Application /declaration/ undertaking filed under the provisions of Direct Tax Vivad Se Vishwas Act, 2020 ('VSV' Act) rejected - time limit for filing the appeal under Section 246A exceeded - condonation of delay - HELD THAT:- As communication has come from Commissioner of Income Tax (Appeals) and the Commissioner of Income Tax (Appeals) is asking the petitioner to furnish ground-wise written submission on grounds of appeal, it would mean that condonation of delay application has been allowed by Commissioner of Income Tax (Appeals). Therefore for respondent no.2 to say that there is no order condoning the delay and hence, the application/ declaration of petitioner under the VSV Act is rejected, is incorrect. Section 2(1)(a)(i) of the VSV Act provides for a person in whose case an appeal or a writ petition or special leave petition....... + More

Reopening of assessment u/s 147 - Satisfaction recorded by AO - HELD THAT:- CBI, Mumbai has filed FIR against the directors of the assessee company and M/s Ardor International Private Limited in which it was stated that modus operandi was a circular routing of funds among inter related parties having common management and address. This information also emphasized that the income chargeable to tax has escaped assessment. The AO with independent application of mind has reopened and the instant proceeding under Section 147 have been initiated after deriving at a satisfaction by the AO. He has also recorded the reasons in writing with independent application of mind. He is expected to form only a prima facie opinion or belief and therefore, according to the respondent, presently no interference is desirable. The rejoinder affidavit is also fi....... + More

Bogus LTCG - onus to prove - Penny stock purchases - Claim made u/s 10(38) denied - ITAT remanded the matter back by setting aside the additions - HELD THAT:- As decided in MRS. MANISH D. JAIN (HUF) [2020 (12) TMI 740 - MADRAS HIGH COURT] Not only the Assessing Officer, but also the CIT(A) examined the modus operandi of the assessee and held that the shares were purchased through off market and not through Stock Exchange and that the selling rates were artificially hiked later on. The above findings have not been set aside by the Tribunal and there is no reason for the Tribunal to remand the matter to the Assessing Officer for a fresh consideration. There was no material, which necessitated the remand of the case to the Assessing Officer and it is a clear case where the Tribunal had failed to exercise its jurisdiction in the manner known ....... + More

Refund with interest u/s 244A - adjustment of refund towards pre-deposit - HELD THAT:- Writ petitioner will do the needful qua refund qua third respondent within a fortnight from today i.e., by 17.09.2021. The third respondent shall complete the exercise of refund as captured in paragraph 4 of the counter affidavit (extracted and reproduced supra elsewhere in this order) as expeditiously as possible and in any event within 12 weeks therefrom i.e., on or before 10.12.2021. The above draws the curtains on the captioned writ petitions and this Court places on record its appreciation for the fair stand taken by the learned Revenue counsel.

Deduction u/s 80P - interest income earned on account of investments made with co-operative Banks, whether it is entitled to deduction either u/s 80P(2)(d) or u/s 80P(2)(a)(i) - HELD THAT:- Bangalore Bench of the Tribunal in the case of M/s.Vasavamba Cooperative Society Ltd. [2021 (8) TMI 706 - ITAT BANGALORE] had held that the assessee is not entitled to deduction either u/s 80P(2)(d) nor u/s 80P(2)(a)(i) of the I.T.Act with regard to the interest income earned from investments made with co-operative banks. The Bangalore Bench of the Tribunal in the case of M/s.Vasavamba Co-operative Society Ltd. (supra) had followed the judgment of the Hon’ble jurisdictional High Court in the case of Pr.Commissioner of Income-tax & Anr. v. Totagars Co-operative Sales Society [2017 (7) TMI 1049 - KARNATAKA HIGH COURT] Thus hold that the assesse....... + More

Credit of TDS - HELD THAT:- Pursuant to the CIT(A)’s order, the A.O. has given effect by giving TDS credit for a sum of ₹ 2,53,376 instead of ₹ 2,94,511 claimed by the assessee. The prayer of the assessee assessee is entitled to credit for TDS for a sum of ₹ 2,94,511 or 2,78,403 as the case may be u/s 199 r.w.s. 205. The assessee has given a chart giving the details of TDS credit claimed by the assessee for the assessment year 2016-2017. There is no reason given by the A.O. in his order giving effect of the order (order dated 18.01.2019) why the TDS credit has been limited to ₹ 2,53,376. We direct the A.O. to grant the benefit of TDS claimed by the assessee in respect of income disclosed for assessment year 2016-2017 in view of the provisions of section 199 r.w.s. 205 (also refer to Rule 37BA(iii) of the Inco....... + More

Licence fee paid to RSCPL - allowable expenditure u/s 37 - HELD THAT:- Revenue has failed to bring on record any distinguishing facts qua the year under assessment vis-à-vis preceding and succeeding years to controvert the findings returned by the coordinate Bench of the Tribunal, we are of the considered view that amount of deduction claimed by the assessee on account of licencee fee paid to RSCPL is allowable expenditure u/s 37. Ad hoc disallowance @ 10% of the foreign travel expenses claimed by the assessee on ground of personal element in these expenses - HELD THAT:- None of the expenditure claimed by the assessee as business expenditure can be disallowed merely on the basis of surmises. Ld. CIT (A) deleted the impugned addition by following the earlier years order allowing identical expenditure. When AO has not disputed the bo....... + More

Bogus purchases - Proof of identity, genuineness and creditworthiness of the parties - CIT-A confirmed addition in name of only one party - HELD THAT:- Assessee during the appellate proceedings before the CIT(A) has filed details in respect of identity of the party, address of party, PAN details, mode of payment through banking channel along with copy of bank accounts as well as confirmations of the said accounts except in the case of purchases made from M/s Apex Marketing Company and the rest of the evidences related to each party were produced which was never doubted by the Assessing Officer when called for remand report. CIT(A) has given a categorical finding that the revenue has accepted the transactions from such parties in the past and the assessee had made purchases on regular basis and these were regular parties from preceding yea....... + More

Exemption of capital gain income u/s. 54 - investment in purchasing of three units of residential flats for total consideration - assessee had invested the sale consideration received on sale of immovable property in purchasing combined three adjacent flats as a residential house - scope amendment made in the section 54 of the act w.e.f. 1st April, 2015 - HELD THAT:- Assessee had invested the sale consideration received on sale of immovable property in purchasing combined three adjacent flats as a residential house. As per sale deed dated 17th June, 2014 on 18th July, 2014 the builder has issued allotment letter for single combined residential flat to the assessee. With the support of documentary evidences, the assessee has demonstrated that all the three units were not independent as there was single entry and exit and stated that it was....... + More

Sale of TMT scrap treating the same as unexplained income - HELD THAT:- The assessee’s explanation with regard to interest in the loose sheet i.e. blue diary found during the course of search was that it was for the purpose of memory and the addition could not have been made solely on the basis of loose paper which is against the well settled law in this regard - the entire alleged receipt could not partake character of profit. The profit element embedded into such receipt could be subjected to tax. There is no ambiguity under law that no addition can be made merely on the basis of loose paper without being substantiated by any corroborative evidence. In the present case, undisputedly, one of the entries of ₹ 75,000/- was found to be duly recorded in the books of accounts, therefore, in the agreement with the contention of the....... + More

Addition u/s 69 - unexplained money invested in purchasing demand draft from Punjab National Bank - Addition u/s 69A as unexplained cash deposit in bank account - HELD THAT:- We observe that the assessee referred in this decision is also from the same area near Bhopal and against the estimation of agricultural income of ₹ 15,000/- per acre, this Tribunal estimated it at ₹ 22,000/- per acres. Taking basis from this decision even if we take a conservative figure of ₹ 15,000/- per acres then also the estimated income for 23 acres agricultural and for last 10 years comes to ₹ 34,50,000/- and after reducing 50% for household and other expenses there would still remain a saving of ₹ 17,25,000/-. Even this figure of ₹ 17,25,000/- could be sufficient to explain the source of alleged addition of ₹ 12,50,48....... + More

Reopening of assessment u/s 147 - specific information received by the ld.AO on the basis of search conducted in some other cases - addition made for the alleged ‘on-money’ - HELD THAT:- The seized documents revealed the details of assessee having transacted with the searched parties and the same formed the basis for issuance of notice u/s 148 - Under these given facts, we are of the view that Ld. CIT(A) has rightly dismissed the assessee’s legal ground challenging the validity of assessment proceedings u/s 147 of the Act holding that the notice u/s 148 of the Act has been rightly issued. CIT(A) has rightly dismissed the assessee’s legal ground challenging the validity of assessment proceedings. Addition made without providing the opportunity of cross examination of the search parties to the assessee before making ....... + More

Revision u/s 263 - inadequate enquiry v/s lack of enquiry - Incorrect allowance of deduction under s.80IA(4) of the Act & incorrect allowance of depreciation on subsidized capital asset - HELD THAT:- AO has rightly appreciated the peculiar circumstances and ignored the procedural latches and the claim of the deduction under s. 80IA(4) of the Act was allowed after verification in two rounds. The action of the AO being plausible, cannot be regarded as erroneous for taking into account Form 10CCB signed after the date of amalgamation in these peculiar circumstances. The direction of the PCIT on ‘further verifications are required’ in the context of revised Form 10CCB is not intelligible at all. The PCIT himself could have easily verified these obvious facts available on record and pointed out to Revenue. The PCIT has apparent....... + More

Validity of the order of assessment passed in the status of an HUF - assessment in the hands of the HUF - whether assessment can be made in the case of disrupted HUF when the HUF ceased to exist on the date when the order of assessment is made? - whether an HUF which was not hitherto assessed in the status of a HUF, can be assessed by taking recourse to Sec.171? - HELD THAT:- Where a claim was made on the basis of statute, viz., the provisions of Section 14(1) or Section 6 of the Hindu Succession Act, 1956, insofar as income tax law is concerned the matter has to be governed by Section 171(1) of the Act. The aforesaid decision is on completely different facts and not applicable to the present case in which the HUF was never assessed to tax prior to its disruption and hence provisions of Sec.171 of the Act are not attracted at all. The dec....... + More

Penalty u/s 271D or 271E - Default under provisions of Sec.269SS and 269T - penalty proceedings in the course of any proceedings - CIT-A deleted the penalty levy as the assessment orders in which the penalty proceedings u/s.271D and 271E of the Act were initiated were quashed - HELD THAT:- CIT(A) was not justified in cancelling the orders imposing penalty on the ground that the assessment proceedings in the course of which penalty was initiated have been held to be bad in law and annulled. It is admitted by the parties before us that the revenue is in appeal before the Tribunal against the orders of first appellate authority cancelling the assessment proceedings as invalid and those appeals are pending for consideration. For penalties pertaining to section 271(1) of the Act, there is a specific requirement that the AO, CIT(A), PCIT or CIT....... + More

Revision u/s 263 - Cash deposits unexplained - HELD THAT:- Bank statements are filed to submit that this issue has already been examined by the AO after taking into consideration of copy of challans and satisfied to the fact that the assessee facilitated to the clients for rendering better services received amounts from clients to pay income tax challans on behalf them and said amounts were not utilized for any other purpose. Therefore, it cannot be said that the assessee’s intention of the cash deposits into the bank was in a malafide nature to make black money into white during demonetization period. Once the AO has taken a view on the issue, on which two views are possible, the view which is taken by the AO, if Pr. CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless th....... + More

Nature of expenditure - Expenditure incurred in respect of "documents and stamp charges" - increase in authorized capital and treated the same as capital expenditure - whether the expenditure on conversion of debenture bond into equity share capital is revenue or capital expenditure? - alternate claim of deduction of impugned expenditure otherwise may be allowed u/s 35D - whether the expenditure on conversion of debenture bond into equity share capital is revenue or capital expenditure? - HELD THAT:- As observed by the ld. CIT(A), facts of the case of the assessee clearly indicate that portion of convertible debenture was converted into equity shares and assessee company had got enduring benefits therefrom and therefore, the expenditure incurred by the assessee on conversion of convertible debentures into equity shares has to be....... + More

Addition made towards receipt Assignment of Fee - Whether not assessable for the current assessment year? - HELD THAT:- As per assignment agreement, the assignee shall pay part of agreed consideration on the date of signing the agreement, but subject to furnishing bank guarantee equivalent to the amount given by the assignee till date the builder obtains planning permission from concerned authorities. We further noted that as per the Escrow agreement, the bank guarantee given by the assignee is irrevocable and unconditional and shall have a validity period of 180 days or till such time, the builder obtains planning permission from CMDA. The said bank guarantee has been extended from time to time and upto 28.07.2008 - builder has obtained planning permission from CMDA on 12.08.2008. From the above, it is very clear that the assignment agre....... + More

Capital gain - scheduled property acquired through settlement deed executed by the grandfather of the assessee - claim for cost of indexation as well as deductions claimed u/s 54 & 54EC - consideration of period of holding of the property by the previous owner i.e. grandfather of the assessee - HELD THAT:- Out of total sale consideration, the share of 10.94% was legally and rightly given to the assessee’s father, who held lifetime enjoyment right, which was relinquished and thereby both the assessees sold the said property. Thus, respectfully following the above decision of CV. SOUNDARARAJAN AND ANOTHER [1983 (8) TMI 14 - MADRAS HIGH COURT] the Assessing Officer is directed to compute the capital gains only for ₹.2.03 crores each in the hands of both the assessees and not the entire sale consideration. Benefit of cost of i....... + More

Addition of circular trading purchases - AO disallowed 5% of such purchases - assessee has admitted that it was engaged in circular trading wherein the bills/invoices changed hands without movement of physical goods - CIT(A) in estimating the disallowance @ 0.30% - HELD THAT:- During the course of assessment and appellate proceedings the assessee explained the complete modus operandi of circular trading transaction which was carried out to show better turnover - it is undisputed fact that assessee would make payment to the entity from whom it made purchases, who in turn would make consequent payment and the funds would finally reach back to the assessee. In circular trading the payments were made through cheques and profit on circular trading was disclosed by the assessee in its return of income. In the earlier assessment year, the assess....... + More

TP Adjustment - adjustment of outstanding receivables from AEs - HELD THAT:- We find that the Tribunal in the case of assessee itself for Assessment Year 2010-11 [2019 (7) TMI 1663 - ITAT DELHI] interest of credit period granted by the company under normal trade practices was unjustly charged, having heard both the counsel, we are of the considered opinion that if working capital adjustment is granted, then no separate adjustment or interest receivables is required. We do not see any reason to deviate from the decision rendered in the earlier years. The Assessing Officer is directed accordingly. The Ground of appeal No.2 raised by the assessee is thus, allowed. TDS U/S 195 - reimbursement of relocation expenses form part of secondment contract - Addition u/s 40(a)(i) - Reference to make available clause in terms of India US DTAA - AO trea....... + More

Unexplained money u/s. 69A - explanation to source of income - AO observed that assessee was withdrawing pension to meet his family expenditure and the contention of the assessee that the sum as the accumulated withdrawals over a period of 6 to 7 years is not acceptable and not convincing - HELD THAT:- As the assessee is an old aged person and therefore it is acceptable that he would keep certain cash with him to meet his personal and medical exigencies. The source of income of the assessee is stated to be his pension which is regularly deposited into his bank accounts and as observed from the bank statements, as soon as the pension is deposited, the assessee is withdrawing certain part of it to meet his personal needs. Therefore, it cannot be accepted that the entire withdrawals are kept aside by him which have since been deposited by hi....... + More

Disallowance of deduction claimed u/s. 35(2)(AB) - excessive weighted deduction - HELD THAT:- We found substance on the findings recorded by the lower authorities. Even before us, the ld. Authorised Representative could not controvert the findings of the Lower authorities. On perusal of record, we find that the expenditure incurred by the assessee towards professional charges, rent and electricity and maintenance are expenditure incurred by the assessee which has not been disputed by the revenue authorities, therefore in the interest of the justice it can be allowed u/s. 37(1) of the Act. Therefore, we remit the issue back to the file of AO with a direction to allow the expenditure incurred under the said heads u/s. 37(1) in accordance with law after providing reasonable opportunity of being heard to the assessee in the matter. Grounds ra....... + More

Validity of Revision u/s 263 by CIT - Notice to non existing person. company/dissolved trust - curable defect u/s 292B - whether the notice issued by the ld. PCIT to a dissolved trust is legally valid or not? - HELD THAT:- The order of the ld. PCIT issuing notice to an extinguished trust is illegal and it is not a procedural irregularity which can be cured u/s. 292B. This precise issue had come up for consideration by the Hon'ble Supreme Court in the case of Pr. CIT vs. Maruti Suzuki India Ltd.[2019 (2) TMI 325 - SUPREME COURT]non existing company. We find that in the instant case also, the revenue has been duly informed about the dissolution of the trust and still chose to continue the proceeding on the dissoluted entity which was no more in existence. Hence, following the aforesaid ratio and principle laid down by the Hon'ble Hi....... + More

Addition on difference between balance in account as per the books and the balance as per bank statement - difference between the books of accounts of the assessee as on 31.03.1990 and bank statement of Uco Bank, Harnam Street Branch - HELD THAT:- Bank statement relates to the year 1993 and therefore we find merit in the contention of the Ld. A.R. that it is rather impossible to produce the statement belonging to 1993 in the year 2018. Moreover, the fact of the cheques not presented in the bank in the subsequent year has been confirmed by the AO after enquiring the same from the UCO bank. Amount of cheques issued by the assessee which were reversed subsequently for the reason that same were not presented for payment. So far as the discrepancies in the dates are concerned, we do not find that any minor mistake as such would lead to such a ....... + More

Detention or seizure of goods or conveyance - opportunity of hearing to the petitioner not provided - Section 129(1) of the Central GST Act - seeking permission that petitioner may be permitted to institute and/or pursue the statutory remedy of appeal against the order impugned in the present petition - HELD THAT:- The present proceedings are found to have been terminated by the Supreme Court. The present petition is dismissed with aforesaid liberty.

Maintainability of petition - availability of alternative remedy of appeal - Violation of principles of natural justice - no such reply to the show cause notice was given to the Deputy Commissioner who has issued the notice for imposing penalty - order of penalty is appeallable under Section 107 of the U.P. GST Act, 2017 or not - HELD THAT:- It cannot be said that no opportunity of hearing was given, as, the show cause notice was issued to the petitioner to which he could have filed a reply. If the reply which has been addressed to the Commissioner is the one filed in response to the show cause notice, then, it is a moot point as to whether it is in accordance with law. Moreover, we asked learned counsel for petitioner as to whether opportunity of being heard would necessarily mean a personal hearing, he could not place any decision befor....... + More

Principles of natural justice - adequate service of the show cause notice, preceding that order not made - HELD THAT:- The impugned order came to be passed after service of soft copies of the show cause notice. The petitioner only denies service of the hard copy of the same and has further submitted that the reply of the same could not be submitted as it did not exactly comprehend the nature of the proceedings initiated against it. As to the other submissions advanced by learned counsel for the petitioner, those point to irregular exercise of jurisdiction but not inherent lack of jurisdiction. The writ petition is disposed of with a direction, in case, the petitioner files an appeal along with the stay application within a period of two weeks' from today, the same may be entertained on its own merits.

Grant of anticipatory bail - pendency of proceedings / inquiry before respondents - sole submission of learned counsel for the applicants before the court is that they may be allowed anticipatory bail during pendency of enquiry and to appear through Video Conferencing instead of physical appearance to avoid the apprehension of arrest and they may be allowed to submit their documents, as required by GST Department, online in terms of interim order - HELD THAT:- The Court finds that inquiry under Section 70(1) of GST Act is pending against the applicants before the DGGSTI, Gaziabad Unit and apprehension of applicants is that they will be arrested any time even without consideration their documents which has been furnished or about to furnish pursuant to notices issued from the office of respondent No.5. Evasion of GST to the tune of ₹....... + More

Seeking registration of petitioner - registration of petitioner was cancelled by himself - self cancellation of registration had debarred him from applying online - HELD THAT:- There has been a self cancellation of registration on the part of the petitioner, which has made him ineligible for online appeal, which otherwise is permissible under Section 107 of the CGST Act. Section 30 also provides for revocation of cancellation of registration for which according to the petitioner the necessary communication have already provided to the authority concerned. The difficulty on the part of the petitioner is that the petitioner if is not allowed to rectify the return in the form of GSTR-1 and GSTR-3B on or before the due date of filing of the return under Section 39 of the CGST Act, the recipient will not be in a position to avail the input tax....... + More

Condonation of delay in filing petition - sufficient ground to condone the delay or not - Grant of default bail - It is the stand of the petitioner that only complaint was filed in the case and no final report/challan under Section 173 (2) Cr.P.C. was filed - HELD THAT:- There is no sufficient ground to condone the delay. - The impugned order was passed on 26.08.2019. This revision was filed on 03.02.2021. There is delay of 433 days in filing of this revision. The reason for delay as alleged in the application is that the petitioner was confined in jail in this case. He was released on 01.04.2020 and thereafter, this revision was filed. It is claimed that firstly the revision could not be filed because the revisionist was in custody. Secondly, when he was released on interim bail, there was spread of Covid virus. Perusal of trial court re....... + More

Seeking grant of regular bail - ITC passed on the strength of invoices issued through the fake firms - evasion of GST by fraudulent means for which sustainable evidences have already been gathered - offences punishable u/s. 132(1) (b), (c) and (1) of CGST Act, 2017 - HELD THAT:- The allegations of the complainant i.e. CGST Commissioner against the applicant-accused are very serious in nature. As per the complaint, GST evasion of approximately 90 Crores has been committed by the applicant-accused on ITC passed on the strength of invoices issued through fake firms. Keeping in view the facts and circumstances of the case and serious allegations of the complainant against the applicant-accused, this Court finds no ground to allow the instant application - instant bail application of the applicant-accused is hereby dismissed.

Cancellation of registration of petitioner - non filing of GSTR returns for a continuous period of six months - revocation of cancellation of registration has been also rejected due to that the applicant has not submitted the DRC-03 for the due Interest on delayed payment for the period May to December-2020 - HELD THAT:- The appellant has filed returns upto date of cancellation of registration hence, it is found that the appellant has substantially complied with the provisions of the CGST Act/Rules, 2017 in the instant case. Therefore, the registration of appellant may be considered for revocation by the proper officer. Appeal allowed - decided in favor of appellant.

Classification of goods - applicable rate of GST - supply of the sewage treated water to BPCL - forward supply - applicability of exemption under SI. No. 99 of the Exemption Notification No. 02/2017- Integrated Tax (Rate) dated 28 June 2017 (as amended) as “Water (other than aerated, mineral, purified, distilled, medical, ionic, battery, de-mineralized and water sold in sealed container)” or taxable at 18% by virtue of SI. No. 24 of Schedule - 111 of Notification No. 01/2017- Integrated Tax (Rate) dated 28th June 2017 (as amended)? HELD THAT:- The essentially involved process is removing bio-waste, grit and removing undesirable chemicals, biological contaminants, suspended solids, and gases from sewage water. The goal is to produce the water which is fit for being used in the factory of RCF, as well as, if it is available in s....... + More

Classification of supply - supply of service or not - managerial and leadership services provided by the Registered/Corporate Office to its Group Companies - lump sum amount charged by the Registered/Corporate Office on its Group Companies - levy of GST under Section 8 of CGST Act, 2017 - related persons or not - charging certain lump sum amount for expenses incurred by Registered/ Corporate Office for supplying the services - method of valuation under Rule 31 of CGST Rules - input tax credit of GST paid. Supply of service or not - HELD THAT:- Section 7(1)(c) of the CGST Act states that the activities specified in Schedule Ito the CGST Act, shall be treated a supply of goods or services, even if made without consideration. As per Schedule I, Entry No. 2, “Supply of goods or services or both between related persons or between distinc....... + More

Validity of assessment order - time limitation - rejection on the ground of delay - the order of assessment was passed by the Superintendent of State Taxes on 03.06.2020, whereas the petitioner had filed appeal on 03.11.2020 which was held to be beyond limitation - HELD THAT:- The effect of this order was that the entire time lapsed between 15.03.2020 to 15.03.2021 in pursuing any legal proceeding, would be ignored for the purpose of limitation. In the present case, the Assessing Officer had passed the order of assessment on 03.06.2020 against which the petitioner preferred appeal on 03.11.2020. Both these events namely, the order of assessment which the petitioner had challenged and the presentation of appeal against such order fell within the immunity period provided by the Supreme Court in the said order i.e. the period between 15.03.2....... + More

Detention of goods alongwith the truck - it is claimed that without any reason or allegation, the goods were detained - Section 129 of the Central/Gujarat Goods & Services Tax Act 2017 - HELD THAT:- Issue Notice returnable on 24.9.2021 - Let there be no further coercive actions.

Detention of goods - E-way bills expired - Constitutional validity of Section 129 of the Central Goods and Services Tax Act/State Goods and Services Tax Act, read with Rule 140 of the CGST/SGST Rules - Seeking declaration that Section 129 of the CGST Act does not mandate the deposit of tax again, once the tax is already paid - validity of SCN passed by the respondent-department under Section 129(3) of the CGST/SGST Act - legality of different orders, dated NIL, passed by the respondent no. 3 under Section 129(3) of the CGST/SGST Act - order passed by respondent no. 3, for detaining the trucks owned by the petitioner - validity of rectification/withdrawal orders dated, 23.04.2021, passed by the respondent no. 3 under Rule 142(7) of the CGST/SGST Rules - validity of order issued by the respondent No.3 under Section 130 of the CGST/SGST Act........ + More

Seeking enlargement on bail - illegal input tax credit - issuance of fake invoices without supply of goods, passing the input credit illegally - HELD THAT:- For deciding the application for bail, the Court generally desists from considering the merits of the matter in detail. However, as learned counsel for the applicant has raised various issues, the same are being dealt with only for the purpose of deciding the bail application. Section 69 of CGST Act empowers the Commissioner to authorize any Officer of central tax to arrest a person, if the Commissioner has reasons to believe that a person has committed any offence specified in Clause (a) or (b) or (c) or (d) of subsection (1) of Section 132. During search of the premises, number of incriminating documents were recovered which proved his involvement in G.S.T. evasion of more than 159 ....... + More

Classification of supply - supply of batteries by the required Applicant for the use in warships such as submarines of the Indian Navy - goods falls under Entry 252 of Schedule I to N/N. 01/2017-integrated Tax (Rate) dated 28.06.2017 and hence is taxable @ 5% GST or otherwise? - goods covered within the meaning of Parts of Goods of CTH 8901, 8902, 8904, 8905, 8906 and 8907 or not? - HELD THAT:- The batteries are essential parts of a submarine. A submarine cannot be imagined to be in existence without batteries because all internal controls and systems in the submarines, work on the power supplied by these batteries and without batteries, the submarine will not be able to function at all. Further, the batteries manufactured for such supplies are specifically designed and manufactured for use only in warships more particularly in submarines....... + More

Transitional credit - Direction to the Opposite Parties to accept the GST TRAN-1 form from the Petitioner - petitioner was not allowed the facility of ITC since “as per GST system log, there are no evidences of error or submission/filing of TRAN-1” - Rule 117 of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- It is seen that the near identical circumstances the Delhi High Court in AAGMAN SERVICES PRIVATE LIMITED VERSUS UNION OF INDIA & ORS. [2019 (11) TMI 1248 - DELHI HIGH COURT] permitted the Petitioner in that case to submit his TRAN-1 form either electronically or manually. In that case too, the Petitioner’s case was considered in the meeting of the GST Council. In the present case a direction is issued to the Opposite Parties to either open the portal and permit the Petitioner to file TRAN-1 form ele....... + More

Validity of section 96(10) of the CGST Rules as amended by N/N. 54/2018 - Central Tax dated 9th October, 2018 - validity of retrospective operation to N/N. 54/2018 - Central Tax dated 9th October, 2018 - issuance of the summons by Senior Intelligence Officer of Directorate General of Goods & Service Tax Intelligence, Zonal Unit, Ahmedabad - HELD THAT:- Issue urgent Notice making it returnable on 30th September, 2021. It is noticed that this summons which had been issued was in the month of February, 2021 in compliance with which the process is on and therefore, the apprehension is ventilated by the petitioner of possible coercive action on the part of the authority. Without prior permission of the Court, no coercive action shall be taken till the returnable date. Matter to be tagged with Special Civil Application no.12835 of 2021 and allied matters.

Validity of Recovery order - demand notice was never supplied within time and it was communicated much after initial recovery order with back date - non-compliance of section 73(1) of the Act and Rules 118 & 142 of the GST Rules, 2017 - HELD THAT:- The recovery notice DRC 07 Annexure P-12 dated 13.08.2021 refers to order dated 30.07.2021 and Prima facie the summary of show cause notice is not reflected and the demand which is made under section 73 of the Recovery Notices has not been shown. Subsequently the order dated 30.07.2021 is placed on record. A perusal of the envelop whereby the order dated 30.07.2021 was communicated would show that it was dispatched by the department on 23.08.2021 i.e., much after initial recovery order was issued on 13.8.2021, therefore, whether the order of recovery dated 13.08.2021 was followed after due ....... + More

Reopening of Form GST TRAN-1 - filing of GST TRAN-1 - transfer of transitional credit into its electronic credit ledger - HELD THAT:- This writ petition is disposed of by directing the respondent concerned to consider and dispose of the aforesaid representation of the petitioners dated 31st May, 2018 in accordance with law by passing a reasoned and speaking order and after giving an opportunity of hearing to the petitioners or its authorised representative within eight weeks from the date of communication of this order and shall communicate his decision to the petitioners within one week after passing of such order. At the time of hearing, the respondent concerned shall consider the judgments upon which the petitioners want to rely as to whether in the facts and circumstances of this case those judgments are applicable in the case of the petitioners or not. Petition disposed off.

Refund of Integrated tax - no export of any goods after 05.09.2019 on payment of integrated tax - Validity of Sub Rule (10) of Rule 96 of the CGST Rules, 2017 - ultra vires Section 16 of the IGST Act - ultra vires Sections 54 and 164 of the CGST Act - 2017 - ultra vires Articles 14 and 19(1)(g) of the Constitution of India - HELD THAT:- No recovery shall be effected on the tax paid for the goods exported and refunded upto 05.09.2019, till the next date of hearing - Noticing the fact that many such matters are pending from the year 2019 and there is an urgency made out by learned advocate Mr. Paresh Dave, let all those matters be posted for hearing on 30.09.2021.

Levy of anti - dumping duty - Styrene Butadiene Rubber imported from Korea - classified under the heading 4002 of the First Schedule of the Customs Tariff Act, 1975 or otherwise? - HELD THAT:- In the present proceedings, there is no dispute about the position that the product under consideration of the Designated Authority was SBR of 1500, 1700 and 1900 series falling under CTH 4002.19 of the Customs Tariff Act 1975 but not goods covered by the CTH 40021100 - while SBR of the 1900 series is a dry polymer, the goods imported by the respondent were in a liquid form and hence, according to the respondent, fall for classification under CTH 40021100 as Latex. In this context, reliance was sought to be placed on the Vanderbiit Rubber Handbook and an opinion obtained from the University of Mumbai. On the above premises, it was submitted that the....... + More

Rejection of refund claim - Mismatch of re-imported defective goods - Seeking amendment in the Bill of Entry - Section 128 A (3) of Customs Act, 1962 - HELD THAT:- Initially the Original Adjudicating Authority had failed to consider the verification report dated 29.04.2015 and ignored the re-examination of goods due to which the Commissioner (Appeals) vide Order of 20.07.2018 had remanded back the matter. Post re-consideration also the proposal in Show Cause Notice has been confirmed and the refund claim of ₹ 1,76,905/- has been rejected on the ground of alleged mismatch of the goods. Commissioner (Appeals) also vide the Order-under-challenge has rejected the appeal holding that appellant has not explained the reason and has not convinced the Department for mismatch of description of goods in the Invoice submitted by the appellant w....... + More

Refund of Customs Duty - denial on the ground of principles of unjust enrichment - refund is denied since the said amount was not shown as receivable as on 31st March, 2011 the said amount became expenditure and consequently became part of the cost of the product, for which the incident has been passed on - HELD THAT:- The fact is not under dispute that the value of three bills of entries in question was included in the closing stock on 31st March, 2011. As per the grounds of appeal, only because the amount of refund was not shown as receivable as on 31st March, 2011 in the balance sheet the said amount stand expensed and become a cost of product. Even though the amount was not shown as receivable but it is included in the closing stock as on 31st March, 2011. The said amount has not become part of expenditure and therefore, cannot be tre....... + More

Refund of duty in cash of the amount which was paid by the appellant by using MEIS scripts - case of appellant is that the amount which stands credited under the scripts is as good as an amount in cash and the assessee is entitled for the refund - HELD THAT:- This Tribunal in the case of CCE, DELHI-II APPELLANT VERSUS M/S SUN PHARMACEUTICALS INDUSTRIES LTD. [2018 (1) TMI 366 - CESTAT NEW DELHI] has been held that the credit which stands deposited with the Department is required to be refunded to the assessee in cash on the simple ground that the same was not recoverable from the assessee at all. Learned DR though has impressed upon that MEIS scripts and the credit lying there-under is different from the credit lying under DEPB Scheme but that issue also stands decided by this Tribunal only in the case of C C-NEW DELHI ICD TKD EXPORT VERSU....... + More

Declination to allow the claim for reward under the Merchandise Exports From India Scheme (MEIS) - HELD THAT:- In Anu Cashews and Mangalath Cashews [2019 (11) TMI 795 - KERALA HIGH COURT], learned Single Judge of the Kerala High Court was dealing with an identical situation where in the shipping bill the exporter had inadvertently ticked ‘No’ while clearly mentioning in the shipping bill, as has been done in the present case that “he intended to claim reward under MEIS”. The learned Single Judge perused the screen shot which confirmed that indeed the exporter had indicated the above intention in the shipping bill although inadvertently “No” had been ticked in the reward column - The learned Single Judge held that the denial of a claim for export benefit could not have been done in a mechanical manner me....... + More

Amendment of Bill of Entry - seeking amendment in GSTIN and the address in the BOE dated August 07, 2020 - section 149 of the Customs Act, 1962 - HELD THAT:- The decision in MICROMAX INFORMATICS LIMITED VERSUS THE UNION OF INDIA AND ORS. [2018 (12) TMI 802 - BOMBAY HIGH COURT], with due respect, proceeds to read the only proviso to section 149 (as it then stood) in a constricted manner as if the words “except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be” are not there in such proviso. However, it could be so that the interpretation placed by the Court on the first proviso is correct for the purpose of determination of the issue arising for decision therein, i.e., rejection of the petitioner’s refund claims for the period between ....... + More

Benefit of exemption - Import of Camera - Extended period of limitation - Jurisdiction of DRI to issue Show Cause Notice (SCN) - Proper Officer - Validity of proceeding initiated for Recovery of duty not paid - clearance of the cameras on the basis that they were exempted from levy of basic Customs duty under Notification No.15/2012 - HELD THAT:- Learned advocate Mr.Trivedi objects on the ground that decision in the case of COMMISSIONER OF CUSTOMS, KANDLA VERSUS M/S. AGARWAL METALS AND ALLOYS [2021 (9) TMI 316 - SUPREME COURT] has followed the decision in the case of M/s. Agarwal Metals and Alloys where it was held that In view of decision in CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] these appeals must fail as the show cause notice(s) in the present cases was also issued by Additional Di....... + More

Principles of natural justice - seeking to grant personal hearing to the petitioner in pre- show cause consultation - seeking restraint on respondent from proceeding with the impugned SCN, during the pendency of the present writ petition - HELD THAT:- A perusal of the Pre-Notice Consultation letter dated 01.06.2021 reveals that vide the said notice, Respondent had called upon the Petitioner to appear before the concerned authority on 02.06.2021 at 15:00 hours for a personal hearing. Petitioner has made a categorical averment in the writ petition that the notice was served on him through a registered post on 10.06.2021. It is understandable that if the notice was served on the Petitioner on 10.06.2021, there could be no representation on behalf of the Petitioner on 02.06.2021. In fact, the action of the Respondent in issuing a notice on 01....... + More

Levy of penalty - Section 114 of the Customs Act, 1962 - mismatch as regards the consignment in the shipping bill - HELD THAT:- The Show Cause Notice contains the modus operandi as to how the appellants were involved and nowhere is it seen that the appellants have offered any rebuttal nor have they negatived such allegations. Further, it is well known that it is the CHA or its staff, who alone can enter into the examination area, where the alleged overwriting on the packages had occurred, which also has not been rebutted by the CHA. The Show Cause Notice also contains that the ultimate beneficiary would be the exporter and the correction/overwriting of bundle numbers could not have been done by the CHA staff without any benefit/instruction, which throws sufficient suspicion as to the collusion of the CHA with the exporter. Penalty under S....... + More

Levy of penalty u/s 114AA of Customs Act - illegal export of red sanders out of India - misuse of Import Export Code (IEC) - tampering with the evidences or not - reasonable suspicion as to the bona fides of the appellant or not - HELD THAT:- As per Section 114AA of Customs Act, the confiscation of goods is not necessary, but the only requirement is the knowledge of the person. That means, the appellant in the case on hand against whom the liability is fastened must be aware as to what is happening right from the beginning. The Surveyor, who is not an interested party, has categorically opined that the container was in fact tampered with and surprisingly, it is not the case of the Revenue that it was the appellant who was responsible for the tampering with, as indicated by Shri M. Annamalai. It is not even the case of the Revenue that the....... + More

Exemption from the payment of SAD - Applicability of Advance ruling - N/N. 45/2005 Customs dated 16.05.2005 - Validity of the Circular No.44/203-Customs dated 30.12.2013 - Wind Operated Electricity Generators - clearance of goods to units located in the Domestic Tariff Area (DTA) as stock transfers for the purpose of trading as well as carrying out certain manufacturing activities - HELD THAT:- No doubt, the said Notification is relied on by the petitioner in this writ petition also. However, the stock transfer made with reference to the Maharashtra Value Added Tax Act, is also to be taken note of. With reference to the said issue, the Advance Ruling Authority made a finding that when such goods are sold in Domestic Tariff Area (DTA), are exempted by the State Government from payment of Sales Tax or Value Added Tax. Such an exemption is n....... + More

Valuation of imported goods - Digital Multi-Function Printers / Devices [MFD] of various makes and models with standard accessories and attachments - to be classified under Customs Tariff Heading 84433100 or not - rejection of declared value - failure to produce information as per Hazardous Waste Rules, 2016 - allegation that importer has neither submitted registration certificate from the BIS nor submitted an exemption letter from the Ministry of Electronics & Information Technology [MeitY] - restricted goods or not - extension of the period to keep the goods in the warehouse, not applied - warehoused goods is pending clearance - HELD THAT:- The issue decided in the case of COMMISSIONER OF CUSTOMS VERSUS M/S S.P ASSOCIATES, ARIHANT ENTERPRISES, EXCEL COPIERS, CITY OFFICE EQUIPMENTS, PHOTOFAX SYSTEMS, SKYLARK OFFICE MACHINES, STAR COP....... + More

Revocation of the CHA license - time limitation - case of appellant is that though the exports have taken place in 2003, SCN proposing to revoke the license has been issued in 2006 under Regulation 22 of CHALR, 2004 - Availment of ineligible drawback - HELD THAT:- It is clear that for the acts or omissions which are done before the CHALR, 2004 came into force [vide Notification No. 21/2004-Cus. (NT) dated 23.2.2004], the erstwhile CHALR, 1984 would apply. The shipping bills in these transactions are of the year 2003. So also in the Show Cause Notice, the department has mentioned the number of two shipping bills for which there was no IE Code mentioned in the shipping bills in respect of M/s. Gomathy Garments and M/s. Akshaya Impex. Both these shipping bills are also dated 11.3.2003. When the transactions are of the year 2003, the provisio....... + More

Classification of imported goods - Parts of seats of motor vehicle (parts of part) - whether classifiable under heading 8708 of CTH as parts and accessories motor vehicle, or are parts of motor vehicle seats and classifiable under 9401 9000? - HELD THAT:- It was held in the case of SHIROKI AUTO COMPONENTS INDIA PVT LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, AHMEDABAD [2020 (7) TMI 706 - CESTAT AHMEDABAD] that the captioned goods i.e. Child Parts imported by the appellant is correctly classifiable under CETH 9401 90 00 of Customs Tariff Act. There are no reason to interfere with the said order - appeal dismissed.

Dismissal of stay application pending appeal - erroneous assumption that granting prayer in Miscellaneous Application pending Appeal, would amount to allowing the appeal itself - release of smuggled absolutely confiscated gold - error in not appreciating the difference between the appeal and miscellaneous application filed pending the appeal or not - HELD THAT:- The Tribunal, while considering the prayer for interim stay, has to consider as to whether the balance of convenience is in favour of the Revenue, whether the Revenue has made out a prima faice case for grant of stay and whether irreparable hardship would be caused to the Revenue if the stay is not granted. To consider as to whether prima faice case has been made out by the Revenue, it may be necessary to have a consideration of the facts of the case and the merits of the appeal t....... + More

Demand against violation of bond conditions - Warehousing of goods imported - Gold Bars - N/N. 12/2012 dt. 17.3.2012 - Failure to furnish BRC or pay appropriate duty within 7 days of the stipulated period, also failed to monitor realisation of export proceeds - violation of Section 111 (j) of Customs Act, 1962 - invocation of liability under the bonds executed by the appellant - time limitation - HELD THAT:- After the appellant furnished export details, the bonds executed have been cancelled. The bonds were cancelled only after due verification of the same. The undertaking as per the bond is to comply with conditions of the Notification. As discussed above, the public notice require the appellant to furnish proof of export only. The export is by a third person. As per Public Notice dt. 6.9.2013 it is specifically stated that in respect of....... + More

Grant of anticipatory bail - removal of consignment from ICD without paying the custom duty - instead of aluminium scrap, cigarettes (100 mm each) of four different brands were imported without paying the custom duty - Section 108 of the Customs Act, 1962 - HELD THAT:- It is apparent that the notice to the petitioner was issued on various dates w.e.f. 12.08.2021 and instead of appearing before the Custom Authorities, the petitioner preferred to present his anticipatory bail application before the Court of Sessions, which was dismissed on 24.08.2021. The present petition is not maintainable and is liable to be dismissed - Even otherwise, there are serious allegations of causing a huge financial loss to the State Exchequer and therefore, even on merits, this petition is liable to be dismissed - petition dismissed.

Release of detained imported goods - Coated Paper Sheets - appellant are willing to execute a bond for the value of goods and a bank guarantee towards security to an extent of 10% of the value of the goods - HELD THAT:- The appellants/Revenue may be directed to release the goods on condition the respondent executing a bond for the value of the goods and bank guarantee to an extent of 10% of the value of the goods. Therefore, it is directed that the appellants to release the goods on condition the respondent executing a bond for the value of the goods and bank guarantee to an extent of 10% of the value of the goods. The respondent shall complete their part of obligation within two weeks from the date of receipt of a copy of this judgment and the appellants are directed to release the goods within two weeks thereafter. Further, the detention charges shall stand waived. Appeal disposed off.

Seeking permission to go to Afghanistan - medicines - petitioner carried certain medicines illegally while going to Afghanistan - redetermination of value of goods - confiscation of goods - redemption fine - penalty - prosecution under Section 132 and 135(1)(a) of the Custom Act - HELD THAT:- Considering that the adjudication proceedings qua the petitioner have attained finality and the petitioner even does not wish to redeem the articles, is required to deposit the penalty amount, hence this Court finds no error in the impugned judgment. Petition dismissed.

Refund of Additional Customs Duty - benefit of notification dated 17 March 2012 - rate of Additional Duty was reduced - incidence of Additional Duty passed on or not - principles of unjust enrichment - entitlement to amendment of the Bills of Entry or for correction of the Bills of Entry - sections 149 and 154 of the Customs Act - HELD THAT:- The Telangana High Court in M/S. SONY INDIA PVT. LTD. VERSUS UNION OF INDIA AND ANOTHER [2021 (8) TMI 622 - TELANGANA HIGH COURT] examined almost a similar controversy as has been raised in these two appeals. The appellant therein had imported mobile phones in India for trading purposes during the period 04.08.2014 to 29.01.2015. At the time of import of the mobile phones, the petitioner had not claimed any exemption under serial no. 263A (ii) of the Exemption Notification which allowed payment of Ad....... + More

Prosecution proceedings - NBFC or not - Inadvertent/typographical error in recording of minutes - it was erroneously recorded in item no. 12 of the minutes that the company submitted application with the Reserve Bank of India for its deregistration as NBFC and registration as a CIC - however, the company was not a registered Non Banking Financial Company (NBFC) at the relevant time - sections 118(2) and (7) read with sections 447/448 of Companies Act - HELD THAT:- The key ingredient of the offence is the intent to deceive, gain undue advantage or injure the interest of the company or any person connected thereto. In the case in hand, the complaint lodged by the opposite party does not prima facie reflect such intent on the part of the petitioners. Per contra, though the opposite party has referred to the notice of show cause in the compla....... + More

Seeking direction to the respondents to hold/convene the annual general meeting of the company for the financial year 2018-2019 - appointment / nomination of an observer for the annual general meeting of the company to be held for the financial year 2018-2019 - HELD THAT:- The objective of Section 97 of the Companies Act, 2013 is to facilitate an Annual General Meeting of the shareholders through the intervention of the court in case the directors fail to hold the AGM in accordance with the provisions of Section 96. Since the provision starts with the words, “If any default is made in holding the Annual General Meeting of a company under Section 96..”, it is clear that the existence of a default is a condition prior to invoking the jurisdiction of this Tribunal under Section 97 of the Companies Act, 2013. The admitted position....... + More

Sanction of scheme of amalgamation - Section 230-232 of Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Seeking restoration of name of company in the Register of Members - non-filing of statutory returns since the Financial Year ended on 2014 onwards - Section 252(3) of the Companies Act, 2013 - HELD THAT:- Section 252(3) of the Companies Act, 2013 confers on this Tribunal powers to order to restore the name of the Company in the Register maintained, provided such application is filed by (i) the Company or (ii) by any Member or (iii) any creditor or (iv) any workmen of the Company within 20 years from the date of publication of the notices under Section 248(5) in Official Gazette about striking off of the name of such Company provided further that it is seen from the material on record that at the time of its name being struck off, the Company was doing its business or carrying its operation. In this case, the applicant produced on record t....... + More

Restoration of name of the company in the register of companies - revocation of notification dated June 21, 2017 issued by them under section 248(5) of the Companies Act, 2013 - default in filing its statutory returns, i. e., balance-sheets and annual returns since the financial year ended March 31, 2010 onwards - HELD THAT:- Apart from generating revenues, the company has recorded profits in all the defaulting years. It is also evident from the financial statements that the struck off company has fixed assets and substantial long-term loans and advances. It has also some finance costs during the period under default. Further, the company had spent certain amounts on employee benefits. This prima facie suggests that during the relevant time the company had people in its employment and was carrying its business activities - the details pri....... + More

Sanction of Scheme of Amalgamation - section 230-232 of Companies Act - HELD THAT:- By considering the consent affidavits filed on behalf of the shareholders and secured creditors as well as by the majority in debts value of unsecured creditors of the Applicants Companies to approve the Company Scheme and by waiving their right to participate in such meeting, the meeting of the Shareholders, Secured and Unsecured Creditors of the Applicant Companies are hereby dispensed with. The scheme is approved - application allowed.

Winding up the Respondent Company - Section 271(c), (d) and 272(3) of the Companies Act, 2013 - HELD THAT:- The affairs of the company have been conducted in a fraudulent manner, the persons concerned in the formation or management of its affairs have been found guilty of fraud, misfeasance or misconduct in connection therewith and that the company has made a default in filing with the Registrar its financial statements or annual returns for immediately preceding five consecutive financial years Hence it is found proper that the Company be wound up in the interest of justice and as prayed for by the Petitioner. The order is hereby passed for winding up of the Company, Saradha Build Creation Pvt. Ltd., under the provisions of Section 271(c) and (d) of the Companies Act, 2013 - Application allowed.

Settlement of shares - Petitioner submits that the Petitioner has bought the entire shares of 30 (thirty) lacs from the ICICI Bank and even, if the shares are settled with 25% of the total face value of ₹ 30.00 crores, the Petitioner is entitled to get ₹ 7.50 crores plus interest etc. - HELD THAT:- Certain clarifications/papers/documents relating to the sale of shares by ICICI to the Petitioner, decision of CDR/OTS by the Lenders especially relating to these 30.00 lacs shares, claim of Standard Chartered Bank and payment to the Standard Chartered Bank are required to be perused. The ICICI Bank and the Standard Chartered Bank are directed to file their clarifications in the form of an Affidavit enclosing the documents exchanged between the ICICI Bank and the Standard Chartered Bank, Standard Chartered Bank with the Consortium L....... + More

Compliance with the Mutual Settlement Agreement between the Petitioner and the Respondent or not - release of collateral security provided - HELD THAT:- Considering the fact that the Unit is an MSME one, the prayer made by the Respondent to grant some time to discuss the matter with the concerned Bank for implementation of the conditions/release of the land, guarantees and Fixed Deposits of the Petitioner, is accepted. Fifteen (15) days' time is granted as prayed, for negotiation/discussion with the Bank/Petitioner. Both the parties are at liberty to negotiate with each other/with the concerned Bank in the light of the CGTMSE Guarantee Cover available for MSME Unit for resolution of the issues advanced - List the matter on 24.03.2021.

Transfer of shares - Oppression and mismanagement - Section 242/244 of the Companies Act 2013 read with NCLT rules, 2016 - HELD THAT:- This Tribunal observes that as the share transfer form annexed as Annexure P-2 of the petition reflects that the entire shareholding has been transferred to the petitioners from its first directors and further the share certificates are still in possession of the petitioners and has not been transferred to anyone which is evident from the fact that there is no share transfer form or any share certificate filed before the ROC showing transfer of shares in favour of the respondents, thus it shows that the petitioners are still holding entire 100% shares of company. It is clear that there are instances of oppression and mismanagement in the company as although the petitioners have resigned from the directorsh....... + More

Jurisdiction - Initiation of prosecution - Investigation into affairs of Company by Serious Fraud Investigation Office - freezing and disgorgement of assets of 157 companies - retrospective effect of penal provisions - power of the respondent to initiate proceedings before NCLT - HELD THAT:- It is a settled law the challenge to the jurisdiction of NCLT ought to have been raised before NCLT itself. Once the proceedings have been initiated before NCLT and if the NCLT is seized with the company petition, all contentions including power of the respondent to initiate such proceedings before NCLT must be raised before such forum and be determined in those proceedings - Since the petition has already been filed under Section 241, 242 of the Companies Act; notice having been issued; the contention raised before this Court on the point of jurisdic....... + More

Approval of the Scheme of Amalgamation - obtaining fresh orders/directions for convening meeting(s) of the Equity Shareholders of the Applicant Companies for consideration - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Entrustment of Investigation under the Companies Act by Serious Fraud Investigation Office - Section 212 of the Companies Act - Bar on jurisdiction of other investigating agencies to proceed with investigation into any matter concerning the affairs of the company - default committed by ITNL on account of non-payment of interest - moratorium granted by NCLAT could be held against ITNL and the petitioners - liability for penal prosecution under the TNPID Act - amounts received by ITNL could be held to be “deposits” within the meaning of Section 2 (2) - ITNL is a financial establishment or not - private placement basis u/s 42 of the Companies Act. Whether entrustment of investigation to SFIO by the Central Government u/s 212 of the Companies Act bars the jurisdiction of other investigating agencies to proceed with investigation i....... + More

Sanction of Scheme is Scheme of Merger by absorption - section 230-232 of Companies Act - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices issued. The scheme is approved - application allowed.

Sanction of scheme of arrangement - section 230 to 232 of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensation with various meetings issued - directions with regard to issuance of various notices issued. The scheme is approved - application allowed.

Sanction of Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 r/w. the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The Statutory Auditors of the Transferor Companies 1 & 2 and Transferee Company have examined the Scheme in terms of provisions of Sec. 232 of Companies Act, 2013 and the rules made thereunder and certified that the Accounting Standards are in compliance with Section 133 of the Companies Act, 2013. Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of notices also issued. The scheme is approved - application allowed.

Seeking restoration of name of company on the register of members - Section 252 (3) of Companies Act - malafide intent present or not - HELD THAT:- It is admitted that from the year 2000 onwards the Respondent No. 2 Company not in business or in operation. The Respondent No. 2 has not placed on record any document in support that the Company was carrying on business or in operation when it was struck off on 30.04.2008. Whether the Tribunal has rightly rejected the Appeal on the ground of malafide intention? - HELD THAT:- Admittedly, the directors have not filed any appeal against the order of Registrar of the Companies. As the Company has not filed the Appeal within a period of three years from the date of order of the Registrar of the Companies which was lapsed in April, 2011 - it can be safely presumed that at the instance of the Respon....... + More

Seeking restoration of the name of the Appellant Company in the register maintained by the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- During the course of hearing, appellant was directed to produce the audited balance sheet to show that appellant had revenue from operation during the last two preceding financial years from the date of striking off the name of the company but it is seen that the appellant has failed to produce any such document. The prayer of the appellant is considered and it is observed that the specific averments have been made by the RoC in its reply stating the dates, when the notices were sent upon the appellant company and its directors but appellant company and its directors failed to submit any reply - there are no force in the contention raised by the Ld. Counsel for appellant t....... + More

Business transfer agreement by way of Slump Exchange - Section 421 of the Companies Act, 2013 - HELD THAT:- Chapter XV of the Act - Compromises, Arrangements and Amalgamations are covered by Section 230 -240 of the Act. The related regulation is the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 as amended from time to time. The direction that the part -III & IV of the creditors of the Company shall maintain status quo about their debt, not to classify loan amount as NPA, till further orders with respect to their contractual terms, dues, claims and rights and stopping from taking coercive steps including reporting in any form under Section 230 of the Act R/w 11 of the NCLT Rules, 2016 is not in order. It is because the creditors themselves have to get it approved from 75% of the value of creditors and naturally, if....... + More

Seeking restoration of name of appellant company in the register of members - section 252(3) of the Companies Act, 2013 - HELD THAT:- When the present case in hand is considered, then it is noticed that the appellant has failed to establish this fact that at the time of striking off the name of the company, the company was carrying on business or the company was in operation. That as per the audited balance sheet submitted by the appellant, there was no Revenue from Operation for a period of Two immediately preceding financial years. This tribunal is not inclined to interfere with the striking off action taken by the ROC against the appellant's company under section 248 of the Companies Act, 2013 - Appeal dismissed.

Seeking directions to Appellants to file their written claims before the Respondent - Financial Creditors/homebuyers - HELD THAT:- The Appellants are hereby directed to file their claims in terms of the aforesaid provisions before the Resolution Professional/ Respondents within two weeks from today - Learned Counsel for the Resolution Professional/ Respondent is hereby directed to verify the claims in terms of the various provisions and forward the genuine claims of the Learned Counsel for the Appellants to Adjudicating Authority. The timeline provided by the IB Code, with the aforesaid directions - Appeal is hereby disposed of

Liquidation of the Corporate Debtor - non-implementation of the Resolution Plan - whether the prayer of the Appellant with regard to liquidating the Corporate Debtor ought to have considered or not? - HELD THAT:- The Ld. Adjudicating Authority observed that the ‘Tribunal’ (NCLT) cannot either order Liquidation or to direct the refund of the EMD, as the Tribunal has become Functus Officio after approval of the Resolution Plan with the consent of both the parties. Admittedly the CIRP was initiated on 20th September 2019. 270 days completed on 23rd August 2020 and 330 days completed by the end of October 2020. The Application filed by the Appellant bearing MA No.186/KOB/2020 in the month of November 2020 i.e., after completion of 330 days - The fact is that the 330 days have been completed and the Respondent did not implement the....... + More

Seeking for removal of the Appellant (APSTC/TSTPC) from the ‘CoC’ - Promotion of trade from the State and create logistics infrastructure in the state and to carry out its existing business of manufacture and sale of notebooks for students - ‘related party’ as construed under Section 24(5) of the ‘I&B’ Code, 2016 - submission of appellant is that there is no participation in policy making of the First Respondent/ Company nor there is interchange of managerial personnel between the Appellant and the First Respondent/ Company - HELD THAT:- It must be borne in mind that the expression ‘control’ in Section 29A(c) of the ‘I&B’ Code symbolizes only the positive control i.e. that the mere power to block special resolutions of a Company cannot amount to control. In reality, the w....... + More

Condonation of delay of 12 days in filing appeal - seeking extension of limitation period prescribed under law - Section 61 of the IBC - HELD THAT:- The impugned order is pronounced on 03.02.2020. In view of the provisions under Section 61 of the IBC as per prescribed period the Appeal was required to be filed within 30 days till 04.03.2020. However, the Appeal was filed on 29.12.2020 i.e. after a delay of 299 days. As per proviso to sub-Section (2) of Section 61 of the IBC, this Tribunal may condone the delay for a period not exceeding 15 days. Ld. Counsel for the Appellant has taken shelter of the order passed by the Hon’ble Supreme court in India in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] extended the limitation period prescribed under law. Admittedly, the MOU which alleged to be forged and fab....... + More

Approval of Resolution Plan - seeking success fees to the Resolution Professional - grievance raised is that the approval of the success fees was a commercial decision of the CoC and the Adjudicating Authority could not have interfered with the same while approving the Resolution Plan and directing distribution of the amount set apart for success fees - HELD THAT:- The provisions as appearing in IBC and as can be seen from Regulations read with the Code of Conduct all indicate that although quantum of fees have not been fixed that the Code and Regulations do intend to control the manner in which Resolution Professional charged fees and according to Learned Amicus Curiae, the quantum of fees payable is a subject which is justiciable before the Adjudicating Authority if it is found to be unreasonable and if the manner, method of payment is ....... + More

Withdrawal of resolution plan post approval of the same by the COC - jurisdiction of the Ld. Adjudicating Authority to approve or reject resolution plan - parameters/requirements prescribed under Section 30(2) of the Code fulfilled or not - can resolution applicant can unilaterally seek to withdraw an approved Resolution Plan - process note as mandated under Section 25(2)(h) of the Code - HELD THAT:- It is quite clear that the SRA could not have been allowed to withdraw the Resolution Plan after it had been approved by the CoC. The Adjudicating Authority had no jurisdiction to rely on residuary powers of Section 60(5)(c) to entertain the application of SRA. The grounds raised by SRA of delay also are clearly untenable. In the matter of ‘Ebix Singapore’ [2021 (9) TMI 672 - SUPREME COURT], Hon’ble Supreme Court has referre....... + More

CIRP in process - default to give possession of flats to homebuyers - grievance raised in this petition is that the application filed for the initiation of corporate insolvency against the first respondent was merely to stall the refund of the amount due to the homebuyers - resolution plan pending approval - HELD THAT:- The conspectus of facts before this Court reveals that the petitioners have participated in the proceedings before the RP and later, the CoC. The Resolution Plan which has been submitted by the consortium of home buyers stands approved by the CoC and the proceedings are now pending before the Adjudicating Authority, awaiting its approval under Section 31(1) of the under the IBC. If the petitioners have any objections to the Resolution Plan, they are to submit them before the Adjudicating Authority. We direct the NCLT to en....... + More

Asset of the ‘Corporate Debtor’ - Revocation of performance guarantee - Seeking to refund the amount and deposit the same in the Account of the ‘Corporate Debtor’ with interest as it forms part an Asset of the ‘Corporate Debtor’ - whether the ‘Corporate Debtor’ has any right with respect to money received from reversal of invocation of a Performance Bank Guarantee (which had been invoked prior to the initiation of CIRP), specifically when the margin money was also not deposited by the ‘Corporate Debtor’? - Can the said refund amount be construed as an asset belonging to the ‘Corporate Debtor’? HELD THAT:- The definition of ‘security interest’ under the Code includes an interest that has been created in favour of the Secured Creditor by a transaction which ....... + More

Suit for eviction for non-payment of rent (of alternate premises) - appellant claims to be allottee of the Corporate Debtor - appellant claims that she could not be evicted from the alternate premises till the flat allotted to her is provided to her and the liability to pay the rent is also of Mr. Vidur Bhardwaj-Respondent No. 3 - HELD THAT:- The dispute in the present matter is centering around the rent agreement dated 27th November, 2018 (Annexure A-6, Page 88). This agreement dated 27th November, 2018 is between the Respondent No. 2-Ms. Aarti Saraf and the Appellant-Ms. Indrani Brahmachari. Respondent No. 2 is referred as Landlady/First Party and the Appellant is referred as Tenant/Second Party. It relates to Flat No. 1101, Tower No. 30 situated at Lotus Panache Island, Sector - 110 Noida. The Document states that the landlord has agre....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - NPA - debt was within time limitation or not - appellant claims that the said debt is time-barred and that State Bank of India could not have initiated proceedings under Section 7 of IBC - HELD THAT:- Section 7 of IBC provides that Financial Creditor either by itself or jointly with other Financial Creditors or any other person on behalf of Financial Creditor as may be notified by the Central Bank may file an Application for initiating Corporate Insolvency Resolution Process against a Corporate Debtor before the Adjudicating Authority when a default has occurred. Considering this, even if the State Bank of India was part of the consortium or there are documents executed between the parties, or there are circulars of RBI as to how ....... + More

Ex-parte order filed by the Corporate Debtor filed for initiation of CIRP - power of Adjudicating Authority to use power under Rule 49 of National Company Law Tribunal Rules, 2016 at belated stage - Section 424 (1) of the Companies Act, 2013 r/w Rule 11 of the National Company Law Tribunal, Rules, 2016 - HELD THAT:- Admittedly, the Ld. Adjudicating Authority has vide order dated 27.05.2020 admitted the application under Section 9 of the IBC filed by the Operational Creditor Respondent No. 1 and the Appellant has filed the Application for setting aside the ex-parte order on 06.11.2020 under Section 424 (1) of the Act r/w Rule 11 of NCLT Rules, 2016 stating that the Corporate Debtor has not received the notice. It is also an admitted fact that CoC has been constituted on 20.11.2020 i.e. after filing of the aforesaid Application for setting ....... + More

Squaring off was preferential transaction under Section 43 - undervalue without permission of the Resolution Professional - Violation of Principles of Natural Justice - Squaring off Receivables against Debt - Sale of Car in Moratorium - HELD THAT:- The Impugned Order shows that for the Appellant Mr. Navin Arora I/B AA Associates had appeared. There is nothing on record to show that this Advocate apprised the Adjudicating Authority that he is not instructed in I.A. 1108 of 2020 or that he apprised the Adjudicating Authority that for I.A. 1108 of 2020 for same Appellant (Respondent before Adjudicating Authority) there were different advocates appearing. We reject such approach, which are means of creating grounds to protract matter. There is no material also to show that on 07th January, 2021 or soon thereafter any grievance was raised with....... + More

Benefit of provision of 90 days to pay balance sale consideration - amended clause 12 of Schedule I of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- Considering the material placed by them, it does appear to us that the laudable object with which Clause 12 was substituted is defeated by issuing such Circular dated 26.08.2019. When in an auction somebody has given a higher bid, if instead of 15 days, the person gets a breathing time of 90 days to make a payment, no other person gets affected - Para 3.2 of the Discussion Paper referred to Regulation 32 and the option to explore sale of Corporate Debtor as a going concern along with the other available sale options and the need to provide complete framework to enable the Liquidator to exercise the option. The Discussion Paper tries to bala....... + 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 - dispute with regard to demand notice - HELD THAT:- It is not that anybody has come on behalf of Operational Creditor to object to the manner in which the resolution was passed. On the basis of technicalities raised by the Corporate Debtor, it is not found that much weight can be given to the argument raised on this count. Dispute raised with regard to the notice under Section 8 of IBC or not - HELD THAT:- The Notice is dated 11.12.2017 at Appeal page 87 to 89. The dispute raised is that this notice is not in format and as required under Section 8 read with Rule 5(a) of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 (‘Rules&r....... + More

Non-filing of claim by appellant despite public announcement as well as the intimation through email to Insolvency Professional - It is the case of the Appellant that they were neither intimated nor were they aware about the fact that the last date of submission of claim has expired - HELD THAT:- In the instant case the Resolution Plan was approved by 91.02% of the Members of CoC and is pending approval before the Adjudicating Authority and was last listed for hearing on 16.06.2021. The literal language of Section 12 mandates strict adherence to the time frame it lays down. Time and again, the Hon’ble Supreme Court in [2017 (9) TMI 58 - SUPREME COURT] has noted that the model timelines provided in Regulation 40A of the CIRP Regulations should be followed as closely as possible - In this case, on account of lockdown and pandemic the ....... + More

Sanction of scheme of amalgamation and arrangement - rejection of Scheme of Amalgamation and Arrangement which had been approved by NCLT - inherent powers under Rule 11 of NCLAT Rules, 2016 - HELD THAT:- The concerned order of this Tribunal sought to be modified/ clarified has dealt with the scheme as a whole which was proposed and which was challenged and after going into the various details and the objections raised by the Regional Director, the Appeal was allowed. The Appellant challenging the Scheme of Arrangement and Amalgamation claimed that the scheme was impermissibly promoter oriented, anti-minority, anti-public shareholders, illegal, unlawful, unjust and against the public policy. The Appellant claimed that the Scheme of Arrangement and Amalgamation inter se the Respondent Companies is illegal and bad in law. This Tribunal consi....... + More

Maintainability of application - initiation of CIRP - Financial Creditors or home buyers - possession of flats were offered by the Corporate Debtor - NCLT rejected the application - existence of debt and default or not - HELD THAT:- The NCLT found that on 1st October 2016 the Financial Creditor had entered into an agreement with the Corporate Debtor, for purchase of a flat in a complex which the Corporate Debtor was developing. In terms of the said agreement the outstanding dues of the Corporate Debtor were to be appropriated towards consideration for the flat - The NCLT held that the Financial Creditor had chosen to enter into an Agreement with the Corporate Debtor for purchase of a flat in the “Kumar Golf Vista”. The Financial Creditor could, in case of default on the part of the Corporate Debtor, to maintain a petition as h....... + More

Remission of share of the CIRP costs and expenditure in proportion to their voting rights - whether the first respondent is required to pay the CIRP in relation to the corporate debtor and if not so, what will be consequences? - HELD THAT:- In the claim form filed by the first respondent along with DBS Bank Ltd., Singapore, the proceeds of the amount pursuant to the resolution plan, if any, approved by this Tribunal would go into the account of the DBS Bank India Ltd. - As per regulations 33 and 34 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 it is the duty of the members of the committee of creditors to pay the fees and the cost incurred by the resolution professional, once the same has been ratified by the CoC by passing a resolution to that effect. The first res....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of financial debt in terms of Debenture Trust Deed (DTD) and default committed by the Corporate Debtor as envisaged in the events of default - HELD THAT:- The execution of DTD dated 08.03.2019 and Supplementary Trust Deed dated 22.03.2019 demonstrate existence of Financial Debt in pursuance of Section 5(c) of the Code and the essential ingredients of debt which is disbursed against consideration of time value and money is thus satisfied. It is undisputed fact that an amount of ₹ 72 crores was disbursed by the Petitioner No. 3 to the Corporate Debtor as on 11.03.2019. The Petitioner No. 3 further was not able to disburse the second tranche and sought amendment of the DTD vide email dated 26.07........ + More

Seeking approval of the period of exclusion - Section 47A of the Insolvency and Bankruptcy Code, 2016 - period between 23rd March 2020 and 31st August 2020 and 10.05.2021 to 21.06.2021 - seeking to Approve an extension of 1 Year from 23rd November 2021 to continue the liquidation period - Regulations 44(2) of the Insolvency and bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- It is seen that the Liquidator is yet to complete the Liquidation process in relation to the Corporate Debtor and all the e-auctions conducted by the Liquidator have failed. Further, due to the prevailing Covid - 19 pandemic and subsequent lock-down imposed by the Government of India and the State Governments, the Liquidator was unable to complete the Liquidation process of the Corporate Debtor within the time limit prescribed under the....... + More

Revival of twin conditions for bail under Section 45 of PMLA after having been declared as unconstitutional - parallel provision to Section 482 Cr.P.C. or not - limitation imposed on civil powers existed in Section 482 Cr.P.C. by Section 362 Cr.P.C. - HELD THAT:- The reliance placed by the applicant/petitioner on the decisions of the Hon’ble Supreme Court in cases of NEW INDIA ASSURANCE CO. LTD. VERSUS KRISHNA KUMAR PANDEY [2019 (12) TMI 1509 - SUPREME COURT] as well as STATE OF PUNJAB AND SUMEDH SINGH SAINI VERSUS DAVINDER PAL SINGH BHULLAR & ORS. ETC. [2011 (12) TMI 656 - SUPREME COURT] is to state that inherent powers of the Court u/s 482 of Cr.P.C. are saved by Section 362 of Cr.P.C. but in NEW INDIA ASSURANCE CO. LTD. VERSUS KRISHNA KUMAR PANDEY [2019 (12) TMI 1509 - SUPREME COURT] the petitioner was ex parte/not heard and ....... + More

Money Laundering - seeking grant of regular bail - conspiracy - creating false and forged documents for the purpose of cheating and used the said false documents as genuine knowing fully well as false and made transactions in various banks fraudulently - satisfaction of condition of twin limitation for grant of bail u/s 45 (1) of PMLA Act - HELD THAT:- This Court without going into merits of the case, taking into consideration the factors that the petitioner has been languishing in jail from the last 360 days, petitioner himself voluntarily surrendered before the Court below in the year 2019, other accused were already enlarged on bail and the health condition of petitioner, this Court deems it appropriate to grant interim bail to the petitioner for a period one month on certain conditions. The petitioner shall be enlarged on interim bail....... + More

Applicability of application u/s 439(2) of the Cr.P.C. - accused is released from the ‘custody’ or not - decision in Nikesh Tarachand Shah [2017 (11) TMI 1336 - SUPREME COURT] has lost its significance because of amendment in Section 45(1) of the PMLA Act or not - irrelevant material acted upon or not - relevant material ignored or not? Whether Section 439(2) of the Cr.P.C. can have no application unless accused is released from the ‘custody’? - HELD THAT:- The instant application filed by the prosecution under Section 439(2) is maintainable, although the accused actually has not been released. Primary objection as to the maintainability is overruled. Whether decision in Nikesh Tarachand Shah [2017 (11) TMI 1336 - SUPREME COURT] has lost its significance because of amendment in Section 45(1) of the PMLA Act? - HELD....... + More

Provisional attachment of immovable properties - scheduled offences under para ‘A’ of the schedule to the PML Act - proceeds of crime - recovery of cash amount form residential premises - equitable relief under the writ jurisdiction of this Court - Section 5(1) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The petitioners have not challenged the show-cause notice and are only seeking to challenge the provisional attachment order. The reason assigned by the petitioners is that the present challenge was filed before this Court on 28th April, 2021 i.e. much prior to the show-cause notice dated 17th June, 2021 and thus, the same will remains alive inspite of the show-cause notice. The petitioners cannot thwart the due process of law and halt the investigation under the guise of raising insignificant things. We have....... + More

Seeking grant of anticipatory bail - predicate offence - alleged irregularities in the utilization of funds of Government of India - pre-trial detention of the accused-applicant - Sections 120-B r/w Sections 420, 409 of IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act against several persons - HELD THAT:- The twin conditions as imposed by Section 45 of PMLA cannot be looked into while deciding the bail/anticipatory bail application as the same are violative of Articles 14 and 21 of Constitution of India. The Hon'ble Supreme Court in different decisions held that economic offences constitute a class apart, the Court need to visit the same with a different approach in the matter of bail/anticipatory bail and should be loathed while extending the benefit of bail/pre-arrest bail to a person accused of such of....... + More

Attachment of property - proceeds of crime - first right or claim over the properties - HELD THAT:- The finding recorded is that the attached properties are not proceeds of crime. Mr. Vyas, the learned ASG is prima facie right in his submission that this particular finding recorded by the Appellate Tribunal would put an end to the criminal complaint filed by the appellant under the PMLA. It can be suggested that the Bank and the appellant may jointly put the properties to auction and try to fetch a good price. If successful in this exercise, then the amount shall neither go to the Bank nor shall go to the appellant, but we may ask them to deposit the entire amount with the Registry of this Court or we may ask them to open an Escrow Bank Account and deposit the same. We shall decide above the precedence once the auction is successful. Post this matter on 06.09.2021.

Money Laundering - proceeds of crime - power of Directorate of Enforcement to declare any property acquired by proceeds of crime - Section 5(4) of the PMLA, 2002 - HELD THAT:- A person who is interested relating to any immovable property or is claiming or is entitled to claim any interest in the property would be free to enjoy the said immovable property even if the same is attached. If the property is confiscated by the Central Government, such claimant with legitimate interest in the property or who may have suffered a quantifiable loss as a result of offence of money laundering may move appropriate application for restoration of such confiscated property or a part thereof - so far as interested person or any claimant is concerned, they did not have any locus to challenge the attachment order at all. While the statute protects them in s....... + More

Money Laundering - scheduled offences - hearing on charges and trial proceedings in subject Sessions Cases registered for the offences under PML Act before commencement of hearing on charges and trial proceedings in the subject Calendar Cases registered for the predicate/scheduled offences - conduct of trial proceedings of predicate/scheduled offences and offences under PML Act simultaneously or not - HELD THAT:- A bare reading of Sections 2(1)(u), 3 and 44(1)(d) of PML Act along with explanations thereof makes it clear that the offence of money laundering is a stand-alone offence and the trial proceedings are completely different to that of the scheduled offence. Trial of money laundering offence is independent trial and it is governed by its own provisions, it will not meddle with the trial of scheduled offence. Similar question came up....... + More

Cheating - proceeds of crime - accused induced gullible victims to invest in a bike and receive monthly pay back, including principle and rental income on that bike for one year under the scheme - accused absconded with the money - accused was not registered as a NBFC with the RBI and hence it was not authorized to initiate any collective investment scheme - HELD THAT:- The purpose of enacting the PMLA was to prevent money laundering and to prevent confiscation of property derived from or involved in money-laundering. The purpose of investigation under the PMLA is to unearth the proceeds of crime and attach the same and to punish the offenders who are involved in committing the offence of money-laundering. Section 45 (1A) mandates that no Police Officer shall investigate into an offence under the PMLA unless specifically authorised by a g....... + More

Seeking grant of Bail - criminal conspiracy - cheating and fraud - fraudulent import of fertilizers and other materials for fertilizer production at inflated prices and claimed higher subsidy from Government of India causing loss of several crores of rupees - siphoning off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies - Flight risk - HELD THAT:- Even if the allegation was one of grave economic offence, it was not a rule that bail should be denied in every case. Flight risk - HELD THAT:- It is the admitted case of the department that over the period of last 10 years the petitioner has gone abroad atleast 90 times for various purposes - The petitioner was even allowed to travel abroad by this Court twice subject to conditions despite the opening of LOC against him....... + More

Money Laundering - Bribe - proceeds of crime - seeking to quash the proceedings that has been launched by the Enforcement Directorate for the offence under Section 3 read with 4 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- In this case, the proceeds of crime quantified by the Enforcement Directorate at ₹ 25,00,000/-, being the bribe amount that was received by Dr. S. Murugesan (A1) in his clinic on 07.01.2013, was seized by the CBI and therefore, there was no scope for Dr. R. Gunaseelan (A2) to project it as untainted money. Superadded, Dr. R. Gunaseelan (A2) is not a co-accused even in the prosecution that has been launched by the CBI in C.C.No.15/2014 against Dr. S. Murugesan (A1) and the representatives of Adhiparasakthi College. The impugned complaint of the Enforcement Directorate shows that Dr.S.Murugesan (A1)....... + More

Illegal quarrying - quarrying illegally in Government lands which were not allotted to appellant - scheduled offence or not - inadequate evidence/conclusion - case of petitioners is that when the report submitted by Mr. Sagayam, I.A.S. (who was appointed to conduct an enquiry into the allegations) itself has not been disclosed or made public and when the said report is also being contested by the licencees, the foundation for the present prosecution under the PML Act is weak - HELD THAT:- The issue decided by this Bench very recently in M. SURESH KHATRI AND M/S. MOHANLAL JEWELLERS PVT. LTD. VERSUS DIRECTORATE OF ENFORCEMENT DEPUTY DIRECTOR GOVERNMENT OF INDIA MINISTRY OF FINANCE [2021 (6) TMI 990 - MADRAS HIGH COURT] where it was held that The prosecution has to prove the offence, by adducing evidence and this opportunity has to be given to the prosecution in this case too. Petition dismissed.

Seeking grant of Bail - procedure under Section 19 PMLA was followed or not - Enforcement Directorate can be complainant and the Investigating Officer at the same time or not - effect of declaration of twin conditions under Section 45 of the PMLA have been declared unconstitutional and ultra virus. Non-compliance under Section 19 of the PMLA - HELD THAT:- Admittedly, Bimal Jain was arrested in execution of the NBW by the learned Special Judge, PMLA while taking cognizance of prosecution complaint filed by the Enforcement Directorate and thus there was no occasion to comply with the requirement of Section 19 of the PMLA. The very fact the complaint was filed by the Enforcement Directorate arraying petitioner Bimal Jain as accused No.2, prima facie show there were reasons to believe the person was guilty of offence punishable under Section ....... + More

Money Laundering - Proceeds of crime - scheduled offences - cheating more than 13,000 investors who are the members of the Society - mis-used of funds of the public and re-investment of the money - diversion of deposits from the Financial Institutions to other businesses - Section 420 of IPC - HELD THAT:- The ED produced the documents and also the petitioner counsel has produced an Observation Report, which reveals that the petitioner is one of the Directors; one Harish was the President; Siddegowda was the Vice President and there were other 13 Directors. All other Directors and President were not arrested by the ED except this petitioner. The observation report reveals that the total investment was ₹ 650,41,68,190/-. The reserved amount is ₹ 12,93,42,844/-; the share investment is ₹ 24,74,89,000/-; the loan obtained fo....... + More

Provisional attachment of properties - inherited property - property acquired prior to commission of scheduled offence - HELD THAT:- The properties on which the petitioner claims ownership have been attached and the petitioner has been served with a notice dated 14.07.2021 (Annexure P-1 Colly), pursuant to the order of provisional attachment confirmed by the adjudicating authority on 23.06.2021. Prima facie, the documents which are placed on record would show that the nucleus of the property is from inheritance and gift through the family members prior to availing the loan. The non payment and divertion of fund of loan is now subject issue of scheduled offence. The judgment relied on by the petitioner of SEEMA GARG, SAIYRAH @ DEEPIKA GARG, SANGEETA GARG VERSUS THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT (PREVENTION OF MONEY LAUNDERING....... + More

Seeking grant of Bail - illegal transfers of valuable foreign exchange - allegation of transmission of more than ₹ 518 Crores to the alleged exporters from Hong Kong - HELD THAT:- Without going into the question whether the rigor of Section 45 of the Act would still apply as a result of the amendment, the appellant is entitled to the benefit of bail principally for the reasons: a. The length of custody undergone by the appellant as against the maximum sentence that could be visited upon the appellant under the offences in question. b. The fact that the investigation in the matter is complete and draft charges have been circulated. c. All other three co-accused have been released on bail. Subject to the appellant furnishing cash security in the sum of ₹ 25,00,000/- with two like sureties to the satisfaction of the Trial Court, the appellant shall be released on bail, subject to other conditions as the Trial Court may deem appropriate to impose - appeal allowed.

Protection of rights of the Union of India - attachment of property - HELD THAT:- In view of the matter being remanded to the Adjudicating Authority, who is still seized of the matter, the Undertaking given by the parties in the connected Appeals are directed to maintain the Status-quo about the property shall continue till the Adjudicating Authority decides the matter again in pursuance of the said remand directions in the order dated 13.12.2017 passed by the learned Tribunal. Appeal disposed off.

Validity of notice of eviction - direction to vacate the property mentioned in the notice within 10 days of receipt of the said notice - HELD THAT:- Mr Tahir Majid Shamsi, the learned Assistant Solicitor General of India (ASGI), appearing on behalf of the Respondents, when asked, seeks some time to get instructions in the matter qua availability of Appellate Tribunal. That apart, the learned Assistant Solicitor General of India submitted that when the Petitioner, admittedly, has already availed the remedy of appeal as provided under the Statute, therefore, pending such appeal, there is no scope for the Petitioner to approach this Court through the medium of the instant Petition. Before proceeding further in the matter, it is thought just and proper to grant one opportunity to Mr Shamsi for reporting instructions in the matter. Accordingly....... + More

Money Laundering - proceeds of crime - scheduled offences - attachment of tainted property - respondents were of the view that since no tainted property of respondent No.5 was available for attachment the property which was acquired by untainted money could also be attached - HELD THAT:- A conjoint reading of the aforesaid provisions of SARFAESI Act and Bankruptcy Law makes it clear that the secured creditors have preferential right of realization of their dues against all other debts and government dues. Provisional attachment of the “proceeds of crime” under Section 5 of the PML Act is not an exercise for recovery of government dues of any nature; rather it is an exercise to seize /confiscate the property acquired by unlawful means of money laundering. Therefore, both the laws SARFAESI and Bankruptcy Act on the one hand; and....... + More

Money Laundering - seeking release of provisionally attached of movable properties - waterfall mechanism - overriding provisions of IBC - NCLT had already passed an order appointing an Official Liquidator for the sale of the assets of the Company In Liquidation - Adjudicating Authority under the PMLA ought not to have passed the Provisional Attachment Order - HELD THAT:- On a plain reading of the provisions of the IB Code, it is clear that statutory dues, which come within the meaning of ‘operational debt’, could be claimed against the Corporate Debtor only under the provisions of the IB Code and not under any other law. All such claims have to be lodged with the Official Liquidator and are payable under the waterfall mechanism provided in Section 53 of IB Code - the dues relatable to the vehicles belonging to the Corporate De....... + More

Compounding of offence under SEBI Act Rejected - guidelines for compounding under Section 24A - Whether accused/Company has wound up and refunded the entire amount collected under scheme to all their share holders/ creditors? - HELD THAT:- Indisputably, the learned Judge neither referred to wind up repayment report dated 22nd February, 2019, nor the orders passed by this Court in Company Petition; nor SEBIs’ circular dated 20th April, 2007, nor the Court obtained the views of SEBI before denying to compound the offence. The order dated 28th August, 2019 below Exhibit - 11 in SEBI Special Case passed by learned SEBI Special Judge is quash and set aside. As a consequence, learned Judge shall decide the application below Exhibit-11, in accordance with guidelines of the Hon’ble Apex Court set out in the case of Prakash Gupta [2021 (7) TMI 971 - SUPREME COURT]

Validity of appointment of Grant Thornton Bharat LLP (GTB) as a Forensic Auditor in respect of the financial statements of the respondent No.2/company - conflict of interest - violation of the principles of natural justice - absence of cause of action within the jurisdiction of this Court for maintaining the present petition - HELD THAT:- The “cause of action” is a bundle of facts which when taken together, with the law applicable to the said facts, gives a right to the plaintiff to seek relief against the defendant. In other words, cause of action is premised on the existence of a group of facts put together that would entitle a plaintiff to approach the court for a remedy against the defendant. In UNION OF INDIA VERSUS ADANI EXPORTS LTD. [2001 (10) TMI 321 - SUPREME COURT], it was held by the Supreme Court that in order to c....... + More

Fraudulent and Unfair Trade Practices - settlement in terms of SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 seeked - HELD THAT:- Petitioners are entitled to move application for settlement even at the appellate stage. However, for the said purpose, the petitioners would have to move appropriate application before the appellate forum. The said applications thereafter be rooted to the High Powered Advisory Committee which may examine the aspect keeping in view the fact that other similarly situated two companies (supra) have been allowed to get the matter settled and settlement orders have been passed in relation to the other similarly situated companies (supra). The issue with regard to the condition as laid down by the Internal Committee can also be examined by the High Powered Advisory Committee and it may ....... + More

Violation of the provisions of the SEBI Act - What exact violations raised - HELD THAT:- On going through Exhibit P3 show cause notice issued by the Deputy General manager of SEBI dated 13th March, 2020, we could not locate any such eventuality, apart from the same being explanatory in nature, enabling an aggrieved person to identify the exact violations raised against him and submit a reply understanding the gamut of the issues. Learned single Judge has rightly dismissed the writ petition holding that SEBI has power to initiate action against the appellant for violation of the provisions of the SEBI Act, 1992 - minute intricacies of the issues raised in regard to the power of the Deputy General Manager of SEBI, the question of limitation etc. are all aspects to be considered by the statutory authority in terms of the provisions of Act, 1....... + More

Compounding of offence - Price rigging and insider trading in the scrip of the Company - IPO issues - SEBI’s Investigation and the criminal complaint - HELD THAT:- The nature of the allegations against the appellant are such so as to preclude a decision to compound the offences. We have adverted, in a considerable amount of detail, to the circumstances which have been narrated in the counter affidavit filed by SEBI. We find merit in the submissions which has been urged before the Court by learned Senior Counsel who appeared on behalf of SEBI that the allegations in the present case involved serious acts which impinged upon the protection of investors and the stability of the securities’ market. The observation in the order of adjudication of the Chairperson of the SEBI dated 22 September 2000, that no loss has been caused to t....... + More

SEBI powers to issue directions and levy penalty - trustee’s decision to wind up a scheme of the mutual fund - Interpretation of the term ‘consent’ in Regulation 18(15)(c) - HELD THAT:- The quotation highlights that interpretation is sometimes a three-stage process. At first, the words being interpreted should be understood according to their grammatical meaning in their literal and popular sense. In the second stage, we consider whether in the given context the plain meaning is obscure as the text gives rise to choice of more than one interpretation, or the propositional interpretation fails to achieve the manifest purpose of the legislation, reduces it to futility, is practically unworkable or even illogical. In such cases at the third stage, the court applying interpretative tools selects or blue-pencils an interpreta....... + More

Modes of charging fees to clients by Investment Advisors - Constitutional validity and vires of Regulation 3(XII) of the Securities and Exchange Board of India (Investment Advisors) (Amendment) Regulations, 2020 (“Amendment Regulations”), by which Regulation 15A was inserted into the Securities and Exchange Board of India (Investment Advisors) Regulations, 2013 and Circular issued in pursuance thereof, being Circular Reference No. SEBI/HO/IMD/DF1/CIR/P/2020/ 182 dated 23.09.2020 challenged - whether the Board has the requisite authority under the SEBI Act, in the first place, to make regulations concerning charging of fees by Investment Advisors from their clients? - challenge is on the footing of both want of legislative power in SEBI (by delegated authority) to make a provision such as regulation 15A or to issue a Circular s....... + 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

Ex-parte adinterim order - Section 11 and 11B of the Securities and Exchange Board of India Act, 1992 - HELD THAT:- The appeals are disposed of in terms of the signed order.

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

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

SEBI seeking information from the petitioner regarding alleged deemed public issue - HELD THAT:- Awareness Programme conducted by the SEBI during the year 2017, a few investors reported that the petitioner Company has been mobilising funds from the public and have issued bonus shares. As alleged that the petitioner subsequently stopped buying back the shares - A preliminary enquiry made by the SEBI, it was noticed that the petitioner-Company has passed resolutions authorising issue of equity shares to any person including existing members of the Company in any manner the board may deem fit. The language of the resolution indicated that what was intended by the Company was not strictly private placement. It was under the said circumstances that the SEBI issued notices to the petitioner-Company. Though the information sought for were expect....... + 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.

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.

Extension of tenure of Director of Enforcement - extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation - fixing the tenure for a minimum period of two years - procedure prescribed under Section 25 of the Central Vigilance Commission Act, 2003 (‘CVC Act’) - Whether there can be extension of tenure of a person who has been appointed as a Director of Enforcement for a period of two years and who has attained the age of superannuation in the interregnum i.e. before the expiry of two years? - HELD THAT:- Government servant shall retire on attaining the age of 60 years. Posts for which there can be extension beyond 60 years have been specifically mentioned in the Rule and there is no dispute that the post of Director of Enforcement is not mentioned in the Rule fo....... + More

Intimation by recipients of foreign contributions - Foreign Contribution Regulation Act, 2010 (“FCRA”) - peculiarities in the FC-4 Form, whereunder returns, regarding contributions received by beneficiaries under the Foreign Contribution Regulation Act, 2010 (“FCRA”) are required to be filed - petitioners’ accounts wherein foreign contributions were received were not in the SBI, till 7th October, 2020. As a result, the petitioners submit that it has become impossible for them to submit the return under FC-4 Form for the year 2019-2020.HELD THAT:- To a query from the Court as to how this situation could be remedied, Mr. Farman Ali, learned Counsel for the respondent, seeks a short adjournment in order to enable him to obtain instructions specifically on this aspect. However, he submits that no stay ought to be....... + 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

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

Levy of service tax - Man Power Recruitment & Supply Service - deputation of employees for the business contingencies arising in their own group companies - HELD THAT:- The appellants (formerly known as M/s.Light Alloy Products Ltd.) have deputed their employees for the business contingencies arising in their own group companies such as, M/s.LAP Ross Engineering Ltd; payments for which were made by debit notes or book adjustments. They have not raised any invoice as such and did not collect the service tax. Understandably, the relation between the appellants and the group companies to which their employees have been deputed is not one of an agency and the client. This issue was discussed at length by the Hon’ble High Court of Gujarat in the case of COMMISSIONER OF SERVICE TAX VERSUS ARVIND MILLS LTD. [2014 (4) TMI 132 - GUJARAT ....... + More

Refund of accumulated credit - Input services - Banking and Financial Services - Cab Operator Services - Courier Services - Maintenance and Repair Services - Market Research Agency Service - Rule 5 of the CENVAT Credit Rules, 2004 as amended by the Notification No 18/2012 -CX (NT) dated 07.03.2012 - HELD THAT:- From the plain reading of the said rule it is evident that the amended rule 5, does not require establishment of any nexus between the input services and the exported services. The rule only provides that the admissible refund will be proportional to the ratio of export turnover of goods and services to the total turnover, during the period under consideration, of the Net CENVAT credit taken during that period. Undisputedly in the refund proceedings under Rule 5 of CENVAT Credit Rules, 2004 as amended any such attempt whereby credi....... + More

Levy of service tax - restaurant service or not - service tax on the food served in the rooms - HELD THAT:- Reliance was placed on the Board Circular dated 10.05.2011, wherein the Board have clarified that food served in the hotel room is not liable to service tax. It was further held that for service of food in the hotel room, the said activity was not chargeable to service tax under the head ‘restaurant service’. Appeal allowed - decided in favor of appellant.

Levy of tax, claimed under Form SVLDRS-1 - service tax dues, was paid late - It is contended that the respondent No. 4, without considering the provision of Scheme of 2019 and without giving any opportunity of hearing to the petitioner passed the order in a mechanical manner by which the Form SVLDRS-1 submitted by the petitioner was summarily rejected - HELD THAT:- According to the Scheme, once the assessee avails the Scheme and files the return by declaration, the verification of declaration by the designated committee was prescribed under Section 126 of the SVLDRS Scheme and the issue of statement by the designated committee is covered under Section 127 of the SVLDRS Scheme - As per Section 127 of the SVLDRS Scheme, when the declaration made by the petitioner was rejected, meaning thereby he would be liable to pay further interest and p....... + More

Maintainability of appeal - non-prosecution of the appeal - Reduction in the quantum of penalty - section 78(1) of the Finance Act, 1994 - HELD THAT:- In view of Rule 20 of the CESTAT (Procedure) Rules, 1982, this appeal is liable for dismissal on the ground of non-prosecution of the appeal in terms of Rule 20 of the CESTAT (Procedure) Rules, 1982. Quantum of penalty - HELD THAT:- The issue is squarely covered against the appellant by the decision of the Hon’ble Supreme Court in the case of UNION OF INDIA VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS AND COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VERSUS M/S. LANCO INDUSTRIES LTD. [2009 (5) TMI 15 - SUPREME COURT] wherein the Hon’ble Apex Court has held that We completely fail to see how payment of the differential duty, whether before or after the show cause notice is issu....... + More

Levy of service tax - Air Travel Agent service - commission received from the airlines - rule 6 (7) of the Service Tax Rules, 1994 - HELD THAT:- This issue was referred to a Larger Bench of the Tribunal by a Division Bench in KAFILA HOSPITALITY AND TRAVELS PVT LTD VERSUS C.S.T. -SERVICE TAX - DELHI [2018 (11) TMI 983 - CESTAT NEW DELHI] where it was held that In view of difference of opinion, matter should be referred to Larger Bench. We direct the Registry to place the records before Hon’ble President for constitution of Larger Bench. In view of the discussion, the findings and the answers given by the Larger Bench on the six issues, the impugned order dated July 27, 2015 passed by the Commissioner cannot be sustained and is set aside - Appeal allowed.

Sabka Vikas (Legacy Dispute Resolution) Scheme 2019 - unilateral declaration of liability by the petitioner - quantification of demand not made - petitioner was orally informed that the applicability of scheme has been rejected as the Deputy Commissioner till date has not calculated any duty/tax liability - HELD THAT:- Form SVLDRS-1 placed by the petitioner as Annexure P-3 itself contains the ground of its rejection as, ‘ground of ineligibility’ with remarks, ‘amount neither quantified nor communicated’. It is, therefore, apparent that the application form annexed by the petitioner itself shows its rejection as also the reason for the rejection. The petitioner, therefore, cannot plead ignorance of the same. In the present case as well, there was a reference to a unilateral declaration of liability by the petitioner....... + More

Recovery of Service Tax - air travel agent services - services provided to the US Embassy - non-fulfillment of the conditions laid down in the said Notifications dated 23.05.2007 till 30.06.2012 and Notification dated 20.06.2012 - rule 5A of the Service Tax Rules, 1994 - amendment in changed address in the Registration Certificate as per the provisions of Act - extended period of limitation - liability of interest and penalty - HELD THAT:- The Exemption Notifications was issued by the Central Government of India in the public interest to exempt taxable services provided to a foreign diplomatic mission or consular post in India. As is evident from clause (i) of both the Notifications, the underlying purpose is to uphold the principle of reciprocity amongst the nations. It is only to ensure that there is no evasion of tax and that services ....... + More

Levy of Service Tax - foreign remittances - duly discharged by the Appellant, but the same has not been accepted by the Adjudicating Authority - difference in challan amount due to exchange rate difference and TDS payments - Certain entries could not be traced at the Appellant's end - non-production of documentary evidence (challans etc.) indicating payment of service tax on impugned services - market research and exploration’ executed outside India - Extended period of limitation - suppression of facts or not - HELD THAT:- For the demand of service tax of ₹ 1,17,157/- on foreign remittance of ₹ 11,37,450/-, the Appellant paid service tax of ₹ 1,76,328/- towards the services received from the service provider mentioned at Serial. No. 64. The service tax paid by the Appellant is more than the service tax pointed....... + More

Denial of benefit of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - denial on the ground that condition contained in section 125(1)(e) of the Finance Act, 2019 is not satisfied because there has been no quantification arrived at by Anti Evasion, CGST, Mumbai Central - violation of principles of natural justice - HELD THAT:- The respondents do not dispute that no opportunity of hearing was extended to the petitioner. He has fairly conceded to the suggestion of the Court that the eligibility of the petitioner to avail the benefits of the scheme may be directed to be considered afresh, keeping open all points for determination by the appropriate authority. The impugned order stands set aside. The appropriate authority shall proceed to consider the issue of eligibility of the petitioner to avail the benefits of the scheme by extendi....... + More

Cenvat Credit - input services or not - dredging services - nexus with the output services i.e. Port service and Cargo handling services or not - navigation channel for which dredging service was availed is not a private property of EBTL as per the agreement between EBTL, GMB and Essar Steel - whether the appellant operating the port/jetty is entitled for cenvat credit in respect of dredging service against the provision of output service viz. port services and cargo handling services? Whether the dredging services has nexus with the output service namely port service and cargo handling service or not - HELD THAT:- The dredging service availed by the appellant is integral to providing output services for ships to come at the appellant’s jetty, without availing the dredging service the appellant could not be able to provide the outpu....... + More

Direction to accept payments (belatedly) determined pursuant to Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Suffice to dispose of captioned writ petition as closed, preserving the rights of the writ petitioner to send a representation to the respondents and making it clear that if the writ petitioner is so advised and if the writ petitioner sends a representation, it is open to the respondents to consider the same on its own merits and in accordance with law uninfluenced by this order. In other words, this order will neither impede nor serve as a impetus, if a representation is made. Captioned Writ Petition is disposed of.

Levy of service tax - Infrastructural services under the category of Business Support Services - Transit / Guest House services provided to group companies - Manpower Supply Services - Transfer of employees group companies - Difference between ST-3 & Balance Sheet - Wrong Availment of CENVAT Credit. Levy of Service Tax - Business Support Services - transit house income - HELD THAT:- The provision of housing facility on short-term basis is specifically covered under “short-term accommodation services”, which has been subjected to service tax w.e.f. May 01, 2011 under section 65(105) (zzzzw) of the Finance Act. As this service is a new entry and has not been carved out from any other existing service, it cannot be included under any other category, including BSS, prior to May 01, 2011. This is what was held by Bombay High Co....... + More

Maintainability of appeal - order passed by the Additional Commissioner has been dismissed for the reason that it was filed beyond the period of limitation - power of Commissioner (Appeals) to condone the delay - section 85(3) of the Finance Act - HELD THAT:- The Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT] examined the provisions of section 35 of the Central Excise Act, 1944, which are pari materia to the provisions of section 85 of the Finance Act, and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only upto 30 days after expiry of 60 days, which is the normal period for preferring the appeal. It is for this reason that the Supreme Court o....... + More

Business Auxiliary Service - promotion or marketing of goods produced or provided by or belonging to the client to CCIPL - HELD THAT:- The issue is decided in the case of M/S KANDHARI BEVERAGES P LTD VERSUS C.C.E. - CHANDIGARH [2020 (11) TMI 925 - CESTAT CHANDIGARH] where it was held that no demand of service tax is sustainable against the appellant. No demand of service tax is sustainable - Appeal allowed - decided in favor of appellant.

CENVAT Credit - duty paying documents - debit notes raised for cost sharing - appellant also reimburses the charges incurred in terms of the agreement - case of Revenue is that no service is provided and here appellant is only claiming reimbursement of actual expenses incurred towards administrative and other cost - also, denial of credit on such debit notes on the ground that these are reimbursement of expenses and not consideration paid for taxable service - eligible documents as per Rule 9 of the CENVAT Credit Rules, 2004 or not - HELD THAT:- The issue as to whether credit availed on the service tax paid is eligible to the appellant or is merely a reimbursement so as to pass on the cost incurred has been analyzed in the similar set of facts by the Hon'ble jurisdictional High Court in the case of M/S. MODULAR AUTO LIMITED VERSUS COM....... + More

Levy of Service Tax on the services by way of transportation of goods by a vessel from a place outside India upto the customs station for clearance in India - POPOS Rules - Validity of N/N. 22/2014-ST dated 16th September, 2014 - Vires of Article 14 of the Constitution of India and Rule 3 of the Service Tax Rules, 1994 or not - HELD THAT:- Issue notice. Learned counsel for the respondents accept notice. They pray for and are permitted to file their counter-affidavits within two weeks. Rejoinder-affidavits, if any, be filed before the next date of hearing. List on 30th September, 2021.

Levy of interest and penalty - Utilisation of ineligible credit - capital goods like angles, beams, channels, etc., used in erection of towers/pre-fabricated buildings/shelters - excess availment of credit on capital goods taken in excess of 50% - period from September 2004 to December 2007 - invocation of extended period of limitation. CENVAT Credit - capital goods - angles, beams, channels, tower/tower materials and pre-fabricated shelters - items fall under rule 2(a) of the Credit Rules or not - denial also on the ground that they do not qualify as accessories or components - HELD THAT:- The two conflicting views have been expressed by the Delhi High Court in Vodafone Mobile Services [2018 (11) TMI 713 - DELHI HIGH COURT]and the Bombay High Court in Bharti Airtel Ltd. [2014 (9) TMI 38 - BOMBAY HIGH COURT]. It, therefore, needs to exami....... + More

Levy of service tax - stock broker service or not - NSE/BSE transaction charges - SEBI turnover fees paid by the stock brokers to the concerned agencies and recovered from their client - HELD THAT:- This issue is no longer res- integra as this tribunal decided this issue in the case of M/S KUNVARJI FINSTOCK PVT LTD VERSUS C.S.T. -SERVICE TAX - AHMEDABAD [2018 (12) TMI 344 - CESTAT AHMEDABAD] where it was held that the charges realized by appellants were not being of commission or brokerage are not taxable and shall not form part of gross value of taxable service. Thus, the issue stands settled in favour of the assessee. Accordingly, NSE/BSE transaction charges and SEBI turnover fees is not liable to service tax under head of stock broker service - appeal allowed - decided in favor of appellant.

Condonation of delay of 9 years and 222 days in filing the appeal - appellant had not received copy of the impugned order and that they came to know about the order only after receiving a letter with regard to Sabka Vishwas Scheme on 20.12.2019 - HELD THAT:- Undisputedly, the appellant through his Consultant has appeared for the personal hearing on 23.3.2010. The appellant has thereafter apparently abandoned the litigation and has not pursued the same. Although, it is stated in the application that they did not receive the order, later when the documents were produced by the Department to evidence the service of the impugned order, the appellant has taken a U-turn by filing an affidavit on 25.8.2021. In the affidavit, it is stated that the order must have been served on some staff of the appellant firm. This fact that appellant filed appe....... + More

Cancellation of Country Liquor license - recovery of certain amount towards the balance - applicability of the amended Rule 13 to pre-existing contracts - the main contention before this court is that amounts collected as departmental management fee were not adjustable - HELD THAT:- The obvious basis of the principle against retrospectivity is the principle of 'fairness’, which must be the basis of every legal rule. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. The findings and conclusions previously rec....... + More

CENVAT Credit - input service - legal services - actual recipient of services - case was filed in the name of Distiller’s Association of Maharashtra but since the bill was raised in the name of the appellant - HELD THAT:- There is no dispute that the legal case was filed by the Distiller’s Association of Maharashtra which consists of many member manufacturers. Therefore, the beneficiary of the outcome is not only the appellant but all the members which means that the service was availed by all the members of the association. Though the invoice was raised in the name of appellant but the services availed against the said bills has benefitted to all the members of the association - even though the case was filed in the name of Distiller’s Association of Maharashtra but since the bill was raised in the name of the appellant....... + More

CENVAT Credit - restrictions in using the cenvat credit for payment of duty for the clearances - contravention of Rule 8(3A) read with Rule 4(1), 8(1), 8(3) of Central Excise Rules - Applicability of Rule 25 of Central Excise Rules - HELD THAT:- There is a conflict in the provisions of Rule 8(3) and Rule 8(3A), prior to its substitution w.e.f. 11.07.2014. Rule 8(3) provides for levy of interest at the specified rates for late deposit of tax plus duty for the period of default. Thereafter, again Rule 8(3A) provides for denial of facility of paying duty through cenvat credit, and further deems the clearances so made by using cenvat credit as to have been cleared without payment of duty. Pursuant to quashing of Rule 8(3A) by the Hon’ble Gujarat High Court and other High Courts, inspite of filing of appeal by the Revenue before the Hon&....... + More

CENVAT Credit - duty paying documents - credit on the basis of supplementary invoices issued by the Coal Companies - issue pending before Supreme Court - HELD THAT:- The issue involved herein is no more res-integra and is decided in the case of M/S. ULTRATECH CEMENT LTD. VERSUS C.C.E., RAIPUR [2018 (8) TMI 236 - CESTAT NEW DELHI] where it was held that the connected matters are pending adjudication before the Hon’ble Apex Court, issue being already sub-judiced the element of confusion cannot be ruled out. Appeal allowed - decided in favor of appellant.

Seeking permission for withdrawal of appeal - benefit of the Settlement Scheme already availed - CENVAT Credit - input service - outward transportation of goods delivered at the doorsteps of the buyers - equating the definition of “input” under section 2(k) and input services under section 2(l) especially when the expressions “clearance of final products from the place the removal” is conspicuous by its absence under the definition of 'input' - scope of various expressions - interpretation of statute - HELD THAT:- The appellant is permitted to withdraw this Appeal, as they have availed the benefit of the Settlement Scheme. The Appeal stands dismissed as withdrawn and the substantial questions of law are left open.

Unable to avail and utilized Cenvat Credit - Refund of the Countervailing Duty (CVD) and Special Additional Duty (SAD) - Validity of appeal of Department under the provisions of GST before the Commissioner (appeals) Central Excise - HELD THAT:- The apparent and admitted fact remains on record is that the entire customs duty with respect to the inputs imported by the appellant stands fully deposited by the appellant not only alongwith interest but also with the penalty as was directed to be paid while seeking said redemption. These admitted facts are sufficient to hold that the appellant became entitled to avail Cenvat Credit of the CVD/SAD paid by him on the imported inputs in terms of Rule 3 of Cenvat Credit Rules, 2004 (CCR). Apparently, the said Cenvat Credit could not be availed any more due to the erstwhile law i.e. Central Excise Ac....... + More

CENVAT Credit - 2 percent CVD paid on import of coal - benefit of N/N. 12/12-Cus dated 17.03.2012 - HELD THAT:- The issue is squarely covered by decision of CESTAT in the case of M/S. ASAHI SONGWON COLORS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST., VADODARA [2018 (9) TMI 159 - CESTAT AHMEDABAD] where it was held that Admittedly, the appellant have imported Coal and CVD of 2% is leviable in terms of Customs N/N. 12/2012-Cus. There is no restriction provided in Rule 3 as regards duty paid under Customs notification - This restriction is applicable only in case of indigenous goods on which the excise duty @ 2% was paid availing N/N. 12/2012-CE, which is not a case here. Appeal allowed - decided in favor of appellant.

Seeking to Issuance of directions to re-dispose the application for settlement filed by the petitioner - transparency in the matter of conducting an investigation by the Department Officials or not - grievance of the petitioner is that the two seized hard disks are not produced before the Settlement Commission for investigation - present writ petition is the second writ petition filed by the petitioner-Company - Section 32-E of the Central Excise Act - HELD THAT:- For entertaining an application under Section 32-E of the Act, the application must contain full and true disclosure of duty liability, which had not been disclosed before the Central Excise officer having jurisdiction. Secondly, sub-section (1) of Section 32-L of the Act contemplates that any person who made an application for settlement under Section 32-E has not cooperated wi....... + More

Reversal of CENVAT Credit - value of goods cleared under N/N. 82/84 to M/s HSL claiming exemption - whether provisions of Rule 6 (3) of Cenvat Credit Rules shall be applicable to the present transactions? - HELD THAT:- A perusal of the Rule makes it clear that it applies in cases where manufacturer is engaged in manufacture of any final product which is chargeable to duty as well as the manufacturers another final product which is exempted from payment of duty or chargeable to ‘Nil’ rate of duty and the manufacturer takes credit of the specified duty on any inputs, which is used in manufacture of both the above kind of final products - The facts of the present case are that there is one final product of the appellant herein i.e. is dissolved acetylene gas which is cleared by the appellant on payment of requisite excise duty ex....... + More

Refund of Excise duty in cash - fixing special rate of valued addition in terms of notification dated 14.11.2002 - exemption of goods cleared from units located in specified areas from the duty equivalent to the amounts of duty paid by the manufacturer - HELD THAT:- This petition is disposed off with the direction to the respondent No.3, Assistant Commissioner Central Goods and Services Tax Division, Jammu to consider the applications of the petitioner for fixation of a special rate in terms of the notifications referred in accordance with law most expeditiously without insisting for the time of filing of the applications in the light of the judgment of the Guahati High Court if possible within a period of one month from the date a copy of this order is produced before him. In the meantime, no final order shall be passed in response to th....... + More

Violation of principles of natural justice - adjudicating authority has relied on the report of the Central Revenue Control Laboratory (CRC) to reject the petitioner's explanation - HELD THAT:- The report of the CRCL was first confronted to the petitioner on 20.10.2020 and not earlier. Therefore, in the first place adequate opportunity was not granted to the petitioner to object to that report. In absence of any discussion as to the objection thus raised by the petitioner, in the order impugned, and further in view of the further assertion made by the petitioner, the complete copy of the report of the CRCL dated 3.6.2020/13.7.2020 had not been supplied to the petitioner, it is found that the principle of natural justice has been violated, inasmuch as neither the petitioner was confronted with the adverse material within time as to all....... + More

CENVAT Credit - inputs - V belts - procured 'pulleys' - denial on the ground that appellants were not manufacturing any goods and the activity that took place was trading of goods - HELD THAT:- It is not disputed that the appellant has cleared the final product viz. Belt & Accessories (Pulleys and V Belts) after payment of excise duty. When the appellant has discharged the excise duty on final product then the department cannot disallow credit alleging that there is no process of manufacture. In case of any doubt, the department ought to have intimated the appellant before discharge of excise duty. In the present case payment of duty on the inputs is not disputed. The Hon’ble High Court of Bombay in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [2012 (7) TMI 141 - BOMBAY HIGH COURT] held....... + More

Reversal of Cenvat Credit - input - input services - pressmud - wastes generated during manufacturing of sugar/molasses - exempt goods - Rule 6(3)(i) of CENVAT Credit Rules, 2004 - HELD THAT:- In the instant case appellant had been asked to reverse the credit with interest etc. against clearance of pressmud. However, it has been made crystal clear that bagasse (a similar waste product like pressmud) is not a manufactured product but is only an agricultural waste and residue, which is not the result of any process and therefore cannot be treated as falling within the definition of Section 2(f) of the Central Excise Act, 1944 that defined a manufacturer and in the absence of manufacturing, there cannot be any excise duty and therefore, Rule 6 of the CENVAT Credit Rules, 2004 shall have no application. In obedience to the judicial precedent ....... + More

Demand of amount collected in the name of duty u/s 11D - CENVAT credit - inputs or capital goods - imported Box Strapping Machines - said machines cleared as such on payment of duty equivalent to Cenvat credit availed in respect of CVD paid - Rule 5(3) of Cenvat Credit Rules, 2004 - HELD THAT:- Right upto the Commissioner (Appeals) order the entire case was decided against the appellant on the premise that the appellant is not entitled for Cenvat credit on imported Box Strapping Machine as the same is falling under Chapter 39. On perusal of record and bills of entry, it is found that it is factually incorrect basis as the correct chapter heading of imported Box Strapping Machine is under heading 84229090. Since this is correct Chapter heading, imported Box Strapping Machine clearly fall under the definition of capital goods which covers t....... + More

CENVAT Credit - input services - Goods Transport Agency Service for dispatching their finished goods - outward transportation on FOR destination basis - place of removal - premises of the buyer or factory gate of the buyer - HELD THAT:- In the facts and circumstances of this case, the ‘place of removal’ is the premises of the buyer, not the factory gate of the buyer, as the finished goods are cleared by the appellant on ‘FOR destination basis’. The appellant is entitled to cenvat credit on the GTA service for outward transportation of the goods on FOR destination basis - CENVAT credit allowed - appeal allowed - decided in favor of appellant.

Classification of goods - Di-calcium phosphate (animal feed grade), manufactured and cleared under brand name ‘PROPHOS’ - classified under CETH 2835 or under CETH 2309 - HELD THAT:- It is seen that as per the N/N. 4/2016-CE(NT) dated 12.2.2016, levy of duty of excise on di-calcium phosphate (animal feed grade) of rock phosphate origin falling under Heading 2835 of the First Schedule to CETA, 1985 is not required to be paid under the said Notification issued under section 11C of the Act. Taking into account that the Notification issued under section 11C would apply in full force, demand confirmed cannot sustain - appeal allowed - decided in favor of appellant.

Area based exemption - North East Industrial Investment Promotion Policy, 2007 - vires of notifications dated 27.03.2008 and 10.06.2008 - contention is that the application of the petitioner for fixing of the special rate which was made on 13.06.2021, has not yet been given a final consideration by the Principal Commissioner, GST, Guwahati - HELD THAT:- Considering the limited grievance raised, this writ petition is disposed off directing the Principal Commissioner of GST, Guwahati to pass a reasoned order on the application of the petitioner dated 13.06.2021 requesting for fixation of a special rate. By requiring the Principal Commissioner, GST, Guwahati to pass an order it is meant that the Principal Commissioner, GST may pass any reasoned order as may be advisable under the law by either accepting or rejecting the request made by the petitioner. In doing so, the Principal Commissioner, GST, Guwahati may pass any order as deemed appropriate under the law. Petition disposed off.

Recovery of rebate claims already sanctioned - scrap generated in the manufacture of the hand tools - removal of such waste on payment of duty as if such waste is manufactured or processed in the factory of the manufacturer or processor - whether such scrap was liable to payment of duty on its clearance - denial of rebate on the ground of non-fulfillment of paragraph 4(c) of the notification No.21/2004-CE(NT) dated 06.09.2004 - HELD THAT:- A clear reading of paragraph 4 to become applicable the conditions sine quo non was the material as such or at partially processed stage had to be moved outside the factory and only and only then paragraph 4 and its sub-paragraphs (a), (b) and (c) would become applicable. Once there is no finding that the material or partially processed goods were moved outside the factory, there will be no applicabilit....... + More

Seeking grant of Bail - detention of finished goods against the pending government dues - violation of the undertaking given by the applicant on 10.11.2016 with regard to non-disposal of goods and to keep them in safe custody - HELD THAT:- The undertaking reveals that applicant has declared neither to claim or demand owner-ship of the goods. It is alleged that the applicant has sold the goods after giving such undertaking. The documents in this regard also reveal that final order with regard to detention of the goods to recover government dues was passed on 20.04.2017. Thus, there is delay of more than four years in registration of the FIR as despite having knowledge of selling / detention of goods, the FIR has been filed on 19.04.2021. Considering the facts of the case, the custodial interrogation of the applicant at this stage is not ne....... + More

Refund claim for unutilised cenvat credit - appellant took re-credit of the rejected amount of refund and thereafter, again filed the refund claims - entitlement to re-credit under the repealed provisions of N/N. 27/2012-CE - Applicability of first Proviso to Section 142(3) of the CGST Act, 2017 - HELD THAT:- The provisions of Section 142(3) First Proviso read with Section 142(6)(a) along with the proviso clearly provides that the existing pending claims of an assessee under the repealed Central Excise Act or Service Act provisions shall be decided in accordance with erstwhile Act, and it further provides that if any claim of refund is rejected, the same shall lapse. The present appeals are also bad under the principles of res judicata, as the same issue of refund attained finality on passing of the order by the Commissioner (Appeals) in ....... + More

Validity of reassessment order - benefit of input tax credit - consideration of H form submitted by the petitioner for exemption of turnover tax on the export effected - prohibition on initiation of fresh recovery proceedings in respect of the re-assessment order - HELD THAT:- Perusal of the impugned order at Annexure-A will clearly indicate that except for stating that the notice alleged to have been sent by the respondent No.2 to the petitioner was returned unserved with the endorsement “no such premises found”, the respondent No.2 did not intimate or notify the petitioner about the proceedings nor was the petitioner heard before passing the impugned order, which clearly shows that no opportunity, much less reasonable or sufficient opportunity was provided to the petitioner before passing the impugned order which is violativ....... + More

Area Based Exemption - Grant of certain incentives in the form of subsidy to specified industries set up on or after 01.04.2012 - time limitation - rejection of application on the sole ground that the claims were submitted after expiry of two years from the period to which the claims related - Tripura Industrial Incentives Promotion Scheme, 2012 - HELD THAT:- The impugned order suffers from proper understanding of the order of the Court dated 12th January, 2021 and also suffers from lack of proper analysis of the provisions of the scheme. While disposing of the writ petition by the said order dated 12th January, 2021 we had made certain significant observations - the purpose was to allow the authority to examine the facts more minutely expecting that if the petitioner was prevented from making application for refund in time because a depa....... + More

Upfront collection of tax and penalty - SCN was not issued - whether Sales Tax Officer (STO) can collect upfront tax and penalty from the Petitioner at the time of a surprise inspection undertaken of his business premises without passing any assessment order? - Orissa Value Added Tax Act, 2004 (OVAT Act) - HELD THAT:- As explained in MG. GARMENTS VERSUS SALES TAX OFFICER, INVESTIGATION UNIT, BHUBANESWAR AND OTHERS [2008 (11) TMI 618 - ORISSA HIGH COURT], the penalty under Section 73(10) of the OVAT Act can be imposed “only after giving the dealer an opportunity of being heard and after holding such further enquiry as the authorised officer concerns may consider necessary.” In that case, the sum had been collected on 4th February, 2008 even before the Petitioner could reply to the show cause notice issued to it on 2nd February,....... + More

Benefit of concessional rate of duty - C-Form not issued - purchase of high speed diesel for manufacture of cement - HELD THAT:- Taking into consideration the fact that in case the C-Form is subsequently found to be wrongly issued or obtained then it is always within the power of the State to charge a higher rate of GST payable alongwith the penalty for which the petitioner shall always be exposed. Withholding the C-Form in any way will not serve any bodies purpose as the petition will take some time for final hearing. It is directed that the State shall issue C-Form to the petitioner which would be subject to the final adjudication of the entitlement of the petitioner's C-Form and if it is found that the petitioner were not entitled to get the C-Form, then in such case they shall be liable for the consequences of penalty and higher rate of GST and other measures which are provided under the law - List the case after six weeks along with WPT No. 42 of 2021.

Concessional rate of Entry Tax - purchase of raw materials like Coal, Caustic Soda, HFO and LDO etc. - Rule 3(4) (b) as existed prior to 2nd amendment of OET Rules - Coal, Caustic Soda, HFO and LDO utilized by the Petitioner in its CPP units are all “raw material” for production of electricity as a finished good - requirement to disclose raw material in the registration certificate or not - HELD THAT:- The registration certificate issued to the NALCO did mention the items viz., Coal, Caustic Soda, HFO and LDO by an entry made with effect from 14th March, 1987. To say that the entry should have further mentioned that these were “raw materials” is, in the considered view of the Court, hyper technical. There appears to be no dispute between the parties that in fact those materials were used as raw materials by the Pet....... + More

Jurisdiction - Suo motu revisional power - power of ACST to exercise revisional power - Section 79(1) of the Orissa Value Added Tax Act, 2004 (OVAT Act) read with Rule 119 of the Odisha Value Added Tax Rules, 2005 (OVAT Rules) - HELD THAT:- A careful reading of Section 106 (2) (c) of the OVAT Act would reveal that during the transitional period between the repeal of OST Act and till such time there was a fresh delegation of the powers of the Commissioner under the OVAT Act, the earlier delegation of powers under the OST Act would continue. The Court’s attention has been drawn to the fact that under the Notification No.14171-I-ST-76 dated 3rd August 1963 read with earlier order dated 5th May, 1963 the suo motu powers of the Commissioner exercisable under Section 23 (4) (a) was in fact delegated to the ACST in so far as the order soug....... + More

Inter state sale or Intra-state sale - elevators are sold to the contractees - petitioner would procure peripheral machinery and use further manpower for installation purpose on which it would pay VAT - AO was of the opinion that even on the cost of elevators the petitioner must pay the local taxes - HELD THAT:- The Assessing Officer and the revisional authority have made a serious error in demanding VAT from the petitioner on sale and supply of the elevators to its contractees. In plain terms, the machinery was supplied separately by way of a sale which was in the nature of an inter-state sale and on which applicable Central Sales Tax was paid. When the petitioner undertook the work of installation of such machinery and commissioning of the project, the petitioner could be charged only on the incremental value where the local sale took p....... + More

Validity of second appeals - recovery proceedings during the pendency of the appeals before the Tribunal - HELD THAT:- Let the second appeals be decided at the earliest. The Tribunal could take up the same for hearing, more particularly, the applications for early hearing as well as applications for stay. The same shall be decided within two weeks of receipt of the copy of this order. This Court has chosen not to enter into the merits of the matter. It is for the Tribunal to decide on the strength of such material placed before it and in accordance with law. Petition disposed off.

Reversal of exemption availed - deduction on 2nd sales of clothes, which was allowed - denial on the ground that appellant has effected the purchase of Yarn from unregistered dealers or Registration Certificate canceled dealers - proposal to revise the turnover and assess the Tax at 4%, after adding 10% towards Freight and Gross Profit - ppellant had challenged the Assessment Order on the ground of unfairness in the action of the statutory authority and on the other grounds of violation of principles of natural justice and non-consideration of the documents which were placed before the authority. HELD THAT:- If these were the grounds raised by the appellant, then it goes without saying that the correctness of the Assessment Order could be tested in a writ petition under Article 226 of the Constitution of India. Thus, we hold that the writ....... + More

Recovery of arrears of tax - petitioner made a request to collect the tax arrears by way of instalments as the petitioner company was facing financial crisis due to COVID-19 situation - HELD THAT:- The petitioner is willing to settle the tax arrears by way of 17 instalments, each instalments of ₹ 10,00,000/- per month. The petitioner is directed to settle the entire arrears of tax dues in 17 installment and each instalment is ₹ 10,00,000/- per month and, the first installment will commence from 20th September 2021. The petitioner is directed to pay the monthly installments on or before 20th day of every calendar month without any fail. In the event of non-payment, the respondents are directed to initiate recovery action by following the procedures as contemplated under law. Petition disposed off.

Incentives were provided to the new industries established in the State of Assam on or after 01.10.2008 - benefit for the Industrial Policy of Assam 2008 - manufacture of fireclays - process amounting to manufacture or not - HELD THAT:- The Additional Chief Secretary to the Government of Assam in the Industries and Commerce Department had perused the order dated 09.12.2016 passed in WP(C)No.7228/2015, the representation of the petitioner dated 03.12.2013 was also perused. Apart from the above, the letter dated 06.10.2012 of the Commissioner of Taxes, Assam as well as another letter dated 27.10.2014 also of the Commissioner of Taxes Assam as well as the minutes of the State Level Committee meeting dated 05.11.2015 were perused by the Additional Chief Secretary to the Government of Assam in the Industries and Commerce Department while passi....... + More

Recovery of Tax dues - First charge - Section 77 of the U.P. VAT Act - Overriding effect of IBC - Sovereign power of the State to enable the State to raise money by taxation for adequate revenue - liability of an assessee/ dealer under the U.P. VAT Act and the U.P. Tax on Entry of Goods into the Local Areas Act, 2007 - HELD THAT:- The definition of the word “charge” in IBC shall relate to the subject matter of the IBC which cannot be read or borrowed for interpreting Section 77 of the U.P. VAT Act. Section 77 of the U.P. VAT Act, cannot be said to be referable to any of the entries of List-III - Concurrent List. Overriding effect of IBC - HELD THAT:- The provisions of Section 238 of the IBC cannot be read as overriding the provisions of the U.P. VAT Act including Section 77. Liability of an assessee/ dealer under the U.P. VAT ....... + More

Best Judgement Assessment - cancellation of compounding tax permitted for the year 2014-15 - HELD THAT:- On a perusal of the judgment in THAKKARAM RESTAURANT VERSUS STATE OF KERALA [2020 (11) TMI 1014 - KERALA HIGH COURT] it is seen that the cancellation of payment of compounded tax under section 8(c)(i) has been upheld by this court ; holding that pursuant to such a cancellation, regular assessment can be resorted to by the assessing officer. The learned counsel for the assessee after perusing the abovesaid judgment fairly conceded that the matter is already covered by the said judgment. Revision dismissed.

Refund claim - availability of Sales tax exemption or not - whether the petitioner namely M/s. Akbari Continental Pvt. Ltd. is a "Hotel" or comes under "Guest House and Restaurants" under Clause-27 of the ineligibility list - Entry 30-FFFF vide Finance Department Notification dated 16.08.1990 - disallowance of claim of first point sale of cold-drinks and IMFL U/s. 5(2) (A) (a) read with Section 8 of Orissa Sales Tax Act. Whether by selling IMFL, cold drinks in its hotel it was part of the list of units excluded from exemption under Sl. No. 27 of IPR 1989? - HELD THAT:- The Tribunal has for the three AYs 1993- 94, 1994-95 and 1996-1997 rejected the plea of the Department that the Petitioner’s unit is to be categorized as a ‘restaurant’ and denied the exemption in terms of Entry 30-FFFF. This Court find....... + More

Process amounting to manufacture or not - Works contract - manufacturing and selling the recorded cassettes to the petitioner - First sale or second sale - recording the blank cassettes by utilizing the master copy - cassettes not sold in the open market - Validity of Circular dated 16.05.2003 - Central Excise Act and TNGST Act for levying of Tax for sale, are same or not - HELD THAT:- In the present case, the right was not given to use goods for any purpose and it is given for a particular purpose that recording the songs in blank cassettes and after recording, such recorded cassettes are to be supplied only to the petitioner. Therefore, the cassette manufacturer's services are utilized to process the recording system and after processing the recording system, the recorded cassettes are handed over or sold to the petitioner and the m....... + More

Levy of Sales Tax - Rubber Polisher, V-Belt and Hose pipe - covered under first point levy of Tax prior to Finance Department Notification No.14691-CTA-37/2001 dated 31.7.2001 or not - disallowance of declaration Form No.XXXIV, proper or not - HELD THAT:- It is evident that inclusion of spare parts in terms of the notification dated 31st March, 2001 for the purposes of first point tax was intended to be prospective. In other words, there is nothing in the said notification to indicate that applies to a prior period. In the present case, since the assessment pertains to the year 1999-2000, the question of applying the aforementioned notification dated 31st March, 2001 did not arise. The Court answers the question framed in the negative in favour of the assessee against the Department. Accordingly, it is held that the Tribunal was not justi....... + More

Works Contract - intra-State sales - three separate contracts for supply, design and erection of 100 TPD Rotary Kiln - turn over has been assessed under the CST Act - levy of penalty u/s12(5) of the Orissa Sales Tax Act, 1947 - whether the Tribunal erred in treating the transactions as an intra-State sale despite the Petitioner having paid CST on the same transaction? - HELD THAT:- In BHARAT HEAVY ELECTRICALS LIMITED VERSUS UNION OF INDIA AND OTHERS [1996 (4) TMI 419 - SUPREME COURT], the Supreme Court was considering a similar question which arose in the background of Bharat Heavy Electrical Limited (BHEL) being awarded a Letter of Intent (LOI) by the National Aluminium Company Limited (NALCO), Bhubaneswar for setting up of five captive power plants (120 MW each) at its Aluminium smelter complex at Angul, Orissa. Pursuant to the LOI, BHE....... + More

Application for restoration of the revision petition - revisional authority recorded that the petitioner is not appearing consistently since long time and dodging the proceedings - HELD THAT:- In absence of any reliable evidence of the petitioner filing restoration application on 01.01.2014 as stated, in the present case we are unable to accept the stand of the petitioner in this respect. It is true that the petitioner relies on some stamping purported to be by the departmental authorities of having received the application for restoration on 01.01.2014, however, the respondents have denied any such application being on record. More importantly, if such application was filed on 01.01.2014 as is stated by the petitioner, there was no further requirement of filing a fresh application on 24.03.2021. This application is premised on the ground....... + More

Validity of Curtailing and whittling down the benefits with retrospective benefit - Musical Instruments - scope of the power conferred under Section 17 of the TNGST Act from 12.02.2004 - Validity of Notification G.O.MS No.193 (CT & R (B2) dated 30.12.2006 - ultravires Section 17 of the TNGST Act, Articles 14, 19 (1) (g) and 265 of the Constitution of India or not - petitioner-Company have challenged the Notification issued in G.O.Ms.No.193, dated 30.12.2006 on the ground that once exemption granted under sub-section (1) of Section 17 cannot be cancelled or varied under sub-section (3) of Section 17 with retrospective effect - HELD THAT:- This Court is of an opinion that the exemption was granted initially in Notification G.O.Ms.No.45, dated 12.02.2004. In the said Notification, it is generally stated that the exemption in respect of t....... + More

Seeking direction to respondent to consider the representation within stipulated period - availability of appeal remedy, which was not exhausted - existence of error, apparently on the face of the record or not - Section 84 of the TNVAT Act - HELD THAT:- Since Sub-Section (4) of Section 84 of the TNVAT Act has made it clear that even if the appeal / revision has been filed or pending, that will not preclude the power vested in the assessing authority to decide any such application be moved by the assessee to be considered under Section 84 of the TNVAT Act. The objection raised by the learned Government Advocate appearing for the respondent that without exhausting appeal remedy as against the original order / assessment order passed by the assessing authority, since the petitioner has invoked the provision under Section 84 of the TNVAT Act....... + More

Dishonor of Cheque - accusation of cheating - acquittal of the accused - fraudulent or dishonest intention at the time of making promise or representation - conviction under 420 of IPC - HELD THAT:- This Court finds that although the allegation was made in the complaint petition that the petitioner had not only induced the complainant to take E.S.S. from the company but had also, on false assurance of handsome return as well as employment of son and son-in-law of the complainant, took huge amount from the complainant, but failed to return the money - The learned trial court considered the conduct of the petitioner after the transactions, particularly with regards to non-payment of any amount pursuant to agreement entered during the pendency of the case and convicted the petitioner for offence under section 420 IPC. The learned appellate c....... + More

Grant of anticipatory bail - Dishonor of cheque - complainant has issued the cheque to the applicant or not - misuse of cheque - HELD THAT:- Taking into consideration, the nature of allegations levelled in the complaint against applicant and two other persons. Applicant has placed on record Annexure A-2 which are the bills towards supply of material to Ganga Construction. After dishonoring the cheques on 18.1.2017 legal notice was issued thereafter the complaint case under Section 138 of Negotiable Instrument Act was filed before the court of competent jurisdiction. The fact that co-accused Nandkishor on 12.08.2021 withdrawn proceedings filed under Negotiable Instrument Act by him against complainant mentioning that settlement has been arrived between the parties, without commenting anything on merits of the case, the bail application is ....... + More

Seeking grant of anticipatory bail - Bribery - defalcation of huge amount of the University - section-438 of the Code of Criminal Procedure - HELD THAT:- The legislative extent behind the introduction of the section-438 of the Code of Criminal Procedure is to safeguard the individual personal liberty and the protect him from the possibility of being humiliated and from being subjected unnecessary police custody. However, the Court has to keep in mind that a criminal offence is not an offence against an individual; rather the larger societal interest is on stake. Therefore, the delicate balance is required to be established between two rights safeguarding the personal liberty of an individual and the societal interest, depending upon the facts and circumstances of the case. The prosecution case is that the Petitioner is one of the Founder ....... + More

Dishonor of Cheque - Discharge of legally enforceable debt or not - preponderance of probabilities - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- In order to hold the accused guilty under Section 138 of the Negotiable Instruments Act, it is mandatory that the complainant should prove that the cheque in question was issued as against the legally enforceable debt or liability - Here, in this case, it was stated that the cheque in question was issued to one Radhakrishnan. However, in respect of the alleged signature of the revision petitioner found in the cheque, there was no denial on his side. Though it was stated that the particular cheque was obtained by one Radhakrishnan, in order to substantiate the same, no substantial evidence has been let in before the Courts below. Further, in the complaint lodged before the Superintende....... + More

Dishonor of Cheque - insufficiency of funds - acquittal of the accused - discharge of legally enforceable debt or not - rebuttal of presumption - Section 139 of N.I. Act - HELD THAT:- It is to be noted here that, loan is said to have been advanced in 2009, but however, in the entire complaint there is absolutely no reference as to the date of advancement of loan for ₹ 2,00,000/-. It is hard to accept the contention that such a huge loan is being advanced and the complainant does not remember the date of advancement of loan. Even in the examination-in-chief P.W. 1 has not stated regarding date of advancement of loan. In the cross-examination, P.W. 1 has admitted that he has advanced the loan without obtaining any document. The evidence of P.W. 1 itself disclose that his monthly income is ₹ 5,000/- to ₹ 6,000/-. Further, i....... + More

Dishonor of Cheque - discharge of enforceable debt or not - rebuttal of presumption or not - only point involved in this case is that the cheque itself was not issued in discharge of any liability and accordingly, one of the basic ingredients of the offence under Section 138 of the Negotiable Instruments Act was not at all satisfied - HELD THAT:- The Complainant's son was trying to change his transporting business after selling his trucks and about this, the petitioner had knowledge and so the petitioner came in contact with the Complainant side and offered his son to participate in a new business and after being convinced, the Complainant spent a huge amount in the business of the petitioner by his selling trucks, but on asking to repay the benefits of the share, the petitioner issued a post dated cheque bearing no. 831577 dated 15.0....... + More

Power of Court to entertain an application under Section 9(1) of the Arbitration and Conciliation Act, 1996, once an Arbitral Tribunal has been constituted - true meaning and purport of the expression “entertain” in Section 9(3) of the Arbitration Act - whether the Court is obliged to examine the efficacy of the remedy under Section 17, before passing an order under Section 9(1) of the Arbitration Act, once an Arbitral Tribunal is constituted? HELD THAT:- To discourage the filing of applications for interim measures in Courts under Section 9(1) of the Arbitration Act, Section 17 has also been amended to clothe the Arbitral Tribunal with the same powers to grant interim measures, as the Court under Section 9(1). The 2015 Amendment also introduces a deeming fiction, whereby an order passed by the Arbitral Tribunal under Section ....... + More

Dishonor of Cheque - applicant moved an application for discharge, stating therein that the cheque has not been presented before the bank within prescribed period, as such, proceedings under Section 138 of Negotiable Instruments Act cannot be drawn against him - HELD THAT:- All the submissions/ objections can very well be raised during the course of trial and not at this stage, here only prima facie case is to be seen, as such, impugned order dated 01.05.2014 needs no interference by this Court at this stage. Present application under Section 482 CrPC is devoid of merit - Application dismissed.

Dishonor of Cheque - cheating versus breach of contract - allegation is that petitioners entered into a criminal conspiracy to misappropriate the outstanding dues payable to the opposite party - fraudulent or dishonest intention at the time of making the promise or not - Section 482 of the Code of Criminal Procedure - HELD THAT:- In the instant case the petitioners practically admitted their outstanding dues by filing the instant application. It is contended on behalf of the petitioners that they have no fraudulent or dishonest intention to induce the opposite party to deliver the goods, viz, C.R Coil and the petitioners have already paid a sum of ₹ 8 (eight) lakh as part payment of the consideration money. Since there is no ingredient of offence under Section 420 of the IPC against the petitioners from the very inception of transac....... + More

Attachment of several properties of the petitioner-company - vires of notification dated 19th January 2017 issued by the Government of Tripura in exercise of powers under Section 4(1)(ii) of the Tripura Protection of Interests of Depositors (In Financial Establishments) Act, 2000 - seeking protection of attached moveable and immovable properties till appropriate orders are passed by the designated Court - valuation of the properties - HELD THAT:- Once the property has been validly attached under Section 4 of the Act of 2000, all issues concerning such property would be dealt with and decided by the Designated Court. However, when the petitioner has raised a fundamental question of validity of the order of attachment itself, the same must be examined by this Court - As per sub-section (2) of Section 4, upon publication of the order under s....... + More

Power to legislate in the field of Cooperative Societies - scope/ jurisdiction falls exclusively with the State and does not lie within the domain of the Union, much less the Reserved Bank of India? - HELD THAT:- The Parliament by Constitution (97th Amendment) 2011 while inserting Article 243ZL(1) provided that in case of cooperative society carrying on the business of banking, the provisions of the Banking Regulation Act 1949 shall also apply. This provision was struck down by the Gujarat High Court in RAJENDRA N SHAH VERSUS UNION OF INDIA & ANR. [2013 (4) TMI 972 - GUJARAT HIGH COURT], whereby Part IXB introduced by way of aforesaid amendment was declared ultra vires the constitution for want of rectification by the State Legislation under proviso (2) to Article 368 (2). The aforesaid judgment has been upheld by the Supreme Court re....... + More

Dishonor of Cheque - Calling for the entire records relating to complaint - rebuttal of presumption - ulterior motive to cheat the respondent/complainant or not - Section 482 of Cr.P.C. - HELD THAT:- The issuance of the disputed cheque by the petitioner is admitted and established. Primarily, once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque and the burden lies upon the accused to rebut the presumption by adducing evidence. As held by the Hon'ble Supreme Court in the case of Rajeshbhai Muljibhai Patel [2020 (2) TMI 412 - SUPREME COURT], until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain and it is for the accused to adduce evidence to rebut the statutory presumption. The Hon'....... + More

Dishonor of Cheque - legally enforceable debt or not - threat and coercion - mis-utilisation of funds - jurisdiction under Section 482 of Criminal Procedure Code - HELD THAT:- The fact in the present case is not in dispute that there was a Memo of Compromise between the parties dated 24.07.2014. It is the claim of the petitioner that by force and intimidation, the said Memo of Compromise was entered into between the parties. Further it is admitted by the petitioner that she had issued two cheques bearing No. 578187 and 578186, as security towards the vehicle loan obtained by the husband of the petitioner. However as per the Memo of Compromise, the petitioner is liable to the respondent for a sum of ₹ 10,00,000/- - On the other hand, it is the claim of the respondent that there is a legally enforceable debt against the petitioner as ....... + More

Regularization of Ad hoc appointments - claim for regularization was mainly rejected on the ground that since her initial appointment was on leave vacancy for which there was no provision under the 2001 Rules, as such she cannot be held to be entitled to the benefit conferred by Regularization Rules, 2001 - HELD THAT:- In the case of the appellant, it is undisputed that she was appointed by the Regional Inspectress of Girls Schools, who is the prescribed appointing authority under the Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983. Equally undisputed is the fact that she was appointed on a sanctioned post and possessed all the necessary prescribed qualifications under 1983, Rules. Whether her continuation on the post on the strength of the interim order passed by the High Court would disentitle her fro....... + More

Dishonor of Cheque - cheque was issued for discharge of a debt or a liability or not - rebuttal of presumption - acquittal of the accused - Section 148 of the Negotiable Instruments Act - HELD THAT:- Prima facie it appears that the accused had taken no steps to discharge his liability. The appellate Court, therefore, ought to have insisted on the accused depositing at least 20% of the amount of fine imposed by the Magistrate. Under the circumstances, the respondent No.1 is directed to deposit a sum of ₹ 2,00,000/- before the Sessions Court within sixty days from today. Upon such deposit the amount shall be released in favour of the appellant which release shall be subject to the order that may be passed in terms of proviso to sub-section (3) of Section 148 of the Negotiable Instruments Act if the accused is acquitted by the Sessions....... + More

Legislative Power to make laws with respect to Multi-state Co-operative Societies - Power of Center versus Power of State - Application of the Doctrine of Severability - Vires of the Constitution (Ninety Seventh Amendment) Act, 2011 which inter alia introduced Part IXB under the chapter heading ‘The Co-operative Societies’ - whether Part IXB is non est for want of ratification by half of the States under the proviso to Article 368(2)? As per R.F. Nariman, J. It is entirely a matter for the States to legislate upon, being the last subject matter mentioned in Entry 32 List II. At this stage, it is important to note that Entry 43 of List I, which deals with incorporation, regulation and winding up of trading corporations including banking, insurance and financial corporations expressly excludes co-operative societies from its amb....... + More

Dishonor of Cheque - Suit for recovery of costs and future interest, on the foot of a promissory note - part payment endorsements on the back side of the suit promissory note are true or not - necessary ingredients of a promissory note as defined under Section 4 of the Negotiable Instruments Act, present or not - HELD THAT:- A careful examination of the provisions of the Negotiable Instruments Act in application to Ex.A1 promissory note, makes out that it stands to such description. The predominant consideration stated not only in Section 4 but also as to negotiability, being its one of principal features, described in Sections 13 and 14 of this Act, leaves no manner of doubt, of its nature. Thus, being a negotiable instrument with such characteristics it can be enforced as such. Even otherwise, if the contention of the appellant is accep....... + More

Dishonor of cheque - offence punishable under Section 138 of the N.I. Act - whether the order passed by the Trial Court on 15.05.2018 could be modified when already the said order is confirmed by this Court in MRS. ASHA JAYAWANT MORE VERSUS SMT. SWATI SANJAY REVANKAR [2019 (4) TMI 2010 - KARNATAKA HIGH COURT]? - HELD THAT:- Even though learned counsel for respondent contended that the finding given by this Court while disposing of the Crl.P.No.101047/2018 is not the correct law, admittedly, the said Criminal Petition was disposed of by the Coordinate Bench of this Court. The accused has not challenged the said order passed by this Court, dismissing the criminal petition. This Court is not sitting in appeal against the dismissal of the criminal petition. As the facts and circumstances of the case stand, the Appellate Court modified its earlier order, after the same has been confirmed by this Court, which is not proper and cannot be upheld - Petition allowed.

Seeking grant of bail - Smuggling - 159 grams of MDMA of commercial quantity - contraband from foreign countries - seizure u/s 67 of the NDPS Act - twin requirements under Section 37(1)(b) of the NDPS Act or not - HELD THAT:- Admittedly, the consignment was addressed to Amitha Radhakrishnan and not to the petitioner. Even the earlier parcel referred to by the prosecution which was said to have contained 25 grams of ganja, was also addressed to Amitha Radhakrishnan. It is stated that Amitha Radhakrishnan and the petitioner were in live-in relationship residing in the address mentioned in the parcel. It is stated that Amitha Radhakrishnan has given a statement that she was not aware of the bad deals that are being held by the petitioner, but, however, she says that it must be the petitioner who used to book the consignment in her name and u....... + More

Dishonor of Cheque - 15% of the cheque amount is to be paid by the complainant to the Himachal Pradesh State Legal Services Authority - parties prays that the matter be compounded in terms of the judgment passed by the Hon'ble Supreme Court of India in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] - HELD THAT:- The jurisprudence behind the N.I. Act is that the business transactions are honoured. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are simply to execute the recovery of cheque amount by showing teeth of penalty loss - This Court has inherent powers under Section 482 of the Code of Criminal Procedure which are further supported by Section 147 of the N.I. Act to interfere in this kind of matter where parties have paid....... + More