Assessment against amalgamating company - assessment order passed in the name of non-existing entity - scheme of amalgamation - HELD THAT:- The Supreme Court in the case of Maruti Suzuki [2019 (7) TMI 1449 - SUPREME COURT] had considered that income, which was subject to be charged to tax for the assessment year 2012-13 was the income of erstwhile entity prior to amalgamation. Transferee had assumed liabilities of transferor company, including that of tax. The consequence of approved scheme of amalgamation was that amalgamating company had ceased to exist and on its ceasing to exist, it cannot be regarded as a person against whom assessment proceeding can be initiated. In said case before notice under Section 143(2) of the Act was issued on 26.9.2013, the scheme of amalgamation had been approved by the high court with effect from 1.4.2012....... + More

Declaration filed under section 4(1) of the DTVSV Act - Petitioner seeking remedy of waiver of interest by way of an application under Section 264 of the Income Tax Act - HELD THAT:- Petitioner filed applications under the DTVSV Act and Rules vide declarations in Form-1 dated 18th November, 2020 and waiver undertakings in Form-2 for each of the 11 years for the period 1988-89 to 1998-99 to avail of beneficial tax payments to end the litigation with the Revenue-Authorities. Pursuant to the filing of these applications, on 3rd December, 2020, Respondent No.1 called upon the Petitioner to submit working of disputed tax in relation to undisputed income for A.Y 1987-88 to 1998-99, stating that, Petitioner had mentioned disputed tax in the Form-1 despite the disputed income shown as ‘Nil’ in the 154 proceedings, tax having been calc....... + More

Assessment of trust - depreciation allowable as application of income on charitable objects - Double deduction - Whether the Tribunal was right in holding that the assessee is entitled to claim depreciation on the assets, in the form of application of income, even though cost of purchase of asset was treated as application of income under section 11? - HELD THAT:- As decided in M/s.National College Council, Teppakulam, Tiruchirapalli [2021 (4) TMI 469 - MADRAS HIGH COURT] dismissed the appeals and answered the substantial questions of law against the Revenue.

Assessment u/s 153 - Time limit for completion of assessments and reassessments - draft order barred by limitation or not? - HELD THAT:- The proceedings were stayed for a period from 08.12.2011 to 07.03.2012 i.e., for a period of 103 days and if period of 103 days is added, and a period of 60 days as prescribed in proviso to Section 153(4) is added, the draft order ought to have been passed by the Assessing Officer upto 06.05.2012, whereas, in the instant case, the draft order has been passed on 05.07.2012 and therefore, the draft order is barred by limitation and no fault can be found with the finding of the tribunal. In view of preceding analysis, the substantial questions of law are answered against the revenue and in favour of the assessee.

Exemption / deduction u/s 10A - Setting off of loss of a Unit eligible for deduction under Section 10A against the profits of other Units entitled for a similar deduction under Section 10A - HELD THAT:- Second substantial question of law answered in favour of the assessee by a decision of the Hon'ble Supreme Court in the case of Commissioner of Income-tax vs. Yokogawa India Ltd. [2016 (12) TMI 881 - SUPREME COURT]

Income Tax Settlement order under section 245D( 4) - second respondent has come to a conclusion that the 1st respondent in their respective writ petitions have made adequate disclosures for settling the case and therefore has granted a waiver to the first respondent in the respective writ petitions, from payment of penalty and immunity from the prosecution in terms of section 245H of the Income Tax Act, 1961 - HELD THAT:- There is no scope for interference under Article 226 of the Constitution of India. Though, this Court exercise vide power Article 226 of the Constitution of India. its jurisdiction is narrow. The court is really not concerned with the ultimate decision of the 2nd respondent, Income Tax Settlement Commission, but only with the decision-making process. The Court can interfere only where there is perversity and arbitrarines....... + More

Settlement Commission (SC) order u/s 245D(2C) - whether there has been a full and true disclosure of income by the petitioner? - HELD THAT:- We had occasion to consider the same issue in the case of Hitachi Power Europe GmbH V. Income Tax Settlement Commission and others [2020 (9) TMI 540 - MADRAS HIGH COURT] and in very similar circumstances, have held that a discussion on the merits of the taxability of income at the stage 245D(2C) would be beyond the scope of what that provision envisaged.No serious contest is laid to this position by the revenue. Revenue points out that the petitioner has been lethargic in approaching this Court and there are laches on its part insofar as the writ petition is filed only after six months from the date of the impugned order and that too after the petitioner has participated in the proceedings for assess....... + More

Rectification of mistake - addition on account of depreciation of earlier years charged as per Companies Act in audited accounts written back in the books of Account during the assessment year 2007-08 - HELD THAT:- AO in the first round of litigation has made addition to the income of the assessee to the tune of 15% of the depreciation which led to the additions to the income of the assessee to which stood enhanced to the additions to the income of the assessee to the tune of entire depreciation write back by ld. CIT(A). The tribunal in first round of litigation gave relief to the assessee to the tune of ₹ 43.95 lacs and the assessee being aggrieved filed MA. The tribunal allowed the MA by restoring the issue back to its file for fresh adjudication of ground number 5 & 6. During the course of hearing before tribunal which was co....... + More

Penalty u/s 271(1)(c) - defective notice u/s 274 - decision of quantum appeal - as per assessee no mention of specific limb of Section 271(1)(c) for which penalty proceedings have been initiated by way of striking off the inappropriate words in penalty notice - HELD THAT:- It is pertinent to note that the assessee company was not in existence when the first search took place on the group of BPTP and the seized material therein clearly does not belong to assessee company. Secondly, at the time of the second search no incriminating material was found in respect of the assessee company. Hence, the addition made on PDC’s based on the first search does not have any corroborative evidence which has been brought by the Revenue on record. The CIT(A) as well as the Assessing Officer has failed to establish that the assessee company was invol....... + More

Reopening of assessment u/s 147 - notice issued after four years from the end of the relevant assessment year - disallowance u/s 40a(ia) with respect to non-deduction of tax u/s 194H on the discount enjoyed by the distributors on sale of prepaid cards and u/s 194J pertaining to payment of roaming charges to Telecom Service providers - HELD THAT:- It is trite that in order to reopen an assessment made under Section 143 (3) of the Act after the expiry of four years from the end of the relevant assessment year, the reasons recorded must allege that there was failure on the part of the assessee to disclose fully and truly material facts necessary for its assessment. Such allegation is necessary since it is a condition precedent to the assumption of jurisdiction. In the absence of such allegation, the reassessment proceedings have to be held a....... + More

Assessment u/s 153C - undisclosed LTCG - whether the document in the form of tally and Balance sheet as found during the course of search belong to the assessee? - HELD THAT:- To our mind, the documents found during the search in the given facts and circumstances, were of the ‘SJSL’ where the transactions for the impugned land were recorded. Thus, these were the documents which were not belonging to the assessee but to M/s SJSL. Hence, in the absence of any document found belonging to the assessee, the proceedings under section 153C of the Act cannot be initiated against the assessee. On perusal of the statement recorded under section 133(4) reproduced by the AO in his order we do not find any remarks made by such director to the effect that material/document seized during the search does not belong to the PS i.e. ‘SJSL&....... + More

Long Term Capital Gain on sale of Vejalput land - HELD THAT:- There is no dispute qua the amount of capital gain earned by the assessee along with other parties. As per the assessee the amount of capital gain was taxable in the assessment year 2007-08 and 2008-09 whereas the revenue had taxed the entire amount of capital gain in the assessment year 2006-07 as contended by the learned AR. At the time of hearing, as pointed out by the learned AR that the assessee has settled his dispute for the assessment year 2006-07 under VSV scheme 2020. For this purpose, the learned AR has filed form 3 issued by the Income Tax Department showing the settlement of the dispute under VSV scheme 2020. As the dispute relating to the year under consideration has been settled under VSV scheme 2020, we hold that no separate adjudication is required. Share of pr....... + More

Undisclosed income - Voluntary disclosure of the assessee about the undisclosed income - year of taxability - assessee has made disclosure on his individual capacity and stated that transactions of payment of cash and making such investment was made by him in the financial year 2009-10 relevant to the Asstt.Year 2010-11, and therefore, the assessee had rightly included the said disclosure amount in the return for the Asstt.Year 2010-11, which was as per the statement made under section 132(4) - HELD THAT:- Except voluntary disclosure of the assessee about the undisclosed income, there is nothing with the department to establish that the undisclosed income declared by the assessee pertained to the year 2009-10. CIT(A) recorded a finding that enquires have been conducted in the case of only seven companies, which together contributed a shar....... + More

Validity of reopening of the assessment by issuing notice u/s 148 read with section 147 - eligible reason to believe escapement of income - bogus LTCG/STCL and unsecured loans receipts - A.O noted that the assessee company has no real business activities since there are no purchase and sales found during the relevant F.Y - whether the AO on the basis of whatever material before him, [which he had indicated in his "reasons recorded"] had reasons warrant holding a belief that income chargeable to tax has escaped assessment? - whether the condition precedent necessary to usurp the re-opening jurisdiction can be discerned from perusal of the reasons recorded by the AO in the instant case? - HELD THAT:- As in the reasons recorded had specifically stated that the assessee had received ₹ 25,00,000/- from M/s. DRS Enterprises Pvt........ + More

Disallowance of additional depreciation - Scope of amendment to section 32(1)(iia) - depreciation claimed by the assessee relates to assets acquired in the preceding assessment year, wherein the assets were used for less than 180 days and only 10% of depreciation was claimed in earlier year - whether CIT(A) has erred in directing the Assessing Officer to allow the assessee’s claim of additional depreciation by relying on the decision in the case of Brakes India Ltd [2017 (4) TMI 511 - MADRAS HIGH COURT] on the ground that the issue involved relates to the assessment year 2014-15, whereas the amendment to section 32(1)(iia) by Finance Act 2015 came into force only from 01.04.2016 and not retrospectively - HELD THAT:- Respectfully following the decision of the Tribunal [2017 (5) TMI 1694 - ITAT CHENNAI], we find no reason to interfere....... + More

Delayed remittance of Provident Fund contribution and ESI - disallowance u/s 36(1)(va) OR u/s 43B - DR has argued that unlike the employers contribution, the employees part of contribution to PF and ESI are not allowable under section 43B of the Act since the said contributions are not paid within the due dates as specified in the respective Acts, and such unpaid employees contributions are liable for disallowance under section 36(1)(va) r.w. section 2(24)(x) - By following the decision of CIT v. Industrial Security & Intelligence India Pvt. Ltd. [2015 (7) TMI 1063 - MADRAS HIGH COURT] CIT(A) directed the Assessing Officer to allow the actual amount paid before the due date of filing the returns under section 139(1) of the Act - HELD THAT:- As in this case, on perusal of the details of break-up of the PF/ESI contribution remitted on t....... + More

Disallowance of commission paid - specific services the commission agent rendered to the assessee for which the assessee has paid the commission - assessee has failed to submit any documentary evidences to prove the genuineness of claim and actual services rendered by foreign agent - HELD THAT:- Generally no direct evidence for the “service rendered” can be produced and the relationship of the “service rendered” and “business purposes” has to be established by circumstantial evidence and growth in the business of the assessee in such cases. In this case, as per the matching concept of taxation, both the commission Agents have given sufficient business. Foreign Agent has given export orders of ₹.22.Crs and local agent has procured orders for Reliance Jio Info Comm Ltd. for the extent of ₹. 60....... + More

Legality of approval granted by the designated superior authority u/s 153D - approval granted by the superior authority in mechanical manner or not? - contention on behalf of the assessee that approval granted u/s 153D does not meet the requirement of law and hence assessment orders passed in consequence of such non-est approval is a nullity in law - HELD THAT:- The approval granted under section 153D of the Act should necessarily reflect due application of mind and if the same is subjected to judicial scrutiny, it should stand for itself and should be self-defending. There are long line of judicial precedents which provides guidance in applying the law in this regard. At the cost of repetition, it may be reiterated that in the instant case, approving authority did not mention anything in the approval memo towards his/ her process of deri....... + More

Benefit of 'Vivad se Vishwas Scheme, 2020' - HELD THAT:- An identical application filed by an assessee in the case of M/s. Nannusamy Mohan (HUF) [2020 (11) TMI 484 - MADRAS HIGH COURT] taking note of the fact that some assessee's have already filed declaration in Form No. 1 along with Form No. 2 to the Designated Authority and received Form 3 and some assessee's had already filed Form No. 1 & 2 and awaiting form no. 3 from the designated authority and also the fact that remaining assessee's are willing to file Form No. 1 and 2 within the due date prescribed for this purpose, we dismiss the appeals filed by the assessee's as withdrawn. However, a liberty is given to the assessee's to restore the appeals, in the event of the Designated Authority, for any reason reject the application filed by the assessee under section 4 of the said Act.

Benefit of 'Vivad se Vishwas Scheme, 2020' - some assessee's have filed declaration in Form No. 1 along with undertaking waiving rights for any remedy in Form No. 2 to the designated Authority and has also received Form 3. In some cases, form no 1 and 2 has been filed and awaiting form no. 3 from the designated authority and in some cases, the assessee's have expressed their willingness to file form no. 1 and 2 and settle their dispute under the scheme - HELD THAT:- Once the assessee's intend to file a declaration in Form No. 1 along with undertaking and expressed their willingness to settle pending disputes regarding direct taxes, then there is no point in keeping appeal filed by the assessee's. We, further noted that recently the Hon'ble Jurisdictional High Court of Madras has considered an identical applicat....... + More

Disallowance u/s 14A r.w.r. 8D - CIT-A directed disallowance u/r. 8D(2)(iii) amounting to half percent of assessee's investment which earned exempt income - HELD THAT:- No infirmity in the above direction of learned CIT(A). Assessee's claim that this limb of disallowance u/r. 8D(2)(iii) was not invoked by the AO is not at all sustainable. AO had made disallowance under section 14A. CIT(A) had deleted that and directed for a disallowance of 0.5% of the average value of investment under rule 8D(2)(iii) after necessary verification by the Assessing Officer. We find that the disallowance sustained by learned CIT(A) in effect is much less than that by the Assessing Officer. Even if investment have been made out of available interest free fund the same by no stretch of imagination goes on to the prove that no disallowance under rule 8D(....... + More

Unaccounted income disclosed during the course of survey - survey action conducted u/s 133A on the business premises of assessee wherein incriminating documents were found in possession of partners of assessee firm - statement of one of the partner of assessee firm as recorded on oath disclosed unaccounted income as net income for assessment year (AY) 2012-13 - partner of assessed also furnished the bifurcation of unaccounted income - primary contention of the assessee that the partners of the assessee made statement of gross business receivable, CIT(A) held that while making statement in the survey proceeding the partners specifically stated that the amount is distributed among the partners are unrecorded and unaccounted receivables of the firm - HELD THAT:- There is no dispute that during the survey action on 05.07.2011, the partner of ....... + More

Allowability of development expenses - A.O observed that the assessee had claimed development expenses on estimated basis which are much higher than the actual expenses incurred during the year - why the assessee has changed the system of claiming development expenses on estimated basis with effect from Assessment Year 2013-14? - HELD THAT:- From perusal of the above observation by Ld. A.O we find that firstly he mentions that development expenses has not yet been incurred in respect of all the plots and then he further observes that actual development expenses actually incurred would have to be considered for deduction but he fails to give the benefit of actual expenses incurred by the assessee during the year and thirdly he applies a complete different approach with regard to the development charges whether received or not but would acc....... + More

Penalty levied u/s 271(1)(c) - disallowance u/s 36(1)(iii) - HELD THAT:- As relying on ratio laid down in Reliance Petroproduct (P) Ltd [2010 (3) TMI 80 - SUPREME COURT] and Ventura Textiles Ltd. [2020 (6) TMI 305 - BOMBAY HIGH COURT] is squarely applicable to the instant case wherein held merely because assessee had claimed expenditure, which claim was not accepted or was not acceptable to revenue, that by itself would not attract penalty u/s 271(1)(c). Following the same, we delete the penalty levied by the AO u/s 271(1)(c) of the Act.- Decided in favour of assessee.

Gross profit determination - Tribunal, applied the decision in A.Vajjiram & Bros [2008 (8) TMI 528 - MADRAS HIGH COURT] and fixed the gross profit at 8% - assessee did not cooperate in the assessment by producing certain labour registers, which was called for by the Assessing Officer and therefore, the AO, taking note of Section 44AD of the Act, which is a special provision for computing profits and gains of business on presumptive basis - assessment for A.Y. 2012-13 net profit was comutation at 3.21% of the Gross receipts - HELD THAT:- Before us, the appellant has filed a chart showing a comparison of the figures for the assessment years 2012-13 to 2019-20 and we find that the net profit ratio to turnover in percentage ranges between 2.86% and 3.42%. Further, from the assessment order for the year 2017-18, it is seen that the Assessi....... + More

Maintainability of petition - availability of alternative remedy - Delegation of powers by the commissioner - Provisional attachment - Proceedings initiated u/s 83 - petitioner admits that there is alternate remedy available, but contend that the rule of exclusion of jurisdiction due to availability of alternative remedy is a rule of discretion and not one of the compulsions - It was held by High Court that the writ petitioner has not only efficacious remedy, rather alternative remedy under the GST Act, and therefore, the present petition is not maintainable. HELD THAT:- Arguments concluded - Judgment reserved.

Sub-Contract from a Sub-Contractor - Sub-contractor is sub-contracted from a sub-contractor of the main contractor - main contractor is provider of works contract to a Government entity - eligibility for concessional rate of GST - no privity of contract between applicant and main contractor - HELD THAT:- In the instant case, it is seen that there is no privity of contract between the applicant and M/s. Karnataka Neeravari Nigam Ltd. The original contract is awarded by M/s. Karnataka Neeravari Nigam Limited to M/s. Ocean Constructions (India) Private Limite - Hence as per the notification, any subcontractor providing services to Main contractor by executing the works mentioned in the serial number 3 of clause (iii) and clause (vi) which is exclusively covered under the clause (ix) of serial no.3 of Notification No. 11/2017- Central Tax (Ra....... + More

Taxability - levy of GST - Rent received from Backward Classes Welfare Department - services of renting an immovable property - exemption under entry number 3 of N/N. 12/2017 -Central Tax (Rate) dated 28-06-2017 - HELD THAT:- The applicant has rented his property to the Backward Classes Welfare Department, Government of Karnataka, who in turn is using the same for providing hostel facilities to the post metric girls of backward classes. This is in relation to the function entrusted to a panchayat under article 243G of the constitution which is covered by 27th entry of 11th schedule which says Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes. Since the applicant is providing to the State Government pure services by way of any activity in relation to any function entrusted to a Panchayat un....... + More

Classification of supply - rate of tax for the scope of supplies - independent supplies or composite supply with principal supply of goods - supplies made by different Cost Centres - naturally bundled services - Time of supply - HELD THAT:- It is seen that the applicant was a successful bidder to the tender invited by the BMRCL and the tender is for “Supply of 150 numbers of Standard Gauge Intermediate Cars compatible with and suitable for integration with the existing trains of Bangalore Metro Rail Project Phase-I”. The applicant has applied and been allotted the work and the applicant has entered into the contract with BMRCL vide Contract No.3 RS-DM dated 25th March, 2017. It is clear that the contract is for manufacture and supply of Standard Gauge Intermediate Cars along with integration with installation and commissioning....... + More

Export of services or not - levy of GST on foreign supplier on their service charges - services of stevedoring, transportation, storage, bagging, stuffing and again transportation of the goods which are temporarily imported - zero rated supply or not - place of supply of services or not - HELD THAT:- The fertilizers/goods are discharged from the vessel, brought from the vessel to the custom bonded warehouse, packed in smaller bags as per the requirement of the client and thereafter dispatched from the warehouse after 2/3 months ( as per instructions of their clients) for export to the ultimate buyers of the clients of the applicant. It is therefore, apparent that the aforementioned fertilizers/goods never cross the customs barrier and mix-up with the indigenous goods as these goods were temporarily imported to India (for export purpose) a....... + More

Local Authority or not - Ahmedabad Municipal Transport Service - engaged in rendering passenger transportation services and runs public buses in the city of Ahmedabad within the limits of Municipal Corporation - GST on procurement of security services received from any person other than body corporate under reverse charge mechanism - GST on advertisement services or the service recipient of AMTS is required to pay GST under reverse charge mechanism - registration as a Deductor under GST as per the provision of Section 24 of the CGST Act. Whether the applicant i.e. AMTS would be qualified as “local authority” as defined under the CGST Act, 2017? - HELD THAT:- AMTS is a statutory authority established to carry out the functions entrusted to a Municipality under Art. 243W of the Constitution. It is a body discharging municipal fu....... + More

Classification of goods - rate of GST - Bollards - Bolts, nuts, screw, washer etc. known as fixtures - Frontal Frames - Fascia Pads - UHMW PE pads - Buoys - Chains/Swivel/D-Shackle/Chain tensioner - Rubber Fender (both types) - few products such as frontal frames with fascia pads along with fixture as a complete set - fender panel system along with services such as assembly, installation & supervision service - supply of installation service where usage of chemical is essential to provide effective service - composite supply or not - classification of the bundle. Classification of goods - rate of GST - Bollards - HELD THAT:- ‘Bollards’ would be rightly covered under Tariff heading 73259999 - N/N. 01/2017-Central Tax (Rate) dated 28.06.2017 (as amended from time to time), Sub-heading 7325 finds mention at Entry No.237 of Sc....... + More

Utilisation of Input Tax Credit - Balance available in the Electronic Credit Ledger legitimately earned on the inputs/raw-materials/inward supplies(meant for outward supply of Bullions) - whether the balance available can be used towards the GST liability on ‘Castor Oil Seed’ which were procured from Agriculturists and subsequently meant for onward supply - ‘Castor Oil Seed’ is intended to be supplied in domestic market or to export it - HELD THAT:- For the applicant, to be eligible to take input tax credit on any supply of goods or services, the same has to be used or should be intended to be used in the course or furtherance of his business i.e. the nexus/connection between the inputs and the final products manufactured from these inputs is required to be proved - For example, inputs such as dores of gold, silver....... + More

Governmental Authority or not - National Institute of Design, Paldi, Ahmedabad (NID) - liability to pay GST on procurement of services under reverse charge mechanism - Security services received from any person other than body corporate as per N/N.13/2017 - Central Tax (Rate) - Access to e-books/e-database from service provider located outside India as import of service as per N/N.10/2017 - IGST (Rate) - requirement to be registered as a tax deductor under GST as per the provision of Section 24 of the CGST Act. Whether NID would qualify as ‘governmental authority’ as defined under the Integrated Goods and Services Tax Act, 2017? - HELD THAT:- For the applicant to fall under the definition of ‘Governmental Authority’, the following 3 conditions will be required to be satisfied: (1) It has to be set up by an Act of P....... + More

Scope of Advance Ruling - Classification of supply - export of services - zero rated supply or not - Commission paid to foreign agent who is non resident of India and he does not have any permanent establishment or business connection in India - liability of GST on such commission payable to foreign agent related to service provided out of India. HELD THAT:- Both the questions raised by the applicant do not fall within any of the clauses of (a) to (g) of Sub-section(2) of Section 97 of the said Act, i.e. they do not fall within the ambit of Section 97(2) of the said Act as both the questions are related to export of service which would also require the determination of place of supply of services which is not under the scope of jurisdiction of the Advance Ruling Authorities.

Classification of goods - rate of GST - Plastic Toys - entitlement to Input Tax Credit in relation to CGST-SGST separately - debit notes issued by the supplier in current financial year i.e. 2020-21, towards the transactions for the period 2018-19 - HELD THAT:- The said toys are made of plastic meant for children and are not electronic toys, and therefore conclude that the plastic toys manufactured and supplied by the applicant are correctly classifiable under Heading 95030030 of Chapter 95 of the First Schedule to the Customs Tariff Act, 1975(51 of 1975). Tax liability on the product - HELD THAT:- The Toys of plastic manufactured and supplied by the applicant fall under Sr.No.228 of Schedule-II of N/N. 01/2017-Central Tax(Rate) dated 28.06.2017 and the GST applicable on the said product is 12%. Whether the applicant can claim input tax c....... + More

Classification of services - Health Care Services - Composite Supply or not - medicines, consumables and implants used in the course of providing health care services to in-patients for diagnosis or treatment for patients opting with or without packages along with allied services i.e. (room rent/food/doctor fees Etc.) provided by hospital - HELD THAT:- The exemption is applicable to a “Clinical Establishment”, when services by way of diagnosis or treatment or care for illness, etc. are undertaken by such establishment under the directions of a medical doctor. The applicant hospital is a Clinical Establishment and for the health care services as defined in the Notification above provided including the supply of medicines, implants and consumables, rooms, food etc. they are exempt under Sl. No 74 of the Notification No.12/2017-C....... + More

Seeking grant of Bail - vicarious liability - proper investigation and enquiry was made by the officials of the GST Department before arrest or not - evasion of GST - HELD THAT:- As the evasion of the duty is more than ₹ 5 crores, therefore, the offence alleged against the applicant is cognizable and nonbailable. In view of sub-section (1) of Section 138 of CGST Act, 2017 any offence under CGST Act, 2017 is compoundable, both before or after the institution of the prosecution - In the present case, no effort is made on behalf of the applicant to compound the offence either before the institution of the prosecution or at post prosecution stage. The offence alleged against the applicant is economic offence in which the evasion of duty amounting ₹ 62,10,28,165/- is made against the applicant. Although the offence is punishable wi....... + More

Validity of SCN - Infraction of Rule 142 (1A) of the Central Goods and Services Tax Rules, 2017 - requirement to furnish intimation with regard to the tax that they proposed to impose on the petitioner in the prescribed form, i.e., PART - A of FORM GST DRC-01A - HELD THAT:- Mr. Harpreet Singh, who appears on behalf of respondent nos.2 and 3, seeks a short accommodation to return with instructions qua this aspect of the matter. List the matter on 09.04.2021.

Whether the Petitioner should have submitted “documentary evidence to prove his claim that he is a practicing individual lawyer and does not come under the provision of GST or service tax? - HELD THAT:- The Court expresses its concern that practising advocates should not have to face harassment on account of the Department issuing notices calling upon them to pay service tax/GST when they are exempted from doing so, and in the process also having to prove they are practising advocates. The Commissioner GST is directed to issue clear instructions to all the officers in the GST Commissionerates in Odisha that no notice demanding payment of service tax/GST will be issued to lawyers rendering legal services and falling in the negative list, as far as GST regime is concerned. List on 22nd April, 2021.

Clandestine removal - allegation that the goods kept unaccounted with intent to evade payment of CGST/SGST by supplying the same clandestinely - books of accounts/stock register maintained at the time of search or not - excess stock were found against the entries made in books of accounts/stock register at the time of search or not - value of seized goods are correct or not - Confiscation - penalty u/s 122(1)(xvi) and (xviii) of CGST Act, 2017. Whether books of accounts/stock register maintained at the time of search and whether excess stock were found against the entries made in books of accounts/stock register at the time of search and whether seized goods is liable for confiscation or not in terms of Section 130 (1) (ii) (iv) of CGST Act and rules made thereunder? - HELD THAT:- There is no doubt that in fact the books of accounts of th....... + More

Revocation of cancellation of registration - non-reply to the notice issued within the time specified therein - HELD THAT:- The appellant submitted in their written submission that the additional requirement was raised regarding interest on tax paid thereon. However, now appellant has filed all the pending GST returns till cancellation of registration as well as deposited the all Govt. dues along with late fee and interest. In this regard, the appellant submitted copy of challan dated 19.01.2021 towards payment of interest amounting to ₹ 4800/- and also submitted copy of Form GST DRC-03. The appellant has now been complied with the above said provisions, therefore, the registration of appellant may be considered for revocation by the proper officer - the proper officer are directed to consider the revocation application of the appel....... + More

Maintainability of appeal - time limitation of filing appeal - period of appeal as prescribed under Section 107(2) of CGST Act,2017 - levy of penalty u/s 129(1)(a) of CGST Act, 2017. Whether the appeal filed by the appellant is beyond the period of appeal or not as prescribed under Section 107(2) of CGST Act,2017? - HELD THAT:- The appeal has been filed by the appellant or department in accordance with the Notification No.55/2020-Central Tax dated 27.06.2020 amending Notification No.35/2020-Central Tax dated 03.04.2020. By the said Notification, the period for filing of appeal has been extended upto 31st December-2020 which is squarely applicable in the instant case. In view of this, there is no force in the contention of the respondent that the appeal has been filed beyond the period of appeal and therefore appeal is absolutely maintaina....... + More

Classification of supply - rate of GST - composite supply of services or not - vehicle owner, the driver and the associate partner together - pick-up charges paid to the Owner/ Driver - service charges collected from the passengers - Associate Partner renders services to the Passengers and to the Drivers/ Vehicle Owners directly - amount received from the Owners / Drivers towards bidding - Goodwill Bonus being paid by Passenger to the Driver for good service - charges for cancelling the trip - charges for insurance - Principal supplier/ Applicant collects GST, along with fare from Passengers and remits that amount. Whether the various supplies (of the applicant, the vehicle owner, the driver and the associate partner together) qualify as Composite supply? - HELD THAT:- The conditions for a supply to be considered as a Composite Supply are....... + More

Classification of goods - rate of GST - parboiling and drier plant - part of rice milling machinery as specified in the Notification dated 28-06-2017 or not - to be classified under HSN 8437 or under HSN 8419? - HELD THAT:- As there was conflicting judgments on the issue in the case of JJYOTI SALES CORPORATION VERSUS COMMISSIONER OF C. EX., PANCHKULA [2011 (3) TMI 1317 - CESTAT, NEW DELHI] classifying par-boiling machine and dryer under 8419 of Central Excise Tariff and in the case of SKF BOILERS & DRIERS (P) LTD. VERSUS COMMISSIONER OF C. EX., MANGALORE [2010 (10) TMI 230 - CESTAT, BANGALORE] classifying the same machines under 8437, the Hon'ble President of CESTAT constituted a Larger Bench as per the directions of the Hon'ble Supreme Court in JYOTI SALES CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE, PANCHKULA [2016 (2)....... + More

Benefit of advance authorisations - provisional release of seized goods - seeking assessment of Bills of entry - drawing samples of the goods in the containers to have tested at a laboratory - goods misdeclared or not - HELD THAT:- It appears that samples had accordingly been sent to one laboratory M/s. Geo Chem Laboratory and once again to JNCH laboratory, and that test results have also been known. With reference to the same, several contentions are being advanced on either side, including there is a request on behalf of the petitioner to draw samples once again contending that third portion of sample is not supplied to petitioner and to have tests carried as suggested by them, purporting to emphasize that in several tests can be carried out by which results would not be same, as contended by the revenue. There are several matters in di....... + More

Territorial Jurisdiction - Levy of penalty u/s 112(a) of the Customs Act, 1962 - import of confectionery items from Dubai - Allegation of under valuation by DRI - error in not relying on th decision of Larger Bench of this Tribunal in M/S SEVILLE PRODUCTS LIMITED VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2021 (3) TMI 775 - CESTAT NEW DELHI] - appellant is located in Dubai, outside of India and having no office in India - HELD THAT:- It was inquired from the ld. A.R. about the decision of the Larger Bench on this issue by this Tribunal passed in 2021. The ld. A.R. fairly accepted that he is not aware of the decision. It is very unfortunate that the departmental officers appearing before this Court are not updated with the latest judgments of this Tribunal. As there is a decision of the Division Bench of this Tribunal which is against the ....... + More

Import of prohibited goods - Decalcified Fish scale for Collagen (Fish Protein) - Revenue found the item to contain pathogenic Salmonella on testing and directed the importer to move the cargo back to Customs jurisdiction - re-export of goods allowed subject to payment of redemption fine and penalty - HELD THAT:- The Commissioner(Appeals) in the impugned order has specifically allowed the benefit to the appellant under Section 74 of the Customs Act, 1962 for reexport of goods as the governing factors under Section 74 for reexport of goods imported have not been violated by the appellant - when the goods allowed to be reexported by the Commissioner(Appeals), then the imposition of redemption fine and penalty is not sustainable in view of the various decisions relied upon by the appellant. Tribunal in the case of Kenda Farben India Pvt. Ltd....... + More

Seeking assessment of Bills of Entry - seeking clearance of such goods for home consumption on payment of custom duties to be assessed together with redemption fine - import of Natural Gold Ore Concentrates - HELD THAT:- The respondent-authorities are required to assess the Bill of Entry filed by the petitioners for quantity of 16,050 grams of Natural Gold Ore Concentrates imported at Air Cargo Complex at Ahmedabad on 29.01.2014 in view of the order passed by the CESTAT reducing redemption fine to ₹ 15 lacs and penalty of ₹ 10 lacs imposed under section 112(a) of the Customs Act, 1962 in respect of the confiscated consignment. The order of the CESTAT is confirmed by this Court by dismissing Tax Appeal and therefore, the order of the Tribunal has achieved finality as no appeal is filed by the department against such order befor....... + More

Seeking permission to forthwith record their statements under Section 108 of the Customs Act, 1962 by video conferencing in investigations under Customs Act, 1962 by temporarily waiving their physical presence - HELD THAT:- In Poolpandi and Others Vs. Superintendent, Central Excise and Others [1992 (5) TMI 147 - SUPREME COURT] Supreme Court was pleased to reject the argument recorded in paragraph No.5 thereof claiming the presence of lawyer for active participation who could advise potential accused. The answer to the aforementioned objection has been given in the judgment SENIOR INTELLIGENCE OFFICER VERSUS JUGAL KISHORE SAMRA [2011 (7) TMI 910 - SUPREME COURT] wherein presence of an advocate at a visible but not audible distance was permitted which would not amount to any active participation of the advocate. The situation of Corona/COVI....... + More

Refund the excess duty paid - duty paid under protest - rejection of refund on the ground that it is beyond one year when computed from the date of reassessment of the bills of entry - Time limitation - HELD THAT:- There is no dispute that the appellant has paid excess duty of ₹ 29,57,931/- after reassessment of the bills of entry by extending the benefit of Notification No. 12/2012-CE. The refund has been rejected on the ground that it is barred by limitation - When the appellant has approached the higher forum aggrieved by the rejection of the notification benefit, it is sufficiently implied that the duty has been paid under protest. The Tribunal in the case of BAYSHORE GLASS TRADING PVT. LTD. VERSUS COMMISSIONER OF CUS., KOLKATA [2002 (7) TMI 161 - CEGAT, KOLKATA] has held that when appeal is filed against the assessment of the b....... + More

Misuse of the Special scheme to promote export - some benefits which had already accrued to exporters under the EXIM Policy were taken away. - Validity and Scope of Notifications - Power to DGFT to amend the policy - Notifications are Retrospective or prospective - HELD THAT:- In view of the decision of the Supreme Court in DIRECTOR GENERAL OF FOREIGN TRADE AND ANOTHER VERSUS M/S. KANAK EXPORTS AND ANOTHER [2015 (11) TMI 80 - SUPREME COURT], the appeal is disposed of on same terms holding that Notification No. 48/2005 dated February 20, 2006 and Notification No. 8/2006 dated June 12, 2006 cannot be applied retrospectively and they would be effective only from the dates they were issued. The Order dated 29th September 2005 passed by the learned single Judge is set aside and the Writ Appeal is disposed of in the light of the decision of the....... + More

Release of imported goods from Pakistan - rate of duty - Vires of N/N. 5/2019-Customs dated 16.02.2019 - consignments of goods from Pakistan had entered the territory of India and the bill of entry with the prescribed rate of duty was electronically generated on 16.02.2019 before impugned notification enhancing the duty @ 200% was issued in late evening on the same date - prayer for release of the imported goods upon payment of the rate of duty assigned in the bill of entry instead of the subsequently enhanced duty @ 200%. HELD THAT:- In view of the decision of the three-Judge Bench of this Court in UNION OF INDIA & OTHERS VERSUS M/S GS CHATHA RICE MILLS & ANOTHER [2020 (9) TMI 903 - SUPREME COURT], the SLP are dismissed.

Warehoused goods - goods were not cleared within the time limit stipulated in Section 48 of the Customs Act, 1962, the customs authority proposed to auction the goods - contractual relationship and contractual liability - requirement to issue waiver certificate or not - HELD THAT:- It is well settled that no Court can issue 'Mandamus' contrary to law. The statutory authority cannot be restrained from discharging its statutory functions. In the case on hand, the customs authority had issued notice on 15.09.2020 calling upon the petitioner to clear the goods. In the counter affidavit, the customs authority has pointed out that though the customs authority could have issued first notice on the expiry of the 30th day, they chose to wait for about three months before issuing the notice. Since proper response was not forthcoming from th....... + More

Seeking re-export of imported goods - petitioner was carrying with him four mobile phones, which was considered to be in excess of permissible limit - failure to make a declaration under Section 77 of the Customs Act, 1962 - HELD THAT:- Whether a specific averment has been taken either in the representation or in the affidavit filed in support of the writ petition that immediately on landing, the petitioner did make a declaration under Section 77 of the Act. The learned counsel for the petitioner is unable to draw my attention to any such averment either in the representation or in the affidavit filed in support of the writ petition. Unless the person has legal right to seek consideration of one's representation, he cannot maintain a writ of mandamus - there are no ground to grant relief - petition dismissed.

Imposition of penalty on Customs Broker - customs broker had not verified KYC and has violated Regulation 10(n) of Customs Brokers Licensing Regulations (CBLR), 2018 - HELD THAT:- A show cause notice has to be issued within 90 days from the date of receipt of the offence report. In the present case, the copy of the order passed by the adjudicating authority at Mumbai Customs is dated 29.05.2019. The same was communicated to Chennai Customs. If the said order is considered as offence report, show cause notice ought to have been issued on or before 28.08.2019. In the present case the show cause notice is dated 26.11.2019. Thus there is delay in issuing the show cause notice which is clear violation of Regulation 17(1) of CBLR 2018. The jurisdictional High Court in the case of M/S. BHUVAN SHIPPING SERVICES VERSUS THE COMMISSIONER OF CUSTOMS,....... + More

Interest on delayed Refund of SAD - case of Revenue is that the necessary documents were filed only on 16.02.2019 and from such date the refund has been granted within 3 months and therefore no interest is liable to be paid to the appellant - HELD THAT:- It is seen that refund claims were filed by the appellant in March 2014 and April 2014. The same has been sanctioned only on 10.06.2019. The department was always a party to the litigation before Commissioner (Appeals) as well as the Tribunal. When the matter was agitated by the appellant for denial of refund alleging that appellant has not complied with condition 2(b) of the notification, the Department had sufficient knowledge about the proceedings as well as the order passed by the Tribunal. Even after the order passed by the Tribunal, the department has waited for 2 years to sanction ....... + More

Star Trading House - Seeking clearance of Pigeon Peas for home consumption - valid registration of Advance Payment Certificate is there - perishable goods - change in status from free to restricted/ prohibited goods - Foreign Trade Policy 2015-2020 - HELD THAT:- Paragraph No.1.01 of chapter 1 of the FTP states that the FTP shall come into force with efect from the date of notifcation and shall remain in force upto 31.03.2020, unless otherwise specifed as stated; the said policy now stands extended upto 31.03.2021. Paragraph No.1.05 relates to transitional arrangements and clause (b) thereof states that in case of change of policy from 'free' to restricted / prohibited / state trading or otherwise regulated, the import / export already made before the date of such regulation / restriction will not be afected. It further states that....... + More

Maintainability of petition - writ petition dismissed on the ground that the appellant should invoke the appeal remedy available under the Statute - HELD THAT:- This appeal are not pure questions of law. There are several factual allegations, which have been set out in the show cause notice as well as in the Order-in-Original. This aspect of the matter had been noted by the learned Single Judge and it was observed in the impugned order that it would not be proper for the Writ Court to go into the disputed questions of fact and that this has been best left for the Appellate Authority for a decision. There are no good grounds to interfere with the impugned order. The time limit stipulated by the learned Single Judge for filing the appeal shall enure in favour of the appellant and the appellant is permitted to file the appeal before the Appellate Authority within two weeks from the date of receipt of a copy of this judgment - Appeal dismissed.

Maintainability of appeal - Revocation of CHA License - the proprietor of the respondent passed away - HELD THAT:- Nothing survives for adjudication in this appeal. Appeal disposed of as nothing survives for adjudication.

Levy duty with interest and penalty - diversion of due free imported capital goods - stand of the petitioners is that during the relevant time Covid-19 pandemic was prevailing, the office was closed and the notice that was sent by registered post was received only on 20.07.2020 - HELD THAT:- Some more time could have been granted to the petitioners herein. This Court has to take notice of the fact that the petitioners had paid the entire duty liability amount. Covid-19 was prevailing and the impugned orders have also been passed without hearing the petitioners herein. Even now the petitioners state that within a period of six weeks from the date of receipt of a copy of this order, the petitioners would pay the interest amount as quantified by the authorities. This undertaking is recorded. The petitioners are directed to pay the interest a....... + More

Direction to re-assess the goods in Bill of Entry - Refund the amount for missing pallet within a reasonable time frame - HELD THAT:- The Airport Authority of India was responsible for safe keeping of the imported goods as per Regulation 6(i) of the Handling Cargo in Customs Area Regulations, 2009. Airport Authority of India was the custodian of the imported goods as per Handling Cargo in Customs Area Regulations, 2009 - The imported goods were lost while in the custody of Airport Authority of India after assessment and payment of duty but before they could be physically delivered to the petitioner by the Airport Authority of India. In this case, the amendment sought for is based on the documents that were available before the import. Since the imported lost goods were never cleared, the petitioner was entitled to have the subject Bill of....... + More

Validity of Service of SCN - condition precedent for giving jurisdiction to the Adjudicating Authority to pass an order - Section 153 of the Customs Act - HELD THAT:- In the present case inspite of opportunity given, Revenue failed to produce the proof of delivery of the show cause notice. Further, from perusal of the order-in-original, it is found that the Adjudicating Authority have not recorded satisfaction of service of show cause notice and have proceeded to pass the ex-parte order-in-original, which is held to be a nullity in the eyes of law. Substituted service by way of affixation on the notice board of the Department is by way of last resort. In the facts of the present case, it is found that without identifying, the noticee, nor taking any reasonable measures of any substituted service as mentioned in clause (d) and (e) of Secti....... + More

Refund claim redemption fine and penalty, since the demand was set aside - Revenue contended that the claim is unsupported by documents - applicability of time limitation - refund claim is after 14 years of alleged deposit - CEGAT did not direct refund of redemption fine and penalty - the consignment has been removed from the customs area and goods not available for confiscation. Refund is made by respondent without supporting documents - HELD THAT:- This ground is raised by the appellant without firstly taking note of the observation made by the Commissioner of Appeals in Annexure-B order wherein the claim of respondent with the documents available and produced by respondent has been accepted as sufficient for processing the claim of refund. The Department, if was desirous of challenging the said finding ought to have maintained an appea....... + More

Recording of investigation by way of videography - validity of summons issued - Smuggling - seizure of 15 kgs of gold - HELD THAT:- A Committee of experts appears to have been constituted to prepare a road map and standard operating procedure, and the response of various States have been sought. Central investigation agencies are also said to have supported this concept. After taking into account all these aspects, the Bench records that a centrally driven plan of action is the right approach and the plan of action should be implemented in a phased manner with a milestone based review mechanism. Supreme Court in D.K.Basu [1996 (12) TMI 350 - SUPREME COURT] wherein the earlier directions that CCTV cameras be installed in all police station and prisons was made. In addition, an oversight mechanism was also directed to be created where an in....... + More

Inspection of the books of accounts and other statutory records of the Petitioner company - whether the Registrar would have to first call upon the Petitioner to give an explanation and also provide them a reasonable opportunity of being heard before the Registrar, before issuing show cause notices? - section 206(5) of the Companies Act, 2013 - HELD THAT:- There is no doubt that under Section 207 of the Companies Act, 2013, statements of the Directors of the company have been recorded. However, under these circumstances the Petitioner ought to be given a reasonable opportunity of being heard - In the present case, preliminary findings were issued in September, 2020, and owing to the belated reply, the authorities have proceeded further, to issue the said show cause notices and it is not clear if the reply submitted was considered or not. ....... + More

Winding up of Company - it was a specific case of the appellant, that on account of the defective material supplied by the respondent, the appellant had suffered huge losses and as such, it was the appellant who was entitled to receive the damages from the respondent - satisfaction of respondent’s claim to the extent mentioned in the order impugned in the appeal - HELD THAT:- It is therefore well settled, that if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. It is equally well settled, that where the debt is undisputed, the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt. It is equally settled, that the principles on which the court acts are first, that the defence of the company i....... + More

Approval of scheme of amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From a perusal of the material brought on record, it appears that the Scheme of Amalgamation is fair, reasonable and is not detrimental to the Members or Creditors or contrary to public policy. Further, as per the Petition, the Scheme in question will bring about operational synergies of the combined entity, have a more efficient and cost-effective management system in view of consolidation of operations Consolidation and Synergies in business operations; Increase in net worth of the Transferee Company and will facilitate effective and fast mobilization of financial resources for meeting its increased capital expenditure for future expansion, etc. The procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 ha....... + More

Transfer of proceedings to the National Company Law Tribunal - whether the provisions of the Sick Industries Companies Act (Special Provisions) Repeal Act, 2003, as amended by Section 252 of the Insolvency and Bankruptcy Code, 2016 with effect from 01.12.2016 - the date notified for the purpose of Section 4(b) of the Sick Industries Companies Act (Special Provisions) Repeal Act, 2003, can be transferred to the NCLT, at this stage? - HELD THAT:- Since the final decision of the matter, either at the hands of this Court or at the hands of the NCLT, even if the proceedings were to be transferred to the NCLT, may take considerably long period from now, no useful purpose will be served by continuing with the aforesaid blanket Status Quo order, which is continuing in this Letters Patent Appeal for the last more than ten years, which, in turn, ha....... + More

Auction - 5670 kilograms of copper ingots - appellant was the highest bidder - was not informed whether he is the successful bidder and demanded return of EMD - appellant thus not intending to proceed with the sale and requested for return of EMD - inconsistent stand of appellant - HELD THAT:- It can be seen that the appellant is not having a consistent stand before the Court. By Annexure-R3 he requested for return of EMD on the ground that he has not been intimated as to whether he is the successful bidder. After receiving Annexure-R2 communication from the Official Liquidator regarding confirmation of sale also the appellant by Annexure-R4 informed the Official Liquidator that he is not intending to proceed with the sale and requested for return of EMD. The appellant filed Company Application No.75/2020 to set aside Annexure- R6 letter ....... + More

Transfer of shares - Winding up of company or not - appellant contended that in the absence of requirements contemplated under Section 397 of the Companies Act, 1956, the Company Law Board has committed an error in passing such an order (for transfer of shares) in view of the fact that there was no circumstances established for winding up of the company - HELD THAT:- This Court is of the opinion that when the provisions of the Statute contemplate certain requirements and ingredients then such requirements are to be established by the parties who approached the Court and in the absence of any proof to that effect, relief cannot be granted merely on the ground that there was a dispute existing between the parties. Mere dispute is insufficient to pass an order to transfer the shares. The dispute must result in winding up of the Company and s....... + More

Scheme of Amalgamation - seeking to dispense with the convening and holding of the meeting of Equity Shareholders of the Applicant Companies and Secured Creditors of the Applicant No. 2 and Unsecured Creditors of the Applicant No. 1 - seeking direction to convene the Meeting of Unsecured Creditors of the Applicant No. 2 - Sections 230 & 232 of the Companies Act, 2013 - HELD THAT:- The Companies have followed extant provisions of Companies Act in framing the Scheme in question, which are duly approved by the Board of Directors of the Companies involved. The Statutory Auditors/Chartered Accountants of the Company have also issued respective Certificates by inter-alia certifying the details of shareholders, creditors, and compliance of accounting treatment as prescribed U/s. 133 of the Companies Act, 2013 with reference to the Scheme in ....... + More

Sanction the Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013, r/w Companies (CAA) Rules, 2016 - HELD THAT:- In terms of sub-section (3) of Section 232 of Companies, the Tribunal is empowered to sanction the scheme of amalgamation, if it is satisfied that sub-section (1) and (2) of the above section, however, subject to filing a Certificate by the Company's Auditor with Tribunal to the effect that the accounting treatment, if any, proposed in the Scheme of Amalgamation is in conformity with the Accounting Standards prescribed under Section 133, etc. It is a settled position of law that any Scheme of Amalgamation or Arrangement, under the extant provisions of Companies Act, would not contemplate to waive any liability or legal action for any violation of provisions of Companies Act, so as to prevent Statutory Auth....... + More

Oppression and Mismanagement - Validity of proceedings of the sixth meeting of the Board of Directors of TATA Sons Limited held on 24.10.2016 in so far as it relates to the removal of Shri Cyrus Pallonji Mistry (CPM) - seeking restoration of position of CPM as the Executive Chairman of Tata Sons Limited and consequently as a Director of the Tata Companies for the rest of the tenure - seeking to declare as illegal the appointment of someone else in the place of CPM as Executive Chairman - seeking restraint on Shri Ratan N. Tata (RNT) and the nominees of Tata Trust from taking any decision in advance - seeking restraint on the Company, its Board of Directors and Shareholders from exercising the power under Article 75 of the Articles of Association against the minority members except in exceptional circumstances and in the interest of the Co....... + More

Concession Agreement - Operation of rapid metro link - 'debt due' as per the financing documents in terms of their respective Concession Agreements - whether the consequences envisaged in the consent order of the High Court dated 20 September 2019 can stand obviated? - HELD THAT:- At the very outset, it is important to note that the FIR in respect of IL&FS group of companies was lodged on 6 December 2018. The termination notices of June and August 2019, and the institution of the writ proceedings, took place thereafter. Evidently the appellants on the one hand, as well as HSVP/HMRTC on the other, were conscious of the developments which were taking place in respect of the IL&FS group of companies in the proceedings before Justice D K Jain on 19 August 2019. When the consent order was passed before the High Court, HSVP was ....... + More

Seeking appointment of Arbitrator so as to to constitute an Arbitral Tribunal to adjudicate upon the disputes that have arisen between the petitioner and the respondent - HELD THAT:- A perusal of the arbitration agreement indicates that the arbitration shall be held at Mumbai and be conducted by three arbitrators. For the purpose of appointment KIVF I, KEIT and KIVL are to jointly appoint one arbitrator and the promoters of Indus Biotech Private Limited, to appoint their arbitrator. In the second agreement dated 20.07.2007, ‘KMIL’ as the Investor is on the other side. In the third agreement dated 20.07.2007, ‘KIVFI’ as the Investor is on the other side and in the fourth agreement dated 09.01.2008 it has the same clause as in the first agreement. The two arbitrators who are thus appointed shall appoint the third arb....... + More

Enlargement on Bail - Intermediate business on the basis of bill of lading is permissible - bail sought on the old age of accused and also that he has medical ailments - HELD THAT:- The sum and substance of the outcome of the investigation conducted in the matter and the facts mentioned in the complaint for prosecution are that concerned Companies were engaged in fraudulent merchantine trade and caused wrongful loss to the Public Sector Bank to the tune of ₹ 7820 Crores approximately applying different modus operandi including siphoning of Bank funds through merchantine trade; falsification of financial statement of the Companies involved in the matter by not showing true and fair views. So far as the order granting interim protection passed in favour of Sunil Verma, Anoop Kumar Wadhera as well as Vikram Kothari is concerned, if the....... + More

Oppression and mismanagement - non-repayment of unsecured loan to the Appellant - utilisation of rights shares - HELD THAT:- It is a fact that the Appellant has not filed any document regarding Tally Data and the statement etc. before the learned NCLT. In view of non-providing the documents before the learned NCLT, the learned NCLT had no opportunity to look into the documents and deal with the aspects. It appears that the Appellant for the first time filed these documents along with I.A. No. 237 of 2021 before the Tribunal. Since the Appellant alleging that the amounts have been credited into the Respondent No. 1 Company and later on withdrawn by the Respondents. Sitting in the Appellate Jurisdiction, we cannot decide the merits since the matter is sub judice and seized of by the learned NCLT. We are also of the view that the petition wa....... + More

Seeking grant of regular bail - siphoning of funds - economic offences - Sick person or infirm person or not - interim bail already granted - HELD THAT:- Merely because the petitioner is on interim bail, it cannot be held that the petitioner’s prayer seeking the grant of regular bail cannot even be considered till he surrenders for the very prayer made by the applicant seeking the grant of regular bail implicitly in the facts and circumstances of the instant case takes into account that the applicant was granted interim bail after he had been arrested on 02.12.2019 - in the facts and circumstances of the instant case, the petition filed by the petitioner seeking release on regular bail in terms of Section 439 of the Cr.P.C., 1973 is maintainable. Sick person or infirm person or not - HELD THAT:- This Court is of the considered view ....... + More

Seeking of Amalgamation Scheme - seeking to dispense with the convening and holding of the Meeting of Equity Shareholders of the Applicant Companies and Secured Creditors of the Applicant No.2 and Unsecured Creditors of the Applicant No.1 - seeking direction to convene the Meeting of Unsecured Creditors of the Applicant No.2 etc. - HELD THAT:- Various directions regarding holding and convening various meetings issued - various directions regarding issuance of notices of the meetings, also issued. Application allowed.

Eligibility of promoter to participate in the Resolution Process - an advertisement in Form-G was issued on 17.02.2020 inviting EOI to submit Resolution Plan for the Corporate Debtor - Section 29A of the Code - HELD THAT:- It is not in dispute that the Corporate Debtor came within the definition of Medium Enterprise w.e.f 01.07.2020 by virtue of the relevant notification. Thus, the Applicant as the promoter (suspended Director) of the Corporate Debtor becomes a promoter of a Medium Enterprise w.e.f. 01.07.2020. Admittedly, on 01.07.2020 the CIRP had not come to an end. The Notification dated 26.06.2020 became effective within the currency of the CIRP process. The expression ‘at the time of submission of the resolution plan’ appearing in ‘clause (c)’ of section 29A of the Code came to be inserted w.e.f. 06.06.2018. ....... + More

Sanction of scheme of amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- It is clear that the Appellant Company has fulfilled all the requisite statutory compliances. However, Ld. NCLT modified the Appointed date considering the valuation report which is subsequent to the Appointed date. While modifying the Appointed date Ld. NCLT has not considered that the Appointed date 07.10.2017 is approved by the NCLT, Delhi vide order dated 22.10.2019 passed in CP No. CAA/144/ND/2018 in respect of Transferee Company. The alteration of the Appointed date would render all calculations awry, none of the shareholder opposed the Appointed date proposed in the scheme of amalgamation. The exercising jurisdiction by the NCLT Mumbai to modify the Appointed date from 07.10.2017 to 01.04.2018 in the facts of this case was unwarranted........ + More

Reduction of Equity and Preference Share Capital and approving minutes - HELD THAT:- The petitioner has undertaken to publish Notice of Registration of Order confirming reduction of share capital and Minutes thereof in two local newspapers in which notice of hearing of Petition is published, within 14 days of its registration - Since the requisite statutory procedure has been fulfilled, the Company Petition is made absolute in terms of the prayer clause of the Petition. The form of minutes set forth herewith be and is hereby approved. The issued, subscribed and paid-up equity share capital of BBM Heavy Machinery Private Limited (post-capital reduction) shall be ₹ 6,35,33,800/- divided into 63,53,380 equity shares of ₹ 10 each.

Sanction of scheme of Merger - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and does not violate any provisions of law and is not contrary to public policy or public interest. The clarifications provided by the Companies are justified and are accepted. Since all the requisite statutory compliances have been fulfilled, the scheme is approved. The scheme is sanctioned - application allowed.

Seeking to implead applicant as Additional Respondent No.23 in the Company Petition No. 21/KOB/2020 and all related Interlocutory Applications on the files of this Tribunal - HELD THAT:- Section 424 of the Companies Act, 2013 stated that the Tribunal is guided by the principles of natural justice, which underlines the need to hear all parties interested and concerned in the issue before the Tribunal and may be effected by any order passed by the Tribunal. Hence the persons who are interested in the proceedings have necessarily to be impleaded to the proceedings. The prerogative to hear or not to hear a party depends on the court concluding as to whether he is proper person to be heard and that if the court is of the opinion that one should be heard for a proper adjudication in the issue before it, definitely he should be heard for which h....... + More

Right of respondent on common road - disturbance or hindrance to the Resolution Professional or to any of his staff or security personnel in any manner caused or not - HELD THAT:- Schedule -1 ‘property details and position’ which is filed in the Reply Affidavit at page 42 that site map has been filed with shows that on the south side of the plot there is a common road, this fact has not been denied by the Appellant. This fact has also been mentioned in the Title Deed, so taking this fact and all the submissions advanced by the parties, the Ld. Adjudicating Authority has rightly pass the impugned order. The proceeding before the Adjudicating Authority and this Tribunal is summary in nature as to follow strict time line. The Learned Counsel for the Appellant have failed to make out any ground and the finding recorded by Ld. Adjudicating Authority - Appeal dismissed.

Liquidation of Corporate Debtor - liquidation sought as no Resolution Plan was receive - Section 33(1) of the IBC 2016 - HELD THAT:- On 02.02.2021 pronouncement of orders was deferred upon request of a prospective Resolution Applicant viz. Mantena Constructions Pvt Ltd, who had filed application expressing its interest in putting up a Resolution Plan and requesting certain details from the RP in furtherance thereof. Orders were passed in permitting the Applicant therein to access the details. The RP was also directed to provide the required information. However, on 23.03.2021 the Applicant (Mantena Constructions Pvt Ltd) submitted that upon verification of the information made available, it was no longer interested in submitting a Resolution Plan. Thereafter, orders in MA No. 227 of 2018 & MA No. 350 of 2018 were reserved and are bein....... + More

Related party transactions or not - Preferential transactions - seeking directions to the related parties to pay back the amount to the Company - Section 43(1) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the present case, the impugned transactions are between the Respondents [erstwhile Directors of the Corporate Debtor] and Corporate Debtor. The Applicant’s case is that these transactions are preferential in nature because the amount was advanced by the Corporate Debtor to the Respondents and Land Sale Agreement was also made between them. However, the Applicant failed to prove that these transactions made by the Corporate Debtor were preferential in nature, by producing any document. According to the Applicant SVAR and Associates conducted Audit and filed a Report, but that was not produced along with the Application. ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - existence of debt and dispute or not - date of default in case of issuance of fresh cheques as replacement cheques - HELD THAT:- Since the replacement cheques were issued by the Corporate Debtor and were accepted by the Petitioner, the contention of the latter that default had taken place on 31/07/2019 does not hold water. In the clause 4 of the Consent Terms it was clearly stated as “The Corporate Debtor hereby agrees and undertakes that the said amount shall be paid by the Corporate Debtor to the Financial Creditor vide postdated cheques (PDC) on the due dates mentioned hereunder”. When the Corporate Debtor issued fresh cheques and they were accepted, the due date also got extended. Besides by it....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Financial Creditors - HELD THAT:- The Instant Appeal was filed before this Hon’ble Tribunal on 19.03.2021, after expiry of the date fixed by the Learned Adjudicating Authority - This shows that the Appellant was not serious in pursuing his remedy before the Learned Adjudicating Authority. There are no reason to interfere with the Impugned Order - appeal dismissed - decided against appellant.

Dispensation of the meeting of the Equity Shareholders and Creditors of the Appellant Company - whether filing of separate Petition by the transferee company is necessary? - HELD THAT:- From the perusal of the pleadings it is amply clear that the Appellant Company is a 100% holding of its Subsidiary i.e. the transferor Company. Therefore, there is no issuance of any new shares, there is no reorganisation of share capital of the Appellant Company and no arrangement wherein shareholders have to compromise with creditors of the Transferor Company. Further, it is also seen that the net worth of the Appellant Company is highly positive in compare to the net worth of the Transferor Company. Hon’ble High Court of Bombay in the matter of ‘Mahaamba Investments Ltd.’vs ‘IDI Ltd.’, [2001 (1) TMI 904 - HIGH COURT OF BOMB....... + More

Maintainability of Application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - amounts advanced towards purchase of shares of the ‘Appellant’/’Company’ - case of appellant is that ‘Respondent’/‘Petitioner’ is neither an ‘Operational Creditor’ nor a ‘Financial Creditor’ and further that there is no ‘debt’ and that the ‘Respondent’ is not in ‘Default’ under the Code - time limitation - HELD THAT:- Keeping in mind that the ‘Appellant’/ ‘Corporate Debtor’ acknowledged the debt of ‘Respondent’/ ‘Financial Creditor’ on 28.11.2018, it is held by this ‘Tribunal’ that the application filed by the ‘Respondent’/ ‘Applicant’/ &lsqu....... + More

Validity of action of the Resolution Professional (RP) - Section 24 and 25 (2) of the Insolvency and Bankruptcy Code - direction to Resolution Professional to call the Suspended Management in Committee of Creditors (CoC) meeting after giving the Agenda and to supply/provide the copy of Resolution Plan issued by the RP before taking any decisions of the Resolution Plan whether being accepted or not - restraint on RP from acting on the Resolution Plans - without affording opportunity to the ex-directors of the Corporate Debtor, 9th 10th and 11thCoC meetings were convened and Resolution of Liquidation of Corporate Debtor has been passed - principles of natural justice. HELD THAT:- In the present case, there were two directors of the Corporate Debtor, Appellant Amit Suresh Bhatnagar and Sumit Suresh Bhatnagar. The RP was required to give noti....... + More

Maintainability of petition - initiation of CIRP - Flat Buyer is a Financial Creditor or not - Whether ‘HBPL’ falls within the ambit of the definition of ‘Corporate Debtor’, as defined under Section 3(8) of the Code? - HELD THAT:- In the instant case ‘HBPL’ as a Principal has created ‘HCPL’ its marketing arm vide an Assignment Agreement dated 05.07.2013 and Marketing Agreement dated 06.07.2013 wherein ‘HCPL’ was authorized to enter into Agreements/arrangements on behalf of ‘HBPL’ and issue Allotment Letters/Builder Buyer Agreement and other related documents for and on behalf of ‘HBPL’. The definition of ‘agent’ and ‘principal’ in Section 182 of the Contract Act, 1872 is crystal clear - In this case, there is an express consent to t....... + More

Wrongful and erroneous curtailment of the rights of the Appellant in respect of the property - seeking physical possession post CIRP commencement - HELD THAT:- There are certain facts which are very clear from the deliberation of submissions including the pleadings by the parties that M/s. Energy Properties Pvt ltd is the owner of the property and the Corporate Debtor (in CIRP) is a Developer of the Property in terms of the Development Agreement dated 16.06.2008 and they will be governed by inter - se agreements. Here the Adjudicating Authority has not gone into the issue of ownership of the property, he has restricted its role as provided in Section 14 of the ‘Code’ vide Section 14(1)(d) including its explanations. It is also undisputed fact that the Corporate Debtor (In CIRP) is holding the development right and the Developm....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Non-performing assets - time limitation - HELD THAT:- As seen from the decision in the case of SESH NATH SINGH & ANR. VERSUS BAIDYABATI SHEORAPHULI CO-OPERATIVE BANK LTD AND ANR. [2021 (3) TMI 1183 - SUPREME COURT], it is clear that the Article 137 of the Limitation Act, 1963 defining a period of 3 years will be computed after considering Section 18 or 19 of The Limitation Act, 1963 with a fresh period of limitation inspite of these dates being after the date of NPA. Appellant acknowledging the debt on 21.06.2017 itself shifts the 3 years period to June, 2020 whereas the Application before the Adjudicating Authority itself is filed on 22.11.2019. If we consider the part payment which has ....... + More

Maintainability of application - initiation of CIRP - Appeal against the admission of application - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - pre-existing dispute or not - Operational Debt or not - HELD THAT:- As per the General Agency Agreement between the Operational Creditor and the Corporate Debtor, the Corporate Debtor acted as an agent of the former in India and collected various payments due to the Operational Creditor's customers remitted the same to the Operational Creditor. The Operational Creditor has annexed various invoices and debit notes with the Petition as evidence of the claim amount. Since the Corporate Debtor was an agent and service provider of the Operational Creditor, the amounts due under the transactions would fall within the ambit of Opera....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make the repayment of its dues - time limitation - Appellant claims that the debt due and claimed before the Adjudicating Authority by the Bank was time-barred and thus the Application should not have been admitted - HELD THAT:- Hon'ble Supreme Court in the case of SESH NATH SINGH & ANR. VERSUS BAIDYABATI SHEORAPHULI CO-OPERATIVE BANK LTD AND ANR. [2021 (3) TMI 1183 - SUPREME COURT] where it was held that Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing ‘sufficient cause’. It is well settled that omission to refer to the....... + More

Priority to the first charge holder - Secured Creditor - relinquishment of security interest - Sub-classification inter-se the Secured Creditors in the distribution mechanism adopted in a Resolution Plan of the Corporate Debtor - Appellant’s claim that it was initially having first charge on the immovable and movable assets of the Company which was later changed to second charge is disputed by the Respondents by contending that in absence of Appellant substantiating its claim of holding second charge over immovable properties of Corporate Debtor and no certificate having been issued by ROC to such effect, no charge on the part of Appellant could be taken into account by the Liquidator. HELD THAT:- While it is true that the relinquishment of security interest affects the order of distribution, it is equally true that the Secured Cred....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt - existence of debt and dispute or not - HELD THAT:- Even though the Corporate Debtor admits categorically that there is amount due and payable, there is no default in making payment to the applicant - The debt and default are proved. The applicant herein has not proposed name of any Interim Resolution Professional. In view of the same, this Adjudicating Authority appoints Mr. Saradindu Jena is appointed as Interim Resolution Professional. Application admitted - moratorium declared.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Dues - existence of debt and dispute or not - HELD THAT:- The Financial Creditor has proved existence of debt and default and there being no denial from the Corporate Debtor with respect to outstanding due against the Corporate Debtor, the application stands admitted - Petition is admitted - moratorium declared.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- There was no appearance on the part of the Corporate Debtor. In the circumstances, the matter is proceeded with, in the absence of the Corporate Debtor. As this Company Petition is only a sequel to the earlier Petition filed, wherein the Corporate Debtor specifically admitted the debt and has also arrived at a settlement between the parties and which amounts stood unpaid even as of today as brought to the notice of this Tribunal vide the present Company Petitioner. In view of the fact that there is an existence of debt owed and the default has been committed on the part of the Corporate Debtor, this Tribunal is constrained to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. Application admitted - moratorium declared.

Maintainability of petition - initiation of CIRP - default committed by the Respondent of the Financial Debt which became Non- Performing Assets - winding up petition was filed within time or not - Appellant is Financial Creditor/Assignee - HELD THAT:- Considering the description of the Assignor and Assignee in the assignment agreement, we do not find any defect in the Application filed by the Appellant under Section 7 of IBC describing itself similarly. Appellant is Assignee of Financial Creditor and thus Financial Creditor. There is no substance in this contention raised by the Respondent. Time Limitation - HELD THAT:- It is clear from Section 434 of the Companies Act that the Legislature did not intend to treat the claims of Applicants whose Winding-up Petitions were pending to be hit by Limitation and thus made Provisions for transfer....... + More

Permission for withdrawal of appeal - Section 33(2) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The direction sought for to interfere with the decision of ‘Committee of Creditors’ cannot be considered in as much as ‘Resolution Plan’ was submitted after the last date was over etc. Appeal dismissed as withdrawn.

Sanction of scheme of Merger and amalgamation - Seeking direction of the Tribunal for convening and holding separate meetings of certain class of creditors of the Company - whether the Tribunal while exercising the jurisdiction under Section 230 of the Act, can pass directions against the RBI? - Applicability of 07th Jun, 2019 circular of RBI - HELD THAT:- At this stage, if we express any opinion in regard to the submissions of Ld. Counsels for the parties it will affect the merits of the Appeal. However, we are of the view that if the operation of the aforesaid direction is stayed it will not prejudice to the proceedings pending before the Tribunal. Therefore, we deem it appropriate to pass ad-interim order. In Para 34 of the impugned order following direction is stayed till pendency of this Appeal:- “all governmental or regulatory....... + More

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

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

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

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

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

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

Maintainability of petition - provisional attachment order lost its force with the expiry of 180 days - writ petition having been filed much beyond 180 days commencing from 20th January, 2020 - HELD THAT:- Pendency of the writ petition will, however, not be an embargo on the respondents in proceeding with the complaint no.1262 of 2020 made under the provisions of Section 5(5) of PMLA as the same will not amount to any coercive step in terms of the provisional order of attachment. The matter can be more effectively heard after calling for affidavits - Let affidavit-in-opposition be filed within a period of four week from date. Reply, if any, thereto be filed by two weeks thereafter.

Seeking grant of Bail - commission of economic offence - predicate or scheduled offence - burden to prove guilty - whether, in view of amendment to Section 45 of PMLA, the twin conditions stipulated therein stands revived post decision of Hon’ble Supreme Court in the case of Nikesh Tarachand Shah Vs. Union of India [2017 (11) TMI 1336 - SUPREME COURT]? - HELD THAT:- The question of the constitutional validity of Section 45 of PMLA was dealt with by Apex Court before amendment in the case of Nikesh Tarachand Shah. The grounds of challenge were that, Section 45 of the Act, when it imposes two further conditions before grant of bail is manifestly arbitrary, discriminatory and violative of petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution. The Apex Court enumerated illustrations while examin....... + More

Money laundering - proceeds of crime - tainted money - amount found in a car outside his house - HELD THAT:- For attracting the penal provisions of the PML Act, the accused should have projected the proceeds of a crime as untainted money. In this case, the sum of ₹ 50,00,000/- as long as it was in the hands of Padmanabhan Kishore (A2) could not have been stated as a tainted money because it is not the case of the CBI in C.C.No.3 of 2013 that Padmanabhan Kishore (A2) had mobilised ₹ 50,00,000/- via a criminal activity. The sum of ₹ 50,00,000/- became the proceeds of a crime only when Andasu Ravinder (A1) accepted it as a bribe. Even before Andasu Ravinder (A1) could project the sum of ₹ 50,00,000/- as untainted money, the CBI intervened and seized the money in the car on 29.08.2011. The prosecution of Padmanabhan Kishore (A2) under the PML Act, is misconceived - Petition allowed.

Provisional attachment with respect to the four sugar mills of the petitioner - Right to property - violation of the provisions of Section 5 of PML Act - HELD THAT:- In the instant case, assailing the provisional attachment order, no ground has been taken that the order has been passed by an incompetent authority or by an authority having no jurisdiction. In this view, it is not a case of lack of jurisdiction. Further, in this writ petition, the vires of the Act has not been challenged. In this case, Right to Property is involved. Right to property is a constitutional right, which is always subject to restriction imposed by law. Further, the Right to Property has not been included under Part-III of the Constitution of India, which deals with the Fundamental Rights. Article 300-A is under Chapter IV of Part-XII of Constitution of India and....... + More

Permission for withdrawal of application - second application seeking grant of interim bail on medical grounds - reports given by the Doctors, posted in jail was forged and misused by appellant - HELD THAT:- This Court finds that the Senior Medical Officer, in his report dated 15.08.2020, has specifically opined that the accused-applicant was required to be worked at for surgery since surgical issue had got deteriorated which means that accused needed urgent surgery at a High Referral Hospital. This report became the basis for enlarging the accused-applicant on interim-bail by the Delhi High Court vide order dated 17.09.2020 as well as the order dated 14.08.2020 passed by this Court. The Doctors, posted at the Jail Hospital, are required to remain careful, while issuing medical certificates, which may be misused by an accused. In the pres....... + More

Validity of imposition of “debit-freeze” of the bank accounts - Attachment of property in money laundering - conspiracy to create false and forged documents - cheating the Government of India by transferring of ₹ 569 crores in foreign exchange outside India to Singapore, Hongkong and China - search and seizure - HELD THAT:- The scheme of the Act provides for an initial attachment of the proceeds of the crime in the possession of any person for an initial period of 180 days by the Director or any other Officer not below the rank of Deputy Director Authorised by the Director, for the purposes of Section 5 of the Act. This attachment can be made only when the said officer records, in writing, his reason to believe that such a person is in possession of any proceeds of crime and that such proceeds of crime are likely to be c....... + More

Seeking grant of Bail - corruption and abuse of high public office - HELD THAT:- The Hon'ble Supreme Court of India in the decision reported in [2019 (9) TMI 286 - SUPREME COURT], has considered the scope of bail in economic offences involving corruption and abuse of high public office and in paragraph nos.18 to 23 has observed that ''basic jurisprudence relating to bail is that bail is the rule and refusal is the exception, etc., Though gravity of offence is an important factor and economic offences as in present case are considered grave, consideration for grant of bail would depend upon facts of each case and taking into consideration all the facts and circumstances, has enlarged P.Chidambaram, on bail, subject to certain conditions'. Granting of bail is a discretional relief and it is a well settled position of law tha....... + More

Seeking grant of Anticipatory Bail - transit bail - fake and fraudulent transactions - breach of conditions of agreements entered into for sale of land to poor people or employees - Economic Offences - HELD THAT:- Reliance placed in the case of P. CHIDAMBARAM [2019 (9) TMI 286 - SUPREME COURT] where it was held that in a case like a Economic Offences, the Court should not grant anticipatory bail and if the anticipatory bail is granted, the investigation may be frustrated. In view of the judgment of the Hon’ble Supreme Court, the alleged offence though non-bailable, the same is punishable with 7 years of imprisonment and even under PML Act, the punishment is 7 years, but the alleged offences committed amounts to cheating and fraudulent transaction from initial stage. They planned and prepared documents dealing with sale and M/s. SDL ....... + More

Grant of Anticipatory Bail - accumulation of huge wealth disproportionate to known sources of income - proceeds of crime - HELD THAT:- Though the respondents have made grievance that they have not been able to get desired cooperation from the petitioners, yet it is on record that they have attended the investigation as and when required by respondent No.2. The grievance of respondent No.2, is however, that though the petitioners are complying with the directions and attending the investigation, yet they are not disclosing the information with regard to various documents and the properties. Be that as it may, ECIR in the case was registered on 21.02.2020 and it was with respect to the ‘proceeds of crime’ unearthed by ACB after thorough investigation. More than one year has passed and the investigation in the offences under PMLA....... + More

Seeking grant of Bail - Scheduled Offence - Explanation inserted to Section 44(1)(d) of PMLA - it is submitted that once the Scheduled Offence lodged against the Applicants is compromised/compounded by the Complainant therein, the structure of the present crime registered by ED falls on ground, as it does not survive and is non-est - HELD THAT:- It is the settled position of law by a catena of judgments that, a statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the 'intention' of its maker. A statute is to be construed according to the intent of them, that make it and the duty of judicature is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents ....... + More

Grant of Regular Bail - allegation of deliberately manipulating/falsifying stocks, inventories - tampering of evidence - influencing the witness - HELD THAT:- The petitioner in the instant case is in custody since 27.10.2020. Nothing has been placed on record to show that the petitioner is a flight risk and according to the counsel for the petitioner the petitioner was granted permission to go to Sri Lanka for two weeks and thereafter he returned, the fact which has not been denied by the respondent. Tampering - HELD THAT:- The evidence is documentary in nature and the documents and digital evidence is in the custody of the prosecuting agency. Influencing the witnesses - HELD THAT:- No material has been placed on record by the respondent to show that anyone on behalf of the petitioner had tried to influence the witness of this case in any....... + More

Maintainability of petition - availability of alternative remedy - Money Laundering - search and seizure proceedings - confiscation of properties - It is the case of the petitioners that upon drawing the panchnama, the Assistant Director issued a letter dated 22.7.2020, intimating the petitioners not to part with any of the noted bank accounts, properties and insurance policies named therein, without prior sanction and further not to withdraw, renew or deal with the same in any manner without prior permission of the respondent No.2 - HELD THAT:- The judgment of the co-ordinate bench in the case of JJIGNESH KISHOREBHAI BHAJIAWALA VERSUS STATE OF GUJARAT AND ORS. [2017 (7) TMI 1377 - GUJARAT HIGH COURT] clinches the issue. The said writ petition was dismissed by this court, inter alia, holding that the PML Act was enacted to prevent money l....... + More

Validity of provisional attachment order - proceeds of crime - unauthorised payments for obtaining the coal blocks allocation - allegations against her in the PAOs date back to the time when she was a PR professional i.e., sometime between 2007-08 to 2015 when the FIR was lodged - HELD THAT:- The manner in which all the liquid savings of the Petitioner have been completely frozen appears completely unjustified, especially when the allegations against the Petitioner are merely in the realm of speculation, at this stage. The letter dated 22nd January 2021 issued to M/s. Centrum attached the Petitioner’s entire deposits to the tune of ₹ 6 crores. Coupled with the assets attached in the PAO, the total assets attached are cumulatively worth 9,23,51,787/- crores, when admittedly, even as per the ED’s own case, the total amount....... + More

Money Laundering - attachment of the bank account of the Petitioner - Section 8 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- A perusal of the impugned order shows that the application filed by the Petitioner has not been considered by the Adjudicating Authority. According to ld. counsel for the Petitioner, the question as to whether “reasons to believe” have to be be supplied or not, has been decided by two judgments i.e. the Division Bench of this court in J. SEKAR, S. RAMACHANDRAN, K. RETHINAM, SRS MINING, T. VINAYAK RAVI REDDY, SURENDRA KUMAR JAIN AND ORS., M/S. SWASTIK CEMENT PRODUCTS PVT. LTD. & ORS., DHAWAN CREATIVE PRINTS PVT. LTD. AND ANR., APARAJITA KUMARI & ANR., PRATIBHA SINGH & ANR. VERSUS UNION OF INDIA & JOINT DIRECTOR, ENFORCEMENT DIRECTORATE & ANR. [2018 (1) TMI 535 - DELHI ....... + More

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

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

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

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

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

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

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

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

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

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

Violation of Equity Listing Agreement clauses - whether the information relating to signing of a Binding Implementation Agreement ('Binding Agreement' for short) by an Authorized Executive Director of the appellant with the dominant Shareholders of the Bank of Rajasthan was liable to be disclosed on an immediate basis under clause 36 of the Listing Agreement and Regulation 12(2) of the PIT Regulations, 1992? - Penalty imposed of ₹ 5 lakh each on the appellant - contentions of the appellant on the inordinate delay in issuing the show cause notice and in passing the impugned order by respondent SEBI - HELD THAT:- The signed Binding Agreement in question was price sensitive and admittedly material to the performance of the appellant and needed to be disclosed on an immediate basis which was not done. On the basis of interpretat....... + More

Determination of the ownership of the securities - As stressed that the appellant is holding securities worth more than ₹ 90 crores given by Respondent No. 2 and the impugned direction is relating to only securities worth ₹ 34 crores - HELD THAT:- After perusing certain documents placed before us, without going into the detailed legalities and merit of the matter, we pass the following interim directions:- (a) 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 ....... + More

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

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

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

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

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

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

Power of SEBI to pass an ex parte interim order - allegation against the respondent was that being in possession of price sensitive information and being a connected person, he had sold the shares and had, thus, made a notional gain or averted a notional loss - appellant alleged that the reason for passing an ex-parte order was that there was a possibility of a diversion of the notional gain made by the respondent - HELD THAT:- Tribunal, in our view, was correct in coming to the conclusion that since the investigation was pending since 2017 and information had been supplied on 28 November 2019, there was no urgency for passing an ex-parte interim order of the nature that was issued by the Whole Time Member. It was, in this background, that the Tribunal, while affirming the power of SEBI to pass an ex parte interim order in appropriate cas....... + More

Expulsion against the appellant, from the membership of the National Stock Exchange of India Limited - Validity of respondents’ decision of withdrawal of trading facility and subsequent action of closing out of open transactions - appellant has contended that since the trading facility itself was interdicted, it could not have been expected to keep up with various margins and deposits prescribed by the respondents as no trading was being permitted. Whether prior approval of SEBI/Central Government was essential for enforcing the circular dated 19.05.1997 against trading/clearing members? - HELD THAT:- Clause (5) of Chapter IX of the Byelaws uses the phrase “the relevant authority may determine and announce” the operational parameters. Both “determination” and “announcement” of such parameters is t....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Issuance of pre-show cause notice consultation - Levy of service tax - services offered by the petitioner-company to two entities located outside India - recipients of the services are associate concerns or not - export of services - Rule 6A of the Service Tax Rules, 1994 - HELD THAT:- The contesting respondents were mandatorily required to have a pre-show cause notice consultation with the petitioner-company and that having not being done in the instant matter, the proceedings initiated by the contesting respondents via the impugned show cause notice are non-est in law. That being said, the only issue, which remains to be addressed, is concerning limitation. This aspect is pending consideration before the Supreme Court i.e. as to the date when the limitation will commence. The contesting respondents will serve an appropriate communicatio....... + More

Violation of principles of natural justice - Service of SCN - It is the case of the petitioner that communications are required to be made either on ‘email id’ or via ‘SMS’ on registered mobile/phone - Recovery of service tax - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Decisions in CAPGEMINI TECHNOLOGY SERVICES INDIA LIMITED VERSUS THE UNION OF INDIA, THE CHIEF COMMISSIONER, CENTRAL GST & CUSTOMS, MUMBAI ZONE, THE COMMISSIONER, CGST & CENTRAL TAX, THE JOINT COMMISSIONER, CGST & CENTRAL EXCISE, MUMBAI EAST, [2020 (10) TMI 3 - BOMBAY HIGH COURT] put emphasis on object underlying framing of scheme. The division bench deciding the matters has emphasised that the scheme has been formulated with a view to put an end to past disputes pertaining, inter alia, Central Excise and Service....... + More

Levy of penalty u/s 78 of FA - allegation of evasion of service tax - Legal Opinion received from their empanelled advocates - Reverse charge mechanism - intent of suppression of facts not present - HELD THAT:- The condition precedent for invoking Section 78 ibid. viz. that there should be non-levy, short levy, short payment or erroneous refund of Service Tax by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Chapter or the rules made thereunder with the intention to evade payment of Service Tax, is not satisfied and accordingly, Section 78 ibid. would not be attracted in the present case - The assessee being a public sector undertaking of the Government of India is also an additional factor to hold that any mala fide intention to evade payment of Service Tax wo....... + More

Refund of the unutilized credit - inputs and input services used for providing output services - Cleaning Service - Plant Rental Charges - Freight Charges - Installation Charges - Pest Control Charges - Car parking charges, terrace charges, terrace and car-bike charges - Auditorium Charges - Event Management Charges - Purchase of air conditioning - Civil Work - Membership subscription. Cleaning Service - HELD THAT:- In the case of M/S HCL TECHNOLOGIES LTD VERSUS C.C.E. NOIDA [2015 (8) TMI 595 - CESTAT NEW DELHI], it has been clearly held that Cleaning Services are essential for providing output services and therefore, the same would qualify as input service and hence eligible for refund - the denial of CENVAT Credit on this service is bad. Plant Rental Charges - HELD THAT:- The appellant did not file any details as to the nature of servic....... + More

CENVAT Credit - input services - advertising service availed from the print media to foster the business - appellant is a coaching institute - HELD THAT:- The definition of input services as amended with effect from 01.07.2012, make it clear that inclusive part of the definition specifically include among various activities, the service provided by advertising agency. It is sufficient to hold that advertisement service is an input service. Also it is apparent that the appellant has availed the same to foster its business i.e. in relation to its business. Hence the same is definitely an input service for the appellant for which appellant can claim credit of service tax paid on such service. Hence, Cenvat Credit cannot be at all denied. While disallowing this Cenvat Credit, Commissioner (Appeals) has relied on Master circular dated 23.08.20....... + More

Demand of Service Tax - Works Contract Service - reverse charge mechanism - ST-3 returns not considered before passing the orders - violation of principles of natural justice - HELD THAT:- The appellant has deposited service tax in time which has been reflected in ST-3 return and the impugned order has been passed without considering the ST-3 returns, therefore, there is gross violation of principle of natural justice. Appeal allowed - decided in favor of appellant.

Levy of service tax on municipalities - Renting of immovable property service - a “person” within meaning of Finance Act, 1994 as it stood prior to 01.07.2012 or not - period prior to July 2012 as well as post 01.07.2012. Period prior to 01.07.2012 - HELD THAT:- To attract levy under Section 65(105) (zzzz) of the Finance Act 1994 there should be renting of immovable property or provision any other service in relation to such renting, for use in the course of or furtherance of, business or commerce to “any person”. Only if service was provided by “any other person”, i.e, by a person other than the owner, such service was liable to service tax - The expression “any other person” can only mean any other person other than the owner of the property. Therefore, owner of the immoveable property is ....... + More

Evasion of Service Tax - Punishable offence - initiation of criminal proceedings - The amount involved is less than Rupees two crores - Site Formation and Clearance Service - Erection, Commissioning or Installation Service - Interior Decorators Service - Supply of Tangible Goods Service - HELD THAT:- By virtue of Circular No.201/11/2016-Service Tax vide Annexure-R4, produced by the respondent, as a consequence of the amendment, the power of arrest in Service Tax is available only if a person collects any amount as service tax but fails to pay the amount so collected to the credit of the Central Government beyond the period of six months from the date on which such payment becomes due and the amount exceeds ₹ 2 crores. The amount involved in this case is less than Rupees two crores. The learned counsel for petitioners would also cont....... + More

Condonation of delay in filing appeal - no sufficient cause for delay shown - Recovery of Refund of Service Tax - principles of unjust enrichment - Section 35 of Central Excise Act - HELD THAT:- There is no denial that the impugned appeals were filed before Commissioner (Appeals) after a delay of one month and 20 days. There is also no denial to the fact that no sufficient reason was explained to Commissioner (Appeals) for the said delay. Learned Counsel for appellant even today has not cited any reason which may be considered as sufficient cause for the impugned delay of one month and 20 days for filing an appeal before Commissioner (Appeals) in terms of Section 35 of Central Excise Act, 1944. The prescribed period for filing appeal before Commissioner (Appeals) is two months, however, delay of one month is condonable by the Commissioner....... + More

Levy of penalty - extended period of limitation - non/short payment of service tax or not - Revenue has submitted that the non payment of service tax in is instalments/ parts and also conduct of the appellant during the investigation proceedings is impressed upon to be highly non co-operative - HELD THAT:- It is observed that the demand as raised by the Department against the appellant amounting to ₹ 40,79,178/-, the entire amount alongwith the interest of ₹ 3,08,328/- stands paid by the appellant over a period of four months starting from 21.01.2015 i.e. from the date even prior to the search was conducted in the appellant’s premises and the entire aforesaid amount stand paid till May, 2015 i.e. much prior before the issuance of the impugned show cause notice dated 27.09.2016 as stands clear from the table in the show c....... + More

Refund of CENVAT Credit amount to Consumer Welfare Fund - unjust enrichment - HELD THAT:- The appellant have not led evidence that there was no passing of the service tax burden to the end users of the canteen. In view of the contention of the learned Counsel at the bar that food has rather been given at subsidised rate, this appeal is allowed by way of remand to the Adjudicating Authority with the direction to examine the agreement between the appellant and M/s Caparo Engineering India Limited, as well as other relevant documents like costing of food, price charged from the end users. If it is found that the company M/s Caparo Engineering India Limited have not passed on the burden of the service tax to their employees/ workers, the amount of refund shall be paid to the appellant. The appeal is allowed by way of remand.

Pre-Show Cause Notice Consultation - Scope of voluntary statements recorded before the Senior Intelligence Officer - Applicability of paragraph 5 of the 2017 Master Circular - HELD THAT:- The “voluntary statements” recorded before the Senior Intelligence Officer cannot constitute pre-show cause notice consultation as envisaged in the paragraph 5 of the 2017 Master Circular. Consultation entails discussion and deliberation. There is back and forth between parties concerned with the consultative process, leading to, metaphorically speaking, often, separation of wheat from the chaff. A voluntary statement is at best a one-way dialogue made before an authority which does not take a decision as whether or not next steps in the matter are required to be taken - Therefore, it cannot be said that voluntary statements made by the offic....... + More

Levy of Penalty u/s 78 of FA - CENVAT Credit on disputed services, reversed or not - suppression of material facts or not - it is alleged that but for the audit of records by the Department, the issue relating to wrong availment of service tax credit on services not used for providing output service during the relevant period would have gone unnoticed - HELD THAT:- It is not disputed that the appellant reversed the cenvat credit on impugned services on being pointed out by the Department before the issuance of the show-cause notice. Further the appellant has not utilized the said credit and had sufficient balance during the relevant period in their cenvat credit account which was reversed and the Department was informed vide its letter dt. 14/10/2015 regarding the reversal of the said credit. Further the Division Bench of this Tribunal in....... + More

CENVAT Credit - inputs/capital goods - Angles, Channels, Beams, MS Tower parts (SS Mats) etc. used in erection and installation of towers - Pre-fabricated buildings/shelters/PUF panels used for housing/storage of generating sets and other components/equipments/spares etc. - denial on account of nexus with output services - extended period of limitation - HELD THAT:- Hon’ble Bombay High Court in Bharti Airtel Limited v. CCE, Pune-III [2014 (9) TMI 38 - BOMBAY HIGH COURT] has upheld the stand of the Department disallowing credit, while Hon’ble High Court that of Delhi held that credit is admissible in the case of Vodafone Mobile Services & Others [2018 (11) TMI 713 - DELHI HIGH COURT]. The jurisdictional High Court has not pronounced any judgment on this issue. Thus, it is clear that two High Courts have taken a completely c....... + More

Levy of Service Tax - Section 66 D(g) of Finance Act, 1994 - HELD THAT:- The learned counsel appearing for the respondent confirms that though the order has been noted by the officer while recording the submission of the petitioner, its ratio has neither been taken note of by the officer nor distinguished. In any event, she seeks to point out that, that order is, in fact, adverse to the assessee - This submission, prima facie, does not appear to be factually correct as the tax has been appropriated since the assessee in that case had collected the tax from its customers. In any event, it was incumbent upon the officer to have taken note of the order and any amount of explanation in this regard before me will not account for such lapse on the part of the authority. The matter remanded back to the authority to be heard afresh and a speaking order - petition allowed by way of remand.

Maintainability of petition - SCN was issued without Jurisdiction - Section 73(1) of the Finance Act, 1994 - dispute on question of facts - HELD THAT:- The petitioner has submitted that no services were being provided from the State of Rajasthan, whereas, a perusal of the show cause notice reveals that it has been averred therein that office of the petitioner was situated in the State of Rajasthan and the services were also being provided from the State of Rajasthan. Thus, the present case involves disputed questions of facts. Hence, the present case cannot be said to be a case where prima facie it is established that the show cause notice has been issued without jurisdiction. There are no ground for interference by this Court - petition dismissed.

CENVAT credit - input services - renting of premises for business purposes - premises being leased out by M/s. GSPL to the appellants for being used as a godown / storage space for the inputs - inputs has been used exclusively by the appellant or by its subsidiary and associated companies as well - requirement of mandatory permission from Deputy/Assistant Commissioner of Central Excise in terms of Rule 8 of the Cenvat Credit Rules - HELD THAT:- The service in question i.e. renting of immovable property is very well covered in “means” as well as “includes” clause of the definition of the input service as given under Rule 2 (I) of Cenvat Credit Rule, 2004. This Rule allows Cenvat Credit of all such services that are used in or in relation to the manufacture of finished goods. There is no denial on part of the Departm....... + More

Failure to pay Service Tax - Man-power Recruitment or Supply Agency - argument of the appellant is that they being a welfare organisation working upon no profit fundamental may be exempted from Service Tax liability for providing the manpower services is not sustainable in the eyes of the laws - penalty on office bearers - extended period of limitation - HELD THAT:- The bare perusal of the provisions of Rule 2 (g) of Service Tax Rules, 1994 make it abundantly clear that there is no exclusion for any category of service providers from the ambit of the tax liability with respect to manpower recruitment and supply agency service the use of word “any person” in the afore mentioned definitions is sufficient to form the above opinion. Hence, the argument of the appellant that they being a welfare organisation working upon no profit ....... + More

Recovery of service tax - Franchise service - amount received against development compensation charges (Development Charges) - extended period of limitation - CENVAT credit on the purchase of towers during the period 2004-05, 2005-06 and 2006-07 - additional demand for liability of service tax on POP (a component of IUC charge) - HELD THAT:- It was imperative for the Department to establish that under the Project Agreement, MTNL had conferred a representational right i.e a right available with a Joint Venture Company (franchisee) to represent MTNL (franchisor). However, neither the show cause notice alleged that such a representational right was granted by MTNL to the Joint Venture Company nor any finding has been recorded by the Commissioner in the impugned order in this regard, though this issue was specifically raised by the appellant ....... + More

Levy of Service tax - sale of starter packs with prepaid voucher - margin earned by the petitioners during the sale process - HELD THAT:- The issue on hand is squarely covered by the decision of the Hon'ble Division Bench in THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. BHARAT CELL [2015 (10) TMI 1111 - MADRAS HIGH COURT] where it was held that Though the correct procedure for discharge of the service tax liability by the two parties is that the distributors raise bills for commissions that is due to them along with service tax and BSNL takes Cenvat credit of tax paid by distributors for discharging liability on the telecommunication service provided by BSNL, such procedure does not result in extra realization of Revenue. Petition allowed.

Refund of input tax credit - input service or not - consent fees paid to Tamil Nadu Pollution Control Board (TNPCB) under reverse charge mechanism - requirement of issuance of SCN u/s 11B of CEA - HELD THAT:- The Order-in-Original has been passed undoubtedly without the issuance of Show Cause Notice. The Commissioner (Appeals) in the impugned Order has also observed that one Shri P. Veera Kumar appeared before the Adjudicating Authority, but however, both the authorities below are silent as to whether the said person, who is alleged to have been heard, was well-versed with the law and the change in law and whether the said person was authorized by the appellant-company to argue before the authorities. It is the basic tenet of our Constitution that “justice should not only be done, but should manifestly and undoubtedly be seen to be ....... + More

Levy of penalty - CENVAT Credit - goods not supplied only invoices were moved - allegation is that goods were never transported and the goods never crossed the Shambhu Border - Lack of investigation on the part of Revenue - HELD THAT:- In this case, it is a fact on record that during the course of investigation, no shortage or excess of the goods were found in the premises of both the appellants. In that circumstance, duty cast on the Revenue to ascertain the fact if the appellant no.1 has not received the goods, then from where, they procured the goods and used the same for manufacturing of dutiable goods which have been cleared on payment of duty. Further, it was also the duty of the Revenue to find out where M/s Mas Equipments Pvt Ltd has cleared the goods without payment of duty. This is lacking in the investigation which gives benefi....... + More

Quantification of CENVAT Credit reversed - common Input/Input Services used in exempted goods/exempted services and dutiable goods/taxable services - revenue has issued Show Cause Notices on the monthly reversal as well as on the yearly reversal, while appellant is calculating the amount on provisional basis month wise and also final payment on the completion of the financial year - Rule 6(3) of CCR - HELD THAT:- There is indeed serious error in calculation of the amount to be paid under Rule 6(3). As regard the terms “total Cenvat Credit” to be considered for the formula as provided under Rule 6 (3A) - It also appears that there is a duplication of demand in as much as Show Cause Notice issued on monthly reversal as well as on yearly reversal. The Adjudicating Authority has also not properly considered the “total Cenvat....... + More

Clandestine manufacture and removal - copper wire ingots - entire documents on which the demand has been confirmed, recovered from the factory premises of M/s Kaycee Electricals and from the residential premises of its Partners - corroborative evidences or not - third party evidences - HELD THAT:- Apparently and admittedly, no search was conducted in premises of any of the present appellants. No physical verification of the stock of present appellants was conducted. Both the show cause notices, the initial order-in-original and the impugned order under challenge are based merely upon the loose parchies and other handwritten documents as was recovered from the premises of M/s Kaycee Electricals and also on the basis of statements of the Supervisor as well as Partner that too of M/s Kaycee Electricals itself. The entire evidence is therefor....... + More

CENVAT Credit - input services - Air Travel Agent service - Club or Association service - Event Management service - Fashion Designing service - Franchise Service - Interior Decorator service - Outdoor Catering service - Rail Travel Agent service - Renting on immovable property service - Rent-a-cab Operator service - Tour Operator service - Travel Agent Services - credit denied on the ground that no evidence was produced by the appellant to prove that the services was availed by the appellant and also on the ground that there is no nexus between the services with the manufacture and clearance of the goods or for their business activity. HELD THAT:- All the services per se are prima facie input services held in various judgments, however, the admissibility of Cenvat credit on these services can be decided on the basis that whether the serv....... + More

CENVAT Credit - input services - Membership of Club Service - Health Insurance Service - credit denied holding that both the services are specifically excluded from the definition of input service, as stands amended, w.e.f. 1 July 2012 - extended period of limitation - HELD THAT:- Both these services are neither for the personal use of the appellant nor for consumption of any one employee, but for the welfare of the employee at large. Tribunal Hyderabad in the case of M/S HYDUS TECHNOLOGIES INDIA PVT LTD. VERSUS CCE, C & ST, HYDERABAD-II [2017 (2) TMI 538 - CESTAT HYDERABAD] has held that the group gratuity scheme for employees is a service for the welfare of the employees at large services stated in clause (c) in the input service definition are held to be excluded only when such services are used primarily for personal use or consum....... + More

CENVAT Credit - GTA Services - Freight charges - goods cleared from the factory gate to the place of buyer - place of removal - HELD THAT:- On an identical issue, this Tribunal in the case of BHARAT FRITZ WERNER LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH WEST COMMISSIONERATE [2019 (11) TMI 1050 - CESTAT BANGALORE] has remanded the case back to the original authority to pass a fresh order after examining various documents for the disputed period. The case remanded back to the original authority to pass a fresh order after examining the various documents for the disputed period in the light of the Circular issued by the Board dated 08/06/2018 - appeal allowed by way of remand.

CENVAT Credit - inputs/capital goods - corrugated profile sheets - prefabricated modular - cealing panel/wall panel/PVC conduits/wall to ceiling coving/wall to wall coving/single doors/double doors/locks etc., - these were used for creating ‘Clean Room’ and Clean room is required for maintaining temperature control and ‘RH’ control - HELD THAT:- Admittedly, the appellant have used the disputed inputs for fabrication of clean room, which is essential for manufacture of their dutiable goods, as such clean room is necessary for maintaining proper temperature and hygiene as well as keeping the RH factor in control, and without it manufacture of dutiable medicines is not possible - Further, under Rule 2(k) of CCR, inputs means, “all goods used in the factory of the manufacturer of final products”. The appellant is entitled to cenvat credit on the items in dispute as inputs - Appeal allowed - decided in favor of appellant.

Clandestine procurement and removal - MS ingots - TMT Bars, flats, challans etc. - shoratge of goods - M.T. M.S. Ingots - MT TMT Bar - MT Sponge Iron - challenge mainly based on reliance upon third party evidence - evidentiary value of the third party evidence - HELD THAT:- There is no other evidence or document in the form of stock verification of the raw-material of the appellant and the material supplied to M/s. PIL nor any evidence about usage of any transportation by the appellants for transporting the alleged quantity of raw-material to M/s.PIL. In absence thereof the documents recovered from M/s.PIL cannot be held against the appellant. It is well settled law that there has to be some concrete evidence which would show clandestine manufacture of goods, as was reiterated by Tribunal, Delhi in the case of C.C.E. & S.T. -RAIPUR VE....... + More

Liability of Central Excise Duty - principal manufacturer or job-worker - Territorial Jurisdiction - Recovery of duty u/s 11D as amount collected in the name of Duty of central excise - safety razor blades and shaving system - It was alleged that as principal manufacturer, petitioner had failed to discharge the duty in terms of the provisions of section 4A of the Central Excise Act on the goods cleared by Tigaksha from its factory at Una, Himachal Pradesh - extended period of limitation - HELD THAT:- it is evidently clear that the taxable event i.e. manufacture of the goods in question had taken place in the factory premises of Tigaksha at Una in Himachal Pradesh. Thus, neither respondent No.2 nor respondent No.3 has the territorial jurisdiction to issue any notice to show cause-cum-demand for levy of central excise duty on such products........ + More

Suppression of production and clandestine removal - bars/ rods - MS Ingots - entire case is on the basis of wrong allegation based upon the documents recovered from third party - HELD THAT:- The documents recovered from the premises, based whereupon the show cause notice was issued, admittedly are in the form of loose parchies and in the form of hand written ledger book that too those got recovered from the premises of SSSRM. There appears no corroborative evidence to support those loose & handwritten documents. Nor any evidence to connect them to the alleged guilt of the appellant. The statement of appellant, Smt. Sunita Devi, was recovered in June, 2005. There appears no acknowledgement on her part about she being involved in the alleged collusion with SSSRM for the alleged clandestine removal except for the raw material to have bee....... + More

CENVAT Credit - input services - outward transportation of goods from the factory/bulk terminal/depot to their customer’s premises - place of removal - case of Revenue is that the ‘place of removal’ will always be factory gate and the assessee is not entitled to cenvat credit on GTA up to the buyer’s premises - HELD THAT:- On an identical issue, this Tribunal in the case of BHARAT FRITZ WERNER LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH WEST COMMISSIONERATE [2019 (11) TMI 1050 - CESTAT BANGALORE] has remanded the case back to the original authority to pass a fresh order after examining various documents for the disputed period. The case remanded back to the original authority to pass a fresh order after examining the various documents for the disputed period - appeal allowed by way of remand.

Entitlement to petitioner's surrender leave salary for 64 days payable from the date of retirement to till the date of actual payment - respondents have not settled the surrender leave salary, at the time of retirement and now seeking disbursement - HELD THAT:- The issue involved in the present writ petition is covered by various orders of this Court, in the case of S. ALAGESAN VERSUS THE MANAGING DIRECTOR TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM) LTD., THE GENERAL MANAGER TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM LTD. [2019 (12) TMI 1471 - MADRAS HIGH COURT] wherein an issue was dealt in the case of THE TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM) LIMITED, KUMBAKONAM, THE GENERAL MANAGER, THE TAMIL NADU STATE TRANSPORT CORPORATION (KUMBAKONAM) LIMITED, PUDUKKOTTAI. VERSUS D. SOUNDARARAJAN [2019 (9) TMI 1512 ....... + More

Benefit of SVLDRS - SCN was issued for Recovery of amount refunded erroneously - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - benefit of scheme rejected by the designated committee holding that by virtue of provisions of Section 125(1) (d) of the Act of 2019, the petitioner is not eligible for benefits inasmuch as, the issue pertains to amount refunded erroneously - Sections 121 (c) & 125 (1) (d) of Finance Act, 2019 - HELD THAT:- Undoubtedly, Section 121(c) defines 'amount of arrears' means the amount of duty, which is recoverable as arrears of duty under the direct tax enactment in the situations specified. It in no manner deals with the amount of erroneous refund recoverable from the assessee. Moreover, the provisions of Section 125(1) (b) specifically exclude the persons from eligibility to make a declaration u....... + More

Judicial Review of Show Cause Notice (SCN) - whether refunds granted earlier pursuant to the Judgment of the Apex Court can be considered to be refunds erroneously granted in view of the subsequent Judgment of the Apex Court - Recovery of refunded Education Cess and Secondary and Higher Education Cess - Section 11A(i) of the Central Excise Act, 1944 - Interest in terms of Section 11AA of the Act - Area based exemption ELD THAT:- The term “erroneous” any error deviating from law. A change of law subsequently would not make an action taken earlier by Quasi Judicial Authority in terms of law as it stood then, to be held to be erroneous so as to enable the Departmental Officer to invoke powers under Section 11A of the Central Excise Act. On perusal of Section 11A reveals that the power under Section 11A for recovery of duties not ....... + More

Revising the order of Rejection of refund claims - the appeals filed by Revenue (against grant of refund) were earlier dismissed on the grounds of monetary limit - benefits in terms of Notification No. 20/2007 CE dated 25.04.2007 - area based exemption - substantial expansion - HELD THAT:- In the recital of the impugned order the respondent No. 3 refused to accept that the petitioner complied with the requirement of the Notification No. 20/2007 dated 25.04.2007 regarding investments of fixed assets more than 25% towards expansion of the manufacturing unit. Although, the order of the Commissioner (Appeals) is referred to, however, the respondent No. 3 did not elaborate as to why it disagreed with the findings of the Commissioner (Appeals) although, the petitioners submitted their objections in response to the said show cause notice and had....... + More

CENVAT Credit - input services - nexus with the output goods - expenses incurred in relation to after sales service - Has not the Hon'ble Tribunal committed an error in including within the ambit of Input Services, the services rendered by a third party, contrary to the confined meaning assigned to input services defined in Rule 2(I) of CENVAT Credit Rules, 2004? - HELD THAT:- The facts clearly show that there is direct nexus between the activity of TVSFS with that of the activity of the assessee. It is clear from the exclusive arrangement between the assessee and TVSFS. The expansive definition requires to be applied in this case and as noted, the Memorandum of Understanding provides for exclusive retail financing of two wheelers manufactured by the assessee, which results in promotion and expansion of sale of two wheelers manufactur....... + More

CENVAT Credit - sale of discarded scrap, i.e. used empty drums and empty bags - applicability of Rule 6 (3) of Cenvat Credit Rules, 2004 - HELD THAT:- The perusal of Rule 6(3) makes it abundantly clear that Rule 6(3) is applicable only to the manufacturers that too those who manufacture two classes of the goods i.e. non-exempted and exempted goods. Apparently and admittedly the appellant herein is manufacturing only one kind of goods which is PP woven fabric. Admittedly the empty polythene bags of raw-material and the empty drums of power oil as have been cleared by the appellant, irrespective for consideration, are not the goods manufactured by the appellants. There has been an amendment in the Rule w.e.f. 01.03.2015 by virtue of Notification 06/2015 and the following explanation has been inserted - irrespective of the said amendment, sc....... + More

100% EOU - Refund of unutilized Cenvat credit availed on inputs/input services - export of goods - appellant had not physically exported their goods but cleared the same to another EOU - physical export or not - HELD THAT:- In the present case, the appellant is a 100% EOU, which has admittedly supplied the goods to another EOU and filed refund claims under Rule 5 read with Notification No.27/2012 dt. 18/06/2012. Further it is found that the goods were supplied by the appellant to another EOU after coming into force of the amendment in Rule 5. Further I find that with the insertion of clause (1A) in Explanation 1 to Rule 5 came into force vide Notification No.6/2015-CE(NT) dt. 01/03/2015 whereby export goods means any goods which are to be taken out of India to a place outside India, which means that there has to be a physical export and t....... + More

CENVAT Credit - duty paying documents - petitioner had availed ineligible credit of service tax paid on certain input services on the strength of documents not covered under Rule 9(2) of the CENVAT Credit Rules, 2004 - presence of Fraud or not - scope of SCN - HELD THAT:- The fraud has serious civil as well as criminal consequences. To constitute the offence of fraud there must be intent to deceive. That apart, a finding of fraud is a stigma which is a reflection on the integrity of a person or of a corporate entity. The basic allegation against the petitioner pertaining to availing of CENVAT credit on account of labour services as could be discerned from the notice to show cause-cum-demand dated 23.12.2015 was that the services for which the CENVAT credit was availed of was not connected with the manufacturing activities of the petitione....... + More

Finalisation of assessment - inclusion of amount computed under Income Tax for the purpose of computing the petitioner's turnover under TNVAT Act - levy of tax and penalty - HELD THAT:- There is no clear proof evidencing the production of various proofs. Be that as it may, it appears that in the impugned order, atleast a portion of the amount that represents the petitioner's income amenable to income tax, has been included for the purpose of computing the petitioner's turnover under TNVAT Act. That apart, another defect pointed out by the assessing authority rests on mismatch. However, the procedure laid down in J.K.M.Graphics Solution Private Limited case [2017 (3) TMI 536 - MADRAS HIGH COURT], was not followed.

Levy of higher rate of Tax on Restaurant as applicable on Hotels - Period for determination of interest liability - Bondafide belief - Violation of principles of natural justice - assessing officer pointed out that after issuing pre-revision notices, the objections of the assessee were received - HELD THAT:- Personal hearing was held on 18.12.2015. On the said date the petitioner's representative appeared and his statement was also recorded in writing by the assessing officer. Only thereafter the impugned orders were passed on 06.01.2016. Thus, the principles of natural justice were complied with in the instant case. Whether the respondent erred in applying Section 7(1)(a) of the Act? - HELD THAT:- Since Rainbow Restaurant is carrying on its business in the very same premises, the assessing authority rightly held that it is a restaura....... + More

Levy of tax on turnover - transactions purportedly involving inter-state sales and branch transfers which were not supported by the Form-C and Form-F respectively - inclusion of freight element in taxable turnover - HELD THAT:- Assessments under the Tax enactments are by and large based on the returns filed by an assessee. In the case of Tamil Nadu Value Added Tax, 2006 and the Central Sales Tax Act, 1956, it is certainly driven by the returns filed by a “dealer” unless no returns were filed. In this case the petitioner had filed returns under the provisions of the Central Sales Tax Act, 1956. In the present case, the sale was concluded at the factory gates itself and therefore the freight element cannot from part of the taxable turnover as was rightly contented by the petitioner - Since the sale took place at the factory gate....... + More

Levy of tax - transfer of right to use goods or not - sale was in the course in the import or not - Operating lease agreements - eligibility for exemption under Section 3-A(2)(a) of the Tamil Nadu General Sales Tax Act, 1959 - HELD THAT:- Since the dispute pertains to the Assessment Years 2004-2005 and 2005-2006 and since these Writ Petitions are pending considerably for a long period of 13 years before this Court, the Court is inclined to exercise its jurisdiction under Article 226 of the Constitution of India and therefore takes up the case for a final disposal on merits even though the petitioner may have an alternate remedy before an Appellate Authority under the provisions of the Tamil Nadu General Sales Tax Act, 1959. Since the petitioner continued to be the real owner of the goods imported under the arrangement as per the respectiv....... + More

Refund of Input tax credit - zero rated sales - rejection on the ground that the Form-W was not filed within 180 days from the date of making zero rated sale - HELD THAT:- Section 18(3) of the Tamil Nadu Value Added Tax Act, 2006 states that where the dealer has not adjusted the input tax credit or has not made a claim for refund within a period of 180 days from the date of making zero rated sales accrual of such input tax credit shall lapse to Government. The matter is remitted to the file of the second respondent. The second respondent shall verify the petitioner's Form-I returns filed on monthly basis and also confirm as regards the admissibility and genuinity and if they are found to be in order, the second respondent shall pass appropriate orders for refund - petition allowed by way of remand.

Recovery of sales tax dues - liability of third person (spouse) who has giving the property as security - Raising of encumbrance created by way of Intimation - contract of guarantee - whether the security given can be subjected to revenue recovery under the provisions of the Revenue Recovery Act? - HELD THAT:- the security bond was not executed in her capacity as wife of the Proprietor and she executed the same in her capacity as an 'individual person' and she has given an undertaking that in the event of non-payment of statutory dues, the immovable property given by way of security can be attached. Where the security bond is executed as an individual person and further as per Section 21(2-B) of the TNGST Act, where it appears necessary to the authority granting a certificate of registration under this Section, so to do for the pr....... + More

Levy of tax on the turnover pertaining to design engineering charges - interstate purchase or not - Revenue would contend that the Tribunal ought to have noted that the Form C declaration filed by the respondent dealer included tax portion also for the turnovers on which they had claimed exemption and hence it is conclusively established that the turnover is taxable in the State - HELD THAT:- The Tribunal held that the conditions specified in Section 6(2) of the CST Act have been satisfied by the dealer and faulted the Assessing Officer for disallowing the claim for exemption only on the ground that the dealer had collected tax whereas he had not rejected the declaration Form filed in support of the claim for exemption made on transit sales under Section 6(2) of the CST Act. Thus, the Tribunal rightly appreciated the factual position whil....... + More

Exemption from turnover - inter-state sale or not - Form-F declaration - false document - consignment sales or not - AO rejected the claim on inter-state movement of goods in the second round of proceedings after remand - HELD THAT:- The Tribunal placed heavy reliance on the conclusion arrived at by the Enforcement Wing Officials, who had caused an inspection of the petitioner's place of business, the statements, which were recorded from the dealer, the inspection conducted in the place of business of the broker, the statements recorded from him, to conclude that the entire dispatches made by the petitioner has to be treated as outright inter-State sales and liable to be taxed accordingly. The appellate Deputy Commissioner noted that the petitioner is in a position to show the closing stock balance available with the various agents in....... + More

Validity of assessment order - validity of estimation done by the Assessing Officer based upon records, which were recovered during the inspection - HELD THAT:- The Tribunal found that the petitioner had paid wages during the relevant year to the tune of ₹ 4,12,515/- as per book marked “B” and based upon the payment of wages, the Assessing Officer estimated the value of the electrical goods manufactured and sold outside the accounts at ₹ 22,27,551/- and the purchase of raw materials outside the accounts at ₹ 16,50,060/- under Section 7A of the TNGST Act. The Tribunal noted that there was no proof by way of delivery note for the supply of raw materials for manufacture of finished goods for labour charges. Further, it noted that there was no proof for the supply of finished goods to the customers with the labou....... + More

Violation of principles of natural justice - validity of assessment order - Assessing Officer did not look into the accounts, which were produced by the appellant - HELD THAT:- The refusal to exercise extraordinary jurisdiction under Article 226 of the Constitution of India when a statutory alternate remedy is available under the Act is a selfimposed restriction and there are exceptions carved out from this selfimposed rule. One such exception, which has been held by the Court to be a justifiable reason to exercise writ jurisdiction, is when the writ petition is pending for a considerable length of time before a Court and it would be too harsh on the party to be driven to avail the alternate remedy after few years. The Assessing Officer cannot state that he need not call for other bills and even it is called for, except for the 7 bills, w....... + More

Validity of assessment order - Condonation of delay in filing appeal - recovery of the amount as determined by the assessment year - HELD THAT:- The statutory appeals along with the stay petitions and applications for condonation of delay are pending adjudication before the 2nd respondent and therefore, the petition is disposed of with the directions that the 2nd respondent shall decide the applications for condonation of delay, and then if necessary, the applications for stay, Exts.P5 to P5(b), within a period of three months from the date of communication of this judgment. Writ petition disposed off.

Seeking to be impleaded as one of the party-respondents - SCN issued for the period of assessment between 01.04.2015 and 31.08.2015 - HELD THAT:- We would not have entertained this writ application as the subject matter of challenge is a show-cause notice. However, there are few jurisdictional issues raised and argued by the learned counsel appearing for the writ applicant going to the root of the matter. Prima facie, it appears that the authority seeks to invoke Section 34 (8A) and Section 50 respectively of the Gujarat Value Added Tax Act, 2003. One of the jurisdictional issues involved in the present litigation is that Section 50 could not have been invoked for assessing a commission agent as liability has to be first determined by framing an assessment. Section 50 can be invoked to recover the “tax due” either from the com....... + More

Seeking free possession and enjoyment of the property - transactions made by a Power of Attorney holder, prior to coming into the force of the provision - Section 19C of the Kerala General Sales Tax Act - Sales Tax dues - priority of charge on the land of the 7th respondent - attachment and sale of the property through Court proceedings - appropriation of 7th respondent's property towards Sales Tax dues of the 6th respondent - take over of the land by the State without assessment of dues under Section 34 of the Revenue Recovery Act - delay or laches on the part of the petitioner or not - principles of res-judicata. Maintainability of the writ petition in the context of res judicata - HELD THAT:- The petitioner had approached this Court earlier filing O.P. No.10661 of 2002. The said writ petition was filed by the petitioner seeking to ....... + More

Levy of sales tax on turnover - High seas sale - exemption claimed by the dealer on high sea sales, disallowed on the ground that there was interpolation of the name of the customer in the copies of the Bills of Entry, which were filed before the Sales Tax Authorities - HELD THAT:- The fact remains that the Tribunal touched upon the finding rendered by the First Appellate Authority. Admittedly, the Bill of Entry is not the document of title and even assuming that there are certain interpolations or corrections in the Bill of Entry, the question would be as to what is the effect of such corrections. This issue was considered by the Hon'ble Division Bench of this Court in the case of STATE OF TAMIL NADU VERSUS KAWARLAL AND CO. [2011 (9) TMI 519 - MADRAS HIGH COURT] where it was held that Bill of Lading is the document of title and admit....... + More

Levy of tax on turnover - Bill of Lading - title to the goods or not - rate of tax - taxable at 8% or otherwise - High Seas Sale or not - claim of high sea sales denied on the ground that the document filed by the dealer did not conclusively prove the claim of high sea sales - levy of penalty u/s 16(2) of the Tamil Nadu General Sales Tax Act, 1959 - HELD THAT:- There can be no quarrel over the legal position that the Bill of Entry is never treated as a document of title under the Customs Act, 1962. Rather, the Bill of Lading is the document of title, which should contain the name of the ultimate buyer - In the instant case, the Revenue did not dispute the fact that the duty was paid by the ultimate buyer and except for the alleged interpolation in the Bill of Entry, there was no other adverse finding rendered either by the Assessing Offic....... + More

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

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

Maintainability of review petition - Rectification of Mistake - error apparent on the face of record - entitlement to pensionary benefit - HELD THAT:- It is pertinent to mention here that the applicant/State permitted the petitioner/opposite party to serve on the post of Member of U.P. Trade Tax Tribunal, during period from 27.01.1994 upto 31.12.2011, i.e., qualifying service for ten years for entitlement for getting pension. The Government Order dated 05.05.2000 cannot override the provisions of Rule 56 of fundamental rules framed by the State of U.P. - The applicant/State on the basis of principles of estoppel and acquiescence, cannot raise objection on the basis of government order dated 05.05.2000 that now the petitioner/opposite party is not entitled for getting pension. The respondent/ opposite party joined on 27.01.1994, hence, gov....... + More

Maintainability of petition - whether there is an absolute bar to entertain the petition on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner - HELD THAT:- There is no absolute bar for entertaining a writ petition, we are of the view that the decision of the learned Single Judge in MAHINDRA & MAHINDRA LTD. VERSUS THE JOINT COMMISSIONER (CT) APPEALS, THE DEPUTY COMMISSIONER (CT) - II, LARGE TAX PAYERS UNIT, CHENNAI-8 [2021 (3) TMI 82 - MADRAS HIGH COURT] in holding as if there is a blanket ban for entertaining a writ petition cannot be countenanced. The matter is remanded to the Assessing Officer for a fresh consideration - Appeal allowed.

Release of goods alongwith vehicle - respondents fairly submits that if the amount in question ₹ 70,92,629/- is secured, appropriate release may be considered - HELD THAT:- This Court, after hearing learned counsel for the parties, without entering into the merits of the case and while leaving the same to the appellate jurisdiction, directs the petitioner (Leeladhar Meghwal) to submit a bank guarantee of ₹ 70,92,629/- before the respondent authority within a period of 15 days from today, immediately whereafter, the respondent authority shall be required to release the vehicle. The respondent authority shall be free to impose any other condition strictly in accordance with law. The respondent authority shall release the vehicle as soon as the bank guarantee is furnished. Petition disposed off.

Dishonor of Cheque - rebuttal of presumption - signatures on cheque accepted - decision on receipt of notice - Section 143A of Negotiable Instruments Act - HELD THAT:- Considering that the petitioner has admitted his signatures on the cheque in question and that even according to the petitioner some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature and the same could only be done by adducing evidence at trial but at this stage as the minute appreciation of evidence is not to be done complaint could not be quashed on this score. Therefore at this stage of trial complainants are entitled for the presumption as provided under Section 139 of N. I. Act. The reciept of notice could not be decided in th....... + More

Seeking grant of Bail - Smuggling - suspected parcels containing ‘MDMA’ drugs, weighing 150 gms - contraband articles seized from the possession of the petitioner - case of Revenue is that investigation clearly revealed that the said drugs were purchased and ordered by the petitioner through parcel from Netherland, he is from the Kerala State - HELD THAT:- This Court has considered the entire material on record and detailed orders are passed and dismissed the petition. Except the contention that the petitioner’s father is unwell, there is no other additional ground addressed by the learned counsel for the petitioner. As per the records, seized drug is 150 gms which is 15 times more than the commercial quantity and worth of ₹ 15.00 lakhs. The alleged offence is a heinous one. If the petitioner is granted bail, there....... + More

Transfer of shares - pre-emptive right to purchase of shares - consideration of agreements which contains arbitration clause - HELD THAT:- It is obvious that whether the MoU has been novated by the SHA dated 12.04.1996 requires a detailed consideration of the clauses of the two Agreements, together with the surrounding circumstances in which these Agreements were entered into, and a full consideration of the law on the subject. None of this can be done given the limited jurisdiction of a court under Section 11 of the 1996 Act - Detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties. Also, this case does not fall within the category of cases which ousts....... + More

Validity of Guidelines issued by the Institute of Chartered Accountants of India (ICAI) - specified number (Cap) of tax audit assignments - Seeking for transfer of several writ petitions pending in the Kerala High Court, Madras High Court and Calcutta High Court - validity of Chapter VI of Guidelines No.1CA(7)/02/2008 dated 08.08.2008 - disposal of writ petition on early date - HELD THAT:- The fact that this Court on 03.04.1991 had dismissed the Transfer Petition Nos.614-615 of 1990 observing that the concerned High Courts may dispose of the writ petition on early date cannot be treated any kind of bar in transferring the writ petition in the present batch of cases. At the time when the earlier transfer petition was dismissed, conflicting judgments on subject in issue by different High Courts had not come. Cap on the number of audits - HE....... + More

Smuggling - Heroin - sentence of 15 years R.I. with fine of ₹ 2 Lakhs and in default to undergo further one year R.I. - HELD THAT:- In the present case the appellant - original accused was found to be in possession of 1 kg heroin which is four times more than the minimum of commercial quantity. 250 gm and above of Narcotic substance/drug is a commercial quantity as per the NDPS Act. The minimum sentence provided under Section 21 of the Act is 10 years R.I. So far as the commercial quantity is concerned, it may be upto 20 years R.I. Therefore, the minimum sentence for commercial quantity shall not be less than 10 years, which may extend to 20 years with fine which shall not be less than ₹ 1 lakh but which may extend to ₹ 2 lakhs. Section 32B of the Act provides for factors to be taken into account for imposing higher than....... + More

Dishonor of Cheque - accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice - enforceable outstanding debt/liability or not - complaint sufficient to proceed against the petitioner as contemplated under Sections 138 and 141 of Negotiable Instruments Act or not - continuation of the proceedings against the petitioner, who claims to be neither the signatory of the cheque nor the person in charge of the accused-company - HELD THAT:- The Hon’ble Supreme Court in N. RANGACHARI VERSUS BHARAT SANCHAR NIGAM LTD [2007 (4) TMI 621 - SUPREME COURT] has held that an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to....... + More

Request for proposal (RFP) for selection of distributors for conventional paper and online lotteries - conversion of the distributorship from online lottery to paper lottery - HELD THAT:- Lottery includes gambling as anelement of chance which requires no skill and as held by the Apex court it would not attain the status of trade like other trades or become res commercium. Accordingly, the petitioner has no right to invoke Article 14 of the Constitution of India or under Article 19(1)(g) of the Constitution of India seeking for his protection of his fundamental right for carrying on trade and commerce of the State lotteries. The petitioner is not entitled to objectand be heard by the respondent No. 1 while taking the impugned decision. The impugned decision dated 12.09.2018 does not in any manner injure the interest of the petitioner recog....... + More

Threat - Seeking issuance of directions to the official respondents for protection of life and liberty of the petitioners from the private respondents arrayed in the petition - HELD THAT:- Learned State counsel on instructions from ASI Amar Singh submits that the statements of the petitioners have been recorded by Deputy Superintendent of Police, Head Quarter, Ambala. It is stated therein that there is no threat perception. No cause of action survives for pursuing with the present petition - Disposed of as infructuous.

Dishonor of Cheque - burden to prove - onus to rebut the statutory presumptions under Sections 138 and 139 of the N.I Act - service of notice - Existing debt or not - HELD THAT:- It is a settled proposition of law that mere issuance of a cheque and its dishonour would not constitute an offence by itself under Section 138 N.I Act, 1881 unless the basic elements of Section 138 and the eventualities mentioned in Clauses (a), (b) and (c) in the proviso to Section 138 of the N.I. Act, 1881 are satisfied. With regard to the service of statutory notice, accused pleaded that she did not receive any such notice after the cheque issued by her was allegedly dishonoured. The complainant seems to have proved by adducing documentary evidence that he issued such notice (Exbt.4) within 15 days from the date of his receiving the information from the bank ....... + More

Dishonor of Cheque - legally enforceable liability - rebuttal of presumptions under Sections 118(a) and 139 of Negotiable Instruments Act - HELD THAT:- The execution of the cheque was admitted; similarly, he had failed to prove the plea of discharge and since it was contended that the cheque was issued as security; both the arguments were not acceptable to the court and the learned Magistrate proceeded to convict the 2 nd respondent as stated supra. Against that conviction, when appeal was preferred, the learned Sessions Judge reversed the finding on various reasons. According to him, it was a house deposit scheme, which had completed in the year 2005, and therefore, there is no possibility of issuing a cheque as claimed by the appellant on 22.01.2008 - The Sessions Judge also noticed inconsistency with regard to the date of issuance of t....... + More

Dishonor of Cheque - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act - whether the first respondent could rebut the presumption? - HELD THAT:- After revisiting the evidence, the answer should be in negative. From the very outset, she had been taking a negative attitude. Even though the lawyer notice was tendered in her correct address, she refused to receive the same. It is a matter of adverse inference. Her first expression of the transaction had come up when the power of attorney holder, PW1 was cross examined. Then she took the stand that the document was given in consideration of ₹ 20,000/-, borrowed by her, that the said amount has already been repaid - The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the....... + More

Dishonor of Cheque - Constitutional Validity of Appointment of the retired District & Sessions Judge by the impugned Government Orders as Additional Court - section 138 read with Section 141 of Negotiable Instruments Act, 1881 - HELD THAT:- The Law Commission had taken note of the experience of the judicial post for the purpose of appointment and conferment of power of Special Judicial Magistrates with the object of securing the expeditious disposal of criminal cases. The Joint Select Committee also took note of the criticisms against the system of Honorary Magistrates and expressed the view that proper way to deal with the arrears of petty criminal cases was to appoint sufficient number of stipendiary Magistrates as a wholesome deletion of the institution of Honorary Members would give rise to problems in some States. The Joint Selec....... + More

Dishonor of Cheque - insufficiency of funds - compounding of offence under Negotiable Instruments Act - HELD THAT:- The law regarding compounding of offence under Negotiable Instruments Act is no more res integra and the offences under the said Act can be compounded at any stage of the proceedings. The Hon'ble Supreme Court in the case of K. M. Ibrahim vs. K.P. Mohammad and another [2009 (12) TMI 903 - SUPREME COURT] where it was held that Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Taking into account the fact that the parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the amount of cheque along with interest/ cost and he does not want to pursue the proceedings again....... + More

Sale of Electoral Bonds under the Electoral Bond Scheme, 2018 - Scheme allows the donors of political parties to maintain anonymity - seeking direction to all national and regional political parties to mandatorily disclose complete details about their income, expenditure, donations and funding as well as full details of the donors - HELD THAT:- It is not correct to say that the RBI was opposed to the Scheme in principle. RBI’s objection was to the issue of bonds in scrip form rather than in demat form. What RBI wanted to achieve was, in their own words, the twin advantage of (i) providing anonymity to the contributor; and (ii) ensuring that consideration for transfers is through banking channels and not cash or other means. In fact RBI called Electoral Bonds as “an enduring reform, consistent with the Government’s digiti....... + More

Dishonor of cheque - insufficiency of funds - compounding of offences or not - Section 138 of NI Act - HELD THAT:- The Hon'ble Supreme Court in the case of KM. IBRAHIM VERSUS KP. MOHAMMED & ANR. [2009 (12) TMI 903 - SUPREME COURT] has held as under It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the Appellate Forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. The parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the entire amount of cheque as well as cost/ interest of ₹ 10,000/- , this Court deems it appropriate to compound the offence on the....... + More

Dishonor of cheque - rebuttal of the evidence of the complainant as regards payment, not produced - blank cheque given as security, in absence of adequate evidence, relevant or not - section 138 of NI Act - HELD THAT:- In the instant case, the accused petitioner admittedly has issued the cheque with his signature voluntarily but has failed to rebut the presumption that the cheque was not issued in discharge of debt or liability by producing requisite evidence. The Hon’ble Apex Court in HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [2001 (7) TMI 1172 - SUPREME COURT], it has been held that mere plausible explanation given by an accused is not enough to rebut the presumption and accused has to disprove the prosecution case by giving cogent evidence that he has no debt or liability to issue the cheque. As a corollary of findings, it can....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - failure to rebut the presumption - HELD THAT:- The complainant has proved his case by letting in cogent evidence. Whereas, the accused has failed to rebut the presumption u/s.139 of N.I.Act to prove his case. Though the accused had examined his brother as D.W.1, nothing is elicited. Further, the evidence of D.W.1 had infact fortified the fact that the accused had also constructed a house. It is a case of the complainant that the accused had borrowed money towards loan while he was constructing house and that in order to discharge his liability, he had issued a cheque. The the trial Court as well as the Appellate Court finding that the accused has not rebutted the presumption found him guilty for the offence under Section 138 of Negotiable Instruments Act and h....... + More

Breach of agreement entered into for sale of residential project - nearing completion project - Complainant Association has stated in the Complaint that the common facilities viz. Boundary wall, Medical Centre, Staff quarters, STP, Roads and Gardens which were promised are still not constructed and no effort was made by the Respondent Promoter to improve the infrastructure - complainant are seeking to enforce that the Promoter M/s. Serene Senior Living Pvt. Ltd. will complete the project as planned and provide residents with all infrastructure facilities - complainant also seeking relief in other complaints like Common facilities including club house, gardens should be handed over to the Association as per RERA Rules and also to attend warranty complaints. HELD THAT:- It is seen from the copy of the Construction Agreement for Flat No.C-10....... + More

Search and seizure proceedings in the presence of independent witness - Smuggling - reasons to believe that offence is committed - foremost plea taken by petitioner is that at the first available opportunity he had retracted from the confessional statement recorded under Section 67 of NDPS Act - HELD THAT:- Recently, the Hon’ble Supreme Court, by majority view while answering to a reference with regard to the evidentiary value of Section 67 of NDPS Act in Tofan Singh [2020 (11) TMI 55 - SUPREME COURT] held “that a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act”. Reciting a dissenting view in Tofan Singh (Supra), Hon’ble Ms. Justice Indira Banerjee observed that “she was unable to agree that a statement recorded under....... + More

Requirement of issuance of SCN - grant of personal hearing to the petitioners before passing the impugned order of supersession of the Board of Directors - discretionary power not to follow the directives issued by the RBI or in case of any directives to supersede or suspend the Board of Directors of the Co-operative Bank, the Registrar could only suspend the Board of Directors of the co-operative bank - amendment to Section 110A(1)(iii) of the Maharashtra Co-operative Societies Act, 1960 substituting the period of 5 years by one year - supercession of Board of Directors of the Cooperative Bank and to appoint Board of Administrators under the provisions of the Banking Regulation Act, 1949 read with Section 110A of the MCS Act. Whether the Registrar, Cooperative Societies was required to issue any show cause notice and grant any personal h....... + More