Validity of assessment order - Request for personal hearing rejected - Faceless Assessment - HELD THAT:- Given the circumstances, which were put forth by the petitioner in the communication the AO should have, in the very least, dealt with the same, i.e., either rejected the request made or accommodated the petitioner having regard to the circumstances put forth by her. In reaching a conclusion as to which of the two options he/she should opt for, the AO could have asked for necessary supporting material, in case, he/she was under the impression that what was stated in the said communication was only a ruse to impede progress of the matter. Respondent no.1, instead, proceeded to pass the impugned assessment order, dated 26.05.2021, even when the timeframe for passing the assessment order stood extended till 30.06.2021. Therefore, accordin....... + More

Reopening of assessment u/s 147 - deemed assessment - earlier proceeding initiated was withdrawn - notice under Section 148 was issued before completion of the Assessment was dropped and thereafter, a fresh notice was issued based on the identical reasons - survey under Section 133A - survey revealed undisclosed income in terms of the valuable jewellery and cash - HELD THAT:- Since the petitioner failed to offer amount for payment of Income Tax in his return of income under Section 139 of the Income Tax Act, 1961, a notice dated 04.12.2015 was issued to the petitioner under Section 148 - The said notice was issued even before the time for completing the assessment expired on 31.12.2016 i.e, 21 month from the end of the assessment year 2013-14 under Section 153 (1) for the assessment year 2013-14. Having issued the aforesaid notice dated 0....... + More

Revision u/s 263 - denial of deduction u/s 54 in the hands of Individual - Partition of HUF or not - Assessment as a Hindu Undivided Family(HUF) - division of income without physical division of property did not amount to partition under Section 171 - notice u/s 263 as issued primarily on the ground that there was no physical division of the property and therefore the exemption under Section 54 F on sale appeared to be contrary to section 171 of the Income Tax Act, 1961. HELD THAT:- A reading of sub- section 171 of the Income Tax Act, 1961 makes it very clear that it is applicable only where a Hindu family was already assessed as an Hindu Undivided Family(HUF). Otherwise, there is no meaning to the expression “hither to” in Section 171(1). Admittedly, during the lifetime of Shir.A.R.Pandurangan, the family was not assessed as ....... + More

Addition on account of unaccounted interest income on FDs - unaccounted income in gold - Tribunal deleted the addition - HELD THAT:- This Court, vide judgment [2020 (11) TMI 912 - KARNATAKA HIGH COURT], quashed the order passed by the Income Tax Appellate Tribunal on the ground that the same is cryptic and suffers from non-application of mind and has remitted the same to the Tribunal to consider the substantial question of law Nos. 1 and 2. For the reasons assigned in the aforesaid judgment, the order passed by the Tribunal in respect of Assessment Year 2005-06 [2016 (12) TMI 1856 - ITAT BANGALORE]is quashed and the matter is remitted to the Tribunal to consider the substantial question of law Nos. 1 and 2 afresh by assigning reasons.

TP addition - Specified Domestic Transaction (SDT) of Rent payment to Giriraj Promoters Pvt. Ltd. (GPPL) - assessee having used or not used the Sawant Corner premises for which it paid the rent - HELD THAT:- The Department’s case is that the property was, in fact, in occupation of JSPM and not the assessee and the assessee was simply paying rent without occupying the same - the onus was upon the Revenue to prove that apparent was not real, which it failed to discharge. If the Department was convinced that whatever external evidence the assessee had filed to prove its case were make-believe, it had and always has a very wide powers to unearth the reality even beyond the assessment proceedings. Once it is held that the Sawant Corner property was used by the assessee for its business purpose and the Revenue brought no contrary reliable....... + More

Exemption u/s.10(23C)(vi) - exemption denied as Appellant did not solely exist for education purposes because there were several objects of non-education nature and was making huge surplus - Appellant had contravened the provisions of S.13(1)(c) in as much as it had paid lease rent to two of trustees of the Appellant - HELD THAT:- We find that assessee trust had derived income only from educational activity and not otherwise. Hence, even the financial statements of the assessee support the contention of the ld. AR that the trust is existing solely for the purpose of education only and not of any other purpose. Even otherwise during the year under consideration, i.e. F.Y.2018-19 relevant to A.Y.2019-20, for which claim of 10(23C)(vi) is sought by the assessee trust, the assessee trust had carried all activities only with respect to educati....... + More

Addition u/s 68 - loans received by the assessee - addition based on statement of third party - disallowance of interest on aforesaid unsecured loans - HELD THAT:- From the perusal of the assessment order, we find that the ld AO had given more emphasis in the entire assessment order to discuss the modus operandi adopted by Shri Praveen Kumar Jain and his group which had been unearthed during the search action carried out on him on 1.10.2013. We find that the assessee had submitted before the ld AO that nowhere in the statements of Shri Praveen Kumar Jain or his accomplices, the name of the assessee LLP had been mentioned. This fact has not been controverted by the ld DR before us. Hence we hold that the entire addition made by the ld AO and confirmed by the ld CITA, merely based on the statement of Shri Praveen Kumar Jain (third party) (w....... + More

Capital gain computation - expenditure incurred for transfer of the property - as per AO set off any capital gains tax liability and to claim capital loss in the return with the sole purpose to evade tax - assessee has deducted as expenditure incurred on such transfer and after claiming indexed cost of acquisition has claimed capital loss - HELD THAT:- Assessee might have received more money for the first and second floor from the buyer who had shown lesser amount of sale consideration to avoid future tax liability. At the same time, the assessee has also enclosed a receipt for ₹ 600/- mentioning the existence of first and second floor. It is also pertinent to mention here that the AO has not called the buyer to find out the truth nor the assessee has produced the buyer for his examination. It is also not understood as to how the va....... + More

Bogus LTCG - unexplained cash credit u/s.68 - HELD THAT:- Both the parties before us stated that both the issues in dispute in original grounds as well as in additional grounds are already covered in the decision of this Tribunal in the case of sister concerns of the Jajoo Enterprises Ltd. [2020 (11) TMI 646 - ITAT MUMBAI] wherein in respect of same fact of the receipt of share application money from companies allegedly belonging to Shri Shirish Chandrakant Shah, this Tribunal had remitted the issue to the file of the ld. AO. Thus the grounds raised by the assessee for both the years are remitted to the file of the ld. AO to decide the same in the light of the aforesaid decision of this Tribunal. Appeals of the assessee are allowed for statistical purposes.

Penalty u/s. 271(1)(c) - recording of specific finding or not? - defective notice u/s 274 - exemption u/s. 54F is not allowable against short term capital gain - HELD THAT:- While passing final order the Assessing Officer has to record a specific finding for which breach he has visited the assessee with penalty i.e. for concealment of income or furnishing inaccurate particular of income as laid down in the decision of Jurisdictional High Court of Gujarat in the case of Sunita Transport [2012 (12) TMI 981 - HIGH COURT OF GUJARAT]. In para 7 of the penalty order u/s. 271(1)(c), the Assessing Officer held that it is found to be a fit case to levy penalty u/s. 271(1)(c) of the I.T. Act, 1961, for furnishing of inaccurate particulars and concealment of income to the extent of ₹ 7,30,000/- which indicate that Assessing Officer has not rec....... + More

Disallowance u/s 14A r.w.r. 8D - no activity of purchase and sale took place during the year - as argued by assessee no satisfaction was recorded by AO before making addition - HELD THAT:- As proper satisfaction is recorded by the AO inasmuch as making investment, maintaining or continuing with any investment in a particular share/mutual fund etc. and the time when to exit from one investment to another are all the activities requiring well-coordinated and well-informed management decisions, involving not only inputs from various sources but it also involves acumen of senior management functionaries. Decision to hold the shares and not to make any purchase of sales during the year could also be a conscious decision. Assessee does not maintain any separate account in respect of the purchase or sale of the shares on the connector expenditur....... + More

Addition u/s 40(a)(ia) - secondment expenses on which tax was not deducted at source - HELD THAT:- Since this issue is covered in favour of the assessee by the decisions of the Tribunal in assessee’s own case for the AYs 2009-10 [2017 (1) TMI 1751 - ITAT MUMBAI] & 2011-12 [2018 (2) TMI 2035 - ITAT MUMBAI] and since the findings of the ld. CIT(A) are in accordance with the decision of the Tribunal, we do not find any reason to interfere with the findings of the ld. CIT(A). We accordingly uphold the decision of the ld. CIT(A) and dismissed this ground of appeal of the revenue. Addition on estimation basis on account of compensation from customers - HELD THAT:- As decided in own case [2018 (2) TMI 2035 - ITAT MUMBAI] this Bench has deleted the identical addition in assessee’s case.

Stay of demand - Demand raised u/s 201 (1) - HELD THAT:- We feel it proper to grant stay for six months from the date of this order or till the disposal of appeals whichever is earlier because we find that the payment already made by the assessee is about 52% of total outstanding disputed demand of tax and interest. As pointed out by the assessee that the date of hearing fixed at present for these appeals are 27/4/2021 and that one of the issues involved is about Secondment aspect is pending before special bench of the Tribunal. Based on the above we granted stay of outstanding demand for a period of 6 months or till the disposal of appeal whichever is earlier. Assessee shall not seek adjournment in course of hearing of these appeals without justifiable reasons and if the assessee does so, the stay granted as per this order shall stand va....... + More

Addition u/s 68 - HELD THAT:- Additions received by the assessee for next transactions from his individual customers is being in the nature of cash credits u/s 68 of the Act are not correct. In the present assessment order, the AO has examined customers of the assessee u/s 131 and statements were also filed. Each one of them has confirmed the MCX transaction and the confirmation account of each individual customers, transaction by transaction was submitted before the Assessing Officer. Thus, the assessee has established the three limbs of genuineness, creditworthiness and identity of the transactions as contemplated by various decisions of the High Court and Supreme Court envisaged u/s 68.

Bogus purchases - CIT-A sustained 12.5% disallowance out of the bogus purchases - HELD THAT:- We find that in this case the sales or any other aspect of working have not been doubted. It is settled law that when sales are not doubted, hundred percent disallowance for bogus purchases cannot be done. The rationale being no sales is possible without actual purchases. This proposition is supported from Hon'ble jurisdictional High Court decision in the case of Nickunj Eximp Enterprises [2014 (7) TMI 559 - BOMBAY HIGH COURT]. In this case, the Hon'ble High Court has upheld hundred percent allowance for the purchases said to be bogus when sales are not doubted. However, the facts of the present case indicate that assessee has made purchase from grey market. Making purchases through the grey market gives the assessee savings on account of....... + More

Disallowance u/s 14A r.w. Rule 8D(2)(iii) - HELD THAT:- As the assessee had not earned any exempt income from the mutual funds therefore, the same in our considered view could not have been included for the purpose of computing the ‘average value of investments’ while quantifying the disallowance u/s 14A r.w. Rule 8D (2)(iii). Our aforesaid view is fortified by the order in the case of ACIT & Anr. Vs. Vireet Investment Pvt. Ltd. & Anr. [2017 (6) TMI 1124 - ITAT DELHI] In the said case it was observed by the Tribunal that as per rule 8D(2)(iii), only those investments were to be considered for computing ‘average value of investment’ which had yielded exempt income during year under consideration. Accordingly, in the backdrop of our aforesaid deliberations, we herein direct the A.O to exclude the mutual funds....... + More

Recourse to an alternate remedy - Reason to believe that underassessment had resulted from non-disclosure of material facts, before the Income Tax Officer himself in the assessment proceedings and if unsuccessful there before the appellate officer or the Appellate Tribunal or in the High Court - HELD THAT: As has been observed by this Court and other courts including the Supreme Court in several judgments, an alternate remedy is a self-imposed limitation placed on itself by the Court. It does not prevent the Court from entertaining an action, if it, otherwise, has jurisdiction in the matter. [See Calcutta Discount Co. Ltd. vs. ITO [1960 (11) TMI 8 - Supreme Court] - Also see Whirlpool Corpn. vs. Registrar of Trade Marks [1998 (10) TMI 510 - Supreme Court] In this case, particularly, we do not see any purpose in relegating the petitioner t....... + More

Assessment u/s 153C - HELD THAT:- Hon’ble Delhi High Court in the case of Pr. CIT v Sarwar Agency (P.)Ltd. [2017 (8) TMI 733 - DELHI HIGH COURT] clearly held that in case of other person u/s 153C of the Act, the starting point for computation of the block period would be the date from on which based on the seized documents, notice is issued to the other person - As further held by the Hon’ble court that the amendment made in section 153C by Finance Act 2017 w.e.f. 1st April 2017 which states that block period for the “searched person” as well as the “other person” would be same six AYs immediately preceding the year of search is only prospective. It makes the things clear that the search that took place on 7/4/2016 in this case is prior to amendment unaffected by the amendment made by way of Finance Act....... + More

Intangible asset u/s.32(1)(ii) - asset in the nature of the road project concerned - HELD THAT:- This tribunal’s Special Bench’s decision in M/s.Progressive Construction Ltd. [2014 (11) TMI 401 - ITAT HYDERABAD] has already settled the issue that such a license agreement amounts to an intangible asset in the nature of right to collect toll amounts to an intangible asset u/s.32(1)(ii) of the Act. The Revenue’s stand that the assessee ought to have amortised the license fee paid to “NHAI” as per the CBDT’s circular (supra) also fails to make any difference since the same could not be taken as an attempt at the Board’s part to deny depreciation relief in any manner; whatsoever. Hon'ble apex court’s decision Taparia Tools Ltd. Vs. JCIT [2015 (3) TMI 853 - SUPREME COURT] holds that the mere o....... + More

Limited scrutiny under CASS - Whether sales turnover / receipts have been correctly offered for tax ? - Whether contract receipts/fees have been correctly offered for tax ? - HELD THAT:- AO has verified and found from the I.T data that the assessee has received contract receipts. He, therefore, accepted it as correct. Whether correct contract receipts have been offered to tax? - In this regard when the Assessing Officer verified the P&L A/c and Balance Sheet of the assessee he observed that the assessee has declared the net profit and that it included indirect income also such as interest income on FDR and interest on deposits and also refund of VAT. Since they did not form part of business receipts, he reduced them from the net profit declared by the assessee. AO was right in considering the contract receipts and working out the net ....... + More

Levy of tax on interest income - Status of the assessee - Resident but not ordinarily resident - NRI Account - Receipts brought in India - source of income earned outside India - HELD THAT:- As decided in own case [2015 (3) TMI 755 - ITAT HYDERABAD] provisions of Section 5(2) are also not applicable as the amount received is received from assessee's own account outside India and no income has accrued or arisen in India. These funds were also received through banking channels with necessary statutory approvals. Therefore, assessee has proved the sources of receipts and discharged the onus. It is the Revenue which failed in proving that this amount is unexplained income of assessee. We are of the opinion that various case laws relied by the Revenue does not apply and they are clearly distinguishable. In view of this, we have no hesitation in upholding the order of the CIT(A) and rejecting the Revenue's grounds.

Addition u/s 68 - unsecured loan received from three firms belongs to assessee group - addition on the ground that said loan transactions are nothing but accommodation entries of assessee own unaccounted income in form of unsecured loans - HELD THAT:- As assessee has discharged burden caste upon u/s. 68 of the Act to prove unsecured loans received from M/s.C.K.Exports, M/s. Mehta Motors & General Finance Company and M/s. Swastic Trading Corporation. AO as well as learned CIT(A) without appreciating the evidences filed by assessee has simply made additions on suspicious ground that said sum was undisclosed income of the assessee. Hence, we set aside the order of learned CIT(A) and direct the Assessing Officer to delete additions made towards unsecured loans received from three entities. Appeal filed by the assessee is allowed.

Assessment u/s 153A - Addition u/s 68 - Search and seizure - incriminating material - penny stock companies - purchase and sale of shares - HELD THAT:- Search and seizure action was conducted on 06.10.2017 and thus on the date of search, the assessment has attained finality and is an unabated assessment on the date of search. We find merit in the arguments of the Ld. A.R. that in the case of unabated assessment year, addition can only be made on the basis of incriminating material found during the course of search and not on the otherwise. In the present case, we have noted that no incriminating material was found during the course of search in relation to the purchase and sale of penny stocks and the authorities below have relied on the general investigation that assessee has made purchase and sale in penny stocks on the basis of documen....... + More

Validity of jurisdiction assumed by AO u/s 147 - validity of reference made to District Valuation Officer (DVO) u/s 142A - justification of additions towards cost of construction made by the AO on the basis of estimations reached by Valuation officer - HELD THAT:- We notice that the CIT(A) has inter alia observe that the books of accounts have not been rejected in the original assessment proceedings. Coupled with this, the office note of the AO gives an infallible impression that the AO, at the time of original assessment, was broadly satisfied with the correctness of the books. While a formal rejection of books may not, at times, be possibly necessary an abstract position of law, an implied dissatisfaction on the books could not be gauged either from the original assessment or from the attendant office note. We also simultaneously notice....... + More

Addition towards advertisement and publicity expenses on account of being relating to prior period - HELD THAT:- We observe that both the authorities below have confused the expenses to be on account of repair and maintenance whereas as a matter of fact these expenses were incurred on account of advertisement and publicity. We find merit in the contentions of the assessee that since the bills pertaining to these expenses were received during the year though these bills related to the earlier year, therefore these expenses have to be allowed as pertaining to the current year as the crystalisation has happened during the year. Without prejudice, the assessee has submitted that the year of allowability of expenses should be of no consequences so long as the rate of tax for both the years is uniform. The assessee has placed reliance on the de....... + More

Maintainability of appeal before the appellate authority - time limitation - dismissal of appeal on the ground that appeal was not presented within the time - HELD THAT:- Considering that the explanation offered by the petitioner is a plausible and not an unreasonable one, especially in these Covid times, and further considering that a downloaded copy thereof was in fact submitted along with the appeal which was otherwise filed within time, this Court is of the view that the mere delay in enclosing a certified copy of order appealed against along with the appeal should not come in the way of the Petitioner’s appeal for being considered on merits by the Appellate Authority. This is a case of substantial compliance and the interests of justice ought not to be constrained by a hyper technical view of the requirement that a certified co....... + More

Input tax credit was blocked - no notice and/or opportunity of hearing given before blocking of credit - petitioner, qua imported goods, has paid Integrated Goods and Services Tax (IGST) on reverse charge basis - HELD THAT:- Issue notice. Mr. Harpreet Singh, who appears on advance notice, accepts notice on behalf of the respondent/revenue. List the matter on 02.08.2021.

Seeking Bail - fake / bogus ITC without any purchase or sale of goods - compounding of offences - Section 132 of the Act of 2017 - HELD THAT:- In view of the fact that the petitioners have already remained in custody for about 5 1/2 months, whereas the maximum punishment provided under the Act of 2017 is five years and also considering the fact that investigation is already complete and charge-sheet has been filed and also considering the age of petitioner Ramesh Jain and the fact that the petitioners have no criminal antecedents. Also in view of the present pandemic of COVID-19 situation in the State of Rajasthan, but without expressing any opinion on the merits of the case, it is deemed just and proper to enlarge the petitioners on bail. The bail applications are allowed.

Interpretation of the term “a contract” - TDS applicability under section 51 of the GST Act - no contract or contract of continuous supply - whether the single tax invoice shall be considered as “a contract” or aggregate value of purchase from a vendor for the whole year be considered as a contract? - HELD THAT:- Coming to the meaning of “supply under a contract”, it is very well accepted that there must be a supplier and a recipient for a supply to happen and these two persons must be either distinct persons or deemed to be distinct persons under the Act. When there is a supply of goods or services from one person to another, it has to be as a follow up action of an agreement to supply, either written or verbal or implied. There is no precondition that the agreement to supply should always be in writin....... + More

Classification of machinery - supply of Automatic Feeder with Breaker, Pre-washer Machine, Drying Machine, Cleaning and Grading Machine, Pre-stem remover, Riffle Washer, Stem Remover, Spin Dryer, Automatic Weighing Machine - classifiable under HSN code 8437 or 8433? - HELD THAT:- In the present context, it's observed that the activities carried on by the applicant involves cleaning, grading, drying and packing of agricultural produces i.e. Raisins and Grapes, which are fruits. "Machineries for cleaning, sorting or grading of eggs, fruits or other agricultural produce" are covered under HSN 8433 60. All the machines are used for this purpose and hence this is a more specific entry. But in the Description of HSN 8433 clearly says what is covered under HSN 8437 are not covered under HSN 8433 - HSN 8437 deals with machines for s....... + More

Levy of GST on Grants - Government entity or not - supply of service by a Government controlled Association to State Government, Local Authority or any person specified by State Government, Local Authority against consideration received from State Government, Local Authority - entry no. 9C of Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 as amended by Notification No.32/2017 - Central Tax (Rate) dated 13.10.2017 - HELD THAT:- The applicant is a society registered under the Societies Registration Act, 1860 and hence is a society - The applicant has not established whether the applicant society has been set up by an Act of State Legislature or established by the Government. He has only stated that the Nirmiti Kendra is promoted, monitored, overseen and guided by Karnataka Rajya Nirmana Kendra (KARNIK) which itself was regist....... + More

Validity of section 13(8)(b) of the Integrated Goods and Services Tax Act, 2017 - HELD THAT:- This petition was filed when the related writ petition No.2031 of 2018 was being heard. Challenge being identical this case was tagged along with writ petition No.2031 of 2018 - By a separate judgment and order passed today, writ petition No.2031 of 2018 has been allowed by declaring section 13(8)(b) of the Integrated Goods and Services Tax Act as ultra vires and unconstitutional. Petition disposed off.

Constitutional Validity of levy of IGST on supply of services outside India - providing marketing and promotion services - Export of services - Constitutional Validity of section 13(8)(b) and section 8(2) of the Integrated Goods and Services Tax Act, 2017 are ultra vires articles 14, 19, 245, 246, 246A, 269A and 286 of the Constitution of India - HELD THAT:- Part XI of the Constitution of India deals with relations between the Union and the States. Article 245 which is included in Chapter I of the said part lays down the extent of laws made by Parliament and by the legislatures of the states. Clause (1) says that subject to provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of a state may make laws for the whole or any part of the state. As per clause (2), no la....... + More

Input Tax Credit - dummy and sham firms - fake and fabricated invoices without supply of any physical goods - bogus ITC availed and passed on by the petitioner in collusion with others in the name of 12 fictitious entities - HELD THAT:- The accusations against the petitioner relate to the commission of economic offences which are considered grave and therefore must be viewed seriously. Offences of this nature affect the economy of the country as a whole and usually involve a deep-rooted conspiracy to cause huge loss of public funds wherein the individual would rather achieve personal gains through illicit means than act in the best interest of the society. Although this Court is cognizant of the fact that in some similar matters the accused persons have been admitted to bail, however, every case turns on the facts and circumstances of the....... + More

Implementation of GST in works contract in post-GST regime - demand notice issued under Section 61 of the Odisha Goods and Services Act - HELD THAT:- It is seen that the increased value of the contract after inclusion of GST is to be reimbursed by the employer whereas the decreased value of the contract, if any, after inclusion of GST is being recovered from the contractor after calculation. Whenever it is found that the contractor has received excess payment, the same is required to be recovered. The impugned demand notice issued to the Petitioner under Annexure-9 is a result of excess payment made thereof. Since the demand of recovery is pertaining to the excess payment received by the Petitioner, we do not see any flaw or illegality in the same as it is clear that the amount which is sought to be recovered from the Petitioner is the de....... + More

Maintainability of petition - alternative efficacious remedy of filing an appeal - Validity of section 16(4) of the Central Goods And Services Tax Act 2017 - benefit of input tax credit - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This we say so, for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex-parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. Petition disposed off.

Release of detained goods - expiry of E-way bill - Inter-state purchases - Rule 138(10) of the GST Act, 2017 - HELD THAT:- The admitted facts are that petitioner had dispatched goods on the auto trolley bearing No.TS 07 UF 1008 on 04.01.2020 and the driver of the auto trolley had in his possession tax invoice (Ex.P.2) dt.04.01.2020 as well as e-way bill (Ex.P.3) dt.04.01.2020, and that the distance to be traveled by the auto trolley was only 36 kms - Petitioner alleges that the said auto trolley along with other auto trolleys started for delivery of the paper at 04:33 p.m. on 04.01.2020 to the consignee, but on its way to Bashierbagh since there was a political rally opposing CAA and NRC by political parties, the roads were blocked and the traffic could not move forward or backward; that the driver of the said auto trolley waited till 08:....... + More

Release of prisoners on parole/interim bail for 60 days - HELD THAT:- On perusal of the direction issued by "HPC" on 30.4.2021. it is found no such condition on the basis of which impugned order has been passed by Special Chief Judicial Magistrate, Meerut, therefore, impugned order lacks merit and is liable to be quashed. The petition is allowed.

Maintainability of petition - seeking relief from Bail conditions - prayer for withdrawal of the conditions of heavy surety and bank guarantee/FDR - GST fraud - availing Input Tax Credit on the strength of fake invoices - HELD THAT:- It may be mentioned here that admittedly the petitioner had filed a revision petition before the Court of Sessions challenging such conditions. However, it was withdrawn abruptly. The petitioner had taken recourse to proper legal remedy but for the reason best known to him, did not opt to pursue the revision and withdrew it. As far as his approaching this Court under Section 482 Cr.P.C., it needs to be mentioned here that Section 482 Cr.P.C. which saves inherent powers of the High Court, is not a panacea for all the ills. The litigant should adopt a proper mechanism provided under the law for redressal of his....... + More

Maintainability of petition - alternative and efficacious remedy of an appeal - time limitation - HELD THAT:- The petitioner has submitted that the impugned order has been passed on 10.12.2020, the writ petition has been filed on 25.02.2021, within three months from the date of the order passed by the Authority. Since under Section 107 sub-clause 4, the period of limitation has been prescribed for three months and he has filed the writ petition before this Court, he submitted that the Appellate Authority can dispose of the appeal on merits without going to the limitation. If the petitioner files an appeal before the Appellate Authority within six weeks from today, the Appellate Authority to decide the appeal on merits in accordance with law without going to the limitation aspect - Pettion disposed off.

Release of attached bank properties - Validity of the impugned notice raising a demand for refund of 50% of the amount of the GST which was refunded earlier to the petitioner along with interest (taking the base of which the release of attached bank property was sought) - HELD THAT:- A similar matter in M/S KAMAKHYA POWER SOLUTIONS VERSUS THE UNION OF INDIA, THE COMMISSIONER CENTRAL GOODS AND SERVICE TAX, THE ASSTT. COMMISSIONER CENTRAL GOODS AND SERVICE TAX, THE PRINCIPAL COMMISSIONER CENTRAL GOODS AND SERVICE TAX, ASSAM [2021 (6) TMI 153 - GAUHATI HIGH COURT] is pending before this Court in which this Court had passed an interim order on 09.04.2021 staying a similar demand notice as well restraining action for attachment of the Bank Account of the claimant. In that view of the matter, similar interim order is passed, directing, the Reve....... + More

Determination of tax - grant of opportunity of hearing where a request is received in writing - Sub-Section (4) of Section 75 of CGST Act - HELD THAT:- Sub-Section (4) of Section 75 of the Act, in clear and vivid terms, stipulates that an opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person - In the instant case, though show cause notice was issued on 06.01.2021, asking the petitioner herein to submit objections, in the considered opinion of this Court, second respondent herein, before resorting to the impugned action, ought to have served on the petitioner the notice of personal hearing, indicating the date of hearing, according to the second limb of sub-Section (4) of Section 75 of the Act. In the i....... + More

Grant of Regular Bail - in respect of one of the co-accused, charge sheet was not filed within time - HELD THAT:- The present petition is certainly not at all the Public Interest Litigation. If the investigating agency was not able to conclude the investigation within time there can be a number of reasons for the same. No element of Public Interest is involved in the matter. The Code of Criminal Procedure is a complete code in itself and it provides for safeguards in respect of detention and it also provides for procedure in respect of investigation. This court does not find any reason to interfere in the matter specially in a public interest litigation in respect of non filing of charge sheet, within time - Admission declined.

Grant of Bail - fake ITC availed - evasion of GST - fake billing - Bail application was sought to be dismissed on the ground that accused may tamper with the evidences - HELD THAT:- While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, but if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence. then bail will be refused - Furthermore, In the landmark Judgment of Gurucharan Singh and others v. State [1977 (12) TMI 141 - SUPREME COURT], It was held that there is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the courts. It was further held that there cannot be any Inexorable form....... + More

Pre-trial detention of accused - recovery of weapon/equipments / documents used in the alleged crime - tampering of evidences - presumption of innocence of the accused - HELD THAT:- In the criminal jurisprudence prevailing in all common law countries, every person is presumed to be innocent until proved to the contrary. The consequence that logically follows is that an accused ought not to be detained or imprisoned, that the personal liberty even of an accused should not be interfered with, until he is convicted by due process of law. Several offences are notified as being bailable and even in the remainder, that is non-bailable offences, the accused can be enlarged on bail by orders of the Court. Bail is the rule; Jail is the exception. This is what Sections 437/439 of the Cr.PC in terms postulate, viz. that when any person accused of or....... + More

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

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

Maintainability of appeal - one appeal or multiple appeals - in Order-in -Original 85 bills of entry were challenged - whether one appeal is sufficient or appellant is required to file 84 appeals? - HELD THAT:- In case there are number of bills of entry but for all the Bills of Entry if one order or decision is given then only one appeal will be sufficient. However, as per explanation to the said rule it is clear that when more than one Order-in-Original was passed assessee is required to file number of appeals as many as numbers of Orders-in-Original. In the present case there is no single order covering 84 bills of entry was passed but the 84 bills of entry itself were challenged by filing 84 appeals before the Commissioner (Appeals). In this fact 84 bills of entry are as good as 84 assessment orders. Therefore, the appellant is required to file 84 appeals. The appellant is directed to file 83 more appeals within a period of 4 weeks from the date of order.

Import of raw cashew nuts - objections on the phytosanitary certificate - Permission for re-export of goods - name of the plant product was spelt correctly as cashew dry nuts the botanical name was wrongly written as “zingiber officinale” instead of “anacardium occidentale” - Article 3(1) of the Plant Quarantine (Regulations of Import into India) Order, 2003 - HELD THAT:- The petitioner is in the business of import of raw cashew nuts and re-export the same. In one of the consignments of bill of entry dated 13.06.2020, the phytosanitary certificate produced by the petitioner was not accepted by the first respondent on certain doubts on the certificate. The petitioner has filed an appeal as against the order of deportation and this Court, taking into consideration of the available provisions under Article 14 of the P....... + More

Conversion of the shipping bill from 'drawback shipping bills to drawback-cum-advance authorization' shipping bills - HELD THAT:- It is revealed that the advance authorization licence taken by the petitioner is not disputed. The petitioner had exported garments under the Shipping Bill Nos. 4885813/08.09.2014, 4885840/08.09.2014 and 4885839/08.09.2014 under DBK Scheme and the said shipping bills were cleared for export under RMS, without any examination and LEO granted on 09.09.2014. The contention of the learned Special Government Pleader that the request for conversion of 'drawback shipping bill' to 'drawback-Cum-advance authorization shipping bill' said to have been filed by the petitioner on 08.12.2014 before the Custom House, Tuticorin could not be traced after lapse of five years and six months cannot be accep....... + More

Maintainability of petition - availability of alternative remedy of appeal - import of second hand goods - refractory bricks - freely importable goods or restricted goods - time limitation - HELD THAT:- The issue turns on an interpretation of the policy notification issued by the Director General of Foreign Trade. The customs authority on its own ought not to have interpreted as to whether the goods in question can be called as restricted items. The respondent ought to have sought a clarification directly from the concerned authority in DGFT. In the alternative, the respondent could have mandated the petitioner to move the competent authority under Foreign Trade (Development and Regulation) Act, 1992 and obtain a clarification. Instead of doing so, the respondent applied his own understanding of the policy notification. What the responden....... + More

Maintainability of petition - alternative remedy of appeal - Import of goods - refractory bricks - freely importable or restricted imports - period for filing statutory appeal - interpretation of the policy N/N. 45/2015-2020 dated 31.01.2020 issued by the Director General of Foreign Trade - Clarification by DGFT vide Trade Notice No.8/2020-2021, dated 04.05.2020 - goods confiscated without issuance of SCN - Principles of natural justice. HELD THAT:- The issue turns on an interpretation of the policy notification issued by the Director General of Foreign Trade. The customs authority on its own ought not to have interpreted as to whether the goods in question can be called as restricted items. The respondent ought to have sought a clarification directly from the concerned authority in DGFT. In the alternative, the respondent could have mand....... + More

Valuation - transaction value of food supplements imported - undervaluation and mis-declaration of goods - rejection of declared value - fake invoices in the name of firm owned / controlled by him showing lower value - HELD THAT:- The valuation of imported goods is required to be done in terms of section 14 of the Customs Act, 1962 read with Customs Valuation Rules, 2007 which provides that transaction value of the goods shall be the price actually paid or payable for the goods when sold for export to India where the buyer or the seller of goods are not related and the price is the sole consideration for the same subject to such other conditions as may be specified under the Rules made in this behalf. The Valuation Rules have been framed in exercise of powers conferred by section 14 of the Customs Act and in normal course, the declared va....... + More

Recovery of Refund of SAD - Refund sanctioned has not been reviewed or challenged and the said fact is not in dispute - demand on the ground that the CA certificate was not issued by the statutory auditor who certified the annual accounts of the assessee - HELD THAT:- Neither the said fact has been disputed by the Ld. AR appearing for the Revenue. SCN dated 05.03.2018 has been issued under Section 28 of the Customs Act to recover the amount refunded vide earlier Order dated 26.9.2014 with the presumption that the refund was erroneously granted to the assessee. Whether or not refund has been erroneously granted would have to be decided in the manner provided in law. Neither the assessee can seek refund nor Revenue can proceed to recover the refund already sanctioned without challenging the earlier order by way of remedy provided in Section....... + More

Imposition of Penalty u/s 114(1) of Customs Act, 1962 - Smuggling - Red Sanders - HELD THAT:- The documents filed by Shri Ankit Sharma, the representative of the exporter, the documents were found in order and the goods examined by the examiner. In that circumstance, after examination of the goods and shipping bill, the role of the appellant comes to an end. There is no evidence placed on record with regard to any investigation done with the transporter while transportation of the goods from CFS, Dappar to port of export. As the appellant has no role to play regarding change of goods or export of Red Sandal. Investigation to this effect is silent. In that circumstance, the benefit of doubt goes in favour of the appellant. Therefore, no penalty can be imposed on the appellant without bringing any evidence on record. Appeal allowed - decided in favor of appellant.

Import duty on Amphotericin B (used for treatment of Mucormycosis (Black Fungus) - petitioner states that the import duty is 70% whereas respondents claims it to be 27%? - HELD THAT:- Considering the fact that the said drug is required to save lives of the people suffering from the disease which is inflicting thousands of people all over the country, and there is acute shortage of the same in the country, the Central Government should seriously consider waiver of complete Customs and other duties & levies on the import of the said drug by all, at least, for the period that the same is in short supply in India and is required to treat the disease, namely Mucormycosis (Black Fungus) - the Central Government shall look to waive the Import and other duties on all imports of the said medicine. List on 01.06.2021.

Levy of IGST or Customs Duty - Classification of goods - Bronze Cladding Panel for Statue of Unity Project - whether classifiable under Customs Tariff Act (CTEH 83119000) as 'other for kind use for soldering, brazing, welding' which is subject to IGST @ 18% or the same was classifiable under CTH 8306 2110 as 'statuettes', which is subject to IGST @ 12%? HELD THAT:- Undisputedly the goods imported by the appellant are parts of statue of Sardar Vallabhbhai Patel which was installed andnamed as ‘Statue of Unity’, therefore, there is no doubt that the goods imported by the appellant have been used as part of entire Statue of Unity - If the contention of revenue is by any imagination is accepted then the stated statue should also be called as welding material because the statue is nothing but the assembled form of t....... + More

Refund of IGST - principles of natural justice - HELD THAT:- As the Respondents have not taken any final decision on the refund sought, it is directed the concerned Respondents to decide the claim of the Petitioner for refund of the aforesaid amount under the Integrated Goods and Service Tax Act, 2017 as expeditiously as possible and practicable in accordance with law, rules, regulations, Government policies including principles of unjust enrichment as propounded by Hon’ble Supreme Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] and on the basis of evidence on record. Petition disposed off.

Smuggling - Gold - It is the case of the petitioner that since the respondent appeared to have committed offences punishable under Sections 132 and 135 of the Customs Act, 1962 - HELD THAT:- Perusal of the record shows that the respondent is a native of Afghanistan and there is every possibility that he would abscond and fail to return to India in case he is permitted to go to his country at this stage and thus misuse his liberty. The investigation in the present case is still underway and charge sheet is yet to be filed. In case, the petitioner is allowed to leave the country, the same will hamper further investigation of this case and the filing of the charge sheet. Moreover, keeping in view the nature and gravity of the allegations, it is not a fit case where permission to go abroad should be granted. The petition stands allowed.

Time Limitation period for filing a suit for malicious prosecution, against the customs authorities/officials - Section 155(2) of the Customs Act, 1962 - HELD THAT:- A reading of Section 155(2) of the Customs Act, 1962, shows that the earlier Section (in the Sea Customs Act, 1878), has simply been merged and set out in continuity. The side headings of the provision have also been omitted. A cause for confusion has thus arisen, leading to varying interpretations of this provision by different Courts - A perusal of the provisions of The Limitation Act, 1963, shows that the period of limitation for filing of a suit for malicious prosecution is one year, from the date when the Plaintiff is acquitted or when the prosecution against the Plaintiff is otherwise terminated. In the present case, the Plaintiff was acquitted on 11th April 2007. Paral....... + More

Rectification of Mistake - waiver of penalty under Section 114AA of the Customs Act - reduction of penalty under Section 112 (a) of the Customs Act - HELD THAT:- The scope of an application under Rules 41 for Rectification of Mistakes is only to rectify any mistake apparent on record and not to review any decision already taken even, if any party feels that the decision is not correct. The aggrieved party can take recourse to appellate remedies if it is not satisfied with the Final Order. The first alleged mistake pointed out by the applicant is that in paragraph 5 of the Final Order, it has been recorded that all the ETAs submitted were fake, while, in fact, as recorded in paragraph 6 of the impugned order in original passed by the Learned Commissioner, only two ETAs were fake and the rest 14 ETAs were issued by DOT but were held to be i....... + More

Confiscation - short payment of Customs Duty - valuation of this remnant ATF - cost of transportation - rule 10(2) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 - HELD THAT:- An amount should actually be agreed to be paid and a liability created is for such payment, irrespective of actual payment. The use of the word ‘paid’ or ‘payable’ means that it would cover those cases also where actual payment of the agreed amount for cost and services is deferred to be paid on a subsequent date - Even under rule 10(2) of the 2007 Rules, the cost of transport incurred in respect of the imported goods is required to be added to the value of imported goods only if the same has been incurred and does not already form part of the value of the goods that are imported. The first proviso to rule 10(....... + More

Quantum of Redemption Fine and Penalty - misdeclaration of imported goods - goods declared as heavy melting scrap but was found to be re-rollable scrap - HELD THAT:- Nowhere, the Revenue has come with the evidence that prior to the physical examination of the goods in question, the appellant was having any knowledge of the description of the goods that they are not heavy melting scrap and are re-rollable scrap. In this circumstance, although the goods are liable for confiscation as they were not found as declared but redemption fine imposed is on higher side, accordingly the same is reduced to ₹ 40,000/- and penalty is also reduced to ₹ 10,000/-. Appeal allowed.

Levy of redemption fine and penalty - provisional release of goods - goods declared as as heavy melting scrap but was found to be secondary and defected MS Sheets - HELD THAT:- On detection of the goods on being mis-declared by the appellant, the appellant sought provisional release of the goods which was allowed and at that time, the appellant paid differential duty alongwith interest and 15% of duty as penalty in terms of Section 28(5) of the Customs Act, 1962. Later on, the show cause notice has been issued to the appellant to adjust the duty paid by the appellant under Section 18(2) of the Customs Act, 1962. The provision of Section 18(2) speaks that “when the duty leviable on such goods is assessed finally (or re-assessed by the proper officer) in accordance with the provisions of this Act, then the amount paid by the assessee ....... + More

Maintainability of petition - association can file appeal or not - Levy of interest for delayed payment under the DEPB Scheme - difference between the DEEC and DEPB schemes - HELD THAT:- In view of the dictum laid down by the Hon’ble Supreme Court of India in MAHINDER KUMAR GUPTA AND ORS. VERSUS UNION OF INDIA (UOI) AND ORS. [1994 (9) TMI 369 - SUPREME COURT] holding the an Association cannot file writ petition seeking relief espousing the cause of its individual members and does not affect any legal right of that Association, it is also not possible to entertain these writ petitions for that reason. Petition dismissed.

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

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

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

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

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

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

Stay on present proceedings - reference of parties to Arbitration in light of mandate of Section 8 of Arbitration and Conciliation Act, 1996 - original agreement is executed but frustrated later on - performance of contract came to an end - Sections 241-242 of The Companies Act, 2013 - HELD THAT:- In case of, BRANCH MANAGER, MAGMA LEASING & FINANCE LTD. AND ANR. VERSUS SMT. POTHURI MADHAVILATA AND ANR.[2009 (9) TMI 592 - SUPREME COURT], it is decided that if the original agreement is executed but frustrated due to repudiation/frustration/breach etc., it is performance of contract that has come to an end, but contract if still valid, arbitration clause operates for the purposes of resolution of disputes - In the amendment in the Arbitration and Conciliation Act of the year 2015, the specific word is mentioned as 'shall'. The po....... + More

Approval of Scheme of Merger - seeking directions for convening, holding and conducting of the meeting of the Shareholders - Section 230-232 of the Companies Act, 2013, r/w Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Based on the prayers made by the Applicant Companies in the present Scheme of Merger, this Bench directs, in accordance to Section 230(5) of the Companies Act, 2013, to issue notices to the Regional Director (Northern Region), Ministry of Corporate Affairs, Income Tax Authorities, RoC concerned and the Official Liquidator. The authorities are directed to make objection/representations, if any within 30 days from the date of receipt of the notice. In the event that no objections or representations are made within the stipulated timeframe, it shall be presumed that they do not have any obje....... + More

Redemption of Secured Non-Convertible Debentures (NCDs) - Scope of resolution plan on redemption - Seeking intervention in the captioned Company Petition - Petitioner are party to the ICA or not - debenture trustee - hearing of Application under Section 71(10) of the Act - no Resolution Plan has yet been finalised - HELD THAT:- Section 71(10) entitles the debenture holders and the debenture trustee to make the Application to the Tribunal where the Company fails to redeem the debentures on the date of the maturity or fails to pay the interest on the debentures when it is due. The issue of debentures is a contract between the debenture holders and the Respondents. The Petitioner as the debenture trustee acts in the interest of the debenture holders and is specifically permitted under 71(10) of the Act to approach the Tribunal - the Applican....... + More

Restoration of name of company in the Register of Companies - Section 252 (3) of the Companies Act, 2013 - HELD THAT:- The Company has bought a land to the extent of 3500 square feet. Further, the object of the Company as stated in the MoA is that to perform civil constructions, flat promotions, real estate and infrastructure developments. Thus, the above documents shows that the Company was active and carrying on its business for the purpose of which it was incorporated. Further, from the Balance Sheet filed for the Financial Year 2018 - 2019, under the caption Current Assets, a sum of ₹ 1,82,11,775/- is shown as Inventories - the Company has been active for the period two years preceding the date of strike off and carrying on its business for the purpose of which it was incorporated. Taking into consideration the provisions of Sec....... + More

Approval of scheme of Amalgamation - section 230-232 of Companies Act - HELD THAT:- On perusal of the Scheme, reports of the Regional Director, Official Liquidator, and reply/undertakings of the Petitioner Companies thereon and the documents produced on record, the Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under Section 230 to 232 of the Companies Act, 2013. The scheme is approved - petition allowed.

Rectification of register of Members/Beneficiary - transmission of shares - Section 59(4) of the Companies Act, 2013 - HELD THAT:- Since the Petitioner is neither a depository, company, depository participant, holder of the securities or the Securities and Exchange Board as specified in Section 59(4) of the Companies Act, 2013 stated to be the persons eligible to approach this Tribunal seeking for a direction from this Tribunal to any Company or a Depository to set right the contravention in rectifying its register or records concerned, the Petition stood posted before this Tribunal for maintainability. From the typed set filed along with the Application, only a certificate of Registration issued by SEBI to the Petitioner to act as Registrars to an issue and share transfer agent dated 13.01.2012 is produced. However, no certificate has be....... + More

Winding up of liquidation process - sanction by Central Government to file the instant Petition - fraudulent and unlawful purpose - HELD THAT:- It is a settled position of law that misdeeds and illegal acts committed by such Officials of Antrix would not bind the State and those actions have become-initio void and would not result in any legal/civil consequences. It is an absurd contention rose on behalf of Devas, that after obtaining the contract in question in the above manner, it started to obtain necessary licenses to fulfil its obligations under the terms of Contract. Devas did not stop its fraudulent activities even after termination of the Contract in question. By taking advantage, rather misusing the terms of Article 20 (Arbitration Clause) as contained in the Agreement, to pre-empt Antrix to settle the dispute first by referring ....... + More

Levy of fine / penalty - Failure to file the copies of the Annual Returns with the Registrar of Companies, Maharashtra, Mumbai within prescribed time - bona fide delay without any mala fide intention - Financial Years 2003-2004, 2004-2005, 2005-2006, 2006-2007 - violation of section 92 of the Companies Act, 2013 - HELD THAT:- This Bench is of the view that the present CP No. 2393 of 2018 deserves to be allowed, because the alleged violation/contravention of the proviso of the Companies Act, 2013 has already been complied with and the default has been made good by the Company although filed belatedly its Annual Returns for the Financial Years 2003-2004, 2004-2005, 2005-2006 and 2006-2007 - The present Application can be allowed subject to payment of compounding fee and penalty as per the prescribed section 92(5) where the Company and its e....... + More

Withdrawal of CIRP application admitted under section 7 of IC, 2016 - HELD THAT:- As per section 12A of the Code, the Adjudicating Authority may allow the withdrawal of application admitted under sections 7, 9 or 10, on an application made by the applicant with the approval of ninety per cent voting share of the committee of creditors - It is seen from the record that the CoC has by 100% votes approved the withdrawal of the underlying Company Petition. Further, the Applicant has submitted that the entire settlement amount has already been paid. It is also submitted that the CIRP cost has also been paid. There are no impediment in allowing the present application - application allowed.

Oppression and mismanagement - implementation of the "circular resolution" dated November 3, 2020 - Power of the tribunal in issuing direction to consider creating an "interim committee" to run the day-to-day affairs of the first respondent/company - HELD THAT:- This "Tribunal" without delving deep, at this juncture, is of the prima facie view that the implementation of the "circular resolution" dated November 3, 2020 is to be stayed in respect of the first respondent/company, in furtherance of substantial cause of justice and accordingly, stays the implementation of circular resolution dated November 3, 2020 till the next date of hearing June 11, 2021 - it is open to learned counsel for respondent No. 7 and learned counsel for respondents Nos. 3, 4, 5, and 11 to file a detailed reply/response/count....... + More

Restoration of name of the Company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The reasons shown by the Applicant for restoration of the name of the Company in the register of companies maintained by the Respondent. Admittedly, the relevant documents which are to be filed, are ready with the Company and the Company is willing to file the same, if so permitted - 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. The Registrar of Companies, the respondent herein, is ordered to restore the original status of th....... + More

Report filed for dissolution of the company - company under liquidation has complied with all formalities and has made all necessary payments - HELD THAT:- Considering the ratio laid down by the Hon'ble Apex Court in the case of Meghal Homes Pvt. Ltd. [2007 (8) TMI 447 - SUPREME COURT], where it was held that the arrangement has to go back to the meeting of members, creditors, etc. of the company in terms of section 391 of the Act and once it is adopted or adopted with modifications with the requisite majority at the meeting, the arrangement would require a fresh scrutiny by the Company Court thereafter, we cannot avoid interfering with the decision of the Division Bench on the ground put forward by learned Senior Counsel of benefit to the workers, the report deserves to be accepted. The Company, named, M/s. Mangal Rasayan Limited (In....... + More

Oppression and mismanagement - refusal to access the company records on account of the fact that Prime Tower was still not operational owing to the outbreak of COVID-19 pandemic - obstructing the entry of the Company Secretary Mr. Rajnish Kumar and the HR Head Mr. Mazhar Hussain into the Company Prime Tower premises, who visited to get access on necessary documents - Sections 58, 59, 241, 242 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- It was well within the rights of the Respondent No. 4 to enter into the Premises and revoke the Agreement from November 2018, when the Respondent No. 1 failed to pay the service charges for the month of October 2018. Instead, the Respondent No. 4, in an unequitable show of good faith, allowed the Respondent No. 1 to continue to use the Premises even thereafter without any hindra....... + More

Disqualification of Directors under Section 164(2)(a) of the Companies Act, 2013 - direction to respondents herein to permit the petitioners to get reappointed as Directors of any company or to get appointed as Directors of any company without any hindrance - HELD THAT:- The issue involved in these writ petitions is no more a res integra. It is to be stated that the Registrar of Companies (RoC) has been disqualifying the Directors under Section 164(2)(a) of the Companies Act, 2013 by order dated 08.09.2017. Another list was published in the website of the first respondent on 01.11.2017 disqualifying the Directors. Yet another list of Directors were disqualified on 17.12.2018 by the RoC. The notification dated 17.12.2018, which was uploaded in the website by the first respondent on 18.12.2018 was challenged on the strength of the judgment ....... + More

Enforcement of a claim - time barred debt or not - applicability of Moratorium on such enforcement - HELD THAT:- The Applicant has not placed on record any document after 08.07.2014, in order to show that the claim of the Applicant falls within the period of Limitation. It is seen that the CIRP in relation to the Corporate Debtor was initiated on 05.05.2020 and the claim of the Applicant relates to the year 2014. By taking into consideration the provisions of Section 238-A of IBC, 2016 the debt is hopelessly barred by limitation as rightly pointed out by Learned Counsel for Respondent and also Learned Counsel for Applicant has not placed on record any document to show that he has obtained any acknowledgment after the year 2014 - It seems that the Applicant has been indolent after the year 2014 and has not pursued the alleged arrears of re....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - personal guarantor to a corporate debtor - invocation of Guarantee - Demand notice was not served upon the personal guarantor before application filed for CIRP - existence of debt and dispute or not - HELD THAT:- An application by the creditor against the personal guarantor shall be filed under Section 95 (1) of the IBC and according to Section 95(4) IBC 2016 (i) an application under sub-section (1) shall be accompanied with details and documents relating to the debts owed by the debtor to the creditor or creditors submitting the application for insolvency resolution process as on the date of application, (ii) it shall only be filed on failure by the debtor to pay the debt within a period of fourteen days of ....... + More

Liquidation Order - Applicant is a Financial Corporation providing financial assistance to the MSME Sectors - Section 60(5) r/w Section 52(5) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- It is required to be noted from a reading of Regulation 39B of IRCP Regulations that the Committee of Creditors is required to approve a Plan for contribution for meeting the difference between the two, namely estimated value of the liquid assets if it is less than estimated liquidation costs and the Resolution Professional, the process being prior to Liquidation, shall submit the Plan in relation to sharing of liquidation cost to this Adjudicating Authority both in the case of an application seeking approval of a Resolution Plan or for seeking Liquidation of the Corporate Debtor. At this stage, it is required to be noted that there is no d....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- The default, on the part of the Corporate Debtor is proved from the documents filed and the submissions made by the Learned Counsel by the Operational Creditor. Further, it is also pertinent to note that the default arising in the present Application is much prior to the advent of the Covid-19 pandemic and hence the Corporate Debtor cannot seek shelter also under Section 10A of IBC, 2016. Under the said circumstances, this Tribunal is left with no other option other than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. Time Limitation - HELD THAT:- It is evident ....... + More

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The failure on the part of the Corporate Debtor in non-adherence of the time schedule as stipulated under the Joint Memo of compromise as entered into between the parties, based on which this Tribunal was induced to dispose of the petition filed earlier, proves that the Corporate Debtor has committed default in payment of the amount due to the Operational Creditor and as such this Tribunal is left with no other option rather than to initiate Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor. The Petition as filed by the Operational Creditor is required to be admitted under Section 9(5) of the IBC, 2016 - petition 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 - HELD THAT:- Whatever dispute mentioned by corporate debtor is only after receiving the section 8 notice which is an after thought to shrug off the liability by the corporate debtor - In the present case, there is no such dispute is pre-existing and the same is a merely a spurious defense. Further, that the proposal for settlement amounts to admission on part of the Corporate Debtor. The operational debt has become due and default has occurred and application being complete needs to be admitted. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The date of default is 16.05........ + 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:- The default has occurred with respect to the payment of the operational debt due to the Applicant. The corporate debtor has failed to show any existence of dispute as the applicant has clearly established that the claim with respect to quality is an afterthought, in view of email sent by corporate debtor dated 04.05.2016 describing the quality of goods as 'superior quality' & 'technical advantage of high tensile'. The corporate debtor has failed to place on record any concrete evidence to prove that there was a genuine dispute which was raised prior to issuance of notice under section 8 and the said was duly communicated time and again t....... + More

Maintainability if 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:- As per Form V, Part IV, the Corporate Debtor is liable to pay an outstanding sum of ₹ 67,67,218.30/- that comprises principal amount of ₹ 40,20,500/- due against invoices and ₹ 27,46,717.81/- towards interest - In view of the dismissal of the prior application filed by the applicant against the corporate debtor on the ground of non-compliance of section 9(3)(c), as a precautionary measure, the applicant has filed bankers certificate issued by HDFC bank is annexed. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The Present ....... + More

Extension of 4 months over and above the time provided - direction for stay on the Respondent Liquidator against proceedings with the invitation for EOI and accepting EOIs from prospective investors during such additional period of 4 months - HELD THAT:- Once the schedule of general elections is announced by the Election Commission of India, the model code of conduct kicks in and the Government concerned is duty-bound not to take any major policy decisions. The acquisition of shares held by Nicco Corporation Limited in NPRL is indeed a policy decision to be taken at the highest levels of the State Government. For this, it was necessary to have a duly elected government. This process was completed, and the new government was sworn in only on 10.05.2021. The ends of justice will be met if further time of eight weeks is granted as a last opportunity to complete the decision-making process for acquisition of Nicco Corporation Limited's shares in NPRL - application disposed off.

Seeking invocation and encashment of Bank Guarantees during CIRP period - scope of moratorium u/s 14 of IBC - HELD THAT:- When the guarantee given by a Guarantor does not fall within the ambit of Security Interest provided by the Corporate Debtor, the moratorium that comes into force by Section 14 of the Code is not applicable not only to the bank guarantees, but also to the Surety given to the Corporate Debtor by a guarantor - It is evident that Section 14(1)(c) applies only to the Security Interest created by the Corporate Debtor but not to the guarantee created by third party in favour of the creditor on behalf of the Corporate debtor. It is a well settled preposition that the bank guarantees constitute an independent contract between the Respondent Banks and the Applicant and therefore the Respondent Banks are under obligation to hono....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Applicant - existence of debt and dispute or not - HELD THAT:- The Corporate Applicant has enclosed the audited financial statements for the years 2017-18 and 2018-2019, the provisional financial statement as on 31.10.2019 - The registrar of companies and Income Tax department filed reports and stated that they have no objection in allowing the present application - The registered office of the Corporate Applicant is situated at Delhi and therefore this tribunal has jurisdiction to entertain and try this application. The present application is filed on the Performa prescribed under Rule 7 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w S....... + More

Fresh claim after approval of resolution plan - state electricity distribution company - Arrears against the Corporate Debtor/Applicant - Resolution plan was already passed and all assets were taken over - HELD THAT:- The Applicant has successfully taken over the assets and operations of the Corporate Debtor by effectively complying with the Resolution Plan. Thus, only the name of the Corporate Debtor is retained and whereas the management of the Corporate Debtor is not at all related to the erstwhile management. Therefore, as soon as the Order approving the Resolution Plan was passed by this Tribunal, and the Plan was put into effect, Section 32A of the Code is attracted. Therefore, R1 is barred from raising any arrears against the Corporate Debtor/Applicant at this juncture - constitutional validity of Section 32A has been upheld. Takin....... + More

Seeking extension of time period for completion of the Corporate Insolvency Resolution Process - only a short period of time left for CIRP process - HELD THAT:- It is almost as if the CoC and the resolution applicant are both under an impression that just because resolution is preferable over liquidation, and the resolution applicant is a State entity, any number of exclusions will be granted just for the asking. Granting the present request (for exclusion upto 15.06.2021) will mean that the CIRP has carried on for a period of 483 days beyond the outer limit of 330 days from the scheduled close on 19.02.2020 (upon completion of 330 days in terms of the second proviso to section 12(3) of the Code) - This sleight of hand in breaching the CIRP timeframe more than a year beyond the maximum period of 330 days for the completion of the process,....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Waterfall mechanism - existence of debt and dispute or not - HELD THAT:- The Scheme in relation to the Corporate Debtor viz. NOCL which has been proposed under Section 230 of the Companies Act, 2013 read with the attendant provisions of Insolvency and Bankruptcy Code, 2016 was approved by this Tribunal. As per the said Scheme proposed by the Scheme proponent viz. M/s. Haldia Petrochemicals Limited, the Project Assets of the Corporate Debtor stands vested with the Scheme Proponents and as such the Scheme as sanctioned by this Tribunal in respect of the Corporate Debtor is also binding upon the stakeholders of the Corporate Debtor which also includes the Appellant herein. Even though the claim of the Operatio....... + 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 - Date of default - date of NPA - Time Limitation - HELD THAT:- Section 3 of the Limitation Act, 1963 states that subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. In the present case, the Corporate Debtor has prima facie set up the Limitation as a defence in the present Application - From Part - IV of the Application, it is seen that the Financial Creditor has failed to state the Date of Default in the Application. Further, no pleadings as such has been made by the Financial Creditor as to ho....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Guarantee - Respondent/Personal Guarantor has stood as a Guarantor in respect of the loans availed by the Principal Borrower - HELD THAT:- Immediately upon filing of the Application under Section 94 or 95 of IBC, 2016, this Adjudicating Authority is required to refer the matter to the Board viz. the Insolvency and Bankruptcy Board of India, for approving the name of the Resolution Professional. However, it is to be noted that, this Adjudicating Authority is required to satisfy itself, before referring to the Board the name of the Resolution Professional for its confirmation, as to whether the Application filed under Section 95 of IBC, 2016 satisfies the conditions as laid out in sub - section (4) of Section 95 of IBC, 20....... + More

Seeking impleadment of the Applicant in the present Company Petition - CIRP not yet started - Section 65 of the I & B Code, 2016 - HELD THAT:- A bare reading of Section 65(1), states that "If, any person initiates the insolvency resolution process" - However, in the present case the CIRP has not yet been initiated. As CIRP has not yet been initiated. The Applicant can approach this tribunal under Section 65 of I & B code, only once the Petition is admitted and CIRP has been initiated - application disposed off.

Seeking direction to Respondent to consider the claim filed by the Applicant - rejection on ground that the same was submitted way beyond the period of ninety days from the initiation of CIRP - Approval of Resolution Plan - HELD THAT:- The present application was filed on 27.01.2021 and the Resolution Plan was approved by the CoC on 26.02.2021. An application for approval of the Resolution Plan has also been filed by the RP and the same is pending consideration by this Adjudicating Authority - Although, the present application had been filed before the approval of Resolution Plan by the CoC and before the Respondent rejected the claim, and although, the Respondent is at fault for having not replied to the email by the Applicant herein within reasonable time, the Applicant also does not seem to have put in any reminder or follow up with th....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or not - existence of debt and dispute or not - time limitation - HELD THAT:- The loan amount was duly disbursed to the Corporate Debtor. The requisites of an application under section 7 of IBC are available on record and duly proved. This is a fit case for admitting the petition, and for initiation of Corporate Insolvency Resolution Process in respect of the Corporate Debtor - petition admitted - moratorium declared.

Seeking approval of the Resolution Plan - priority of payments of charges of CIRP costs and Operational Costs - Section 31 of the Code read with Regulation 39 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- In respect of compliance of Section 30(2)(a) of the Code, it is seen that there is a provision in the resolution plan at clause 4.1(ii) & clause 8.2 which provides for payment of CIRP costs in priority over payments to any other creditors from the upfront amount brought in by the RA. The Resolution Professional has also confirmed in the compliance certificate given in Form H that the Resolution Plan provides for the payment of Insolvency Resolution Process costs. Be that as it may it is made clear that Insolvency Resolution Process cost shall be p....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Petitioner awes certain amount to the Government of India on account of settlement of certain dispute which was resolved under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - petitioner approached the authorities for allowing him to pay the due amounts in instalments, which, however, did not elicit any positive response from the authorities - HELD THAT:- This Court is of the opinion that it may not necessary to dwell on the aggregate amount the petitioner is supposed to pay, except the amount which the petitioner has admitted and willing to pay in this petition. As regards other liabilities, if any, it is a matter to be considered by the authorities on its own merit in accordance with law. However, as far as the amount of ₹ 12,36,844.40/- is concerned which is the subject matter of consideration in this petition, the pe....... + More

Maintainability of appeal - appropriate Forum - Refund of the amount already remitted - Allegation is that mandatory formalities such as issuing notice were not complied with - Questions of facts involved - HELD THAT:- Since factual aspects are involved, the petitioner can as well avail the alternative remedy of appeal. Taking note of the facts and circumstances of the case, if the appeal is filed before the appellate authority within a period of three weeks from the date of receipt of a copy of this order, the appellate authority will entertain the same without reference to limitation. Petition dismissed.

Refund of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess filed by them lying unutilized in their cenvet credit account - Time Limitation - GST credit or not - HELD THAT:- As the appellant has reversed the said amount in their GST account, in terms of the amendment to Section 140 of the CGST Act, 2017 on 30.08.2018, the said amount shall remain lying unutilized in their cenvat credit account on account of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess as good as on 01.07.2017. Further, as admitted by both the sides that in terms of Section 140 of the Act, the amount of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess cannot be transferred to GST account then it is only a cenvat credit of Education Cess, Secondary & Higher Education Cess and Krishi K....... + More

Interest on delayed Refund of service Tax - time limitation - calculation of interest on refunds after three months from the date of filing of the claim of refund - HELD THAT:- The decision of the Hon’ble Apex Court in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT], wherein the Apex Court has cleared that if the assessee filed the refund claim and the same is to be sanctioned within three months from the date of filing of the refund claim and the same is not sanctioned, then the Revenue has to pay the interest thereon on till its realization after three months from the date of filing of the refund claim although there may be litigation in the matter.. Admittedly, the appellants have filed the refund claims during the period 2006-09 and 2009-10 respectively and the same have no....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - compliance with the requirement to ascertain amount claimed as pre-deposit with respect to the dispute, that the amount of pre-deposit has not been appropriated for any other demand other than the demand reflected in the show-cause notice and that there have to be verification as to the factual assertions of the petitioner by looking into the challans of the petitioner - HELD THAT:- This court has disposed of W.P.No.11485/2020 on 17.02.2021 [2021 (3) TMI 1018 - KARNATAKA HIGH COURT] examining in detail the aspect relating to adjudication of pre-deposit and accordingly, no detailed order as regards to the legal contentions advanced in common in the present petition as were raised in W.P.No.11485/2020 is required while observing that legal aspects have been elucidated in the said orde....... + More

Liability of Interest - point of taxation - point of time when liability to pay service tax on re-insurance services provided under the pool agreement arises - extended period of limitation - penalty. Extended period of limitation - HELD THAT:- Even when an assessee has suppressed facts, the extended period of limitation can be evoked only when “suppression’ is shown to be willful and with an intent to evade payment of service tax - Commissioner has not recorded any finding that even if the appellant had suppressed the fact of having received the amount, it was willful and with an intent evade payment of service tax. In fact, the Commissioner observed that there was no malafide intention on the part of the appellant to suppress this fact - the extended period of limitation could not have been invoked. Any demand up to March 20....... + More

Refund of excess service tax paid - Demand of differential rate of tax on Preferred Location Service - CENVAT Credit - input services - Renting of Immovable Property Service - HELD THAT:- The issue of Preferential Location Charges and natural bundling thereof with main service under Section 65(3) of the Finance Act, 1994 has been decided in the case of M/S SJP INFRACON LIMITED VERSUS THE COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, NOIDA [2018 (12) TMI 253 - CESTAT ALLAHABAD] where it was held that In the present case construction of residential complex service is the service which gives essential character to the package of the service and, therefore, the charges are essentially required to be bundled with the single service namely construction of residential complex service - thus, the Preferential Location Charges were correctly s....... + More

CENVAT Credit - denial on the ground that the subject goods being attached to earth, are immovable in nature - whether the finding of the Tribunal that the towers, shelters and accessories used by the appellant for providing ‘business support services’ are immovable property is correct or not? - HELD THAT:- The finding recorded by the Delhi High Court in VODAFONE MOBILE SERVICES LIMITED, INDUS TOWERS LIMITED, TOWER VISION INDIA PRIVATE LIMITED, BHARTI INFRATEL LIMITED, VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2018 (11) TMI 713 - DELHI HIGH COURT] where it was held that machine or apparatus annexed to the earth without its assimilation by fixing with nuts and bolts on a foundation to providing for stability and wobble free operation cannot be said to be one permanently attached to the earth and therefore, would not constitute....... + More

CENVAT Credit - input services - services of commercial and industrial construction availed by them for construction of their premises - HELD THAT:- The issue regarding admissibility of Cenvat credit on Commercial and Industrial Construction Service used for construction of building which in turn are used for renting purpose has been settled by Hon’ble High Court of Madras in THE COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI VERSUS M/S. DYMOS INDIA AUTOMOTIVE PRIVATE LIMITED [2018 (9) TMI 1135 - MADRAS HIGH COURT] where it was held that as construction service is an eligible service for credit for providing output service of renting of immovable property and without construction of the building, the renting of immovable property cannot be provided, the credit remains allowed. It is noticed that the renting of Immovable Property ....... + More

Levy of service tax - remuneration paid by a company to the Managing Director and the whole time Executive Director - salaries or not - Managing Director and whole time Executive Director of the appellant company - employees or not - scope of Service under section 65B(44) of the Finance Act, 1994 - HELD THAT:- The Learned Commissioner despite the submission of the appellants that the remuneration paid by the appellants to the managing director and the executive director of the company was shown as “Salary” and declared in Form- 16 which is a income tax return for the salary income decided that the remuneration paid is not a salary but directors remuneration. Therefore, the same is liable to service tax in the hands of the appellant - though in the Income tax return the remuneration was declared as salary income but it is a sel....... + More

Classification of services - Manpower Recruitment Agency Service - conversion of raw material to soap and detergent on behalf of M/s Nirma Limited in the factory of M/s Nirma Limited - HELD THAT:- Very identical issue in the appellant's own case for the previous period i.e. June 2005 to June 2010 was considered by this Tribunal in Service Tax Appeal Nos. 2327 of 2011, 768 of 2011 and 10391 of 2013. In these appeals this Tribunal has passed a Final Order in MESSERS SUREEL ENTERPRISE PVT. LTD., M/S. SUREEL ENTERPRISE P. LTD. VERSUS C.C.E. & S. T- AHMEDABAD-III [2019 (10) TMI 1245 - CESTAT AHMEDABAD] whereby it was held that the appellant's activities amount to manufacture and does not amount to service of Manpower Recruitment Agency Service. Accordingly, the appeals were allowed. This Tribunal following various judgment namely, ....... + More

Levy of Service Tax - works contract service - construction of additional godowns as accorded by the Government of Tamil Nadu vide G.O.(Ms).No.119, Cooperation, Food and Consumer Protection Department, dated 05.11.2014 - HELD THAT:- Though clause No.12(a) was withdrawn from the Mega Exemption Notification, it was reintroduced vide notification No.6/2015, dated 01.03.2015 issued by the department of Revenue and Finance Ministry, Government of India. The withdrawal notice was issued on 01.03.2015 but it came into effect on 01.04.2015. Since there was still some ambiguity as regards the treatment of the subject matter for the period from 01.04.2015 to 01.03.2016, to deal with the same, Section 102 of the Finance Act, 2016 was brought in. The second respondent clearly erred in proceeding on the premise that the exemption on which, the appella....... + More

Defaulter under the SVLDRS scheme or not - failure to pay the amount mentioned in SVLDRS-3 in time - Seeking adjustment of refund under Income Tax with amount payable under SVLDRS - modification of garnishee notice based on Form No.SVLDRS-3 issued by 2nd respondent - seeking restraint on respondent nos.1 and 2 from taking any coercive or punitive actions against petitioner-Company’s officials and directors - HELD THAT:- The 3rd respondent is a creature of the Income Tax Act, 1961 and is obliged to discharge his functions strictly in accordance with the provisions of the Income Tax Act, 1961; and he is not entitled to act in violation of the said provisions of the said Act by allowing a set off of Income tax refund due to the petitioner against Service tax dues of the petitioner under the Finance Act, 1994 - Merely because the Princi....... + More

Levy of service tax on freight charges - GTA Services - Goods Transport Agency or not - Appellant being manufacturer - No consignment note was issued by any of the transporters - consignment notes as per Rule 4B of the Rules - HELD THAT:- In the premises, as per legal principles decided by different Benches of the Tribunal, delivery of the goods by the transporters in the instant case does not fall under GTA services in terms of Section 65(105)(zzp) of the Act. Consequently, the said transporters cannot be said to be “Goods Transport Agency” within the meaning of Section 65(50b) of the Act. As per legal principles decided by different Benches of the Tribunal, delivery of the goods by the transporters in the instant case does not fall under GTA services in terms of Section 65(105)(zzp) of the Act. Consequently, the said transpo....... + More

Rejection of application under SVLDRS - Rectification of mistake - Sabka Vishwas (Legacy Dispute Resolution) Scheme SVLDRS, 2019 - As returns filed for the period December, 2015 to June, 2017 contained a short fall in remittance of tax, as a result that the petitioner decided to take advantage of (Scheme), which extended benefits to an errant tax payer, in the settlement of tax, interest and penalty dues under various indirect tax enactments - issue raised on merits is that no opportunity of hearing has been granted to the petitioner prior to the impugned rectification - as per defence reading of Section 127(2) with Section 128 reveals that a notice is called for only in those cases where the estimate arrived at by the Designated Committee exceeds the estimate arrived at by the declarant and in the present case, the impugned notices only ....... + More

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

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

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

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

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

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

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

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

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

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

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

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

Grant of interest on delayed refund - relevant time for calculation of interest - annual production capacity under Compound Levy Scheme was fixed - HELD THAT:- The appellant filed the refund claim on 14.09.2005. The said application was kept pending by the Revenue and the same was not entertained. It was entertained only after the adjudication order on 31.10.2008 and the amount of refund was adjusted against the demand raised by order dt. 17.10.2008. Again, the litigation continued and finally this Tribunal hold that the said demand is not sustainable and remanded the matter back to the adjudicating authority for fresh adjudication. In terms of the decision of the Hon’ble Apex Court in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT], wherein the Apex Court has held that if the ....... + More

EOU - Clearance of goods in DTA - manufacture and export of ‘Ceramic Colours/Pigments, falling under CETA 32071040 - It was alleged by the Department that the items cleared in DTA by the appellants were not similar to the goods exported and there was violation of the provisions of Para 6.8 of FTP - benefit of N/N. 23/2003-CE dated 31.03.2003 - Extended period of limitation - similarity of goods, exported by the appellant - HELD THAT:- Various judgments have given wider meaning to the word ’Similar’. It would mean similar, same class of or same kind of goods. In the instant case, the goods exported and the goods cleared are described as ceramic colours. In view of the ratio of the various judgements cited, there is not even an iota of doubt that the goods cleared by the appellant in DTA are nothing but the goods which are....... + More

Recovery of Refund of 50% of amount of CGST with interest and penalty - benefits under the Northeast Industrial Policy - HELD THAT:- Let a notice of motion returnable on 19.05.2021 be issued. As the learned Standing counsel for the respondents has accepted notice extra copy of the writ petition be provided within 2(two) days - List the matter on 19.05.2021.

CENVAT Credit - input services - services received by the appellant in the capacity of employer for providing food and beverages in the canteen maintained and run in the factory as per the mandate of Section 46 of the Factories Act, 1948 - HELD THAT:- In the present case the undisputed facts reveal that the orders passed by the authorities, appellate authority and the Tribunal are based upon the amendment which came into force from 1.4.2011 - The undisputed facts make it very clear that the period involved in the present appeal is admittedly of post 2011 period and after the amendment to the provisions of Rule 2(l) defining the ‘input service’ and the amendment to the provision of Rule 2(l) defining the ‘input service’ came into effect w.e.f., 1.4.2011. The definition of ‘input service’ post amendment c....... + More

Quantum of interest on refund - grant of interest at 12% instead of 6% - time limitation for calculation of interest - appellant sought that the interest should be calculated from the date of deposit of the amount - HELD THAT:- In the present case, the provisions of section 11B of the Excise Act would not be applicable. This is for the reason that the appellant was not claiming refund of duty. The applicant, as noticed above, had claimed refund of the revenue deposit. Such a finding has also been clearly recorded by the Tribunal in the order dated 31.01.2017, which order has attained finality - There is no provision in the Excise Act, which deals with refund of revenue deposit and so rate of interest has not been prescribed, when revenue deposit is required to be refunded. In RIBA TEXTILES LTD VERSUS COMMISSIONER OF CE & ST, PANCHKULA....... + More

Refund of Excise duty paid under protest - method of valuation of physician samples - refund application filed by the appellant was rejected by placing reliance upon the Circular dated 25.04.2005 that prescribed for payment of duty under rule 4 of the Valuation Rules - appellant followed the practice of valuation of physician samples on cost of production + 10% profit and also enclosed therewith a list of products cleared on assessable value (cost+10%) - Section 11A of the Excise Act - HELD THAT:- In the present case, the appellant only deposited an amount of ₹ 43,57,437 /- under protest but specifically stated that it was not accepting the contention of the department that it was required to pay differential duty from 25.04.2005 to 30.09.2006. It cannot, therefore, be urged that the appellant had deposited any amount under sub-sect....... + More

Levy of Interest - carry forward of excess credit - penalty - the amount was reversed on being pointed out - time limitation of paying interest - HELD THAT:- Admittedly there was mistake on the part of the Appellant in carrying forward in their Books of Accounts the closing balance of CENVAT credit for the month of August 2008, while switching from ERP to SAP system w.e.f 01/09/2008, in the opening balance for the month of Sep. 2008. When such mistake was pointed out by the audit team while scrutiny of their records in Sep. 2009, the Appellant immediately reversed the entire credit on 10/09/2009 accepting the lapse on their part but failed to pay applicable interest on the excess credit availed - In the present case, the Appellant reversed the credit in September 2009 but since failed to discharge the interest of the same, consequently, w....... + More

CENVAT Credit - capital goods - capital goods were not received into the factory - Penalty - HELD THAT:- On perusal of the final order dated 20-5-2011, the Tribunal has directed officers to visit the assessee’s factory and satisfy themselves as to the availability of the Spectrometer in question. After such verification, it is seen noted in the de novo adjudication order that the capital goods were present in the factory. Thus the allegations raised in the Show Cause Notice that the capital goods were not received in the factory and that the credit availed is wrong is without any factual basis. Further, it can also be seen that the appellant had challenged before the Tribunal the allegation of wrong availment of credit and submitted only that they would not be seeking re-credit of the same for the reason that they had already surren....... + More

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

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

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

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

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

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

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

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

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

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

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

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

Quantum of amount to be deposited for release of detained good - Requirement of furnishing of Bank Guarantee for a sum being twice the amount of tax payable - Section 71(a) of the TNVAT Act, 2006 read with Section 72 of the TNVAT Act, 2006 - HELD THAT:- Admittedly, the petitioner is not registered under the provisions of the Central Sales Tax Act, 1956 for the sales effected by the petitioner from Tamil Nadu to a buyer in the erstwhile composite State of Andhra Pradesh in Hyderabad - Since the petitioner is not an assessee within the jurisdiction of the respondent, the respondent was justified detaining the goods by giving an option to the petitioner to pay amounts under Section 72(1-a) of the TNVAT Act, 2006. By effecting a direct sale from Tamil Nadu without obtaining registration, the petitioner at best can be said to have violated the....... + More

Classification of goods - textile made ups - whether the commodity which is described as an “embroidered ladies suit”, which the respondent claims to be unstitched, would fall within the description of a ‘textile’ under Entry 21 of Schedule I (as the respondent asserts) or under Entry 16 of Schedule II which is “other textile made ups” and the residuary entry in Schedule V? - UP VAT Act, 2008 - HELD THAT:- Firstly, the expression in Entry 16 of Schedule II is “other textile made ups”. A textile made up is an article which is manufactured or stitched from any type of cloth. In the present case, going by the case of the respondent, the product is unstitched because the ultimate work of stitching the salwar kameez is yet to be performed and is not carried out by the respondent. In the circumsta....... + More

Revision of assessment order - principles of natural justice - Levy of purchase grievance of the petitioner is that the second respondent passed the impugned Revision of Assessment order even without any new/fresh facts, de hors the records and on mere change of opinion - Section 22(2) of the TNVAT Act - HELD THAT:- The issues involved in these present writ petitions are squarely covered by the order of this Court in batch of Writ Petitions in M. RAVICHANDRAN, N. SENTHILKUMAR, P. DHASARATHAN, B. SUBRAMANIAN, R. RAJAGOPAL VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, STATE TAX OFFICER [2018 (12) TMI 1885 - MADRAS HIGH COURT] where it was held that It has been consistently held that the reopening of assessment by change of opinion is impermissible. Petition allowed.

Issuance of "C" forms - Concessional rate of duty - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The issue is covered by a decision of this Court in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] where respondents are directed to permit these petitioners to download 'C ' forms, as has been done in the past for the purpose of purchasing petroleum products against the issuance of 'C' declaration forms. Petition allowed.

Validity of assessment order - wastage of time unnecessarily in seeking extension again and again - HELD THAT:- The writ petition ought to have been dismissed in limini. The petitioner has unnecessarily dragged the proceedings in respect of assessment year 2008-2009. The petitioner has not only wasted the time of the court but has also unnecessarily choked the assessment proceeding by stating that the impugned notice refers to be assessment order dated 27.02.2009 which has been quashed by the court - The case file of this Court also demonstrates that after the petitioner achieved the above purpose after an interim order was passed. The case has not been listed thereafter for all these years. The present writ petition is liable to be dismissed and is disposed of by directing the respondent to complete the assessment proceedings pursuant to order dated 22.04.2009 of this Court in W.P.No.5517 of 2009 within a period of 60 days from the date of receipt of this order. Petition dismissed.

Levy of Entry Tax on purchase of motor vehicle from the outside state for sale in Tamil Nadu - validity of Circular dated 09.07.2002 - HELD THAT:- The circular issued in July 2002 has been challenged only in August 2015. The Assistant Commissioner, Palakkarai Assessment Circle, Trichy, appears before this Court through Video Conferencing and states that following the introduction of GST regime, the impugned circular has become infructuous. However, this circular would definitely have relevance in respect of the assessments made prior to 01.07.2017. There is only a general challenge to the validity of the impugned circular. If on account of the circular the rights of the assessee has been affected, then challenge will certainly lie - Leaving open the right of the assessee to question the validity of the impugned circular if he had suffered any order of assessment by applying the circular, these writ petitions are closed.

Maintainability of petition - availability of efficacious remedy of appeal - fraud in depriving the respondents of their due revenue or not - invocation of jurisdiction under section 58 of the VAT Regulations - Validity of orders and audit reports - time limitation - challenge has been made primarily on the ground that such audit report / order is basically re-assessment but the time limit for assessment and re-assessment is four years as per section 34 of the VAT Regulations. Whether the petitioners committed fraud in depriving the respondents of their due revenue thereby enabling the respondents to invoke the jurisdiction under section 58 of the VAT Regulations unfettered by any limitation? - HELD THAT:- This Court referred to the decision of the Supreme Court in HARJAS RAI MAKHIJA (D) THR. L. RS. VERSUS PUSHPARANI JAIN AND ORS. [2017 (....... + More

Principles of Natural justice - opportunity of hearing not provided to petitioner - no pre-assessment proposal was received - HELD THAT:- There is thus apparently violation of principles of natural justice and the impugned order is set aside. Let the petitioner appear before the Officer on Monday, the 17th of May, 2021, without anticipating any further notice in this regard, after hearing the petitioner either over video conference or by way of physical hearing, as may be mutually convenient and consideration of material that may be filed by the petitioner, pass an order of assessment, de novo, within a period of four (4) weeks thereafter, in accordance with the law. Petition disposed off.

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

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

Grant of Regular Bail - Heroin - recovery of pullandas which were seized and sealed with the seal of ‘AK’ - search conducted by the Lady Constable - non-compliance alleged by the learned counsel for the petitioner is of Sections 41 and 42 of the NDPS Act - HELD THAT:- Search of the co-accused Parveen was taken by a lady Constable and the same was to maintain the dignity, however the search was taken in the presence of the ACP concerned and it cannot be said that on that count the search is vitiated. Further, the search has not taken place inside any building, conveyance or place but at the public place and hence, it cannot be said that Sections 41 and 42 of the NDPS Act have been violated. In case the search conducted by the Lady Constable would have been in the absence of senior officers, who were duly authorized to conduct t....... + More

Dishonor of Cheque - insufficiency of funds - validity of demand notice - complainant/respondent in the complaint did not mention as to when the demand notice issued against the petitioner was served upon him - HELD THAT:- Section 138 is a penal provision that prescribes imprisonment upto two years and fine upto twice the cheque amount. It must, therefore, be interpreted strictly, for it is one of the accepted rules of interpretation that in a penal statute, the Courts would hesitate to ascribe a meaning, broader than what the phrase would ordinarily bear. Section 138 is in two parts. The enacting part of the provision makes it abundantly clear that what constitutes an offence punishable with imprisonment and/or fine is the dishonour of a cheque for insufficiency of funds etc. in the account maintained by the drawer with a bank for discha....... + More

Grant of Bail - Dishonor of Cheque - offences under Sections 138 and 141 of Negotiable Instruments Act - HELD THAT:- The fact remains that there are arguable points involved in this criminal revision petition and further the criminal revision petition is not likely to be taken up for final hearing in the near future and as such, this court is of the considered view that the petitioners herein are entitled to the relief of grant of suspension of sentence. The petitioners are directed to be enlarged on bail on condition that they shall execute a bond for a sum of ₹ 10,000/- with two sureties each for a like sum to the satisfaction of the Judicial Magistrate-II, Fast Track Court, Coimbatore - Petition allowed.

Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - preponderance of probability - HELD THAT:- In the case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by the competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the order of acquittal recorded by the trial court. However, the Criminal Procedure Code put no limitation, restriction or condition on exercise of the power of the Appellate Court to review, re-appreciate and reconsider the evidence upon which the order of the acquittal is founded. But it ....... + More

Levy of duty on inter-State sale of electricity - competence of the State legislature - vires of Section 4(4)(d) of the Tripura Electricity Duty Act, 2019 - HELD THAT:- The contention of the State is that upon amendment of Entry 54 of List II the same is no longer subject to Entry 92A of List I and as a result Entry 53 of List II “now stands as an independent fountain source of State legislative power and even if read conjointly with Entry 54, as of date the same is not subservient to Entry 92-A of List I as was the position pre 101st Constitutional amendment”. This argument proceeds on a wrong legal principle that entries in the lists to the Seventh Schedule are source of legislative power which theory as noted earlier has been rejected by the Supreme Court in number of decisions. Again there is an inherent fallacy. Term &ldq....... + More

Grant of Anticipatory Bail - demand of illegal gratification - offence punishable under Sections 12, 7(a) and 13(2) of the Prevention of Corruption Act, 1988 - HELD THAT:- From the complaint, it appears that present applicant was referred as Shri Verma, officer. From the statements of the prosecution witnesses recorded by the investigation officer, during the course of investigation, it appears that present applicant was not Shri Verma but he was Shri Arora and his correct name is shown in column no.7 of the complainant. However, in the description of the complaint, he was referred as Shri Verma, Officer. Amount of GST if applicable would be deposited through bank only and no amount in cash would require to be demanded or to be paid. If we refer the panchnama drawn during the course of investigation, it also supports the case of the prose....... + More

Dishonor of Cheque - payment of compensation or fine - proceedings contained in chapter XVII of the Negotiable Instruments Act - Quasi criminal proceedings or not - HELD THAT:- The proceedings under Chapter XVII of the Negotiable Instrument Act are quasi criminal in nature and that the gravamen of the proceedings though makes the act complained of as an offence, the object of the Act is really in order to get back through a summary proceedings, the amount contained in the dishonoured cheque together with interest and cost expeditiously and cheaply. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, the sentence of imprisonment can be modified inlieu of compensation paid which is twice the amount of the cheque. In this case, the petitioner/accused h....... + More

Dishonor of Cheque - rebuttal of presumption - defence of the accused is that the impugned pronote and cheque were given to the complainant only towards security for loan advanced by one of his friends, which has been misused by the complainant - HELD THAT:- The complainant has proved his case by letting in cogent evidence. Whereas, the accused has failed to rebut the presumption u/s.139 of N.I.Act to prove his case. In this case, though the accused had accepted the signature in the disputed cheque and the pronote, it is the case of the accused in defence that no consideration has been passed based on the Ex.P1 & Ex.P2 and that the complainant had not proved the passing of consideration by adducing sufficient evidence and that the complainant had also not proved that he had sufficient sources of income to lend the loan amount of ͅ....... + More

Dishonor of Cheque - standard of proof for rebuttal presumption - Acquittal of the accussed - preponderance of the probability - HELD THAT:- Admittedly, neither any oral nor any documentary evidences had been adduced by the complainant to prove that such a huge amount of ₹ 6 lakhs was paid to the accused. Though, the complainant had later stated that the amounts were arranged through his friends, none of his friends were examined to prove the same. Further, it is also highly doubtful that such a huge amount could have been lent to the accused on the strength a post dated cheque. The accused had probabilised his defence by preponderance of probability by letting evidence to prove that the complainant was not having financial capacity to pay/lend such a huge amount of ₹ 6 lakhs and that the cheque was not drawn for consideration....... + More

Bribe - demand or solicitation of money from the complainant or not - Assistant commissioner, Sales Tax - During the course of hearing of the appeal on 28.02.1996, the appellant allegedly demanded ₹ 4000/- as bribe for deciding the said appeal in his favour. - HELD THAT:- It is proved beyond shadow of doubt that Shri Ravi Bhatt/PW 9 was never inside the room of the appellant while PW 5 was present in the room of the appellant. Therefore, the statement of PW 9 on the issue of his presence in the room of the accused on 01.03.1996 during trap is totally false, not corroborated in material particulars from independent source. It is proved that PW 9/approver was never present in the room of the appellant during the talk of PW 5 with the appellant. Since PW 9 was not present in the room of the appellant, there is no question of direction ....... + More

Seeking grant of Regular Bail - case of petitioner is that prayer for interim bail is a typographical error and the petition be treated as one for regular bail for which notice was issued by this Court - Smuggling - dealing in Contraband or not - HELD THAT:- In the present case, accepting the statement of the public witness and the witnesses of NCB the petitioner only gave money from his pocket. The petitioner neither received the contraband nor was the contraband handed over to him. On the contraband being handed over to the co-accused Sukhwinder Singh he directed the petitioner to pay the money which he paid. At no point of time was the petitioner in the conscious possession of the contraband. Even as regards the charge of conspiracy the prosecution is required to show that the petitioner had knowledge that the money was being handed ov....... + More

Dishonor of Cheque - prohibition on account of non-payment of interim concession - HELD THAT:- The learned Sessions Judge was pleased to hold that the order passed by the learned Trial Court to the extent of prohibiting the accused to produce his defence in the event of non-payment of interim compensation as per Para-5 of the order dated 27.08.2019 was not legal and proper, and therefore, it was quashed and set aside. Remaining order passed by the learned Trial Court of interim compensation was not disturbed by the Revisional Court for getting the interim compensation as prayed under Section 143(A)(1) of the N.I. Act. It is worried by the applicant that if the interim compensation would not be paid by the accused, he would suffer great loss and therefore, order passed by the learned Trial Court was legal and valid. Under section 143A(5), ....... + More

Grant of Bail - Smuggling - contraband 20 grams of Narcotic drugs - HELD THAT:- Taking note of the fact that the other co-accused persons namely Adnan Khan, Hannan Khan and Dheeraj have already been granted bail for 6 months by this Court in ADNAN KHAN, ABDUL HANNAN KHAN, DHEERAJ VERSUS THE STATE OF MADHYA PRADESH [2021 (5) TMI 673 - MADHYA PRADESH HIGH COURT], it is found that there are no reason to dismiss the present bail application and deny the ground of parity to the applicant, accordingly maintaining the parity, the application is allowed. This Court finds it expedient at present to allow the present bail application for a temporary period of six months. Accordingly, the application is allowed partially and the applicant ,is released on bail for a period of six months from the date of his release.

Dishonor of cheque - Offences punishable under Sections 415 and 420 of IPC - sub-standard black pepper supplied - dishonest intent - specific allegation is made in the complaint that with the dishonest intention even though the materials are received, a false legal notice was issued stating that black pepper which was supplied is of sub standard and the same clearly discloses the dishonest intention of the complainant - HELD THAT:- The Apex Court in the judgment in the case of DINESHBHAI CHANDUBHAI PATEL v. THE STATE OF GUJARAT [2018 (1) TMI 1624 - SUPREME COURT] has held that while exercising the power under Section 482 of Cr.P.C., the High Court should not venture to interfere in the domain of the investigation unless there is any prima facie case. It is also observed and summarized the principles in context of the FIR that High Court s....... + More

Dishonor of Cheque - legally enforceable debt - financial incapacity to repay the debt - Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court? - service of notice - HELD THAT:- In the instant case, the notice has been sent to the correct address of the accused and since he has refused the same, the Registered Post Acknowledgement Due was returned to the sender and also since the accused did not come forward to make good the amount of the cheque immediately after he coming to know about the institution of the criminal case, the argument of the learned counsel for the petitioner that there is no service of notice upon the accused under Section 138 of N.I. Act, is not acceptable. The financial capacity of the complainant to lend money to the accused also can be gathered f....... + More

Dishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1881 - allegation is that neither any witness was examined nor any documents were marked as exhibits - time limitation - rebuttal of presumption - Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court? - HELD THAT:- The first point of argument of the learned counsel for the petitioner/accused that, the cheque was returned on 22-07-2010 whereas the notice was sent on 09-09-2010, thus the notice is barred by limitation, is not acceptable. Thus, from the date of the second dishonour of the cheque which was on 31-08-2010, the notice has been sent within the statutory period as has come out in the evidence of PW-1. Even though the alleged legal notice dated 09-09-2010 sent on behalf of the complainant to the....... + More

Grant of approval under Non-Automatic route as stipulated under Section 7 of the Industrial Park Scheme 2002 - Notification dated 08.01.2008 - HELD THAT:- The Industrial Park scheme, for which, the petitioner applied had expired on 31.03.2006. The Government of India Notification issued on 1st April 2002 unambiguously contemplates the period of the operation of the scheme. As per the period of operation, the scheme shall be applicable for any undertaking which develops, develops and operates or maintains and operates an Industrial Park for the period beginning on the 1st day of April 1997 and ending on the 31st day of March 2006 - However, the application itself was filed by the petitioner on 10th October 2006, after the lapse of the scheme itself. When the application itself was belated and more specifically, after the expiry of the peri....... + More

Dishonor of Cheque - disputed questions of fact are involved - case of applicant is that there was no legal dues to be paid to the complainant as the cheque was given only for the security purpose - legally enforceable debt or not - HELD THAT:- Considering the facts of the present case, question of snatching possession of the Kvory plant from the applicant by threatening and beating him on 27.02.2020 by the complainant and the contents of the police complaint filed by the applicant-accused against the complainant and his son-in-law are disputed question of facts and they can only be considered after recording evidence by the prosecution/accused before the learned Trial court. Non producing the lease agreement executed between the parties and no legal debt of the complainant would be also a question of facts, which can be considered by the....... + More