Exemption u/s 10B - denial of exemption as Assessee Company has expanded its existing processing capacity with the new plant and machinery installed in the factory - HELD THAT:- ITAT has observed that, to be deprived of the benefit, the new undertaking must have been a simple reconstructed old unit, with at least 20% of the assets from the old unit transferred to the new unit. But the Assessee did not face any allegation of transferring the assets from the old unit to the new unit. It did construct a new unit adjacent to the old unit. And the Tribunal refused to accept the Revenue's contention that the adjacent unit should be termed an expanded old unit. We find no reason to disagree. We reckon the Tribunal's findings are in accord with the established industrial practice. In fact, the Revenue argued that the Assessee has installe....... + More

Rectification u/s 254 - HELD THAT:- All the submissions and explanations by the assessee and the department have been summarized and then a finding has been arrived at. The issue has been decided after considering the facts in entirety available on record. In fact full opportunity had been given to the assessee to make submissions. A perusal of the facts in the instant case clearly indicate that the applicant has not pointed out any mistake apparent from the record. A mistake apparent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. In the instant case, before the Tribunal, the hearing was concluded on 23.07.2019; the order was pa....... + More

Revision u/s 263 - show cause notice issued by Ld. Pr.CIT relating to admissibility of agriculture income - HELD THAT:- Assessee as admitting the fact that this issue was not examined by Ld. A.O and Ld. CIT(A) has rightly directed to examine this issue to the Ld. A.O. However direction of Ld. Pr. CIT to the Ld. A.O for framing denovo assessment will not be justified since the additions made in the assessment proceedings u/s 143(3) of the Act has travelled up to the Tribunal, Indore Bench and the additions so made on account of lease rent and disallowance of corporate expenses have been deleted by the Tribunal. On going through the order of Tribunal, Indore Bench in assessee’s own case, we find sufficient merit in the contention made the assessee and are of the considered view that impugned order u/s 263 of the Act dated 26.3.2019 ne....... + More

Assessment against amalgamating company - Validity of reopening of assessment u/s 147 - order of re-assessment being framed in the name of the amalgamating company - HELD THAT:- DR filed detailed written submissions by placing reliance on various decisions by also filing a detailed paper book comprising of various documents through e-mail, all the factual documents relied upon by the ld. DR and placed on record by him in the paper book does not advance the case of the revenue in as much as the notice u/s.148 of the Act was issued in the name of non-existent entity and re-assessment framed in the name of non-existent entity. Merely, because the assessee had participated in the said re-assessment proceedings after pointing out the actual fact of amalgamation before erstwhile Assessing Officer, the illegal assessment framed by a non-jurisdic....... + More

Validity of reopening of assessment - Notice after expiry of 4 years from the end of the assessment year - assessee requested the A.O. to treat the return originally filed u/s 139 of the Act on 31.10.2007 as the return filed in response to the notice issued u/s 148 - HELD THAT:- It is imperative on the part of the A.O. to show that there was failure on the part of the assessee to disclose fully and truly all material facts relating to the assessment. Admittedly, no such allegation has been made by the A.O. in the reasons for reopening. As held in the case of Shri Shakti Textiles Ltd. [2010 (8) TMI 449 - MADRAS HIGH COURT] that the A.O. should have recorded in the reasons for reopening that there was failure on the part of the assessee to make true and full disclosure. The A.O. has not recorded that there was failure on the part of the ass....... + More

Bogus sundry creditors - search and seizure operation u/s. 132 - assessee was unable to submit any details or explanation of sundry creditors during the assessment proceeding to prove the identity and credit worthiness of the creditors and was also failed to prove the genuineness of the transactions - No supporting bills and vouchers were produced before A.O. regarding the sundry creditors - CIT-A deleted the addition - HELD THAT:- Assessee that the sundry creditors were authorized representative of the assessee and acting on behalf of the assessee for procuring paddy. Affidavit filed by the assessee in which they categorically undertakes that he is doing only custom-milling for M/s Orissa State Civil Supplies Corporation Ltd.(OSCSC Ltd.) besides working also as agent of MARKFED, NAFED, NCMSL, PACS and FCI. Assessee is not purchasing padd....... + More

Exemption u/s 54F - No deposit was made by the assessee in the specified bank account as required by the provisions of subsection (4) of section 54F - whether investment as specified was made by the assessee in the construction of house within a period of 3 years from the date of sale of the immovable property - HELD THAT:- The Hon’ble Karnataka High Court in the case of CIT vs. K. Ramachandra Rao [2015 (4) TMI 620 - KARNATAKA HIGH COURT] thus clearly held that if the investment in construction of new house was made by the assessee within the stipulated period of 3 years, then section 54F(4) was not at all attracted and the assessee could not be denied the benefit of exemption u/s 54F merely because he had not deposited the amount in specified bank account as stipulated. At the time of hearing before us, even the ld. DR has not been....... + More

Genuineness of Commission paid to relative against sale of land - HELD THAT:- In this case, absolutely, no material on record has been brought by the assessee to suggest as to how the commission agent i.e., the said relative has worked in order to facilitate the sale of the plot of the land. Merely payment through banking channels is not sufficient to establish the genuineness of the particular transaction. There has to be some specific material on record, 3rd party confirmation and most important that the facts should convey the basic need for why the commission was paid. In the present case of the assessee, these aspects are not at all proved. Disallowance on account of various expenses regarding the leveling of land, expenses towards compound wall, land development expenses and evacuation payment - HELD THAT:- Assessee could not produc....... + More

Penalty u/s 271(a)(c) - Disallowance towards cost of raising of loan treated as Deferred Revenue expenditure - Disallowance of provision of Non-performing assets - HELD THAT:- On perusal of the impugned orders and the decision of the Tribunal in assessee’s own case in the quantum proceedings, we find that in so far as the disallowance of expenditure in respect of raising loan is concerned, the Tribunal has deleted the said addition - penalty on such disallowance is directed to be deleted. Disallowance of provision of Non-performing assets - It is clear that the assessee made claim of provision for NPA on 31.1.2001 in the return of income filed for 2001-02 and at that point of time, the issue was debatable and the assessee placing reliance on the decision of the ITAT Chennai in the case of Overseas Sanmar Financial Ltd [2001 (2) TMI ....... + More

Condonation of delay - delay of 308 days and 127 days - Sufficient reason for delay - HELD THAT:- Assessee has explained the cause of delay as he was suffering from various diseases and had an attack of paralysis and under treatment for long time. Therefore, at the time of considering the sufficient cause of delay a lenient view ought to have been taken. We condone the delay of 308 days and 127 days respectively in filing these appeals before the ld. CIT(A).

LTCG - cost of construction of capital asset that was sold by the assessee - Deduction u/s 54 - HELD THAT:- Cost of construction of new asset and the period within which it was constructed also requires examination in the light of evidence filed as additional evidence by the CIT(Appeals). For proper adjudication of long term capital gain in accordance with the law, these documents are necessary. We therefore set aside the order of CIT(Appeals) on the above two issues and remand the case to the Assessing Officer for fresh consideration in accordance with the law on the computation of long term capital gain and the claim of assessee for deduction u/s. 54 of the Act in the light of additional evidence filed before Tribunal and such other evidence that the Assessee may seek to rely on or required by the AO to substantiate her claim. Correct h....... + More

TP Adjustment - assessee purchased fixed assets from its AE Tokheim UK Ltd - MAM Selection - rational for charging the markup by the AE - reconciliation between the invoices for raw materials being converted into fixed assets - HELD THAT:- Assessee has imported these assets. Since it is an international transaction, without documentation the assessee would not have cleared these assets from customs. It also declared this transaction as international transaction. In our considered view there is supporting documents available for the cost of fixed assets supplied by its AE. If there is missing document, it is only for the markup charged by AE. Even though assessee has declared that it has followed other method, in fact not followed any method to arrive at the ALP. In our considered view, TPO should adopted one of the method prescribed in th....... + More

Reopening of assessment u/s 147 - loss in F&O transaction investigation wing has carried on survey operation under section 133A in the premises of brokers and certain clients - brokers have indulged in misusing the client code modification procedure - HELD THAT:- Addition was made by AO merely on the basis of suspicion, presumptions, surmises and conjectures. The modification in the client code is in the hands of the broker and the assessee cannot be made responsible for the act of others and he also observed that the payments for the losses were made by the assessee to the broker through banking channel and the assessing officer has not disputed the above fact and has also not brought out any evidence of cash coming back to the assessee - all the modifications were made on the same day of the transaction which further substantiates t....... + More

Block Assessment - Unexplained cash - Whether CIT(A) admitted additional evidence under Rule 46A without providing an opportunity of being heard to the Assessing Officer? - applicability of Rule 46A - Whether ITAT was correct in confirming the learned CIT(A)'s order in giving relief on all the issues? - HELD THAT:- CIT-A has criticized the conduct of the search party and considered the status of the assessee and his family members and therefore, held that the cash cannot be treated as undisclosed income. We do not approve of this finding. In Paragraph No.5.3, the CIT-A held that having regard to the volume of transaction of the company, the income returned as also the amount involved cannot be treated as undisclosed income. This finding is also not borne out by any records. With regard to the pronotes, which do not have the name of th....... + More

Unaccounted cash receipts - material on record that this amount was paid to M/s. Good Earth Developers and M/s. Raj Hospitality Pvt. Ltd - HELD THAT:- Nature of such amounts can be very well assessed in the hands of said recipients and need not be assessed in the hands of the assessees.Since, there is material on record, that this amount of ₹ 11.26 crores or thereabouts was paid by the assessee to the aforesaid two entities and since there is evidence on record that the aforesaid two entities had admitted to the receipt of the said amount, the Commissioner (Appeals), was quite right in taking the view that such amounts are best assessed in the hands of the two entities and not in the hands of the assessee. Unable to satisfy us that there was any illegality in the view taken or any perversity in the approach of the Commissioner (Appe....... + More

Substantial questions law - Court’s earlier refusal to frame a third substantial question of law - HELD THAT:- Sub-section (4) of Section 260A, especially the proviso appended to it, liberates the High Court to formulate and hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it. But it does not, despite the Revenue’s insistence, empower the High Court to reconsider its earlier view in the same proceedings and reformulate a question of law which it had refused to formulate. In other words, (1) a question that escaped the Court’s earlier attention, or (2) a question the appellant not presented to the Court, or even (3) a question that cropped up because of subsequent developments stands on a different footing. But a question the High Court consciously refused to treat as....... + More

Disallowance u/s 14A r.w. Rule 8D(2)(ii) - as argued disallowance u/s 14A r.w. Rule 8D cannot exceed disallowance made in the return of income - HELD THAT:- The amount of disallowance under Section 14A read with Rule 8D of the Rules cannot exceed the amount of disallowance made by the assessee in the return of income. We are of the view that such observations made by the Tribunal should be looked into in the context and the facts available in the present case. The observations should not be construed or understood to mean that the aforesaid disallowance cannot exceed the suo motu disallowance made by the assessee in the return of income. In some cases, applying the formula laid down in Rule 8D, the disallowance may exceed such suo motu disallowance made by the assessee.

Capital gain computation - exemption claimed u/s. 54 denied - AO & CIT (A) not referring the matter to DVO even after requested by the assessee - Whether AO & CIT(A) has erred in not considering the fact about the disadvantaged to the location of the property in question? - HELD THAT:- Assessee made a request before the Assessing Officer that if the explanation of the assessee is not accepted that the market value is less than the stamp duty valuation the valuation of the property may be referred to the valuation cell of the department to compute the market value. This was completely ignored by the AO and also the Ld.CIT(A). Sub-section 50C(2) of the Act is very clear if the valuation of the property as arrived at by the stamp valuation authority is disputed by the assessee the As relying on ABBAS T. RESHAMWALA (PROP. DYNAMIC IMPR....... + More

Disallowance u/s.14A - method of calculation prescribed in Rule 8D - method of working of disallowance - Assessee had suomoto disallowed an amount - CIT-A directed the Assessing Officer to work out the disallowance as per the criteria decided by the Tribunal in assessee’s own case in earlier years restricting it to the suomoto disallowance - HELD THAT:- Respectfully following the orders of the Tribunal for the earlier assessment years as well as the order of the Hon'ble High Court in assessee’s own case [2019 (6) TMI 440 - BOMBAY HIGH COURT] we hold that the computation as adopted by the assessee for disallowing expenditure attributable for earning exempt income u/s. 14A of the Act should be accepted. Thus, we see no infirmity in the order passed by the Ld.CIT(A). - Decided against revenue.

Levy of fees u/s. 234E - delay in filing Form No.26Q - passing the intimation u/s. 200A - scope od amendment - HELD THAT:- As decided in SRI. FATHERAJ SINGHVI AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (9) TMI 964 - KARNATAKA HIGH COURT] Amendment to section 200A(1) of the Act is prospective in nature and therefore the AO while processing the TDS statements/ returns in the present three appeals for the period prior to 01.06.20 15 was not empowered to charge fees under section 234E of the Act. Therefore, the intimations issued by the AO under section 200A of the Act in these appeals are unsustainable and the demand raised by way of charging of the fees under section 234E of the Act not being valid is deleted. In this view of the matter, we hold that the AO is not empowered to charge fees under section 234E of the Act by way of intimations issued under section 200A of the Act in respect of defaults before 01.06.2015 - Decided in favour of assessee.

Disallowance of interest paid on unsecured loans taken from specified persons - Addition holding the same to be in excess of the fair market rate as per section 40A(2)(b) - Revenue restricting the same to 12% as against 18% claimed by the assessee - HELD THAT:- We find merit in the contention of the Ld. Counsel of the assessee that its claim of 18% rate of interest, paid on unsecured loans taken from specified persons, as the market rate of interest was justified and hence allowable as per section 40A(2)(b) of the Act. None of the factual contentions of the assessee to justify its claim ,we find, have been rebutted by the Revenue. Assessee had justified its claim contending that unsecured loans stood on a totally different footing as compared to secured loan taken from banks, by way of the banks charging interest periodically resulting in....... + More

Disallowance u/s 14A read with Rule 8D - HELD THAT:- As relying on assessee's own case [2016 (6) TMI 1391 - ITAT AHMEDABAD] matter is set aside to the file of AO to examine the facts and figures of the case in the light of our observations made above in order to arrive at a final conclusion as to whether disallowance u/s 14A is to be made and if so, then the amount thereof which in no case should exceed the exempted income earned by assessee during the year under appeal. Nature of expenses - guarantee commission - DR contended that the fact whether such guarantee fees was paid with respect to the loan which was utilized for the capital working progress which was not put to usein the year under consideration is to be verified accordingly, if that be so, the amount of guarantee commission needs to be capitalized - HELD THAT:- As assesse....... + More

Assessment u/s 153A - satisfaction note that the seized documents mentioned there in belonged not to the searched person, but, to the assessee - HELD THAT:- No satisfaction has been recorded in the file of the searched person that the seized documents belonged to the other party and do not belong to the searched person, therefore, no infirmity in the order of the CIT(A) on this issue holding that the jurisdiction assumed under section 153C in the case of the assessee is not in accordance with law. We accordingly uphold the same and the grounds raised by the Revenue are dismissed.

TP Adjustment - Attribution of profits - purported PE as remunerated on an arm’s length basis - whether no additional profits could be attributed to assessee’s income - case of the assessee before us is that without prejudice to its contention on there being PE or dependent agent PE or not, when ESPN India is remunerated at arm’s length basis then no further attribution of profits can be made in the hands of the assessee in India - HELD THAT:- Where once arm’s length principle has been decided then, the Hon’ble Supreme Court has laid down the proposition that there can be no further profit attribution to a person, even if, it has a PE in India - See Hon’ble Supreme Court in Honda Motors Co. Ltd. vs ADIT[2018 (5) TMI 265 - SUPREME COURT] and M/S E-FUNDS IT SOLUTION INC. [2017 (10) TMI 1011 - SUPREME COUR....... + More

Revision u/s 263 - Short term capital gain computation - CIT-A directing the Assessing Officer to re-compute the income of the assessee after examining in detail, the claim made by the assessee in the form of cost of improvement - assessee in response to notice u/s. 153A filed return of income on 29.08.2013 for A.Y. 2008-09 admitting an income - HELD THAT:- Admittedly in this case no incriminating material was found in the search proceedings leading to disallowance of expenditure incurred on furniture and fittings. When there is no incriminating material found in the course of the search either originally when the search took place on 06.11.2007 or on 18.07.2012 whether addition/disallowance can be made based on the findings of the Ld. CIT in the proceedings u/s. 263 of the Act is the issue to be decided. In the assessee’s case the ....... + More

Reopening of portal for filing of Form GST TRAN-1 - transitional credit. - applicability of time limitation provided under the retrospective amendment to Section 140(1) of the CGST Act and MGST Act read with Rule 117 of the CGST Rules and MGST Rules - directory in nature or mandatory? HELD THAT:- On a conjoint reading of the provisions of Section 140(1) read with Rule 117(1), prima facie, it appears that a person is allowed to carry forward Cenvat credit from the erstwhile regime to the GST regime by fling of Form GST TRAN-1 - In the present case the petitioner has attempted to file Form GST TRAN-1, although belatedly, but alongwith the applicable late fees in compliance of the erstwhile service tax laws as also the provisions of the CGST Act and MGST Act. The petitioner’s application dated 04.12.2019 is pending adjudication with th....... + More

Profiteering - purchase of flat - allegation that the Respondent had not passed on the benefit of additional Input tax Credit - violation of provisions of Section 171 (1) of the CGST Act, 2017 - penalty - HELD THAT:- It has been revealed that the Respondent had not passed on the benefit of additional Input tax Credit (ITC) to the Applicant No. 1 as well as other homebuyers who had purchased flats in his Project “Orchard Avenue-93” during the period from 01.07.2017 to 31.12.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017. It is also revealed that vide Section 112 of the Finance Act, 2019 specific penalty provisions have been added for violation of the provisions of Section 171 (1) of the CGST Act, 2017 which have come in to force w.e.f. 01.01.2020 vide Notification No. 01/2020....... + More

Profiteering - purchase of flat - allegation that the Respondent had not passed on the benefit of additional Input tax Credit (ITC) - violation of provisions of Section 171 (1) of the CGST Act, 2017 - penalty - HELD THAT:- The Respondent had not passed on the benefit of additional Input tax Credit (ITC) to the Applicant No. 1 as well as other home buyers who had purchased flats and commercial units in his Project “Synera” during the period from 01.07.2017 to 31.12.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017. Penalty - HELD THAT:- It is also revealed that vide Section 112 of the Finance Act, 2019 specific penalty provisions have been added for violation of the provisions of Section 171 (1) which have come in to force w.e.f. 01.01.2020 vide Notification No. 01/2020-Central ....... + More

Profiteering - direction to respondent nos. 2 and 3 to make available all such details of the relevant State Consumer Welfare Funds (CWFs for short) in whose favour the Petitioner is required to make pre-deposit of the alleged profiteered amount, in compliance with the order dated 20thJuly, 2020 passed by this Court - HELD THAT:- It seems strange to the Court that while the petitioner wants to pay, the State Consumer Welfare Funds are neither operational nor functional. The Secretary, GST Council is directed to co-ordinate with the State Government and place the matter before the GST Council, if required, to ensure that the State Consumer Welfare Funds become operational and functional as expeditiously as possible - Till the State Consumer Welfare Funds become operational and necessary details of the State CWFs are made available to the petitioner, the petitioner is directed to deposit the entire amount with the Centre Consumer Welfare Funds. Application disposed off.

Maintainability of petition - Seizure of goods along with vehicle - generation of e-way bills where the value of the consignment is less than ₹ 50,000/- - HELD THAT:- On plain and simple reading of proviso to Sub Rule 3 it is evident that registered person or transporter at his option is obliged to generate and carry e-way bill even if the value of the consignment is less than ₹ 50,000/-. The orders under challenge in my view are amaenable to appeal as per the provisions of Section 107 of Central Goods and Service Tax Act, 2017. In all cases of seizure in order to obliterate inconsistency in the application of law and do away with the multiple appeals, discretion has been left to the competent authority to decide the adjudication as early as possible in accordance with law - petition dismissed.

Non availability of the documents of sale and purchase in respect of the goods that were found stored on the business premises of the petitioner - Section 35 (1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Since the issue is very little with regard to the availability of documents pertaining to the goods/ articles stored in the business premises and the genuine reason has been assigned for the same because of the transitional period from old Act to new Act, it would be in the fitness of things and the cause of justice would also get served in the opinion of the Court, if the petitioner is permitted 10 days' time to produce all the records bearing signatures of the designated authority of the Company who is competent to do so, before the Additional Commissioner, Central Excise and GST, Gautam Budh Nagar for due verifi....... + More

Denial of Input Tax Credit - non-updation of the web portal of the GST Department - permission to rectify the form GSTR-3B by utilizing the available credits and/or permit the petitioner to file the necessary documents manually - section 49A & 49B of the Central GST Act 2017 read with Rule 88A of the GST Rules, 2017 - HELD THAT:- Upon hearing the counsel for the parties issue Notice returnable by 24-11-2020. Since the counsel for the respondents have already entered appearance no fresh Notice need be issued, however, sufficient copies of the writ petition be furnished to the learned standing counsel for the respondents.

Continuation of provisional attachment - Attachment of petitioner’s company’s current bank account - time limitation - expiry of the mandatory period of one year prescribed under Sub-Section(2) of Section 83 of the CGST Act, 2017 - HELD THAT:- The issue in the Writ Petition relates to a provisional attachment order dt.07.06.2019 issued by the 2nd respondent and its continuing existence after 06.06.2020, i.e., after the expiry of one year from 07.06.2019, contrary to sub-Section(2) of Section 83 of the Act. The fact that the said attachment cannot continue in view of the sunset clause in sub-Section(2) of Section 83 of the Act beyond a period of one year from 07.06.2019, is not in dispute. The impugned provisional attachment order dt.07.06.2019 issued by the 2nd respondent cannot continue after 06.06.2020 in view of sub-Section....... + More

Validity of Garnishee Order - attachment order - time limitation under Section 117 of the Central Goods and Services Tax Act, 2017 - Court stayed the operation of the Garnishee Notice, for a period of two days for the reason that even before the expiry of the appeal time, as prescribed under Section 117 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- A perusal of the material available on record prima facie shows that even before the expiry of the time granted for filing an appeal for the assessment years January, 2020 to June, 2020, Garnishee Notice came to be issued. Similar is for the assessment year January, 2019 to December, 2019. Therefore, the execution of Garnishee Notice seeking attachment of ₹ 12,14,61,114/- appears to be on higher side. According to the petitioner, if an appeal is preferred, he has to deposi....... + More

Validity of Provisional Release Order - case of appellant is that while passing the impugned order the releasing authority was required to follow the judgments of various courts under judicial discipline, the impugned order has been passed in utter violation of judicial discipline - HELD THAT:- The investigation in the matter is still under process as per letter C.No. DGGSTI/JZU/INT/CE/02/2017/3256 dated 22.07.2019 received from Joint Director, DGGI, Jaipur and appeal has been filed only against the conditions imposed for provisional release. The various courts order submitted by the appellant is not squarely covered in the instant matter. The Provisional Release Order passed by the Releasing Authority is as per law; as the order has been rightly passed by the Releasing Authority and is in accordance with the provisions of sub-section(6) of Section 67 of the CGST Act, 2017 - Appeal dismissed.

Profiteering - vires of Section 171(3) of CGST Act and Chapter XV of the CGST Rules specifically Rules 126, 127 and 133 of GST Rules - HELD THAT:- Keeping in view the orders passed by this Court in PHILLIPS INDIA LIMITED VERSUS UNION OF INDIA & ORS. [2020 (6) TMI 626 - DELHI HIGH COURT] as well as M/S. SAMSONITE SOUTH ASIA PVT. LTD. VERSUS UNION OF INDIA & ORS. [2020 (7) TMI 526 - DELHI HIGH COURT] and M/S. PATANJALI AYURVED LTD. VERSUS UNION OF INDIA & ORS. [2020 (7) TMI 614 - DELHI HIGH COURT], this Court directs the petitioner to deposit the balance principal profiteered amount i.e. ₹ 25,15,392/- (₹ 55,60,340/- minus ₹ 2,64,778/- minus ₹ 27,80,170/-) with the State Consumer Welfare Fund in six equated monthly installments commencing 02nd November, 2020. - The interest amount directed to be paid by th....... + More

Stay on the operation of direction under Rule 133(4) of the CGST Rules - HELD THAT:- The direction under Rule 133(4) of the CGST Rules given in the impugned order dated 07th July, 2020 to the respondent no.3 to undertake further investigation and the notice dated 09th October, 2020 as well as summons dated 25th September, 2020 are stayed till further orders. Accordingly, the application stands disposed of.

Refund of IGST - Export of Service with payment of IGST - rejection of refund due to non submission of BRC or Foreign Inward Remittance Certificates, required in case of Export of Services as per rule 89(2) (c) of the CGST Rules, 2017 - HELD THAT:- As per Rule 89(2) (c) of the CGST Rules, 2017, a Statement containing the number and date of invoices and the relevant Bank Realization Certificate or Foreign Inward Remittance Certificates, as the case may be is required, in a case where the refund is on account of the export of services - Further, Board has clarified the issue vide Para -12 and 14.2 of Circular No. 37/11/2018-GST dated 15.03.2018 stating that insistence on proof of realization of export proceeds for processing of refund claims related to export of goods has not been envisaged in the law and should not be insisted upon. In the....... + More

Revocation of cancellation of registration - due to non submission of reply to the show cause notice within the time specified - HELD THAT:- Central Board of Indirect Taxes & Customs, New Delhi has clarified the issue vide circular No.99/18/2019-GST dated 23.04.2019 that where the registration has been cancelled with effect from the date of order of cancellation of registration, all returns due till the date of such cancellation are required to be furnished before the application for revocation can be filed. Further, in such cases, in terms of the second proviso to sub-rule (1) of rule 23 of the said Rules, all returns required to be furnished in respect of the period from the date of order of cancellation till the date of order of revocation of cancellation of registration have to be furnished within a period of thirty days from the ....... + More

Revocation of cancellation of registration - due to non submission of reply to the show cause notice within the time specified - HELD THAT:- Central Board of Indirect Taxes & Customs, New Delhi has clarified the issue vide circular No.99/18/2019-GST dated 23.04.2019 that where the registration has been cancelled with effect from the date of order of cancellation of registration, all returns due till the date of such cancellation are required to be furnished before the application for revocation can be filed. Further, in such cases, in terms of the second proviso to sub-rule (1) of rule 23 of the said Rules, all returns required to be furnished in respect of the period from the date of order of cancellation till the date of order of revocation of cancellation of registration have to be furnished within a period of thirty days from the ....... + More

Refund of accumulated credit - Inverted Duty Rate structure - the adjudicating authority has held that the Tax Structure on major Input used and Final Product manufactured is same @ 5% (except some consumables items), therefore, the accumulated input tax credit appeared not to be on account of Inverted tax structure and dis-allowed the refund - HELD THAT:- Refund of unutilized ITC in case of inverted tax structure, as provided in Section 54(3) of the CGST Act, 2017 is available where ITC remains unutilized even after setting off of available ITC for the payment of output tax liability. Where there are multiple inputs attracting different rate of tax, in the formula provided in Rule 89(5) of the CGST Rules, the term Net ITC cover the ITC availed on all inputs in the relevant period, irrespective of their rate of tax - Further, Para -14 of ....... + More

Validity of Garnishee Notice - principles of natural justice - violative of Articles 14 and 19(1)(g) and 265 of Constitution of India or not - HELD THAT:- As seen from the record, prima facie, it appears that even before the statutory period of limitation for filing an appeal has expired, garnishee notice dated 26.08.2020 came to be passed for recovery of tax for the period from January, 2020 to June, 2020; January, 2019 to December, 2019. It is to be noted here that against the assessment order dated 13.08.2020, an appeal lies under section 117 of the central Goods and Service tax Act and the time prescribed for filing the appeal is three months. Even before the expiry of the said period, the Garnishee notice came to be passed. Insofar as the period of recovery from January, 2019 to December, 2019 is concerned, it appears form the record....... + More

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

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

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

Direction to consider several representations stated to have been filed by the petitioner - HELD THAT:- Since proceedings are on-going for assessment, it would not be appropriate to consider or grant the mandamus as sought. This writ petition is accordingly dismissed.

Grant of Anticipatory Bail/pre-arrest Bail - Smuggling - Gold - Cash - Section 135 of the Customs Act - HELD THAT:- Considering all the facts and also the fact that the granting of bail to accused 1 and 2 has not been challenged by the Customs Department and has now become final, there is no point in the applicant being incarcerated for the purpose of investigation as long as he is willing to cooperate with the investigation. Hence, the applicant is entitled to pre-arrest bail. The bail application is allowed - the applicant is directed to surrender before the Customs Department in pursuance of Section 108 notice, which he has received and cooperate with the investigation and he shall be subjected to such interrogation keeping in view his health condition as evidenced by Annexures 19 to 21. In the event of his being arrested, he shall be ....... + More

Smuggling - Betel Nuts - reasons to believe - contention of the learned counsel for the petitioner is that the petitioner received an order from one M/s Saurabh Traders for purchase of ''betel nuts' and the petitioner purchased the ''betel nuts' from the local market and send the goods to the said M/s Saurabh Traders through the transporter Nahata Transport - HELD THAT:- This Court held that the "reasons to believe" which are a sine-qua-non for exercising the powers under Section 110 of the Customs Act should be based upon acceptable materials and should be more than a moon shine. The "reasons to believe" based upon prima facie examination of goods by naked eye, opinion of the local traders as well as the inscriptions on some of the bags were not held to be a valid "reasons to believe"....... + More

Direction to allow to petitioner to give his statement in presence of his counsel - Section 108 (3) of Customs Act - HELD THAT:- The petitioner may move appropriate application before the authority concerned seeking the benefit of Section 108 (3) Customs Act within a period of one week from today, in case he has already not moved such application. The authority concerned may consider and decide the said application in accordance with law, expeditiously. In case the petitioner is permitted to appear along with his agent i.e., his Lawyer; then, the authority concerned may proceed with the matter accordingly. Petition disposed off.

Validity of SCN - Levy of Penalty u/s 112(a) of Customs Act on CHA - abetment of offence committed by the importer as against which the petitioner - scope of Sections 28(2) and 28(4) of the Customs Act, 1962 - suppression of facts or not - extended period of limitation - HELD THAT:- The benefit extended to an assessee under section 28(2) is available only in those situations falling under clauses (i) and (ii) of section 28(1)(b), that is, either where the assessee self-computes or seeks a computation from the proper officer of the duty and interest payable, and remits the same voluntarily, even prior to the receipt of a SCN from the officer and not in any other situation contemplated under Section 28 - In the present case, the SCN has been issued invoking the provisions of section 28(5) which contemplates an alternate scheme of assessment....... + More

Refund of excess duty paid on account of wrong declaration of invoice value - rejection of request for amendment of the bills - HELD THAT:- Admittedly, in the present case, the goods have been cleared for home consumption and therefore the petitioner seeks the benefit of the proviso, as per which, the petitioner/assessee would be entitled for amendment if it were able to supply sufficient evidence by way of documents that were ‘in existence’ at the time of the goods were cleared, deposited or exported to establish the error - The lis in this matter revolves around the interpretation of the phrase‘in existence’, as according to the revenue the phrase should be read as available with the Department and it is only if the documents relied upon by the petitioner seeking amendment were, in fact, ‘on record’ t....... + More

Validity of release order under Section 110A of the Customs Act - Betel Nuts - fulfilment of condition precedent for the release of the subject betel nuts - Circular dated 16-08-2017 - HELD THAT:- In the light of the decision of the Division Bench of Delhi High Court in AGYA IMPORT LIMITED VERSUS COMMISSIONER OF CUSTOMS, NEW CUSTOM HOUSE, NEW DELHI [2018 (10) TMI 573 - DELHI HIGH COURT] where under it is held that Circular dated 16-08- 2017 is directory and not mandatory and also that the conditions for said Circular are merely guidance coupled with the order dated 20-02-2020 issued by the Superintendent (Adjn.) under which the betel nuts were provisionally released on deposit of 25% of the seizure value, I am of the considered view that the impugned order cannot be sustained especially when it is the specific case of the petitioner that ....... + More

Maintainability of petition - availability of alternative remedy of appeal - Provisional release of seized goods - Betel Nuts - petitioners argues that as no bonafide ''reasons to believe' existed, the seizure of the goods was wholly arbitrary and illegal - HELD THAT:- The statute that the power of seizure of goods under Section 110 of the Customs Act can be resorted to only when the Officer exercising the said power has ''reasons to believe' that the goods are liable to confiscation - In the present case, admittedly the goods were at Gorakhpur and not seized from any port or any custom area to form a belief that the goods were being imported into India. In the Panchnama, which the counsel for the respondents submits is a seizure memo, the only reasons recorded are that on a prima facie examination, the ''A....... + More

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

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

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

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

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

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

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

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

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

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

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

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

Restoration of name of company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Appellant have submitted sufficient evidence that it has been in operation during the period of striking off and therefore could not be termed as defunct company. Thus, taking into consideration the provisions of Section 252(3) of the Companies Act, 2013 which vests this Tribunal with a discretion where the Company, whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when the name was struck off and also keeping in consideration that it is just to do so, can restore the name of the Company in the Register and in the interest of all stakeholders, including the Appellant itself, who seeks restoration of the name of the Company in the register maintained b....... + More

Reduction of Share Capital - section 66 of the Companies Act, 2013 - Board of Directors are of the view that the Applicant Company does not require such excess capital for its business operations and such excess capital impacts the return on equity and earnings per share - HELD THAT:- The Board of Directors has passed the resolution on 21.11.2019 in the Board meeting which they have accorded approval for reducing the Paid-up share capital of the company. Pursuant to the above notices dated 22.11.2019 along with the Explanatory Statement for convening the Extraordinary General Meeting of all the members of the Applicant Company were sent - That as on 20.11.2019, there are two Secured Creditors and twenty eight unsecured creditors in the Applicant Company. The Applicant Company in this regard has obtained a Certificate from MKPS & Assoc....... + More

Restoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies, Kochi - delay in filing the Balance Sheets and Annual Returns - Section 252(3) of the Companies Act, 2013 - HELD THAT:- It appears from the records that vide order dated 28.07.2020, the appellant was directed to produce the Financial Statements of the Company for the Financial Year 2018-19 along with the GST Returns. The appellants produced the same on 23.09.2020. This Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies - Registrar of Companies, the respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the company has not been struck off from the Register of Companies and take all consequential act....... + More

Approval of Scheme of Arrangement by way of Amalgamation - Sections 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions were issued with respect to convening/holding or dispensing with the meetings of the Shareholders, Secured and Unsecured Creditors as well as issue of notices including by way of paper publication - notices for various statutory authorities also to be served - application allowed.

Oppression and mismanagement - forgery of signature on the Financial Statements of the 1st Respondent Company for the Financial Years 2013-14 and 2014-15, the Power of Attorney dated 31.07.2006 and the two PANCARDS bearing Nos. ASEPK5529M and AFWPN7566B - requirement of forensic investigation or not - HELD THAT:- Considering the signature in the Financial Statements and the two PAN cards of the applicant and also perusing the letter dated 23.04.2018 sent by the Company Secretary, this Tribunal finds that there is a difference in the signature of the applicant. Hence, this tribunal is of the opinion that a forensic verification is necessary before disposing of the Company Petition. This Tribunal is of the view that the ends of natural justice would be met if all the facts that could have a bearing on the issues before us, must be brought o....... + More

Approval of Scheme of Amalgamation - Section 230-232 of the Companies Act, 2013 - HELD THAT:- Under Section 230(9) of the Companies Act, 2013, the Tribunal may dispense with calling of a meeting of Creditor or class of Creditors where such Creditor or class of Creditors, having at least 90% value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement. More than 99% of the Shareholders, all Secured Creditors and more than 94% of the Unsecured Creditors of the Transferee Company as well as more than 99% of the shareholders and the only one Unsecured Creditor in the Transferor Company have been supporting and agreeing to the Scheme of Amalgamation and for dispensation of their meeting for approval of the scheme by way of their consent affidavits. There is no Secured Creditor in the Transferor Company. Calling of ....... + More

Oppression and mismanagement - non-service of notice - main issue raised by the appellant that he has not received notice for Board Meeting to be held on 20th January, 2020 at 4 PM and in the said meeting two directors have been appointed - Section 421 of the Companies Act, 2013 - HELD THAT:- As the subject matter on the validity of the meeting held with due notice or not will be decided over a period of time. We have also notice alleged two Board Meeting are allegedly held on 20th January, 2020 at 12 Noon and after that, on the same day at 4.00 PM. The Appellant contends that he has received notice of only one Board Meeting scheduled to be held 12 Noon on 20th January, 2020. However, service of notice of a second board meeting is disputed, which can be decided finally along with the petition. Meanwhile we think it proper to stay the oper....... + More

Approval of Scheme of Arrangement - Sections 230-232 of Companies Act, 2013 - HELD THAT:- The proposed scheme of compromise and arrangement should not be violative of any provisions of law and is not contrary to public policy. It is apparent from the records that there were irregularities and non-compliances from a very long time due to which Stock Exchange took action against the Respondent No. 1 Company and suspended the trading of its securities in the year 2002. Nothing has been brought on record that the Respondent No. 1 Company have taken any serious actions to make the requisite compliances so that trading of the shares of the company can be resumed. Non action of the Respondent No. 1 Company have serious impact on the investors who have invested their hard money in the company. These non-compliances and irregularities or any illeg....... + More

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

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

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

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

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

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

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

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

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

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

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

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

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Operational Debt or not - time limitation - HELD THAT:- It is quite settled that the acknowledgement has to be a conscious acknowledgement of the debt. There could be refusal to pay but it should show that there has been an acknowledgement of the debt outstanding. In the present matter, the endorsement concerned is seriously disputed and even if we are to accept the case of the appellant - even the Appellant is not claiming that Mr. Faruk Qureshi signed it. Who signed, nothing is clear. In the facts of the matter, the contention of the Corporate Debtor that the signature is not of Authorized Representative, cannot be simply brushed aside. From side of Operational Creditor, there is no Affidavit regarding how such endorsement was m....... + More

Lliquidation of the corporate debtor - applicant appraised the COC, that since the COC had not approved extension of CIRP time, therefore no fresh invitation for EOI or extension can be given to Prospective Resolution Applicants. Further appraised that the CIRP period is ending on 23.06.25020, therefore the applicant is left with no option but to file application for liquidation of Corporate Debtor in terms of Section 33(1)(a) of IBC, 2016. HELD THAT:- Since the COC in its commercial wisdom has decided not to seek extension of CIRP period but to take the corporate debtor in liquidation and explore the possibility of it being sold as going concern, we are of opinion that the decision of COC should not be interfered. The present application seeking liquidation of the corporate debtor, UTM Engineering Private Limited, in the manner laid down in the Chapter III of Part II of the Insolvency and Bankruptcy Code, 2016 is allowed. Application admitted.

Restoration of petition - whether the Applicant/Financial Creditor is entitled to seek restoration of the company petition that has already been disposed of, and whether the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016, has the power to do so? HELD THAT:- The applications seeking revival of a company petition disposed of as withdrawn after recording the settlement terms arrived at between the parties, is permissible in exercise of the powers conferred on the Tribunal under rule 11 of the NCLT Rules, 2016 - Incidentally, exercise of the power conferred by rule 11 of the Rules ibid for the purposes of the Code has been upheld by the Hon’ble Supreme Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT]. Petition is revived and restored to file.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - claim of Financial Creditor - time limitation - amount in question has been claimed in a civil suit before the Civil Judge (Senior Division), Amravati, by the Financial Creditor, which dismissed the application of the Financial Creditor for attachment before judgment, the appeal against the order has also been dismissed by the Hon’ble Bombay High Court - suppression of facts by Financial Creditor or not. Time Limitation - HELD THAT:- The date of default mentioned in the application to be 21.09.2013. Also, the Financial Creditor has relied heavily on the acknowledgements in the balance sheets for the Financial Years 31.03.2013, 31.03.2014, 31.03.2015, 31.03.2016, 31.03.2017 and 31.03.2018, which have been attached to the peti....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - novation of contract - suppression and misrepresentation of the facts or not - existence of debt and dispute or not - HELD THAT:- This Tribunal is of the clear view that the Adjudicating Authority is only to satisfy that the default has occurred and that the ‘Corporate Debtor’ is entitled to point out that the default has not been occurred in the sense that the debt is not due. As no other person has a right to be heard at the stage of admission of the application under Section 7 and 9 of the I&B Code. This Tribunal does not consider the objection raised by the guarantors to arrive at a decision in this matter. To clear this confusion regarding treatment of assets of guarantors of the corpor....... + More

CIRP Proceedings - submission of claim before RP on the basis of an Arbitral Award - Change in voting percentage - The Appellant after becoming Member of COC, objected to part claim of OBC, to the extent it is based on corporate guarantees given by the Corporate Debtor for third party dues-debts. Appellant objected that, such part of the claim is not Financial Debt and to that extent voting right percentage of OBC should be reduced. - HELD THAT:- In the present matter, there was disbursal of debt by the bank to the third parties and the Corporate Debtor gave guarantee for repayment of such debt when it became outstanding. Clearly, the loan advanced carried the element of consideration for time value of money and when such disbursal was guaranteed, it has to be treated as a financial debt under Section 5(8)(a) read with (i) of IBC - The th....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Non-performing Asset - time limitation - main ground in the present appeal is that application under section 7 of the I and B Code was filed in December 2018, i. e., after a delay of almost five years - applicability of section 18 of the Limitation Act, 1963 to insolvency cases - HELD THAT:- The corporate debtor's balance-sheet cannot be considered as an acknowledgment under section 18 of the Limitation Act, 1963. The issue was considered explicitly by the five hon'ble Members of this Appellate Tribunal in the case of V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) [2020 (3) TMI 1244 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and held that the books of account are required to be prepared under the obl....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute - Share application money - HELD THAT:- The Respondent's first contention that he has already paid the full and final amount of ₹ 1.03 Crore pursuant to amicable settlement of dispute as recorded in order dated 11th October, 2017 of the Hon'ble National Company Law Tribunal passed in CP No. 205(ND)/2017, the Applicant has accepted the fact that the said amount has been duly received by him but argued that the interest on that amount has not been paid. On our perusal of provisions of section 42 of Companies Act, 2013 and Companies (Acceptance of Deposit) Rules, 2014 as well as of the definition of financial debt under the Code - The Applicant's contention that while returning the prin....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - scope of Financial Credit - Competent person or not - disputed debt of debt due - time limitation - legally recoverable debt or not. Whether Application filed by the Financial Creditor is not filed by a competent person? - HELD THAT:- The Financial Creditor has the proper authority to file the present application, and the objection raised by the counsel for the Corporate Debtor is merely incongruous, and therefore, holds no water. Moreover, the Financial Creditor has annexed the Board Resolution dated 05.08.2019 authorising Deputy Manager (Legal) to represent the Financial Creditor before various forums from time to time - there are no merit in the argument made by the Corporate Debtor in this connection. Whether the alleged debt ....... + More

Application for taking additional documents on record - HELD THAT:- The prayer of the Appellant is allowed to file such application within a week and supply advance copy to opponent counsel so that the opponent counsel may be able to file Reply of the same. Let the Appeal be fixed ‘For Admission (After Notice)’ on 12th October, 2020.

Maintainability of application - initiation of CIRP - discrepancy in the demand notice - stand of the Appellant is that the amount in default as specified in the Demand Notice is to be in consonance with the Application filed and the ‘invoices’ sent - Appellant submits that the ‘Adjudicating Authority’ had failed to consider the fact that the material defect in the ‘Demand Notice’ is fatal to the facts of the present case - HELD THAT:- In a given petition filed by the ‘Operational Creditor’ there is a heavy burden on the ‘Corporate Debtor’ to show that the dispute is a real and genuine one. Further, where a petition of the ‘Operational Creditor’ was opposed by the ‘Corporate Debtor’ on the ground that the dispute existed between the parties regarding the q....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - time limitation - whether the party supposedly supplying the polymer granules is an operational creditor and the amount of invoice which is within limitation is an operational debt as defined in the IBC? - HELD THAT:- Section 5 (21) of the IBC defines operational debt to mean a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues. Quite obviously provision of goods or services is a pre-requisite for the existence of operational debt. In the present appeal the corporate debtor M/s N.R. Commercials Pvt. Ltd. has not only vehemently and flatly denied giving any purchase order for the said supply of polyme....... + More

Liquidation order - Section 60(5) read with Section 52(5) of the Insolvency and Bankruptcy Code, 2016 - applicability of moratorium - termination of PPA or not. Whether the moratorium declared under Section 14 of IBC applies to the PPA along with other immovable and moveable properties of the corporate debtor? - HELD THAT:- The IBC, 2016 is in the nature of beneficial legislation which strives to protect the national wealth that is included in the corporate business, partnership firms and individuals by providing economically sound and legally robust mechanism for reorganization and insolvency resolution. Hence, action under various provisions of IBC must be driven by such a spirit in legally sound manner - the PPA entered into between the power producer and the purchaser of power provides a long-term and steady stream of revenue accrual ....... + More

Maintainability of application - suspension of initiation of CIRP - bar created by law in terms of the newly inserted Section 10A coming into force - whether an application for initiation of CIRP of a Corporate Debtor in respect of default committed before 25th March, 2020 but filed before 05th June, 2020 i.e. the date on which amending ordinance came into force, in respect of such default, would be maintainable in view of the express bar created by the main provision of Section 10A? HELD THAT:- It is by now well settled that a substantive administrative right cannot be taken away except by clear indication of intention to that effect by an express statutory provision or by necessary implication. No statute, unless it deals with procedure only, can be construed to have retrospective operation unless there is an express provision to that e....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- From the perusal of e-mail /correspondences between the Appellant/Corporate Debtor and Respondent/Operational Creditor, it is the case of the Appellant/Corporate Debtor that the Respondent has not completed the project in time thereby the Project was got delayed thereby they suffered losses. On the other side, the stand of Respondent/Operational Creditor that they have completed the Project and handed over to the Appellant/Corporate Debtor, however, Appellant/Corporate Debtor failed to pay bills even after complete of the project. It is unequivocal that there exists dispute between the parties prior to the issuance of Demand Notice dated 11.04.2019 - the learned Adjudicating Autho....... + More

Delay of 2 days in filing revised Resolution Plan - CIRP process still ongoing - Direction to Resolution Professional to take on record and consider the revised offer submitted by e-mail dated 14th February, 2020 - rejection on the ground that the Resolution Plan of the highest bidder has already been approved with 100% voting and the Application of Appellant suffered from latches and lacked bonafidies - HELD THAT:- In the instant case, Appellants submitted the Resolution Plan only two days after the revised plan of Respondent No.4 and well within the 180 days of ordinary timelines of CIRP under ‘I&B Code’. There was no justification for its rejection by the Resolution Professional who was duty bound to place the same before the Committee of Creditors especially when the ordinary CIRP period of 180 days was still subsistin....... + More

Direction to set aside the Order of the Liquidator rejecting the ‘Claim’ of the Appellant - It is the Applicant’s case that there was no requirement of registration of ‘Charge’ with the R.O.C and that the Liquidator, without examining the Certificate issued by the Registration Authority under the ‘M.V. Act’ dismissed the Claim made by the Applicant. HELD THAT:- It is clear from Section 52(3)(a) of the Code that before any security interest is sought to be realised by the Secured Creditor under this Section, the Liquidator shall verify such security interest and permit the Secured Creditors to realise only such security interest, the existence of which may be proved either by the records of such security interest maintained by an ‘Information Utility’ or by such other means as may be sp....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor has defaulted in making repayment of financial facilities/debt to the Petitioner and the date of default is from 10.04.2016 and onwards as per Annexure-IV/27 Colly. The Statement of accounts and the CIBIL Reports submitted by the applicant confirm the default committed by the Corporate Debtor. This Adjudicating Authority is satisfied that, (a) The Corporate Debtor availed Financial Facilities from the Petitioner. (b) Existence of debt is above Rs. One Lac; (c) Debt is due and defaulted. (d) Default has occurred on various dates starting from 10.04.2016 onwards as per Annexure IV/27 Colly. (e) Petition has been filed on 13.11.2017 i.e. within the limitation per....... + More

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

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - unpaid License Fee - Operational Creditor - existence of debt and dispute or not. Whether the unpaid Licence Fee arising out of Licence Agreement with regard to immovable property falls under the definition of Operational Debt as defined under the provisions of the Insolvency and Bankruptcy Code, 2016? - HELD THAT:- Only if the claim by way of debt falls within one of the three categories as listed above can such a claim be categorized as an operational debt. In case if the amount claimed does not fall under any of the categories mentioned as above, the claim cannot be categorized as an operational debt and even though there might be a liability or obligation due from one person, namely Corporate Debtor to another, namely Creditor....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recovery of interest on the delayed payment of the Service Tax - HELD THAT:- The applicants with a view to save the period of limitation may file the appeal before the CESTAT at the earliest but with a distinct understanding that the CESTAT shall not proceed to hear the appeal on merits as this Court is seized of the matter. Having regard to the issues raised in this litigation, we direct that till the next date of hearing, no coercive steps shall be taken towards the recovery of the demand. Due to paucity of time, it is not possible to hear this matter before Diwali break - let this matter be notified on 08.12.2020.

Rejection of application under SVLDRS 1 - rejection on the ground that “amount of penalty imposed had not been shown in Form SVLDRS 1, thus making it an incorrect declaration.” - HELD THAT:- On similar issue a Co-ordinate Bench has already disposed of a similar writ petition being PROLOY SEAL AND ANR., M/S. D.J. INFOSYSTEMS VERSUS THE UNION OF INDIA AND 3 ORS., THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS AND OTHERS [2020 (7) TMI 184 - GAUHATI HIGH COURT] - Mr. Keyal also submits that by this order this Hon’ble Court has remanded the matter back to the authorities concerned. The impugned order is set aside - the matter is remanded back to the authorities to reconsider the application/declaration furnished by the petitioner and passed appropriate orders thereon in terms of the scheme and the rules framed there under. If the authorities require a fresh declaration then they shall permit the petitioner to file such declaration afresh.

Rejection of SVLDRS-1 Form submitted by the petitioner - HELD THAT:- This writ petition stands disposed of by requiring the petitioner to submit an application before the respondent authorities for the correction to be made in the information provided in the Form SVLDRS-1 as regards the disclosure of the dues from them and upon such application being made, the respondent authorities would pass a reasoned speaking order thereon. The requirement of submitting application be made within a period of 15 days from obtaining the certified copy of the order and upon receipt of the application, the respondent authorities shall pass an order on the same within a period of 2 months from the date of receipt of the application. Petition disposed off.

CENVAT Credit - input service - Deposit Insurance Service provided by DICGC - output service is Banking and Other Financial Service - credit denied on the ground that such services have no nexus or connectivity with the actual performance of the banking service provided by the assessee-appellant - HELD THAT:- The issue with regard to availment of cenvat credit on the disputed service was highly debatable and there were conflicting views by different benches of the Tribunal. For resolving the dispute, the Larger Bench was constituted. In the case of M/S. SOUTH INDIAN BANK VERSUS THE COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX-CALICUT [2020 (6) TMI 278 - CESTAT BANGALORE], the Larger Bench of the Tribunal vide order dated 20.03.2020, reported in 2020-TIOL-861-CESTAT-BANG-LB has answered the reference holding that The insurance s....... + More

CENVAT credit - input services - insurance service received by the bank from the Deposit Insurance and Credit Guarantee Corporation (DICGC) - HELD THAT:- The issue with regard to availment of cenvat credit on the disputed service was highly debatable and there were conflicting views by different benches of the Tribunal. For resolving the dispute, the Larger Bench was constituted. In the case of South Indian Bank Vs. Commissioner of Customs, Central Excise & Service Tax, Calicut, the Larger Bench of the Tribunal [2020 (6) TMI 278 - CESTAT BANGALORE] has answered the reference holding that The insurance service provided by the Deposit Insurance Corporation to the banks is an “input service” and CENVAT credit of service tax paid for this service received by the banks from the Deposit Insurance Corporation can be availed by the banks for rendering ‘output services’. Appeal allowed - decided in favor of appellant.

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

Rejection of application under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection on the ground of inadvertent mistake as regards the penalty imposed being not correctly stated in the SVLDRS-1 form - HELD THAT:- The issue as to whether an inadvertent mistake as regards the penalty imposed being not correctly stated in the SVLDRS-1 form, has been decided by this Court in its judgment ASSAM CRICKET ASSOCIATION VERSUS THE UNION OF INDIA AND 4 ORS., THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE PRINCIPAL COMMISSIONER, THE DESIGNATED COMMITTEE, ADDL. DIRECTOR GENERAL [2020 (6) TMI 38 - GAUHATI HIGH COURT] where it was held that When we look into the Scheme 2019, we do not find any provision which provides that a person upon whom a penalty is imposed would not be entitled to the benefit given under the scheme. Infact on t....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

CENVAT Credit - additional duty of customs paid - rule 3 (1)(vii) of the CENVAT Credit Rules - Customs duty of excise duty - concessional rate of tax under Customs Notification dated March 17, 2012 - extended period of limitation - levy of interest and penalty. HELD THAT:- It is not in dispute that both Hindustan Zinc and Ultratech Cement paid additional duty of Customs under section 3 (1) of the Customs Tariff Act, after availing the benefit of the Customs Notification dated March 17, 2012 and that they also availed CENVAT credit of the additional duty of customs so paid under rule 3(1)(vii) of the CENVAT Credit Rules. This availment of CENVAT credit has been denied to them for the reason that the additional duty of customs paid @ 2% was not the duty of excise as specified in the Excise Tariff Act and so CENVAT credit of the additional d....... + More

CENVAT Credit - input services - marine insurance services provided by the insurance companies - place of removal - HELD THAT:- All services received by the manufacturer directly or indirectly in relation to the manufacture of final products upto the place of removal are admissible for availment of Cenvat Credit on the Service Tax paid for such services. The goods are being cleared by the appellants to their buyers on FOR basis and all liabilities in respect of transportation of goods or even damage to goods were on account of the appellants/manufacturer. It is the appellants who were liable for safe delivery of goods up to their customer‟s door steps. The impugned service of marine insurance was taken to cover the risk of transportation of goods. Thus, present becomes the case were the service of insurance of goods to be supplied t....... + More

Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- The amount involved in the present case is below the monetary limit of ₹ 50.00 Lakhs which has been notified vide Board’s Instruction being F.No.390/Misc/116/2017-JC dated 22 August 2019 - the appeal is dismissed under National Litigation Policy.

Demand of Interest over differential duty or unpaid service tax - Direction to deposit the arrears of interest on the enhanced rate of washed coking coal dispatched to the Steel Authority of India Limited (SAIL) in terms of long terms agreement between the SAIL and this petitioner Bharat Coking Coal Limited (BCCL) for the period from April 2011 to March, 2012 - Section 87 of the Finance Act, 1994 - HELD THAT:- By virtue of this judgment in the case of M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2019 (5) TMI 657 - SUPREME COURT] the issue now stands settled that the assessee is liable to pay interest upon the differential duty and / or the unpaid service tax detected by the Revenue. Petition dismissed.

Permission for withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The appeals are dismissed as deemed to have been withdrawn as per section 127(6) of the Finance Act (No.2), 2019.

Refund of accumulated unutilized Cenvat Credit of Krishi Kalyan Cess - HELD THAT:- On the subject issue much water flown and this tribunal’s two larger bench judgments one in the case of M/S. GAURI PLASTICULTURE P. LTD., BOMBAY DYEING & MANUFACTURING CO. LTD., M/S. SIMPLEX MILLS CO. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, INDORE, THE COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV, THE UNION OF INDIA THROUGH THE COMMISSIONER OF CENTRAL EXCISE MUMBAI I [2019 (6) TMI 820 - BOMBAY HIGH COURT] and in case of STEEL STRIPS VERSUS COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [2011 (5) TMI 111 - CESTAT, NEW DELHI] are contradictory - There are various high courts judgments such as UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] from Karnataka High Court, M/S. WELCURE DRUGS AND PHARMACEUTICA....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stay on Attachment of Bank Account of petitioner - taxability of Extra Neutral Alcohol (ENA) and Rectified Spirit - levy of VAT or GST? - HELD THAT:- As an interim measure that the impugned notice dated 30th September, 2020 provisionally attaching the bank account of the petitioner shall be stayed subject to petitioner furnishing bank guarantee of a nationalized bank to the extent of 50% of the differential amount i.e., the difference between the amount of GST paid and the amount of VAT quantified, to respondent No.2 within three weeks from today. Stand over to 3rd December, 2020 for further consideration.

Exemption from payment of entry tax - certificate granted to the petitioner under the Madhya Pradesh Udyog Nivesh Samvardhan Sahayta Yojna, 2004 and 2010 - contention of the petitioner is that the petitioner Company is engaged in the manufacturing of technical textile, chemicals, engineering, plastics packaging films, refrigerant gases at various locations in India and overseas - HELD THAT:- The respondents have carried out the reassessment only in respect of five assessment years ie., 2004-05, 2006- 07 and 2011-12 to 2012-13 and exemption has been granted only in respect of five assessment years. The respondents ought to have re-assessed the assessment years w.e.f. 2007- 08 to 2010-11 also. The petitioner has submitted more than a dozen of applications to the Commissioner for granting exemption in respect of the remaining years and the C....... + More

Principles of Natural Justice - validity of Penal Interest Order and Penalty Order - tax payments were made belatedly by the petitioner - periods April, 2016 to June, 2016, September, 2016, October, 2016 and December, 2016 to March, 2017 - HELD THAT:- The 1st respondent passed the impugned orders on 21.08.2020 levying both penal interest and penalty by separate Proceedings without considering the objections by merely stating that the contention of the petitioner is not considered. There is no discussion about the detailed objections filed by the petitioner on 21.11.2019 or reply dt.27.12.2019 - Since there is non-consideration of the objections dt.21.11.2019 or reply dt.27.12.2019 filed by the petitioner to the show-cause notice dt.01.11.2019, the impugned Penalty Order as well as Penal Interest Order cannot be sustained. The matters are ....... + More

Principles of Natural Justice - Concessional rate of tax - sale of the used motor vehicles - case of petitioner is that no opportunity of hearing was granted, except permission to file reply, even the rate of tax as per Section 6(1) of the KVAT has not been charged properly - HELD THAT:- Discretion by warranting interference under Article 226 of the Constitution of India can be always exercised in case, on perusal of the impugned order, prima facie, it is established to be without jurisdiction or non- adherence to the principles of natural justice. But the argument of counsel representing the petitioner is apparently not tenable on plain perusal of the impugned order as not only the reply was ordered to be given on 28.02.2020 even the Assistant Manager of the petitioner also appeared and he argued the matter as noticed in the impugned ord....... + More

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining 'C' forms under the provisions of the Central Sales Tax Act, 1956 - HELD THAT:- In the case of M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein the identical issue as arising before me has been considered and decided holding that Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI ....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Direction to the respondents to make appointments against all vacant posts in the Consumer Forum - relief of extension of the term of Shri O.P. Gupta as Member (Judicial), State Consumer Disputes Redressal Commission, Delhi till appointments are made - HELD THAT:- The applicant was appointed as a Member (Technical) in CESTAT on 29.3.2018. According to Rule 16 of 1987 Rules, the age of superannuation of a Member is 62 years - The applicant is sought to be retired on 9.8.2020 by applying the old Rules. It is submitted by Mr. C.S. Vaidyanathan, learned senior counsel that the applicant is entitled to continue for a period of four years in accordance with Tribunal, Appellate tribunal and other Authorities (Qualification, Experience and other conditions of Service of Members) Rules, 2020 (“2020 Rules”). For the present, we extend t....... + More

Grant of Anticipatory Bail - right to get anticipatory bail, fundamental right or not - Dishonor of Cheque - section 138 of NI Act - petitioner has submitted that the present FIR is counter-blast to the complaint filed by the petitioner against the complainant under Section 138 of the NI Act - HELD THAT:- The complaint was made to the police by the complainant against the present petitioner. The police even conducted a preliminary enquiry in the matter before registration of the FIR. The police prima facie found that the petitioner, in fact, has indulged in the crime in the manner alleged against her. Not only this, the police also found the documents of the complainant, which were required for sending her abroad, with the present petitioner. It has also come on record that the complainant's family had sold agricultural land for givin....... + More

Dishonor of Cheque - offence under Section 138 of the Negotiable Instruments Act - rebuttal of presumption - HELD THAT:- If the cheque was misused to the detriment of the accused with such huge financial implications, no man of ordinary prudence sits back without initiating any action against the complainant or the said Shamala Godi which was not done by the accused. This circumstance also weighed with the Courts below - Further, as admitted by the accused herself, she was involved in similar cheque bounce case as was evident by Ex.P-9 - the joint memo filed in Crl.Misc.No.93/2013 on the file of the II Additional J.M.F.C., Chikmagalur. These records show that accused was involved in the similar case on the allegation of borrowing loan from one Annapoorna issuing cheque and the cheque was dishonoured. Ex.P9 the joint memo shows that the ac....... + More

Dishonor of Cheque - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - restoration of the complaint which was returned to the complainant - HELD THAT:- It is not in dispute that the present respondent had instituted a criminal case against the present petitioners in the trial Court for the offence under Section 138 of the NI Act. Though the learned counsel for the petitioners contends that, after return of the complaint, the complainant did not present the same before the jurisdictional Court, but the same is proved to be not correct in view of the observation made by the trial Court in the impugned order, where it is clearly stated that the matter was presented before the Salem Court and again it was returned, in view of the NI Ordinance 2015. Thus it is clear that, subsequent to return of the complaint by th....... + More

Dishonor of Cheque - section 138 of NI Act - sale of land under Coercion - complainant contended that the accused though agreed under Ex.P1 to sell his lands and received ₹ 24,00,000/- as advance sale consideration, cheated him alienating the properties to others - Void agreement or not - illegal consideration or not - HELD THAT:- The primary document to be proved was Ex.P2 the Cheque. Ex.P1 was produced to substantiate that the Cheque was issued towards the discharge of liability under a land deal. According to the complainant in all, ₹ 24,00,000/- was received and Cheque was issued towards liability of ₹ 24,00,000/- plus ₹ 10,00,000/- as damages for breach of agreement - the accused in his affidavit admits that Ex.P1 was issued by him but under coercion. The theory of coercion is also rejected. Further, before th....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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