single Judge has allowed the writ petition and has directed the Designated Committee to accept the declaration filed by the petitioner/respondent in the prescribed format as final and issue a modified Form No.SVLDRS-3 giving credit ....... + More

CENVAT Credit - rendering free service and warranty labour charges - appellant has not paid any service tax on the said taxable service and the appellant has also not maintained separate accounts of input services utilized for providing exempted services - HELD THAT:- The cost of these services are included in the cost of the product accounted at sales showroom and VAT has been paid at the time of sale of the vehicle which is cleared from the cenvat reversal at sales showroom under Rule 6(3A) - learned Commissioner neglected the facts that the income accounted in the Books of Account are through notional entries and these costs are included in the cost of product as confirmed in the refund order. The confirmation of demand of ₹ 23,725/- under Rule 6(3)(i) of Cenvat Credit Rules, 2004 is not sustainable in law - appeal allowed - decided in favor of appellant.

Refund of unutilized cenvat credit - service tax paid on various input services said to have been used for providing output services exported outside India - rejection of refund only on the ground of lack of nexus between the input services and the output services which is exported - N/N. 27/2012-CE (NT) dated 18/06/2012 read with Rule 5 of Cenvat Credit Rules, 2004 - period October 2015 to December 2015 - HELD THAT:- It has been consistently held by the Tribunal in various decisions cited supra wherein the Tribunal has taken a view that after the amendment of Rule 5 of Cenvat Credit Rules, 2004, there is no need for one to one correlation between the input services and the output services and moreover the Board Circular dated 16/03/2012 also clarified that no correlation is required because the intention of the Government is to allow ref....... + More

Refund of service tax paid - development charges to SIPCOT Industrial Growth Centre, Perundurai - time limitation - HELD THAT:- A refund claim as per section 104 has to be filed within six months from the date when the Bill receives the assent of the President of India. Such assent was received on 31.3.2017. Thus, the refund claim ought to have been filed on or before 30.9.2017. In the present case, the refund claim is filed on 9.10.2017. Needless to say that when the service tax has been collected by SIPCOT, the appellant would require necessary documents from SIPCOT to file the refund claim - there was a confusion as to who has to file the refund claim and therefore this has led to the delay in filing the refund claim. In the decision cited by the ld. Counsel for appellant, the Tribunal has considered the issue and held that the time li....... + More

Refund of unutilized CENVAT credit of Service Tax - Input service - General Insurance Service - Club Membership Service - Photography Service - Credit Card and Debit Card Services - rejection on the ground of lack of nexus of the input service with the output service exported - exclusion of input service from the definition of Input Service under Rule 2(l) of CCR 2004 - HELD THAT:- The learned Counsel appearing for the appellant has given full justification that the said services have been used for providing the output service and I also find that the services viz. Architectural Service, Event Management Service, Works Contract Service, Supply of Tangible Goods Service, has been specifically held to be input service by various decisions rendered by the Tribunal and the High Court. General Insurance Service - HELD THAT:- The appellant has ....... + More

CENVAT Credit - input services - insurance premium paid in respect of “workmen compensation insurance policy” - It is the case of the revenue that insurance being specifically excluded from the definition of “input service” under CCR, 2004, no Cenvat credit of service tax paid on ‘Workmen Compensation Insurance Policy’ is admissible to the appellant - whether the view expressed by CESTAT Hyderabad in M/S HYDUS TECHNOLOGIES INDIA PVT LTD. VERSUS CCE, C & ST, HYDERABAD-II [2017 (2) TMI 538 - CESTAT HYDERABAD] or the view expressed by CESTAT-Chennai in the case of M/S. GANESAN BUILDERS LTD VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI-II [2017 (7) TMI 720 - CESTAT CHENNAI] is correct - matter has been referred to a larger Bench for a decision. HELD THAT:- In Hydus Technologies India, a learned Member (Ju....... + More

Levy of Service Tax - Royalty and District Mineral Fund - period April, 2016 to June, 2017 - HELD THAT:- Let this matter be tagged along with SUNITA GANGULY, WIFE OF SHRI ARDHENDU GANGULY VERSUS PRINCIPAL COMMISSIONER, CENTRAL GST & CENTRAL EXCISE, SUPERINTENDENT (PREV) , CENTRAL GOODS AND SERVICE TAX & CENTRAL EXCISE, THE STATE OF JHARKHAND [2021 (3) TMI 601 - JHARKHAND HIGH COURT], since the issues are common. List these cases accordingly.

Maintainability of summons - Constitutional validity of the levy of Service Tax on transfer of right to use intellectual property rights - HELD THAT:- The appellant submitted that in terms of the observation made by the learned Single Bench, the appellant has appeared before the Officer and also submitted his written submission. In such view of the matter, this writ appeal has become infructuous, as the summons issued to the appellant has worked by itself and the appellant has also appeared before the respondent. Appeal closed.

Maintainability of appeal - availability of efficacious alternative remedy of appeal - Classification of goods - Herbal Sherbat Granules - whether classified under subheading No. 2101 2090? - HELD THAT:- Undoubtedly, the High Court may pass an order of remand in the event of non-consideration of certain vital issues raised by the parties concerned. However, if an efficacious Appellate Remedy is available before the Appellate Tribunal, then the High Court need not go into those facts unnecessarily and the institutional respects are to be maintained and the statutory appeals are to be exhausted in all circumstances. The Tribunal has got powers to adjudicate all the factual as well as the legal grounds raised by the respective parties. More so, the Tribunal is empowered to consider the merits with reference to the documents as well as the ev....... + More

Determination of Annual Production capacity - reduced annual production capacity on the basis of reduction of parameters in their mills - Rule 5 of Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997 - HELD THAT:- On the plain reading of the Rule 5 of Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997, it is clear that even if the parameter is changed the APC should be fixed based on the annual production of the year 1996-1997. However, the vires of Rule 5 is pending before the Hon’ble Supreme Court in M/S. BHUWALKA STEEL INDUSTRIES LTD. & ANOTHER VERSUS UNION OF INDIA & OTHERS [2017 (3) TMI 1357 - SUPREME COURT]. Therefore, in the interest of justice, as regard the issue of determination of APC and demand of duty it should be decided only after the Hon’ble Supreme Court judgment. The....... + More

Recovery of excess cash refund - submission of the learned counsel for the petitioner is that the notice is devoid of any merit, inasmuch as, no such recovery can be made in exercise of powers under Section 11A of the Act as under the said provision only an amount which has been erroneously refunded can be refunded - HELD THAT:- It is not the case of the petitioner that the show cause notice has been issued by an authority which is not competent under law to issue the same. In such a situation, we decline to exercise our discretionary jurisdiction and dismiss the petition with liberty to the petitioner to show cause pursuant to the impugned show cause notice whereupon necessary action in accordance with law would be taken. It is made clear that it will be open for the petitioner to take up all legal pleas available to him in law in response to the show cause notice and the dismissal of this petition would not come in his way - petition dismissed.

Refund of CENVAT Credit - amount was paid under protest - denial of refund on the ground of time limitation - Applicability of time limit prescribed for one year - HELD THAT:- The said issue has been examined by this Tribunal in the case of HUTCHISOM MAX TELECOM PVT. LTD. VERSUS COMMISSIONER OF C. EX., MUMBAI [2004 (1) TMI 114 - CESTAT, NEW DELHI] where on identical issue, it was held that the refund of the duty paid by the Appellants cannot be denied to them on the ground of claim being time barred. Further in the case of M/S. TAMILNADU EX-SERVICEMEN’S CORPORATION LIMITED VERSUS COMMISSIONER OF G.S.T. AND CENTRAL EXCISE, CHENNAI [2019 (12) TMI 185 - CESTAT CHENNAI] it was held that even when Service Tax was paid under mistake of law, the period of limitation cannot be invoked to deny the refund. Thus, the contesting the reversal of....... + More

SVLDRS - seeking to issue Form SVLRDS 3 for the amount stated - seeking an opportunity to present its case by providing a personal hearing - HELD THAT:- The impugned order which is sketchy in nature and does not assign adequate reasons, is set aside. The matter is remitted back to the respondent department to reconsider the case of the petitioner by taking into account the judgement of Gujarat High Court in the case of MESSRS SYNPOL PRODUCTS PVT. LTD. VERSUS UNION OF INDIA [2020 (9) TMI 257 - GUJARAT HIGH COURT], where it was held that declaration filed by the petitioners and other similarly situated persons are required to be considered by the designated committee without payment of redemption fine by the declarant. A fresh decision be taken by the department expeditiously - petition allowed by way of remand.

CENVAT Credit - input services - Air Travel Agent Service /Rail Travel Agent Service - Real Estate Agent Service - denial on the ground that these services have no direct or indirect relation to the manufacturing activity of the appellant - HELD THAT:- The sample invoices were produced before the adjudicating authority and reason for denial of cenvat credit is that the services in question have no direct or indirect relation to the manufacturing activity of the appellant. It is not a case where the appellant has not provided the sample invoices of the services on which they have taken cenvat credit. In these circumstances, the services in question are having direct relation with the manufacturing activity of the appellant. CENVAT Credit allowed - appeal allowed - decided in favor of appellant.

Area based exemption - benefits under the Northeast Industrial Policy - N/N. 20/2008-Central Excise dated 27.03.2008 - HELD THAT:- This petition is instituted on the grievance that the Notification dated 27.03.2008 having been restored as per the judgment of the Supreme Court, an application dated 01.04.2021 under Clause 3(1) of the Notification No.20/2008-Central Excise dated 27.03.2008 was submitted by the petitioner claiming for a special rate, but the same has not been given its consideration and without giving a due consideration to the claim for special rate made by the petitioners, the respondents now intend to make recovery on the premises that the refund of excise duty would be as per the rates provided in the Notification dated 27.03.2008. As the Notification dated 27.03.2008 provides for a legal right to the assessee to claim f....... + More

Excisability - repacking the tobacco products by scenting - process amounting to manufacture or not - HELD THAT:- In the case of Crane Betel Nut Powder Works vs. Commissioner [2007 (3) TMI 6 - SUPREME COURT], the Hon'ble Supreme Court held that manufacture and crushing betel nuts into smaller pieces and sweetening the same with essential/non-essential oils, menthol, sweetening agencies etc., did not result in manufacture of a new and distinct product having a different character and use as end product continues to retain its original character though in a modified form - the facts are entirely different and as far as the judgment of the Hon'ble Supreme Court is concerned, the Hon'ble Supreme Court held that if the original character is not modified, then it need not be considered as a manufacturing, but in the present case suc....... + More

CENVAT Credit - denial on the premise as per Notification No. 02/14-CE (N.T) dt. 20.01.2014 - time limitation - HELD THAT:- There is no provision in law for the appellants to file invoices before the department in time. In these circumstances, As the assessee was allowed credit by the adjudicating authority although the Revenue has filed appeal against those orders before the Commissioner (Appeals). In these circumstances, when the adjudicating authorities are having a divergent view, it is found that the extended period of limitation is not invokable in the facts and circumstances of this case. Admittedly, in the case in hand, the show cause notices have been issued by invoking extended period of limitation, therefore, the denial of credit is barred by limitation. The demand against the appellants is barred by limitation - Appeal allowed - decided in favor of appellant.

CENVAT Credit - input services - GTA services availed for transportation of goods from the factory to the customer’s premises - HELD THAT:- The issue stands covered by the decision of the Tribunal in the appellant’s own case M/S. MRF LTD. VERSUS COMMISSIONER OF GST & CE, TIRUCHIRAPALLI [2019 (11) TMI 1607 - CESTAT CHENNAI]. Further, in page 8 of the impugned orders, the Commissioner (Appeals) has noted that appellants have included the freight charges in the assessable value and discharged excise duty on the same. In such circumstances, the appellants would be eligible to avail credit of the service tax paid on such freight charges for outward transportation of goods upto the buyer’s premises. Credit allowed - appeal allowed - decided in favor of appellant.

CENVAT Credit - eligibility to avail credit prior to the Notification No. 02/14 (N.T) dt. 20.01.2014 in terms of Notification No. 01/10-CE dt. 06.02.2010 - invocation of Extended period of limitation - HELD THAT:- There is no provision in law for the appellant to file invoices before the department in time. In these circumstances, it is found that as the assessee was allowed credit by the adjudicating authority although the revenue has filed appeal against those orders before the Commissioner (Appeals). In these circumstances, when the adjudicating authorities are having a divergent view, the extended period of limitation is not invokable in the facts and circumstances of this case. Admittedly, in the case in hand, the show cause notice has been issued by invoking extended period of limitation, therefore, the denial of credit is barred by limitation. Appeal allowed - decided in favor of appellant.

Maintainability of petition - availability of alternative remedy - order passed against a dead person - HELD THAT:- The contention that the order was passed against a dead person is incorrect, as the legal representative/son of the deceased participated in the enquiry proceedings and thereafter, the final order was passed by the Commissioner and a copy of the same was also communicated to the son of the deceased. This being the factum, the grounds raised in the writ petition deserve no merit for consideration. It is clear that the petitioner has to exhaust the statutory remedy provided under the Act and this Court, under Article 226 of the Constitution of India, cannot adjudicate disputed facts, which are all to be adjudicated with reference to the documents as well as the evidences to be produced before the competent authority and before....... + More

CENVAT Credit - input services - Outward Transport Service which is used for transportation of goods from the factory of the appellant to their various depots - place of removal - HELD THAT:- There is no dispute that in the present case Outward Transportation Service was used for transportation of goods from the factory of the appellant to their own depot. In this case even as per section 4 of the Central Excise Act, the place of removal is the depot and not the factory gate. Moreover, the valuation of goods is on MRP basis. In such circumstances as per the plain reading of the Input Service definition Cenvat Credit on Outward Transportation Services is admissible up to the place of removal. In the present case depot being the place of removal, outward transportation service was used undisputedly up to the place of removal. The appellant ....... + More

Reversal of CENVAT Credit - goods are cleared to National Electricals Equipments Corporation, Jaipur who in turn uses these goods for manufacture of goods to be exported - exempt goods as per N/N. 43/2001-C.E. (N.T.) dated 26/06/2001 or not - HELD THAT:- Similar issues has been examines in various decisions of Tribunal and higher forums. In the case of COMMISSIONER OF CENTRAL EXCISE, LUDHIANA VERSUS AARTI STEELS LTD. [2004 (2) TMI 397 - CESTAT, NEW DELHI], alloy and non alloy steel wires cleared under CT-2 certificate to cycle tyre manufacturers who exported goods at Nil rate of duty where the MODVAT credit was allowed - The said decision of Tribunal was upheld by Hon’ble Supreme Court reported at COMMISSIONER VERSUS AARTI STEELS LTD. [2004 (1) TMI 725 - SC ORDER]. The clearances made by appellant under notification 43/2001-CE (N.T........ + More

Levy of additional duty liability - duty imposed by restricting the loss due to the drying of tobacco leaves (driage of tobacco leaves) to 10% as against 24% claimed by the petitioner - HELD THAT:- The proceedings before the Settlement Commission proceeds on the principal of trust. An applicant who was admittedly an evader of tax is expected to make a clean breast of his tax sins before the Settlement Commission and atone for mistakes and should undertake to pay the tax by making true and full disclosure before it - As an incentive to encourage such deviant assessee’s who opt to alter their deviant ways, a golden chance is given to them for settling the case under the Act. In return such assessee’s may be given immunity from prosecution and penalty under the scheme of the Act. Further, the 1st respondent Settlement Commission ....... + More

Levy of Personal penalty on petitioner - service of notices of personal hearing not done - violation of principles of natural justice - HELD THAT:- From the reply of the company, it can be deduced unequivocally that the show cause notice and the personal hearing notices have not been served upon the petitioner. It has a reference of the first show cause notice served upon the company and therefore, it assumed that the show cause notice and the personal hearing notices have been served upon the present petitioner also - this stand on the part of the respondent of not having known the changed address of petitioner on his having failed to put to the notice of department is wholly unacceptable. Failure to send the show cause notice and the notices of personal hearing therefore, upon the last known address of the petitioner is also unsustainab....... + More

Refund claim - Applicability of Doctrine of unjust enrichment - manufacturer paid the differential disputed excise duty under protest when the assessment was finalized in favour of the manufacturer - HELD THAT:- Indisputably, the application was filed by the appellant as a buyer of the goods from the supplier namely the said M/s.Fenner India Ltd., which paid duty under protest after the period of limitation prescribed in law and therefore, this would dis-entitle the claim of refund to the assessee as prayed for by applying the law laid down by the Hon’ble Supreme Court in the case of COMMISSIONER OF C. EX., MUMBAI-II VERSUS ALLIED PHOTOGRAPHICS INDIA LTD. [2004 (3) TMI 63 - SUPREME COURT], wherein it was held that the purchaser of the goods was not entitled to a claim for refund of duty made under protest by the manufacturer without....... + More

CENVAT Credit - input services - storage/ warehouse services availed for storing the imported inputs - denial of credit on the ground that this service has no nexus with the manufacture of final product for the reason that the said warehouse/ godown are located out of the premises of the appellants factory - Permission under Rule 8 of Cevat Credit Rules, 2004 for storage of inputs outside the factory - scope of SCN - HELD THAT:- The only allegation in the Show cause notices that since, the renting of immovable property service is not included in the definition of input service. Accordingly, the said service used by the appellant neither falls under scope definition of input service nor has nexus with manufacturing activity. However, in the adjudication order and order of Commissioner (Appeals) both the authorities have travelled beyond th....... + More

Rebate of central excise duty - time limitation - Rule 18 of the Central Excise Rules, 2002 - case of petitioner is that his is a case of return of pre-deposit and of the Central Excise duty paid by the petitioner on any excisable goods and for such return of pre-deposit the petitioner is not required to file any formal refund claim under section 11B of the Central Excise Act - HELD THAT:- This Court, at length, considered section 11B of the Act to hold that the person claiming refund of excise duty and interest, has to make an application for refund of such duty and interest to the authority enumerated therein before the expiry of one year from the relevant date in such form and manner as may be prescribed - The relevant date is defined in Explanation (A) and Explanation (B). The date on which the Tribunal allowed the appeal preferred by....... + More

Default in payment of duty - Applicability of Rule 8(3A) of CER or section 11A of CEA - applicability of the case of Gujarat High Court in Indsur Global Ltd's case [2014 (12) TMI 585 - GUJARAT HIGH COURT]- HELD THAT:- In the instant case, admittedly the assessee had already paid as duty even before the audit declared amounts as payable. Rule 8(3A) applies to cases where the assessee had defaulted in payment of excise duty beyond 30 days from the due date. So, the said rule cannot apply to the instant case and as rightly held by the CESTAT, the said Rule does not apply to every case where in the department, during the scrutiny of returns, during audit or during investigation finds any additional amount payable as duty of excise. Such demands would be recoverable by issuing a notice under Section 11A of the Act and would be covered unde....... + More

Refund of ITC - Export Sales - case of Revenue is that the petitioner should have applied for refund under Section 18(3) of the TNVAT Act, within 180 days by filing Form W under Rule 11(2), since the ITC represents ITC towards exports - HELD THAT:- In the present case, a revision is provided under Section 54 of the TNVAT Act - Admittedly, the petitioner approached this Court without exhausting the revisional remedy contemplated under the Act. The Principles of Law expects that an aggrieved person has to exhaust the statutory remedies available and the writ petition is to be filed only after exhausting the remedies contemplated. Moreover, there are certain disputed facts and circumstances raised. The High Court cannot conduct the roving enquiry with reference to the disputed facts and circumstances, which is to be done based on the documen....... + More

Violation of principles of Natural Justice - opportunity of hearing not granted - works contract - HELD THAT:- In the present case there has been no personal hearing afforded to the petitioner, which is violation of principles of natural justice and also the statutory mandate under Section 27 of the Act to afford an effective hearing prior to finalisation of assessment. The petitioner has sought some time to respond. Thereafter, notice dated 25.02.2021 was issued, to which a written reply was filed enclosing documentary evidence. It was incumbent upon the Assessing Authority to hear the petitioner thereafter which has not been done - Since no personal hearing has, admittedly, been afforded, the impugned order is set aside. The petitioner will appear before the Assessing Authority on Thursday, the 6th of May, 2021 at 10.30 a.m. along with all/any materials in support of its contention, without expecting any further notice in this regard. Appeal allowed by way of remand.

Validity of assessment order - recovery action - non-compliance of the condition stipulated while granting interim order - HELD THAT:- This Court had made it clear that if the petitioners failed to pay 25% of the demand amount, interim stay shall stand automatically vacated and petition shall stand automatically dismissed - Therefore, the consequence of non-compliance of the condition stipulated while granting interim order will be only on the interim application. It will not cast any cloud for availing relief that may be finally claimed by the writ petitioners. I will not non-suit the petitioners on the ground of non-fulfilment of the condition imposed while granting interim relief. Going into the merits of the matter, it is seen that there are two assessment years involved. The petitioners had challenged only the assessment order dated ....... + More

Concessional rate of tax - “C” Form could not be obtained due to default on the part of the other State dealers - validity of reversal of input tax credit when there was no input tax credit - HELD THAT:- There can be no dispute that the issue on hand is squarely covered by TVL. BHARATH TRADERS VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE COMMERCIAL TAX OFFICER, SOUTH AVANI MOOLA STREET CIRCLE, MADURAI [2019 (8) TMI 1699 - MADRAS HIGH COURT] where it was held that Since the substitution in the present case only seeks to set right an anomaly it necessarily has to be effective from the date of inception of the Act itself, retrospectively. The respondents erred in effecting reversal of input tax credit - Petition allowed - decided in favor of petitioner.

Violation of principles of natural justice - reasonable opportunity given to the petitioner to explain his case or not - HELD THAT:- Section 27 of the Tamil Nadu Value Added Tax Act, 2006, provides for reasonable opportunity, which includes the personal hearing. However, the petitioner has not been given personal hearing and therefore, considering the facts and circumstances of the case, this Court is of the considered view that the impugned order is liable to be set aside and the matter needs consideration afresh. The matter is remanded back to the second respondent for fresh consideration after giving reasonable opportunity including the personal hearing as contemplated under Section 27 of the Tamil Nadu Value Added Tax Act, 2006 and to pass appropriate orders on merits and in accordance with law - Petition allowed by way of remand.

Validity of Entry tax - non-payment/adjustment of the entry tax for the assessment years 2000-2001 to 2004-2005 - grievance of the petitioner is that though personal hearing notices were dated 01.03.2021, it were served on the petitioner only on 11.03.2021 and thereafter, few days only left for him to attend the personal hearing - Principles of natural justice - HELD THAT:- It is unfortunate that this matter has been prolonged from the year 2001 onwards and various writ petitions have been filed before this Court and from the year 2001, the petitioner had been litigating the notices and assessment orders and therefore, there was enough time for him to be ready with the case - the petitioner has filed the writ petitions on the 20th day of April, 2021, which is two days before the date of personal hearing and had missed the opportunity of p....... + More

Validity of assessment order - violation of principles of natural justice - the Assessing Authority has, admittedly, afforded sufficient opportunity to the petitioner, however, the petitioner appears to have sought an adjournment on multiple occasions - HELD THAT:- The sequence of events would establish that this is a matter where, in the interests of substantial justice, the petitioner should be granted one more opportunity to substantiate its case before the Assessing Authority and Mr.Jayaprathap also does not object to this suggestion by the Court. Learned counsel for the petitioner would submit that all materials necessary to substantiate the petitioner's case before the Assessing Authority are available and have, in fact, been filed along with the rectification applications itself. The impugned orders are set aside, solely for th....... + More

Validity of assessment order - application for interim protection - HELD THAT:- The basis for decision in an application for interim protection would be the trifecta of whether there is a prima facie case, financial stringency and balance of convenience for grant of orders. The applications for stay filed by the petitioner are detailed and seeks to make out a case on the aspect of prima facie case as well as on balance of convenience citing the automatic charge created by virtue of Section 42 of the Act. As far as financial stringency is concerned, there is no quarrel on the position that the petitioner has sufficient resources to meet the liability, if and when such liability becomes confirmed and demand is raised. The first appellate authority proceeds to pass a rather mechanical order calling upon the petitioner to remit a further 25% ....... + More

Validity of assessment order - orders of the assessment were passed or signed by respondent No.3 on 20.03.2020 as asserted by respondent No.3 or on any date prior to 31.03.2020? - order of assessment is required to be communicated or kept on the file? - HELD THAT:- From a careful analysis of the procedure laid down for manual issuance of assessment orders as contained in clause (III) of the internal circular No.4A of 2020 dated 20.03.2020, we find that particular format is laid down for passing of assessment orders manually. Those must be sealed, dated, stamped and signed before delivering to the assessee, but the stamps and seals should not be carried home. The assessment orders and the demand notices can be stamped on the day the assessing officer attends office. Service of assessment orders and demand notices must be in accordance with....... + More

Failure to furnish audited accounts for the years 2010-11, 2011- 12 & 2012-13 by the end of the month after expiry of the period of six months, despite notice - Section 53(3) of Tripura VAT Act - Penalty - HELD THAT:- The contention of the petitioner that having filed such audit report for the year 2018-19, cannot raise the lack of prescription for the period in question, cannot be accepted for multiple reasons. Firstly, in the present group of petitions, we are concerned with the period of the years 2010-11, 2011-12, 2012-13. If the petitioner has filed audit report as prescribed under the Chartered Accountants Act for the year 2018-19, it is not estopped from taking a defence in these petitions of the State Legislature not having prescribed the format under the Rules. Further, this is only an oral contention made by the counsel for ....... + More

Direction to the respondents for issuing C-Forms - inter-state sale - CST Act - amendment of the registration after the death of the sole proprietor of the concern not applied - HELD THAT:- In the present case, it is found that though the petitioner never applied for amendment of the registration after the death of the sole proprietor of the concern, the information in this respect was available with the department and in any case, even after the death of the proprietor the business was continued by the wife of the deceased with the help of the elder daughter who were to inherit the business in succession. A valid registration is necessary for a dealer to claim concessional rate of tax on inter-Sate sale of goods under Section 8 of CST Act. The demand of the petitioner, therefore, for the authorities to issue C-Form without amending the r....... + More

Levy of tax - manufacturing and sale of non-branded products - confectionery items - to be taxable @ 12% tax under residuary Entry No.40 of Part D of the first schedule of the TNGST Act - HELD THAT:- The issue regarding the manufacturing and sale of non-branded products, which all are not registered under the Trade and Merchandise Marks Act, 1958, then 12% tax cannot be imposed. The said issue has already been decided by this Court in V.R.S. CONFECTIONERY VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE COMMERCIAL TAX OFFICER [2017 (11) TMI 1315 - MADRAS HIGH COURT] where it was held that confectionery items have been specifically mentioned in entry item-4 (iii) of Part-B of first schedule of the TNGST Act taxable at 4%. In view of the fact that the writ petitions on hand are similar to the same, which was already decided by this Court, t....... + More

Levy of VAT - transfer of right to use the machinery and equipments - Award of contract by ONGC under a work order - deduction of TDS on such transaction - HELD THAT:- It is an undisputed position that identical situation had come up before this Court and by a judgment in case of QUIPPO OIL AND GAS INFRASTRUCTURE LIMITED VERSUS THE STATE OF TRIPURA AND OTHERS [2014 (11) TMI 1070 - TRIPURA HIGH COURT] the Court had held that the transaction in question is not exigible to Value Added Tax. This was on the premise that according to the Court the contract comprised mainly of hiring of services and a very small element of transfer of right to use goods was involved. It was held that the intention of the parties was to treat the contract as a contract for hiring of services and it was not permissible to divide the contract into two separate part....... + More

Concessional benefit of rate of tax - restriction on use of 'C' Forms for the inter-state purchases - applicability of circular dated 05.09.2019 - HELD THAT:- It cannot be in dispute that the case on hand is covered by the decision reported in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] where it was held that Appellant State and the Revenue Authorities are directed not to restrict the use of 'C' Forms for the inter-state purchases of six commodities by the respondent/assessees and other registered dealers at concessional rate of tax and they are further directed to permit online downloading of such declaration in ....... + More

Validity of assessment order - contention of the petitioner is that there is a violation of the principles of natural justice in view of the infraction of what has been laid down in Rule 14(5) of the Tamil Nadu Value Added Tax Rules, 2007 - HELD THAT:- The contention of the petitioner's counsel is sustained. Therefore, the order impugned in this writ petition is quashed and the matter is remitted to the appellate authority. A copy of the written statement filed by the departmental representative will be served on the appellant/petitioner herein and thereafter, the appellate authority shall pass orders afresh in accordance with law. When the matter was taken up today, the learned Special Government Pleader produced a copy of the letter dated 24.03.2021 addressed by the Principal Secretary to Government, Commercial Taxes and Registratio....... + More

Classification of goods - rate of tax - plywood when it is sold locally to Railways within the State and if sold to Railways under CST on interstate sales - eligibility for concessional rate of sales tax - HELD THAT:- The facts regarding supply of plywoods to the Indian Railways are not disputed by the respondents. The petitioner produced evidence and established that they are the supplier of plywoods to the Indian Railways. Therefore, they are entitled for the concessional rate of Sales Tax as contemplated under Entry 112 of Part-B of the First Schedule, which reads as “Railway wagons, engines, coaches and parts thereof”. The Explanation to Section 8 of the Act, contemplates that “for the purpose of this sub-section, a dealer shall be deemed to be a dealer liable to pay tax under the Sales Tax Law of the appropriate Sta....... + More

Levy of Sales Tax - works contract or not - conversion of corrugated box - addition made only on estimation without having any rational nexus with materials on record - HELD THAT:- A careful perusal of the agreement between the Petitioner and IDL would show that what was entrusted by IDL to the Petitioner was in sum and substance, a job work. The quality of paper and the material to be supplied for making of the corrugated boxes was pre-determined. M/s. IDL also determined the dimensions of the boxes. The minutes of the meeting make it clear that after conversion of the material into corrugated boxes, they had to be sent back to M/s. IDL. What was paid for the job work was the conversion rate of ₹ 5.25 per box. Freight was borne separately by M/s. IDL. At no point in time was there any transfer of property in the boxes to the Petiti....... + More

Attachment of Bank Account of petitioner - recovery of the demand raised for the year 2008-2009 - pendency of the second appeal - stay application not decided - HELD THAT:- What is noticed in the instant case is that from October 2020, the petitioner is already before the second appellate authority and without deciding his application for the stay, which was filed in October,2020, the second appellate authority on 19.01.2021 has chosen to invoke its powers under section 44 to attach the bank account. Attaching of the bank account would naturally result into serious consequences which many a times would be not possible to be counted or contemplated. There could not have been any order without availing the opportunity in wake of pendency of Appeal and pending adjudication of an application of stay. While relegating the parties to the respon....... + More

Adjustment of input tax credit against tax liability - Rule 10(10(b) of the Tamil Nadu Value Added Tax Rules, 2007 - Disallowance of adjustment of the input tax credit amounting to ₹ 23,31,952/- from the petitioner’s online monthly return of February 2014 towards the arrears of the tax liability for the Assessment Year 2011-12. Adjustment of input tax credit against tax liability - HELD THAT:- Credit will be allowed to be adjusted against tax liability under Central Sales Tax Act , 1956 only if a dealer produced Form C prescribed in the Central Sales Tax (Registration and Turnover) Rules, 1957 - only if credit is available as per Rule 10(9)(a) of the Tamil Nadu Value Added Tax Rules, 2007 read with Section 9(5) of the Tamil Nadu Value Added Tax Act, 2006 as in force w.e.f. 01.01.2001, it can be adjusted / utilized for discharg....... + More

Validity of assessment order - random selection for detailed scrutiny under Section 22(3) of the Act coupled with an inspection conducted by the Enforcement Wing Officials - inter-State sales being treated as local sales for the reason that in the C Form Declaration produced by the appellant and issued by the purchasing dealer, the seal of the check post was not available - reversal of the input tax credit under Section 19(5)(c) of the Act to the tune of ₹ 54,09,521/- on the ground that though the check post seal was available to prove the movement of goods, no Form C Declaration was produced by the appellant - difference noticed on stock reconciliation during inspection. Stock difference - HELD THAT:- Liberty granted to the appellant to file an appeal on the said issue before the Appellate Deputy Commissioner (CT) (North), Chennai-....... + More

Refund of booking amount to allottees - Allottees have claimed relief on the basis of clause 18 of "model agreement" for sale as given under rules of RERA - HELD THAT:- In the instant case the transaction of sale and purchase of the flat is cancelled at initial stage. Allot-tees merely booked the flat and paid some amount towards booking and executed letter for request of reservation of the flat in printed form. Thereafter there is no progress in the transaction and neither allotment letter nor confirmation letter is issued by Promoter. Agreement for sale is not executed between the parties. Parties never reached to the stage of executing agreement for sale. There was no attempt to execute agreement on the part of either party. In such circumstances, Allottees cannot claim refund on the basis of binding effect at clause (18) of ....... + More

Dishonor of Cheque - main grounds urged in the petition is that the petitioner inspite of serving the sentence for a period of one year in view of the order passed by this Court, the petitioner has been detained in the jail, which is erroneous, arbitrary and unconstitutional - HELD THAT:- The Apex Court in V.K.Bansal’s case [2013 (8) TMI 488 - SUPREME COURT] discussed with regard to Section 427(1) of Cr.P.C. which stipulates the discretionary power of the Court to direct sentence to run concurrently and also discussed with regard to when it should be exercised. It is further held that no straight jacket approach can be laid down. However, only substantive sentence can be directed to run concurrently and sentence awarded in default of payment of fine/compensation cannot be directed to run concurrently. In the present case, the petiti....... + More

Dishonor of Cheque - insufficiency of funds - acquittal of the accused - compounding of the offence - HELD THAT:- The respondent bank has received ₹ 8,00,000/- under one time settlement, this Court sees no impediment in accepting the prayer made on behalf of the petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT], wherein it has been categorically held that court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the courts below. The present matter is ordered to be compounded and impugned judgments of conviction and sentence by the courts below are quashed and set-aside - the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act - petition allowed.

Dishonor of Cheque - invocation of revisional jurisdiction under Section 397 read with Section 401 of the Code of Criminal Procedure - HELD THAT:- The jurisprudence behind the N.I. Act is that the business transactions are honored. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are to execute the recovery of cheque amount by showing teeth of penalty loss - Given the judgment passed by Hon'ble Supreme Court of India in Damodar S. Prabhu v Sayed Babalal, [2010 (5) TMI 380 - SUPREME COURT], the law is well settled that when the entire money is paid, then the complainant cannot have any objection to such compromise, and 15% of the cheque amount is to be paid by the accused to the Himachal Pradesh State Legal Services Authority. This Court has inherent powers ....... + More

Dishonor of Cheque - insufficiency of funds - opportunity of hearing provided or not - Section 138 of NI Act - HELD THAT:- Petitioner filed the said petition dated 17/11/2015 in the trial court after the petitioner was examined under Section 313 Cr.P.C. and the case was listed for arguments. The trial court vide order dated 26/11/2015 disposed the petition holding that adequate opportunity was provided to the petitioner to rebut the case by adducing his own evidence and it would not be proper to turn back the clock without any justifiable ground. Section 243 Cr.P.C. provides that if the accused in a criminal trial who has entered upon his defence applies to the court for the purpose of examination or cross examination, or the production of any document or other thing, the magistrate shall issue such process unless he considers that such a....... + More

Grant of regular bail - Smuggling - Heroine - Cocaine - Methaempthaine - Service of valid notice or not - HELD THAT:- Notice U/s 50 of the NDPS Act is a defective notice, it requires deep scrutiny of the statement of the witnesses and the documents and at the stage of bail, it would not be proper to minutely analyze the statement of the prosecution witnesses and the documents and in depth analysis of the case of the prosecution is not to be undertaken as it might prejudice the case of either of the parties. The question as to whether the petitioner and his co-accused were having common intention is also to be seen during the course of trial. The allegations against the petitioner are that of dealing with the commercial quantity of the contraband and therefore, rigors of Section 37 NDPS Act are applicable. In the present case, there is not....... + More

Concealment of documents - false statements - in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court Under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court Under Section 482 Code of Criminal Procedure? - HELD THAT:- It is settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception. The issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the....... + More

Dishonor of Cheque - joint complaint by two complainants - Section 138 read with Section 142 of NI Act, allows for such joint complaints or not - HELD THAT:- From the legal position enunciated by various High Courts in reference to Section 200 of Cr. P. C, a joint complaint by two or more person against an accused is clearly not maintainable - reliance may be placed in the case of Parijanashram Swamiji vs. Kailaje [1985 (11) TMI 242 - KARNATAKA HIGH COURT]. Whether what is held by various High Courts with reference to Section 200 of Cr. P. C is applicable to the complaints filed under Chapter XVII of the Act? - HELD THAT:- The reference to the complainant as a "person" in Section 138 of the Act, prima facie, indicates that Section 138 too envisages a complaint by a single person. Similarly, if we look at the provisions of Sectio....... + More

Availability of beds for COVID patients - availability of medical Oxygen in the NCT of Delhi - Efficient usage of Oxygen - testing facilities for Covid-19 through the RT-PCR test - critical medicines required for the treatment of serious Covid-19 patients falling in short supply - Wastages of vaccine. Availability of beds for COVID patients - HELD THAT:- Ms.Roli Khare, Director, Ministry of Health and Family Welfare has stated that the Central Government is endeavoring to make more beds available. She states that presently the hospitals of the Central Government are occupied by non-covid patients in need of critical care, such as patients who require dialysis, or suffering from cancer and other serious disease. Considering the fact that the number of COVID patients, who are now needing hospitals if for greater than the numbers which were ....... + More

Territorial Jurisdiction - Forum for Arbitration outside India - Foreign award - two companies incorporated in India can choose a forum for arbitration outside India or not - award made at forum outside India, is “foreign award” under Part II of the Arbitration and Conciliation Act, 1996 or not - enforceabillity of such award. Seat of the arbitral proceedings in the present case - HELD THAT:- Clause 6 of the settlement agreement extracted above would show that arbitration is to be resolved “in Zurich” in accordance with the Rules of Conciliation and Arbitration of the ICC. In similar circumstances, in MANKASTU IMPEX PRIVATE LIMITED VERSUS AIRVISUAL LIMITED [2020 (3) TMI 302 - SUPREME COURT], where disputes were to be resolved by arbitration “administered in Hong Kong”, the Court concluded that On a plai....... + More

Fabricating false deed of agreement for sale for the purpose of being shielded from legal action in the disproportionate assets case - seizure of currency in addition to jewellery and property papers - assets disproportionate to the Appellant’s known sources of income - Section 195(1)(b) of the Code of Criminal Procedure, 1973 - HELD THAT:- In the present case, the allegation against Accused Nos. 2 and 3 is that they colluded with Appellant/Accused No. 1 to create a false sale deed, and gave false explanation of escrow arrangement amongst the three parties, to justify how the seized currency came to be in the Appellant’s possession. This was done to exonerate the Appellant/Accused No. 1 and recover the seized currency at the stage of investigation itself, which is deemed to be “a stage of a judicial proceeding” und....... + More

Grant of regular bail - Recovery of pseudoephedrine hydrochloride from her baggage - section 67 of NDPS Act - HELD THAT:- The substance alleged to have been recovered from the petitioner/accused is 19.3 Kg. of pseudoephedrine hydrochloride which is a controlled substance. It has been rightly submitted by the Ld. counsel for the petitioner/accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to ₹ 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act........ + More

Grant of Regular Bail - 65 pellets/capsules allegedly recovered from the stomach of petitioner - instruction 1/88 dated 15.03.1988 of Narcotic Control Bureau - non-compliance of Section 50 of NDPS Act - HELD THAT:- It has been categorically stated in the complaint in question that notice under Section 50 of the NDPS Act was issued to the accused Bobby Collins Anagor by Sh. B.L.Bairwa, IO, NCB and he was also explained of his legal rights that if he desires his search can be conducted before a Magistrate or a Gazetted officer to which he denied and also wrote the same on the Notice under Section 50 of the NDPS Act. It is further noted that Sh.CSK Singh, IO offered their personal search to petitioner, to which also he refused. Thereafter, petitioner was taken to the CISF room where his baggage was physically examined but nothing was recover....... + More

Maintainability of petition - Public Interest Litigation - constitution of multi-disciplinary investigation team to investigate into the alleged breach of the provisions of the Reserve Bank of India Act, 1934, (RBI Act), the Income Tax Act, 1961, (IT Act) the Securities and Exchange Board of India Act, 1992 - HELD THAT:- This Court, on a closure scrutiny of the assertions and references in this petition and in the writ petition in INDIA AWAKE FOR TRANSPARENCY SHRISTHI CRESCENDO VERSUS UNION OF INDIA, THE DIRECTOR ENFORCEMENT DIRECTORATE, CHAIRMAN SECURITIES AND EXCHANGE BOARD OF INDIA, GOVERNOR RESERVE BANK OF INDIA, CHAIRMAN CENTRAL BOARD OF DIRECT TAXES, MR AH PREMJI, M/S HASHAM INVESTMENT AND TRADING COMPANY PRIVATE LIMITED [2020 (10) TMI 1239 - KARNATAKA HIGH COURT] is of the considered view that the petitioner cannot be permitted to ....... + More

Prevention from Abuse of Court Processing - Role of Lower Judiciary - misuse of own processes in a judgement - Frivolous Litigation - physical altercation that took place between the Appellants, and the Respondent No. 2 and his wife - HELD THAT:- It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilising the institution of justice for unjust means. Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean hands. Similarly, a litigant pursuing frivolous and vexatious proceedings cannot claim unlimited right upon court time and public money to achieve his ends. This Court’s inherent powers under Article 142 of the Constitution to do &ls....... + More

Dishonor of Cheque - acquittal of the accused - liability to pay exist or not/ enforceable debt or not - cheque issued on force and threat or not - Section 138 of the N.I. Act - HELD THAT:- The cheque vide Ext.1 was admittedly drawn by D.W.1, the accused/ respondent No.1 for payment of an amount of ₹ 1,15,000/-, which was returned dishonoured by the Union Bank of India, (U.B.I.) Tinsukia Branch to the complainant/ appellant vide Ext.2, the letter and Ext.3, the bank note. Whether the cheque vide Ext.1 was issued in discharge of a debt/ liability of the accused/ respondent No.1? - HELD THAT:- There is no denying the fact that admittedly the accused/ respondent No.1 issued the cheque without the name of the payee, which the complainant/ appellant (payee) himself filled up and presented in bank for encashment. The evidence shows that t....... + More

Issuance of Duplicate share certificates - original share certificates were misplaced - section 420/406 of the Penal Code - HELD THAT:- In the case in hand, the allegations made against the accused petitioners are bereft of any intention of cheating or misappropriation at the inception of the transaction. The equity shares were admittedly issued against consideration and loss or misplacement of such shares by the opposite party is a subsequent event which was not contemplated by the parties at the time of issuance of the shares. No prima facie case of initial deception has been made out and under no stretch of imagination can it be held that the petitioners acted with criminal intent at the inception on an anticipation that the shares would be misplaced at a subsequent stage. Even if it is held that duplicate share certificates were delib....... + More

Rejection of registration of a partnership firm constituted by the petitioner - whether LLP can be treated as a person which can be permitted to form a partnership with an individual? - HELD THAT:- In the present case an individual agreed with an LLP to share the profits of the business. LLP is a body corporate, independent legal entity having a common seal and perpetual succession, capable of suing and of being sued. Once a partnership is formed the LLP, which is a partner would have to abide by the partnership Act. The respondent's objection is based on the liability of the partners of LLP, stating that the same is confined to the terms in the agreement - The liability of partners of LLP and liability of the LLP as a partner under the Partnership Act would be different. The liability of partners in an LLP cannot have any relevance w....... + More

Dishonor of Cheque - correctness of the finding of acquittal - rebuttal of presumptions - Sections 118 and 139 of Negotiable Instruments Act - HELD THAT:- It is the settled proposition of law that once the execution of the document is admitted or proved, the complainant is entitle to draw the presumptions under Sections 118 and 139 of the Act. In the decision reported in Bir Singh v. Mukesh Kumar [2019 (2) TMI 547 - SUPREME COURT]. The Hon'ble Supreme Court has held that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars and itself would not invalidate the cheque - Thus after admitting issuance of Ext. P2 cheque, and having regard to the circumstances led to the issue of the instrument, the first respondent is estopped from taking contentions. Much....... + More

Dishonor of Cheque - service of notice - legal notice sent, returned as claimed - acquittal of accused - rebuttal of presumption - HELD THAT:- The postal cover sent through RPAD returned as not claimed does not mean due service of notice. Even during the course of cross-examination of P.W.1, nothing has been elicited regarding service of notice. When the appellant-complainant has not sent the legal notice to the respondent-accused under certificate of posting, there is no presumption of due service of notice to the respondent-accused. It is pertinent to note that the respondent-accused has not placed rebuttal evidence to prove that the notice was not sent to the correct address and the respondent-accused was not working at the address shown in the envelope sent through legal notice. Ex.P-12 is the legal notice postal cover, the address sh....... + More