Reopening of assessment u/s 147 - notice issued u/s.148 before expiry of time limit for issue of notice u/s.143(2) - HELD THAT:- Respectfully following decisions of CIT Vs M/s.Qatalys Software Technologies Ltd. [2008 (7) TMI 240 - MADRAS HIGH COURT] and in the case of CIT vs. K.M Pachayappan [2007 (7) TMI 229 - MADRAS HIGH COURT], we are of the considered view that notice issued u/s.148 dated 23.09.2016, before the expiry of time limit for notice u/s.143(2) for the impugned assessment year is invalid and thus, consequent reassessment order passed u/s.143(3) r.w.s. 147 is null and void. Hence, we quash reassessment order passed by the Assessing Officer. - Decided in favour of assessee.

Maintainability of advance ruling application u/s 245R - TDS u/s 192 - Applicant' a company incorporated in India seconds its employees from time to time on long term assignment to other BMW Group entities in various countries such as Germany. Japan, etc, under the terms of Reimbursement Agreement - Residential Status of the employees with whom the Applicant had made transactions - Whether transaction or issue was designed prima facie for avoidance of income tax? - salary of seconded employees - taxes were already paid by the employees in the host country - ruling on allowability or eligibility of claiming a credit to avoid double taxation - HELD THAT:- In Order to claim such bar under clause (iii) of Section 245R(2), there must be some necessary facts pointing to prima facie inference to a design to avoid tax by any illegal or improp....... + More

Revision u/s 263 - disallowance under Section 40(a)(ia) - Tribunal hold that assumption of jurisdiction under Section 263 was correct - HELD THAT:- From close scrutiny of Section 263 it is evident that twin conditions are required to be satisfied for exercise of revisional jurisdiction under Section 263 of the Act firstly, the order of the Assessing Officer is erroneous and secondly, that it is prejudicial to the interest of the revenue on account of error in the order of assessment. The aforesaid provision was considered by the Supreme Court in ‘MALABAR INDUSTRIAL COMPANY VS. CIT’ [2000 (2) TMI 10 - SUPREME COURT] and it was held that the phrase ‘prejudicial to the interests of the revenue’ has to be read in conjunction with an erroneous order passed by the Assessing Officer and every loss of revenue as a conseque....... + More

Reopening of assessment u/s 147 - Whether the first re assessment order made u/s 143(3) r.w.s. 147 of the Act dated 17.02.2014 gets effaced when a subsequent re-assessment order was made u/s 143(3) r.w.s. 147 of the Act, on 22.03.2016, in respect of the same Assessment Year and on same facts? - HELD THAT:- It is well settled in law that when a subsequent order is passed in respect of the same assessment, the previous order of assessment passed by the Assessing Officer gets effaced. In the instant case, in view of the order dated 22.03.2016, the previous order of assessment passed by the Assessing Officer dated 17.02.2014 got effaced and therefore, the subsequent order passed by the Assessing Officer dated 22.03.2016 prevails. Therefore, the first substantial question of law is answered in favour of the assessee and against the revenue. We....... + More

Validity of draft order u/s 144C passed by the Deputy Commissioner of Income Tax - whether the assessee is right in contending that the assessee's case was selected for a limited scrutiny and the reference to the TPO was beyond the scope of the scrutiny? - HELD THAT:- As rightly contended by Revenue the first respondent is not competent to check whether the value of the international transactions as furnished in Form 3CEB by a Chartered Accountant and return of income is correctly shown. Assessing Officer, being not competent to examine the said issue, necessarily, the case has to be referred to the TPO as per Section 92CA - the contention of the appellant/assessee that the case was selected for mere reconciliation is an incorrect interpretation. This is clear from the reason for which the case was selected for scrutiny and the issue ....... + More

Addition u/s 68 - Onus to prove - evidence against the assessee lies and the assessee failed to discharge his initial burden on this account - Tribunal shifting the responsibility of proving genuineness of share application money to the Assessing Officer - whether mere furnishing list of person who have claimed to have advanced towards share capital thus constitute sufficient compliance on the part of the assessee? - HELD THAT:- Assessee has not discharged the legal obligation cast upon them to prove the genuineness of the transaction, the identity of the creditors and creditworthiness of the investors, who should have the financial capacity to make the investment in question to the satisfaction of the Assessing Officer so as to discharge the primary onus - Since the assessee did not discharge the primary onus cast upon them, the question....... + More

Income accrued or deemed to accrue in India - marketing and advertising rights that have been granted under the MAA [Marketing and Advertising Agreement'] - rights under MAA - source of income was the game of cricket played in India - payment to be made by LG Electronics India Private Limited, a company incorporated in India (hereinafter called as 'LG India') to IDI Mauritius Limited, a company incorporated under the laws of Mauritius (hereinafter referred as 'IML') for grant of commercial rights under the 'Marketing and Advertising Agreement' - Whether payment to IML is taxable? - DTAA between India and Mauritius - HELD THAT:- Payment made by the Applicant under MAA was purely for advertisement and publicity of the brand name of the assessee and for promotion of its product during the Cricketing events of ICC ....... + More

Addition of inflated expenditure - Whether the inflated expenditure admitted by the assessee is to be allowed despite the fact that the assessee could not reconcile the statements nor could prove the same with supporting documentary evidence? - Tribunal remanding the issue back for verification of inflated expenditure for the assessment year 2011-12 while allowing relief for another assessment year 2010-11 when the facts are similar on the same issue? - HELD THAT:- Tribunal appears to have examined certain documents, which seemed to have been produced by the assessee for the first time before the Tribunal and the Tribunal proceeded to hold that a perusal of the sub-contract as also the invoice showed that the area was an estimated quantity only and therefore, the Tribunal found no reason to interfere disallow the expenditure. Tribunal, wh....... + More

Substantial question of law or fact - application for condonation of delay of 1350 days - HELD THAT:- There are concurrent findings of fact of the Assessing Officer, Commissioner of Income Tax (Appeals)-I and ITAT, and what the appellant is calling upon us to do, is to re-appreciate the evidence on the basis of which consistent findings, on the aspects from which the appellant is aggrieved, have been rendered. Appellant however has contended that a substantial question of law arises because the Income Tax Authorities and the ITAT have ignored material evidence. It is contended that owing to plethora of material in public domain, of the project, of which the appellant has been found to have earned commission, having been scrapped, the possibility of the appellant being paid commission did not exist. Appeal dismissed as no substantial question of law.

Estimation of income - income from inflation of expenses - Assessment u/s 153A - search operation u/s.132 certain loose papers and digital forms were found and seized - HELD THAT:- It is not in dispute that assessee had resorted to inflation of expenses by making certain cheque payments and receiving back cash in return. It is not in dispute that the said cash had already also been utilised for the purpose of meeting business related expenses by the assessee. In this background what is to be taxed is only the left over portion of the cash remaining with the assessee on this subject mentioned transaction, being the profit element, which has been already accepted by the Hon’ble Income Tax Settlement Commission at 12% vide its order dated 28/06/2018 in assessee’s group company cases. CIT(A) ought to have followed the same in view....... + More

Condonation of delay in filing Rectification application - delay in filing this appeal against ex-parte order on account of non-prosecution - HELD THAT:- The assessee has explained the reason for not filing the Miscellaneous Application within six months from the end of the month in which the order was passed as elaborated supported by an affidavit and copies of other documents/details. The assessee has also pointed out that previous tax consultant has not attended his tax matter satisfactorily and new tax consultant has obtained various documents, these circumstances and his ill health caused delay in filing this appeal against ex-parte order which was passed on account of non-prosecution. After taking into consideration the facts narrated by the assessee supported by an affidavit/documents it appears that there was reasonable cause for ....... + More

Addition towards sundry creditors u/s.41(1) / 68 - addition of credit balances in appellant’s books - HELD THAT:- Liability shown in the books of accounts under the head ‘sundry creditors’ were not a trade liability for which allowances or deduction was claimed in the earlier financial years. Further, the assessee has filed necessary evidences to prove that said credits were received in the financial year 2006- 07 & 2007-08, out of family partition and the same were treated as sundry creditors because full effect was not given to family partition on account of certain differences among family members. AO as well as the CIT(A) were erred in invoking provisions of section 41(1) to bring to tax sundry creditors shown in the names of S/Shri ARKA. KaruthaPandian, K.A. Sekar and K. Sivasundarapappa, sundry payable amountin....... + More

Rejection of grant of approval under section 80G(5) - premises from which the appellant trust is operated are not owned by the appellant trust/shared along with other trusts and accounts of the appellant trust are not reliable since accounts are not audited. Consequently, he had come to the conclusion that the genuineness of the activities of the trust was not established by the appellant - HELD THAT:- Provisions of section 80G(5)(vi) of the Act nowhere stipulate that in order to be eligible for grant of approval u/s 80G(5)(vi) of the Act, the premises from which the appellant trust is operated, should be owned by the appellant trust. The ld. Commissioner of Income Tax (Exemption) cannot introduce any new condition nor stipulate a new condition which is not prescribed under the provisions of the Statute. It is not the case of the ld. CIT ....... + More

Addition u/s 69 - assessee had made payments for purchase of property, whereas it was a family transfer and no consideration exchanged hands - new evidences in the form of copy of Girdawari, Court decree of agriculture land submitted by assessee - HELD THAT:- Additional evidence now furnished by the assessee in the form of copy of Khasra Girdawari, Court decree dt. 24/11/2019 go to the root of the matter, so these new additional evidences are admitted. However the additional evidences, furnished by the assessee were not available to the authorities below. We therefore by keeping in view the principles of natural justice, deem it appropriate to set aside this issue back to the file of the A.O. to be adjudicated afresh in accordance with law after due and reasonable opportunity of being heard to the assessee and by considering the new evidences now furnished by the assessee - Appeals of the Assessee are allowed for statistical purposes.

TP Adjustment - arm's length price adjustment - comparable selection - assessee's sole argument during the course of hearing is regarding the PLI pertaining to software development services challenges the alleged wrongful inclusion of M/s. Infosys Limited as a comparable entity in the TPO's order - HELD THAT:- We notice during the course of hearing that this tribunal's co-ordinate bench decision(s) in M/S. INFOR (INDIA) PVT. LTD. [2020 (12) TMI 235 - ITAT HYDERABAD] as held that the very entity M/s. Infosys Ltd. to be not a valid comparable - Also in YAHOO SOFTWARE DEVELOPMENT INDIA PVT. LTD. [2020 (2) TMI 1365 - ITAT BANGALORE] has also directed the department to exclude M/s. Infosys Limited from the array of comparables by adopting the very reasoning. We adopt the above detailed reasoning and direct the TPO to redetermin....... + More

TP Adjustment - ALP adjustment regarding its international transactions - Inclusion/exclusion of misc. income - HELD THAT:- We ex facie notice that assessee's misc. income is in no way related to its international transactions with overseas associated enterprise which would be liable to be considered for the purpose of arriving at ALP under Chapter X of the Act. There is no justification to include the same in this entire process therefore. We deem it appropriate to restore the instant first issue back to the Transfer Pricing Officer 'TPO' for his appropriate adjudication as per law with a specific direction that in case if it is found after verification of the relevant records coming from assessee's level that the impugned income is not relevant for determination of ALP pertaining to international transactions with the AE....... + More

Estimation of income - addition qua estimated profit @8% in banana trade - cash deposits as confirmed by the buyers of the Assessee on which the Assessee did not offer any income in his return of income, therefore, treating the said cash deposits as sale proceeds of the Assessee qua banana trading - HELD THAT:- CIT(A) did make any analysis qua comparable case and of the Assessee and passed the order in cryptic manner and affirmed the estimation @8%. CIT(A) further failed to base affirmation of estimation @8% on any material and/or circumstances while ignoring the comparable case. From the perusal of income tax return filed by the Viswajanani Fruit Company for the A.Y. 2012-13 as quoted by the Assessee as a comparable case, it reflects that the profit from banana trading has been estimated @ 3.6% only. Though the Ld. DR supported the order....... + More

Taxability of receipts from the welfare trusts under normal provisions of the Act as well as while computing the book profits u/s 115JB - contributions received by the welfare trusts were partially invested in equity shares of listed / unlisted companies on which the trusts received dividends which were duly offered to tax in the respective years by the trusts and also claimed credit for Tax deducted at source thereon AND part of the contributions received by the welfare trusts were advanced by way of loans to parties on which interest was received, which was also duly offered to tax in the respective years by the trusts and also claimed credit for Tax deducted at source thereon - HELD THAT:- Unutilized portion lying in the trust funds which were claimed back by the assessee company was never in contemplation by the assessee company as as....... + More

Addition u/s 14A r.w.r. 8D - Interest on interest bearing funds that is utilised for the purpose of making such investment - Direct and indirect expenses attributable to the process of making such investment such as expenditure incurred for due diligence, managerial expenditure, clerical expense, stationary expenditure, and portfolio management expenditure - HELD THAT:- Since in the case of the assessee the assessee company has utilised only its non-interest-bearing funds for making investment in its own subsidiary company, no interest cost can be attributable to the same because, there is no interest cost to the assessee as it can be treated that the assessee has withdrawn from its capital and reserves which are assessee's interest free funds for making such investment. For making investment in its own company there cannot be any cos....... + More

Disallowance u/s 69C - unexplained expenditure claimed by the assessee - set off of losses against deemed undisclosed income - Eligibility of benefit of section 71 - provisions of section 115BBE Applicability - whether the provisions of section 115BBE of the Act is prospective or retrospective in nature? - HELD THAT:- In the present case, during survey an income was surrendered and added in the income of the assessee and consequent business loss was claimed, the same is available for set-off against business loss. Even the Hon'ble High Court of Madras in the case of CIT vs. Chensing Ventures [2007 (4) TMI 204 - MADRAS HIGH COURT] has considered an identical issue and held that the AO cannot deny benefit of section 71 of the Act, and the AO has to consider the undisclosed income u/s. 69 of the Act, but once the loss is determined, the ....... + More

Disallowance u/s. 40(a)(ia) - interest paid by the assessee to Indiabulls - HELD THAT:- We find that Hon'ble Delhi High Court in the case of CIT vs. Ansal Land Mark Township (P) Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] has held that the second proviso to Section 40 (a) (ia) of the Act is declaratory and curative in nature and should be given retrospective effect from 1st April 2005. As long as the respective payee/resident has filed its return of income disclosing the payment received by and in which the income earned by it is embedded and has also paid tax on such income, then no disallowance can be made u/s. 40(a)(ia). We find that the assessee had made the submissions to the effect that the interest paid by the assessee to Indiabulls and Reliance have been included by the respective payees in their respective income, but there is ....... + More

Disallowance of fuel expenses - Assessee argued AO nowhere provide any opportunity before raising the addition, therefore, the addition is not justifiable - CIT(A) disallowed the claim of the assessee on the basis of this fact that the assessee failed to produce the documents before the AO - HELD THAT:- It is not the good reason to decline the claim because the assessee has under taking before us to the effect that all the documents were produced before the AO as well as CIT(A). However, the CIT(A) sought the remand report and the remand report speaks only about the submission of ledger but nowhere speak that the submission of bills which are on record. Any how the voucher/bills were produced before the AO. An another reason to decline the claim is that in the preceding year the fuel expenses were not allowed. It is not a good ground to d....... + More

Addition u/s 68 or 56 - addition of bogus share premium/share capital - as per AO valuation of the share premium charged by the assessee and observed that the provisions of section 56(1)(viib) are not applicable on the alleged transaction - AO not satisfied with the genuineness of the transaction and creditworthiness of the subscribers - HELD THAT:- Flow of funds shows that major fund was already lying with the assessee company in the form of loans/advance from partnership firms where the assessee is partners which was refunded to the respective entities and were received back from the share applicants in the form of share application money by the assessee. So there remains no question of doubt about the genuineness of alleged transaction and creditworthiness of the two investor Pvt. Ltd. companies with regard to share capital and share p....... + More

Denial of deduction u/s 54F- assessee alongwith 4 other family members sold a piece of land - Out of the sale consideration received assessee had invested in construction of house property and accordingly claimed deduction u/s 54 - as per revenue report of valuation submitted by the assessee cannot be considered as evidence for verification of claim u/s 54F of the Act on the grounds that valuation was made by the valuer on 25/02/2015 instead of year 2011 and the contractor from whom the construction of house was gone done was not produced and source of investment in the house property was not explained or proved by the assessee HELD THAT:- The valuer has determined the cost of construction on 30/07/2011 and the year of construction was certified by the valuer as 2010-11. The fact of construction being carried out has not been doubted by t....... + More

Levy of penalty u/s 271(1)(c) - undisclosed salary income - omission of salary from income declared in the ROI - assessment proceedings u/s 153A - HELD THAT:- As during the course of assessment proceedings u/s 153A when the assessee prepared her statement of affairs it came to her notice that salary from M/s Bhatia Corporation Pvt. Ltd. which was credited in her account but not actually received was left to be included in the income by mistake. Accordingly, she filed revised computation of total income and offered the same for taxation. Thus, the omission of salary from income declared in the ROI filed u/s 153A is a bonafide mistake. On such bonafide mistake no penalty is leviable. The Hon'ble Supreme Court in case of Price Waterhouse Coopers (P.) Ltd. [2012 (9) TMI 775 - SUPREME COURT] wherein, in this case the assessee firm filed it....... + More

Arrest under section 69 of the Central Goods and Services Tax Act, 2017 - offence of availing ineligible Input Tax Credit - out of the alleged availing of ineligible Input Tax Credit of slightly more than ₹ 9 crores, petitioner No.1 has deposited ₹ 4.80 crores which is more than 50% of the alleged dues - HELD THAT:- It is directed that no coercive action shall be taken against petitioner Nos. 2 to 8 till the next date. However, petitioner Nos.2, 7 and 8 shall appear before the investigating authority as summoned on 26.02.2021 at 11:00 a.m. and thereafter as and when summoned. Rest of the petitioners shall appear before the investigating authority as and when summoned and co-operate with the investigation. Stand over to 16.03.2021 for filing of reply and rejoinder.

Notice/summons issued by the Central Tax Authority whereas adjudication u/s 74 had been made by the State Authority - contention is that once the Central Tax Authority had initiated action, the proceeding was required to be brought to its logical end by the same authority - HELD THAT:- It appears from the perusal of the order dated 8th September, 2020 that the show cause notice had been served under Section 74(2) of the Act and the date was fixed for submitting explanation/objections by the petitioner. The order impugned dated 8th September, 2020 records that the petitioner did not appear before the proper Officer - As the proceedings for determination and levy of tax and penalty had been initiated by the State Tax Authority, this Court does not find substance in the challenge to the jurisdiction of respondent no. 2 to pass order for dete....... + More

Profiteering - Section 171 of the Central Goods and Services Act, 2017 (CGST Act) and Rules contained in Chapter XV of the central Goods and Services Rules, 2017 - HELD THAT:- Issue notice. Notice is accepted by the counsel for the respondents - Subject to the petitioner paying the entire demanded amount, less the GST amount already deposited, in six equal monthly instalments commencing from the month of February, 2021, there shall be stay of recovery.

Refund sought of on amount deposited - petitioner was compelled to deposit amount with the respondents and though the said amount was deposited as far back as on 1st July, 2020 and 31st August, 2020 but the respondents are merely retaining the said amount and have not taken any further action - Provisional attachment of Bank Account of petitioner - Section 83 of the Central Goods and Services Tax (CGST) Act, 2017 - HELD THAT:- It appears that the respondents were required to issue notices under Sections 73 and/or 74 of the Act to the petitioner and which the respondents have not done till now. It prima facie appears that the respondents, taking advantage of the petitioner having been so compelled to make the deposit, albeit without prejudice to its rights and contentions, are not in a hurry. Thus, unless the respondents issue notice, with....... + More

Cancellation of registration of selling dealer - submission of petitioner is that at the time of purchase of goods/stocks, the registration of the selling dealer was valid - HELD THAT:- Matter requires consideration. Learned counsel for the petitioner submits that 10% of the disputed tax liability has been deposited in terms of Section-107(6) of the Act, the appeal before the Tribunal (when constituted) would be maintainable upon deposit of 20% of the remaining tax amount. The petitioner is willing to deposit that amount - Learned Standing Counsel has accepted notice on behalf of State-respondents. He prays for and is granted four weeks' time to file counter affidavit. Petitioner shall have two weeks thereafter to file rejoinder affidavit. List thereafter.

Provisional attachment of Bank Accounts - Section 83 of the CGST Act - petitioner submits that the attachment of the bank accounts has brought the entire functioning of the company to a standstill, as the Petitioner is unable to dispense salary to approximately 15000 employees and discharge statutory dues like EPF, ESIC and labour welfare schemes etc. - HELD THAT:- Issue notice. Mr. Satish Aggarwala, SPP accepts notice on behalf of respondents and submits that he would like to take instruction and file short affidavit/ status report within one day. List on 24th February, 2021.

Interest for delay in payment of G.S.T. - validity of adjudication orders - HELD THAT:- Learned counsel for the State and the CGST Council are required to seek specific instruction s on this issue and make their stand clear by the next date. Let these cases appear on 14th January 2021.

Rectification of mistake - error apparent on the face of record - Rate of tax - Benefit Composition Scheme available or not - Supply of services and goods - appellant engaged in the business of supplying goods under the trade name “Empathic Trading Centre” and is also a supplier of ser-vice of renting of immovable property - rate of composition tax applicable is 1% for the turnover of goods (sales) and 6% for the turnover of service (rent) - challenging the AAR decision alleging a mistake in the Advance Ruling order IN RE: SRI. GHALIB IQBAL SHERIFF M/S. EMPHATIC TRADING CENTRE [2020 (4) TMI 874 - AUTHORITY FOR ADVANCE RULING, KARNATAKA] where authority has ruled in the aforesaid order that the applicant is not eligible to opt to pay tax under Notification No.2/ 2019-Central Tax (Rate) dated 07.03.2019 as they are registered as....... + More

Seeking grant of anticipatory Bail - non-payment of CGST even after collecting from customers - offence u/s 132 CGST Act - non-bailable offences or not - HELD THAT:- The allegations against the accused company is that they had collected the CGST from the clients of the company to the tune of ₹ 24.96 crores and not deposited the same with the government, thus committed offence u/s 132 CGST Act which is non bailable offence. Merely depositing of ₹ 7.7 crores do not in any manner drop the offence in bailable category. As far as the allegations against the present accused is concerned, he is director of company who is also responsible for affairs of company and matter is yet to be investigated from him. The huge economic loss to exchequer is caused and this practice appears writ large in business community. Merely on the basis of ....... + More

Seeking grant of Bail - GST Evasion - supplier's firms of plastic scrap not found in existence - offence under section 132 (1)(c) and 132(1)((i) of the C.G.S.T. Act, 2017 - harsh and unreasonable conditions imposed for granting bail - HELD THAT:- This Court is of the view that conditions for grant of bail ought not to be so strict as to be incapable of compliance, thereby making a grant of bail illusory. The conditions while granting bail should be reasonable, so that it may not frustrate the very object of granting bail. Discretion exercised by the Court while imposing conditions should not be arbitrary, but it should be keeping in mind to strike balance between the accused and prosecution. In the present case, it is admitted facts to the counsel for the parties that as on date out of disputed amount of ₹ 9,51,00,000/-, the app....... + More

Seeking grant of bail - Input tax credit - bogus firms - offence under Sections 132(1)(c) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- This bail application is allowed and it is directed that accused-petitioner shall be released on bail provided he furnishes a personal bond in the sum of ₹ 1,00,000/- together with two sureties in the sum of ₹ 50,000/- each to the satisfaction of the trial Court with the stipulation that he shall appear before that Court and any Court to which the matter be transferred, on all subsequent dates of hearing and as and when called upon to do so. Bail application allowed.

Seeking direction for opening of the GST portal to enable them to file the statutory Form necessary for migrating the eligible input tax credit under the GST regime - HELD THAT:- Although filing with the office of Commissioner/ VATO, Ward-71, Delhi was not in accordance with the procedure under the CGST Act, 2017 and perhaps the abovementioned officer was not competent to receive the TRAN-1 Form, but, notwithstanding the mistake, there is another hurdle that the Petitioner must cross i.e., the delay on the part of the Petitioner in approaching this Court. However, considering the fact that in a batch of petitions, this Court has examined similar issues and the same are pending decision, at this stage we consider it appropriate to issue notice to the Respondents, leaving all contentions open. Issue notice to the other Respondents by all modes, returnable on 5th July, 2021.

Works Contract - Manner of payment of relevant tax for the period for which the work is continued - AVAT Act, 2005 or AGST Act, 2017? - HELD THAT:- Instead of issuing notice, public interest would be better served, if a direction is issued to the Commissioner of Tax, Assam to take a decision on the aspect as to for the work period after the advent of the GST regime, which of the tax regimes would be applicable i.e. whether the AVAT Act, 2005 or the AGST Act, 2017. As the matter involves public interest, it is directed that the Commissioner of Tax to take a final decision on the aforesaid aspect within a period of one month from today.

Seeking direction to allow acceptance of Form GST TRAN-I as it could not be submitted in time on GSTN portal - transitional credit - HELD THAT:- Learned counsel for the GSTN, Mr. Amit Kumar and State, Mr. Piyush Chitresh are allowed 4 weeks' time to file counter affidavit positively. The affidavit of GSTN shall, in particular, give the details of the log of the petitioner upto 27th December, 2017 to show whether petitioner had made an attempt to submit Form GST TRAN-I or not besides answering the plea relating to technical glitches. Petitioner may file reply, if so advised, within one week thereafter. Matter be listed after 5 weeks.

Violation of principles of natural justice - petitioner was not heard in person prior to passing of the impugned order - Section 75(4) of the Central Goods and Service Tax Act, 2017 - HELD THAT:- It is true that neither Section 73 nor Section 74 specifically require an assessing officer to extend the opportunity of personal hearing to an assessee prior to completion of proceeding. However, Section 75 of the Act, a general provision relating to the procedure to be followed in determination of tax at sub section (4) thereof, contemplates that an opportunity of personal hearing shall be granted in all cases where a specific request is received, or where the officer contemplates adverse decision against the assessee. Thus, it is only in cases where the explanation offered by the assessee is accepted that there is no necessity for personal hea....... + More

Appeal against the rejection of application for Rectification of mistake (ROM) by the AAR - Liability of GST - work executed under JDA on land owner's portion where work commenced during pre-GST and continued under GST law - Rate of tax - HELD THAT:- An advance ruling pronounced by the Authority under Section 98(4) may be appealed against to the Appellate Authority within a period of 30 days from the date on which the ruling sought to be appealed against is communicated to the aggrieved person. However, the Appellate Authority may, if it is satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the said period of thirty days, allow it to be presented within a further period not exceeding thirty days. In terms of Section 101, the Appellate Authority may pass such order as it thinks fit, confi....... + More

Classification of goods - renting of e-bikes(Miracle), bicycles(Move) without operator - to be classified under the SAC 9973 - Leasing or rental services without operator or otherwise - Sl.No.17 (viia) of Notification No.11/2017-Central Tax (Rate) dated 28th June 2017 as amended - HELD THAT:- In the instant case, there is no doubt that the first two attributes laid down by the Supreme Court are evident in this transaction in as much as the User Agreement is very clear that the goods available for rent are the e-bikes “Yule Miracle” and bicycles “Yule Move”. However, in order to determine whether the instant transaction involves the “transfer of the right to usegoods” it is imperative that the other three attributes are also evident. We have gone through the User Agreement furnished by the Appellant whic....... + More

Clandestine removal - copper wires - demand based on various statements - retraction of statements - HELD THAT:- We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution. SLP dismissed.

Detention of goods alongwith vehicle - contention of the learned counsel for the petitioner that G.S.T. Tribunal under the Act, 2017 has yet not been constituted - Section 129 (1) (b) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Since the challenge to the impugned orders relates to questions of fact and the Appellate Tribunal is the last fact finding authority, therefore, we leave it open for all the petitioners to challenge the impugned orders before the Appellate Tribunal under Section 112 of the CGST Act/ U.P. GST Act as and when the State Bench and Area Benches of the Appellate Tribunal are constituted in the State of Uttar Pradesh. Release of vehicle - HELD THAT:- A self contained procedure has been provided under the C.G.S.T. Act, 2017 for release of the vehicle on fulfillment of the conditions after seizure of the ....... + More

Cancellation of petitioner's GST registration - scope of SCN - petitioners say that the cancellation order has been made on grounds which did not find place in the show cause notice - HELD THAT:- Considering the charges made in the show cause notice and those in the order of cancellation, it appears that certain fact finding acts have been undertaken by the Proper Officer. The writ Court cannot go into the correctness of fact finding exercise said to have been undertaken by the Proper Officer. Since an alternative remedy in form of appeal under Section 107 of the CGST Act is available to the petitioners, which is more competent to deal with the fact finding issues, I am not inclined to entertain the instant writ petition - The petitioners are permitted to approach the Appellate Authority under Section 107 of the CGST Act within 2nd Ma....... + More

Confiscation of imported goods - Old/Used Analogue Photocopiers and Old/Used Digital Multi functional (Print and Copying) Machines - restricted goods - appellant did not produce the license for import of the said machines - redetermination of value of the goods under Rule 9 of the Customs Valuation [Determination of Price of Imported Goods] Rules, 2007 - appraisal of value of goods - whether the finding rendered by the Tribunal holding that what was imported by the appellant was a restricted item was correct? - whether the reasons assigned by the Tribunal to confirm the order of the adjudicating authority calls for any interference? - HELD THAT:- The appellant had imported 36 units of Old/Used Analogue Photocopiers without obtaining a license. Having accepted the stand taken by the Department, the appellant requested that his case may be ....... + More

Benefits under Merchandise Exports from India Scheme (MEIS) - product of vitrified tiles exported to Sri Lanka - case of petitioner that Public Notice had been amended on 04.05.2016 being the Public Notice No.6 of 2015­-20 and MEIS scheme was extended to the export made to Sri Lanka at the rate of 2% interest - It is averred by the petitioner that the policy permits the eligibility of the goods which had been exported by the petitioner under the MEIS scheme and it is only the procedural lapse which has resulted into his being denied the benefit of the said scheme - HELD THAT:- Having noticed that the case of the petitioner falls under the MEIS which is a scheme meant for promoting the export, these are the rewards under the MEIS payable as percentage mentioned in the scheme itself can be transferred for the payment of number of duties....... + More

Seeking direction to release goods imported - county of origin of the consignment - Section 110A of the Customs Act, 1962 - HELD THAT:- The determination of origin of the consignment is best left to the authorities as it involves examination of documents and relevant material. The respondents are thus directed to commence proceedings for investigation, issue a show cause notice at the earliest, complete adjudication and pass an order-in-original within a period of two months from today. Condition imposed for provisional release - HELD THAT:- The direction to the petitioner for furnishing of PD bond and bank guarantee covering the component of anti-dumping duty is sustained. However, the levy of fine and penalty at this stage is pre-mature and this condition is thus dispensed with. In the course of adjudication, the respondent /authorities....... + More

Seeking provisional release of export consignment - section 110A of the Customs Act, 1962 - HELD THAT:- The adjudicating authority as may be appointed by respondent No.2 shall pass an appropriate order regarding the prayer of the petitioner for provisional release of the export consignment under section 110A of the Customs Act by taking into consideration all the relevant materials including our order dated 10th February, 2021 - Let such order be passed within a period of 10 days from the date of receipt of a copy of this order. List this matter on 12th March, 2021.

Principles of Natural Justice - opportunity of personal hearing sought, but not provided - Request for waiver of Cost Recovery Charges made by the appellant rejected - HELD THAT:- The appellant had specifically sought for an opportunity of personal hearing. It is not the case of the Department that there is no necessity for affording an opportunity of personal hearing. In fact in taxing statutes, when decisions are taken, an opportunity of personal hearing could go a long way to resolve very complicated issues, apart from giving satisfaction to the assessee that all materials, which are available with them, were placed for consideration before the adjudicating authority. One more fact which is to be noted is that the request made by the appellant was kept pending for several years and only after an order was passed in the earlier writ pet....... + More

Revocation of Customs Broker License - forfeiture of security deposit - imposition of penalty - It is the contention of the appellant that Encanterra Traders existed and was not a fictitious firm - HELD THAT:- It is clear from the decision of the Delhi High Court in MILLENNIUM EXPRESS CARGO PVT. LTD VERSUS COMMISSIONER OF CUSTOMS [2017 (6) TMI 1060 - DELHI HIGH COURT] that there is no obligation on the Customs House Agent to look into the information made available by the exporter/exporter. The Customs House Agent is merely a processing agent of documents with respect to clearance of goods through Customs House and he is not an inspector to weigh the genuineness of the transaction. When the Importer/Exporter Code Number was provided and before this code was issued a background check of the said importer/exporter is undertaken by the Custo....... + More

Revocation of Customs Broker License - forfeiture of security deposit - corroborative evidences or not - no fresh evidence was brought by the Revenue before the Inquiry Officer as well as before the Commissioner to prove that the appellant had information, knowledge or have connived in the overvaluation of the goods or misdeclaration etc. - violations of Regulations 10(d), 10(n) and 13(7) of CBLR - principles of natural justice - HELD THAT:- In the present case, the Department has failed to bring any corroborative evidence or statement of anybody on record to prove that the appellant had information, knowledge or have connived in the overvaluation of the goods or mis-declaration etc. It is also noted that the law is well settled that an element of mens-rea or direct or indirect involvement attributable to the appellant through active know....... + More

Refund of countervailing duty (CVD) - import of mobile handsets including cellular phones falling under Customs Tariff Heading (CTH) 8517 - HELD THAT:- The issue raised in this writ petition would require further examination. Issue notice returnable after six weeks - Stand over to 9th April, 2021.

Smuggling - Gold - validity of SCN - As per submission of the petitioner, the allegations made in the Show Cause Notice are vague allegations without any corresponding data - Principles of Natural Justice - HELD THAT:- The respondents are empowered to confiscate the goods and impose penalty by issuing Show Cause Notice after considering the representation as well as on hearing the affected persons. The Show Cause Notice at Ext.P13 contains an allegation that the petitioner had carried gold weighing 94 kgms during the period from 01.07.2019 to 15.10.2019 by train. The international value of the gold is stated to be 1,21,01,80,608/-. The Show Cause Notice names two carriers allegedly engaged by the petitioner. Averment in the Show Cause Notice is to the effect that the petitioner has engaged in the illegal act of bringing gold received from....... + More

Seizure of goods - Mis-classification of imported goods - import and trading of “Food Items” especially “Masalas” of different flavours - it was opined by the Officers of Customs that the goods were mis declared in terms of classification in so far as the same were mis classified under CTH 09109100, instead the same shall fall under Customs Tariff Heading 21039040 attracting IGST at the rate of 12% instead of 5%, thus leading to shortfall of Customs Duty - HELD THAT:- The petitioner has made a details representation dated 25.01.2021 (Annexure P-10) and reminder dated 01.02.2021 (Annexure P-11), but no action has been taken thereon till date. Notice of motion. This petition is disposed of by giving direction to respondent No.3-Additional Commissioner of Customs to look into the representation/ reminder dated 25.01.2....... + More

Seeking provisional release of goods - stand of the petitioner is that they have already been mutilated and that therefore, their import is free - HELD THAT:- When the petitioner is entitled to call upon the customs authority to mutilate the goods and clear them thereafter and when the petitioner has not invoked his right under Section 110 of the Customs Act, 1962, the third respondent could not have passed the impugned order. In this view of the matter, the impugned order is quashed. The respondents are directed to permit the petitioner to have the goods mutilated at the cost of the petitioner, but under the supervision of the third respondent. As agreed by the petitioner, the goods of mutilation will be included in FOB. The entire exercise will be concluded within a period of three weeks from the date of receipt of a copy of this order........ + More

Service of relied on documents - Levy of penalty under Section 114(iii) and 114AA of the Customs Act, 1962 - principles of natural justice - HELD THAT:- In the impugned order, though it is admitted that the reply was received in response to the show cause notice from the petitioner, this contention as regards the non-supply of the relied on documents was not dealt with or controverted - Nothing stopped the adjudicating authority from averring in the impugned order that the contention taken by the noticee/petitioner herein was false. He could have also furnished proof of having served the documents in question on the petitioner. Such an averment or finding is totally absent in the impugned order. The petitioner's counsel also drew my attention to yet another aspect. At page No.85 of the typed set of papers, the Speed Post cover in whic....... + More

Seeking to initiate the proceedings in time bound manner - seeking direction directing respondent no.6 to remove the Import Export Code placed under the Denied Entity List of Directorate General of Foreign Trade - HELD THAT:- This writ-application is disposed off with a direction to the Joint Director General, DGGI, Zonal Unit Ahmedabad, Ahmedabad to immediately look into the representation dated 26th September 2020; Annexure-J; Page-46 to this writ-application and take an appropriate decision in accordance with law with a period of four weeks from the date of the receipt of this order. We also direct the Joint Director General of Foreign Trade, Surat to look into the representation dated 5th November, 2020 at Annexure-Q; Page-68 and take an appropriate decision in accordance with law with a period of four weeks from the date of the receipt of this order.

Request of the petitioner for release of goods was directed provisionally after obtaining the bond for the full value of seized goods and after taking the bank guarantee as a security deposit - HELD THAT:- The petition does not call for further adjudication. It is to be noticed that the ground of levy of differential duty of ₹ 1,18,04,236/- is a matter which the petitioner submits is being pursued by way of challenge before the Appellate Authority, which the petitioner intends to pursue. The respondent is directed to permit the petitioner to lift the goods under seizure and such release is however subject to the final outcome of appeal to be filed - Petition disposed off.

Auction - inaction on the part of the original consignees, who had not come forward firstly to submit bills of entry followed by the non-clearance of the goods for home consumption or warehousing or transhipping within 30 days from the date of unloading the containers at the custom station, as required under Section 48 of the said Act - CBIC Circular No.49/2018-Customs, dated 03.02.2018 - HELD THAT:- The admitted position is that the goods in 113 containers reached at ICD, Sonepat, in the months of May and June, 2020. After the nationwide lockdown because of COVID-19 pandemic, the unlocking of the said lockdown started w.e.f. 08.06.2020. Thereafter, there was ample time for the importers to respond and get cleared the goods. Despite three notices having been sent to each of the importers over a period of time, none of them turned up to cl....... + More

Seeking finalization of provisionally assessed bills of entry, beyond a period of 8-9 years - import of Pressed Distillated - Section 18(1)(b) of the Customs Act 1962 - HELD THAT:- In the case of M/S GPI TEXTILES LIMITED VERSUS UNION OF INDIA AND OTHERS [2018 (9) TMI 25 - PUNJAB & HARYANA HIGH COURT], it was held that The notices in the present cases having been issued more than decade back and the proceedings having not been concluded within reasonable time, the same deserves to be quashed. The impugned notices for framing final assessment of provisional assessment are hereby quashed - petition allowed.

Time limit for issue of Notice - Customs Broker - "Issue of Notice" versus "Service of Notice" - Third Member Bench - Interpretation of Statute - Regulation 20(1) CBLR, 2013 - Whether the word ‘issue’ in Regulation 20(1) CBLR, 2013 should include ‘serve’? - time limit prescribed in Regulation 20(1) CBLR 2013 - mandatory or directory in nature? - whether the expression issue of a notice occurring in regulation 17(1) of the Customs Brokers Licensing Regulations 2018 [2018 Regulations] would mean service of notice? - HELD THAT:- The decision of the Supreme Court in RK UPADHYAYA VERSUS SHANABHAI P. PATEL [1987 (4) TMI 5 - SUPREME COURT] and COLLECTOR OF CENTRAL EXCISE VERSUS MM RUBBER CO. [1991 (9) TMI 71 - SUPREME COURT] and the decision of the Full Bench of the Punjab and Haryana High Court in JAI....... + More

Seeking a direction to the respondents to allow the petitioner to have an advocate in the event of interrogation of the petitioner at a visible but not audible distance - seeking permission for videography of the proceedings pertaining to interrogation of the petitioner - HELD THAT:- On the prayer made by the petitioner, it is stated that customs department has no objection to permit presence of advocate at visible but not audible distance and to allow videography of the proceeding at the cost of the petitioner - In view of the statement made by the Principal Commissioner of Customs, the apprehension and grievance expressed by the petitioner has been redressed. It is directed that in the event of petitioner being subjected to interrogation by the respondents, he shall be allowed to have an advocate at a visible but not audible distance and the process of interrogation shall be videographed at the cost of the petitioner - petition disposed off.

Applicability of time limitation on demand of Customs Duty - invocation of extended period of limitation when there is no suppression of facts - Jurisdiction to levy of penalty u/s 112 of CA - invocation of section 112 for the first time - HELD THAT:- The demand of duty for violating the post importation condition of an exemption notification is not confined to any period of limitation and hence there is no relevancy in the argument of the Appellants that they did not suppress any material facts. Just because the Tribunal has wrongly interpreted the order passed in the BOMBAY HOSPITAL TRUST VERSUS COMMISSIONER OF CUSTOMS, SAHAR, MUMBAI [2005 (10) TMI 112 - CESTAT, MUMBAI] Case or the Revenue was indifferent to such wrong interpretation and the resultant effect, this Court can not make an unnecessary exercise by analyzing the fact whether ....... + More

Condonation of delay in filing this Anti-Dumping Appeal - no reliefs have been claimed for setting aside the Customs Notification dated September 12, 2017 issued by the Central Government or the final findings dated August 1, 2017 issued by the Designated Authority - section 9C of Customs Tariff Act - HELD THAT:- The appellant, for no justifiable reason, did not challenge the Customs Notification dated September 12, 2017 within the time stipulated in section 9C of the Tariff Act nor did the appellant take immediate steps for implementation for the first corrigendum issued by the Designated Authority on December 19, 2017. This does not reflect the normal behaviour of a person having all the resources to take recourse to legal proceedings. In fact, Euro Chem group, which is the parent group of the appellant, in beginning of 2018 had threate....... + More

Seeking approval for reduction of share capital - Section 66 of the Companies Act 2013 - HELD THAT:- The investments by shareholder in the equity share capital of the company are non- repatriable basis, hence the provisions of FEMA and the regulations made there under are not applicable to the company. The proposed reduction would not involve either diminution of any liability in respect to unpaid share capital or the payment to any shareholder, accordingly the provisions of Section 66(1)(a) of the Act will not be applicable. Further the net worth of the company shall remain positive and therefore not in any way have any adverse effect on the company’s ability to honor its commitments and obligations. Notice has been served to income tax department. However, no objection has been raised by the Income tax department - In response to ....... + More

Oppression and Mismanagement - scope of arbitration clause under the MoU - seeking to direct independent forensic audit into the affairs of the Company from the F.Y, 2011-2012 till the F.Y. 2018-2019 by an appointing an independent auditor - Section 241 read with Section 242 of the Companies Act, 2013 or Sections 397 and 398 read with of the Companies Act, 1956 - HELD THAT:- In order to succeed in getting a reference of the dispute arose under Section 241-242, 244 read with Section 337, 341 of the Companies Act, 2013, the applicant would not only be liable to show that the entire gamut of the dispute falls within the purview of Arbitration Agreement but also the fact that the Company Petition is a sham and mischievous one which has been decked deliberately so as to gainfully sustain the plea of non-arbitrability of such dispute. There wou....... + More

PIL - Seeking for a direction against respondents No. 1 to 10 therein to forthwith constitute a Multi- Disciplinary Investigation Team to investigate and prosecute respondent No.11 therein (Mr. A.H. Premji and his Associates) based on the representations dated January 30, 2020 and February 3, 2020 submitted by the petitioner - HELD THAT:- In the PIL filed before the Delhi High Court, petitioner has prayed for a direction against the Ministry of Finance, Ministry of Corporate Affairs and Reserve Bank of India to decide within four weeks that nature of actions required in law to be taken by them in respect of complaints dated November 1, 2016, March 14, 2017 and April 28, 2017. In paragraph No.14 of the said writ petition, petitioner has averred that the very same three Companies namely, Vidya Investment and Trading Company Pvt. Ltd., Regal....... + More

Initiation of Contempt Proceedings - violation of the interim orders - oppression and mismanagement - removal of director - whether the Respondents are guilty of civil contempt - Section 2(b) of the Contempt of Courts Act, 1971 - HELD THAT:- In the case of NIAZ MOHAMMAD AND ORS. VERSUS STATE OF HARYANA AND ORS. [1994 (9) TMI 364 - SUPREME COURT], the Hon’ble Apex Court held that while the contemnors had not obeyed the judgment and released the salary, but this disobedience was not wilful so as to amount to a civil contempt and the Court drew a distinction between a Court executing an order and punishing for contempt Thus, in order to hold a person guilty of civil contempt, it has to be established by the person alleging contempt that the alleged contemnor was guilty of a wilful breach or a wilful disobedience of an order or a direct....... + More

Oppression and Mismanagement - regulation of conduct of the company’s affairs by directing Union of India to appoint two nominees of its choice as Members in the General Committee to monitor the affairs of the Club along with other General Committee Members and give suggestions to the General Committee - Section 242(4) of Companies Act, 2013 - HELD THAT:- It is indisputable that an order granting interim relief in terms of provision of Section 242(4) of the Act, 2013 is appealable. The scope of such appeal, however, is limited as there are no findings of fact recorded by the Tribunal in a regular trial in the Company Petition. This Appellate Tribunal, while sitting in appeal against grant of interim relief would be within its province to ascertain whether the Tribunal was right in recording the prima facie satisfaction on the basis ....... + More

Approval of scheme of amalgamation - Section 230 read with Section 232 of the Companies Act, 2013 - HELD THAT:- As required under Rule 16 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 paper publication has been made in the Times of India (English) and Deepika Daily (Malayalam) on 28.02.2020 and that no objection received from any one against the Scheme of Amalgamation of the Petitioner Companies. On due appreciation of the facts and circumstances involved in this case and considering, the report of the ROC that the Regional Director, Ministry of Corporate Affairs has not objected to the proposed Amalgamation between the Petitioner Companies, this Bench is of the opinion that the Scheme placed before this Bench on 18.02.2020, can be sanctioned. Hence, this Tribunal Sanction the Scheme of Amalgamation of M/s. Com....... + More

De-activation of the Director Identification Number - Section 164(2) of the Companies Act, 2013 - HELD THAT:- Similar issue decided in the judgment of the Gujarat High Court in [2019 (1) TMI 27 - GUJARAT HIGH COURT] where it was held that The writ petition for challenge to the de-activation of the Director Identification Number are allowed. It was de-activated on account of dis-qualification in one company effecting Director Identification Number for the other companies. The opposite parties are directed to activate the Director Identification Number for use for other company. The opposite parties would however be at liberty to take legal action against the petitioner for any statutory default or non-compliance of the provisions of the Act of 2013.

Recovery action by secured creditors and financial institutions, who extended financial help to the original borrowers / guarantors - action under section 29 of the State Financial Corporation Act, 1951 - HELD THAT:- A part of the sale consideration was converted into loan and the said purchaser - M/s. Shree Industries Ltd. also defaulted and the said purchaser / borrower approached the BIFR / AAIFR under the provisions of the Sick Industrial Companies (Special Provisions) Repeal Act, 1985, as it then existed and while the proceedings were pending before the BIFR / AAIFR, a new law in the form of the Insolvency and Bankruptcy Code, 2016 came to be enacted by the Parliament and the proceedings regarding insolvency Resolution / Recovery from the defaulting corporate debtor on its winding-up were to be taken up by the National Company Law Tr....... + More

Approval of Scheme of Demerger - Section 230 read with Section 232 of the Companies Act, 2013 - HELD THAT:- As required under Rule 16 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 paper publication has been affected in two Newspapers, i.e., the Times of India (English) and Deepika (Malayalam) on 28.02.2020 and no objection has been received from any corner against the Scheme of Demerger of the Petitioner Company - this Bench is of the view that the Scheme of Demerger placed before this Bench on 18.02.2020, can be sanctioned. Hence, this Tribunal Sanction the Scheme of De-merger between M/s. Commodity Online (India) Limited (Demerged Company) with M/s. Celebrus Commodities Limited, 27/540, III Floor, EAK Towers, Main Avenue, Panampilly Nagar, Kochi- 682 036 (the Resultant Company/ Transferee Company) and the App....... + More

Jurisdiction - Whether civil courts have jurisdiction to decide over the affairs of a company arise out of memo and articles of association of a company in terms of various provisions of Companies Act, 2013? - oppression and mismanagement - waiver of requisite condition - sections 241 and 242 of the Companies Act, 2013. Jurisdiction of civil court vis-a-vis this Tribunal - HELD THAT:- There cannot be any doubt that the issues raised in the suit mentioned supra, and in the instant main company petition, fell under the jurisdiction of this Tribunal, as those issues are admittedly affairs of the company - Therefore, undoubtedly, the Tribunal is empowered to deal with the issue raised in the main company petition, as same is filed under sections 241 and 242 of the Companies Act, 2013 by alleging various acts of oppression and mismanagement. M....... + More

Approval of scheme of amalgamation - Section 230-233 of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - various directions regarding issuance of notices with regard to the meeting also issued. Application allowed.

Violation of principles of natural justice - main grievance of the ‘Appellant’ is that the ‘Devas’ Company was grossly deprived of ‘Principles of Natural Justice’ and in fact, more than 2400 pages were filed on the side of the First Respondent/Petitioner before the ‘Tribunal’ in petition on the earlier date and on the next date, the Petition was numbered and listed before the ‘Tribunal’ - HELD THAT:- As per Section 273(1c) of the Companies Act, the ‘Tribunal’ has the requisite powers to pass interim orders, even against a stranger to the proceedings, with a view to preserve the property of the company Furthermore, the ‘Tribunal’ has necessary powers to appoint ‘Provisional Liquidator’ which will also necessarily affects the ‘rights’....... + More

Seeking an order of injunction directing the Respondents to restore the board of the Directors of SIIL to its composition as it stood as on 7 November 2019 and more particularly in respect of Applicant No. 1 as a Director on the Board of Directors of SIIL - temporary order of injunction restraining the respondents from any further alteration to the composition of the Board of Directors of SIIL - seeking an order of injunction directing SIIL to send to Applicant No. 1, all notices and communications with respect to affairs of SIIL and its board of directors including but not limited to notices and agenda for all Board Meetings of SIIL - seeking an order of injunction directing the respondents to restore the board of directors of EEL to its composition as it stood as on 30 July 2020 and more particularly in respect of Applicant No. 3 being ....... + More

Seeking approval of the proposal for settlement of the claims of Fagne Sonagarh Expressway Limited (FSEL) against the National Highways Authority of India (NHAI) and permit Fagne Sonagarh Expressway Limited and National Highways Authority Limited to execute a Settlement Agreement to record the proposal for termination and settlement of claims by Fagne Sonagarh Expressway Limited against National Highways Authority of India - HELD THAT:- The Applicant in CA No. 1166 of 2020 was a subcontractor of the FSEL. The FSEL or its holding company ITNL owes certain amount to the Applicant for the civil works it had executed in the Project which has been classified as financial dues in the proposed Settlement Agreement. Therefore, the Applicant deserves to be admitted as intervenor in CA No. 1156 of 2020. Since the claim of the Applicant is admitted ....... + More

Seeking sanction of Scheme of Amalgamation - Section 230-232 of Companies Act - HELD THAT:- On going through the report of the Registrar of Companies, it is seen that both companies have violated the provisions of the Companies Act and the petitioners could not successfully controvert the objections raised by the Regional Director. They have not followed most of the provisions of the Companies Act, which are mandatory for continuance of a company honestly. They must be humble and serious enough to abide the law and any proposition of business must be planned in such a manner that no law, logic and rights of any person are violated. Hence this Tribunal is of the opinion that this is not a fit case to sanction the Scheme of Amalgamation. Application dismissed.

Mismanagement and oppression - submissions of the Petitioners are that there is mismanagement and huge discrepancies in the Financial Statements submitted by the Respondent No.1 Company with the Registrar of Companies - whether the acts of Respondents as alleged by the Petitioners would indeed constitute an act of oppression against the minority shareholders or mismanagement or misappropriation of the company will affect the public interest at large, which calls for the intervention of this Tribunal? - HELD THAT:- It is profitable to refer the decision rendered by the Hon’ble Supreme Court in NEEDLE INDUSTRIES (INDIA) LTD. VERSUS NEEDLE INDUSTRIES NEWEY (INDIA) HOLDING LTD. [1981 (5) TMI 89 - SUPREME COURT], wherein the court laid down the yardstick as to when an act of the majority can be considered as oppressive under the provisio....... + More

Seeking order for execution of Consent Term No. 12 of the Consent Terms of the recorded order dated 14.11.2014 by the Company Law Board, New Delhi while dealing with the matter which was deputed from the Company Law board, Chennai - seeking directions to Respondent Nos. 1, 3 & 4 (R3 Group) to move an application in OS No. 3329 of 2011 pending before the Hon'ble Delhi High Court to the effect that R2 Group & R3 Group along with their companies can use/advertise in Google and Just Dial - HELD THAT:- This Tribunal has noted that there are two separate vakalat filed by two different counsels for representing R2 herein before this Tribunal and this Tribunal has heard both the parties at length. That one vakalat dated 17.01.2020 is filed by Mr. T. Sujan Kumar and the other vakalat dated 11.02.2020 is filed by Mr. Saurabha Kalia. Bot....... + More

De-activation of the Director Identification Number - Section 164(2) of the Companies Act, 2013 - HELD THAT:- Similar controversy was raised in other High Courts and after considering the issue at length, the Gujarat High Court decided batch of petitions led by Special Civil Application No. 22435 of 2017 by its order dated 18.12.2018 [2019 (1) TMI 27 - GUJARAT HIGH COURT] where it was held that The writ petition for challenge to the de-activation of the Director Identification Number are allowed. It was de-activated on account of dis-qualification in one company effecting Director Identification Number for the other companies. The opposite parties are directed to activate the Director Identification Number for use for other company.

Approval of scheme of Amalgamation - section 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - various directions regarding issuance of notice for the meetings also issued. Application disposed off.

Seeking a direction to the Respondents to maintain 'STATUS QUO' with regard to the constitution of the 3rd Respondent Company, its Directions and Bankers, in the interest of justice and equity - Rule 11 of NCLT Rules, 2016 - HELD THAT:- The Tribunal, after considering the issue has already passed exparte Interim Orders on 26.06.2020 in I.A. Nos. 197 & 200/2020 by directing the Respondents to issue prior notice, if any proposal is there to remove the Applicant/Petitioner, as Directress, and to follow the extant provisions of the Companies Act, 2013 etc. However, none appears for the Respondents so far. Since the Applicant/Petitioner is stated to be holding 38% of the shares of the Company apart from position of Directorship, she is entitled to participate in the affairs of the Company and she is also entitled to receive perks o....... + More

Stay on various action such as sale of mortgaged property till completion of Liquidation proceedings - Scope of Liquidation estate - Appellant is aggrieved by the order of Adjudicating Authority as they have directed the Appellant Bank not to take any coercive steps such as sale of the properties mortgaged to the bank by the Respondent Companies till the completion of the Liquidation proceedings of the corporate debtor - HELD THAT:- The assets of the subsidiaries are outside the purview of liquidation estate and as such cannot form part of the liquidation estate as per section 36 (4) of IBC - The Adjudicating Authority and Appellate Authority being the creation of statute will have to ensure generally all the statutory compliances, unless it goes against the principle of natural justice and the intention of the legislature. Since, these e....... + More

Maintainability of the Application in the name of proprietorship firm - Jurisdiction - power of proprietorship firm to file a claim - legal entity or not - HELD THAT:- Although the Adjudicating Authority in para - 15 referred to part of dispute raised by the Respondent, the Adjudicating Authority has not dealt with or decided the same. As such, in the Appeal, we are not going into the merits of the Application under Section 9 of IBC. Maintainability of the Application in the name of proprietorship firm - HELD THAT:- Section 2(f) of IBC in Judgement in the matter of NEETA SAHA VERSUS RAM NIWAS GUPTA AND ORS. [2020 (2) TMI 1442 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where the Section provides that the provisions of this Code shall apply to partnership firms and proprietorship firm. - However, without entering into legal issue....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Debtor - Operational Creditor - designing of advertisement and allied services provided - existence of dispute regarding the operational debt between the corporate debtor and operational creditor prior to the filing of application by the Operational Creditor under Section 8 of the IBC. Whether Katalist View paper Pvt. Ltd. is the Corporate Debtor and Inspired Traveller (proprietor Saurav Keshan) the Operational Creditor with regard to the designing of advertisement and allied services provided? - HELD THAT:- There is certainly no dispute regarding the quality of work and service given or any other aspect of the services provided by the Operational Creditor to the Corporate Debtor. This is also supported by the fact that ....... + More

Contempt Jurisdiction - Approval of Resolution Plan - whether recourse to the contempt jurisdiction is valid and whether it should be exercised in the facts of this case? - HELD THAT:- Undoubtedly, the conduct of DVI has not been bona fide. The extension of time in the course of the judicial process before this Court enures to the benefit of DVI as a resolution applicant whose proposal was considered under the auspices of the directions of the Court. DVI attempted to resile from its obligations and a reading of its application which led to the passing of the order of this Court dated 18 June 2020 will leave no doubt about the fact that DVI was not just seeking an extension of time but a re-negotiation of its resolution plan after its approval by the CoC. Then again, despite the order of this Court dated 18 June 2020 rejecting the attempt ....... + More

Validity of decision of the first respondent/RP in rejecting the Expression of Interest (EOI) submitted by the applicant for submission of resolution plan in respect of the corporate debtor - Section 60(5) of the I&B Code, 2016 - undischarged insolvent and an undischarged insolvent - relevant date for excess investment in the plant and machinery of the corporate debtor - HELD THAT:- Section 240A exempted the promoters of the MSME to be the resolution applicants of the same corporate debtor for which the resolution plans are sought to be invited. Section 240A has not exempted the corporate debtor itself, even though it happens to be an MSME, to be a resolution applicant to itself. In the present case, M/s Bhandari Deepak Industries Private Limited which is the corporate debtor itself submitted EOI for submitting resolution plan to itse....... + More

Seeking extension of CIRP period by 90 days beyond 180 days after excluding the lockdown period - Section 12(2) of the Insolvency and Bankruptcy Code, 2016 read with Regulation 40 of the IBBI Regulations 2016 - HELD THAT:- The Hon'ble Supreme Court of India in Suo Motu Writ Petition IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] has held that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. Thereafter, the Insolvency and Bankruptcy Board of India, inserted Regulation 40C to the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016....... + More

Professional Misconduct - Validity of accepting the assignment as the Interim Resolution Professional (IRP) in the Corporate Insolvency Resolution Process (CIRP) without holding a valid Authorisation for Assignment (AFA) from his IPA - contraventions of sections 208(2)(a) & (e) of the Insolvency and Bankruptcy Code, 2016 (Code), regulations 7(2)(a) & (h) and 7A of the IBBI (Insolvency Professionals) Regulations, 2016 (IP Regulations) read with clauses 1, 2, 11, 12 and 14 of the Code of Conduct contained in the First Schedule - HELD THAT:- It is clear from the Regulation that one of the essential condition for undertaking any assignment by an IP is that he should have a valid AFA which is issued by the IPA with which he is enrolled. In other words, without AFA, an IP is not eligible to undertake any assignments or conduct various p....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - payment / recovery of their dues such as remuneration / wages, other perquisites including terminal benefits, if any - existence of debt and dispute or not - HELD THAT:- Regulation 9 of the CIRP Regulations lays down the procedure for the workmen and employees to submit their claims before the IRP. IRP / RP is then to verify and determine the amount of the claim. The workers and employees thus are operational creditors. They are not members of the CoC of the Corporate Debtor. Regulation 22 of the IP Regulations mandates that an Insolvency Professional must ensure that the confidentiality of the information relating to insolvency resolution process, liquidation or bankruptcy process is maintained at all times. The exception to this....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditor - availability of alternative remedy - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority should have, in absence of any dispute contemplated under Section 8(2) having been raised by the Respondent - Corporate Debtor as a pre-existing dispute or that the claim of Appellant - Operational Creditor had been satisfied, proceeded to admit the Application, as no dispute had been raised before it, justifying its disinclination to admit the Application. Instead, the Adjudicating Authority proceeded to make out a case for the Respondent-Corporate Debtor on the premise that the Appellant-Operational Creditor has not invoked other remedies available under law. We cannot understand as to how the....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- The demand notice dated 06.12.2018 was sent at the address mentioned in the master data of the corporate debtor as well as at the email address. The postal receipt along with tracking report and email sent to the corporate debtor are at Annexures-8 and 9 respectively. A compliance affidavit filed vide Diary No.862 dated 20.02.2019 showing the postal envelope vide which the demand notice was sent to the corporate debtor and same was returned with remarks “left” is at Annexure A-1. Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- The respondent-corporate debtor has neither filed any reply ....... + More

Seeking for withdrawal of the Company Petition - whether the IRP is duty bound to file the Form-FA before the Adjudicating Authority within 3 days of receiving the settlement agreement? - whether the adjudicated authority can allow the withdrawal of CIRP in view of pending claims of other creditors and whether IRP has followed the letter and spirit of law as enunciated under Section 12A of the Code read with Regulation 30A (3) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. HELD THAT:- It is an undisputed fact that the Corporate Debtor settled the dues of the original Operational Creditor soon after initiation of admission of CIRP on 23.10.219 against Corporate Debtor. The IRP upon receipt of Form FA immediately within 3 days filed an application to withdraw the CIRP....... + More

Liquidation of Corporate Debtor - seeking to direct the Liquidator to arrange with prior notice to the Applicant for a sitting for a minimum period of a week to enable the Workmen to prefer their claim afresh by enlarging the period for preferring their claim for a further period of three months or till the disposal of the assets, whichever is earlier - seeking to direct the Liquidator to include the nominee of the applicant in the Stakeholders Consultation Committee Viz. Rajesh. R as workmen representative in place of the present incumbent Shri Venugopal, who is actually a management representative, within a time to be fixed by the Hon'ble Tribunal - seeking to direct the Liquidator to decide and admit the amount due to each Workmen in the same format as Annexure- W-5, irrespective of whether they have preferred a claim, based on the....... + More

Seeking interim order of attachment - seeking order of injunction against the defendant - HELD THAT:- In the facts of the present case, the plaintiff has claimed a decree for a sum in excess of ₹ 81 crores on the basis of an agreement under which, the defendant was to construct and deliver flats to the plaintiff. The ultimate agreement between the parties, had obliged the defendant to construct and make over unit Nos. 12W, 13W and 14W located on the 12th, 13th and 14th floor on the proposed building “Wellside Camac” to be constructed by the defendant upon the plaintiff paying the agreed consideration in respect thereof. Admittedly, the plaintiff had paid a sum of ₹ 14,06,70,000/- to the defendant. Apparently, the parties had fallen out of the contract. The parties have claimed differently with regard to the termina....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - clear-cut stand of the ‘Appellant’ is that the ‘Adjudicating Authority’ (National Company Law Tribunal) had failed to take into consideration that the amount paid by the ‘Applicants’ to the ‘Respondent’ was clearly of ‘Financial Debt’ - HELD THAT:- It is to be pointed out that Section 3(11) of the Code defines ‘Debt’ meaning, a liability or obligation in respect of ‘claim’ which is due from any person and includes a ‘financial debt’ and ‘operational debt’. Section 3(12) of the Code defines ‘default meaning, non-payment of debt when whole of any part or instalment of the amount of ....... + More

Maintainability of petition - service of notice to Corporate Debtor - Rule 49(2) of NCLT Rules, 2016 - HELD THAT:- It appears that the petition was admitted by this Adjudicating Authority after taking the proper measure to serve the notice of hearing to the Corporate Debtor. Moreover, multiple times notice has been sent to the Corporate Debtor but, the corporate Debtor refused to accept the notice which was itself sufficient to admit the matter in CIRP. Even after, evading the service of notice by the corporate debtor, this Authority has advised the operational creditor for paper publication which has already been made. As per Rule 49(2) of NCLT Rules, 2016, it is clear that averment made by the respondent for non-receipt of notice is not sustained as Corporate Debtor refused to accept the notice, Moreover, Paper publication has also been....... + More

Validity of CIRP order - ex-parte order - Section 60(5) of the Insolvency & Bankruptcy Code, 2016 r.w. Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The Applicant could not produce any material on record to justify its claim for setting aside the Exparte order. Further, it is evident from the conduct of the Applicant that since beginning they remained absent and did not participating at all whish shows that the Applicant was never vigilent. Further, the applicant filed this application on 04.12.2020 after one month of passing of order by the Hon'ble NCLAT on 02.11.2020. The Corporate Insolvency Resolution Process (CIRP) has already been set in motion. During the course of hearing the Learned Counsel for the Applicant argued that the matter should be disposed of after giving an adequate opportunity. We are ....... + More

Withdrawal from CIRP on the ground that the Applicant is in the process of re-structuring the debt of the Corporate Debtor - Seeking indulgence and challenging the action of IRP, of not filing the application of withdrawal of CIRP of the Corporate Debtor - section 60(5) and section 12A of Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The Bench observed that the Interim Resolution Professional has acted fair and has taken actions as per requirements of the Code judiciously. It is a settled law by the Hon'ble Supreme Court through various judicial pronouncements that Corporate Insolvency Resolution Proceedings (CIRP) are proceedings in rem. On the issue as to which event is crucial for withdrawal of CIRP, as per the law laid down by Hon'ble K.C. Sanjeev v. Easwara Pillai Kesavan Nair [2020 (8) TMI 542 - NATIONAL COMPANY LAW A....... + More

Violation of principles of natural justice - instead of submitting the data called for by the Resolution Professional, the Applicant filed this Application making various allegations against the Resolution Professional in particular and the CIRP in general - whether the claim put forward by the applicant before the R.P can be entertained by the R.P in view of the facts and reasons stated in the application and the counter filed by the Respondent? - HELD THAT:- On verification of records, it is seen that the applicant claimed that his salary was raised from ₹ 1,05,000/- per month to ₹ 12,05,000/- per month with effect from 01st April, 2016. However, from the records produced by the applicant, it is not clear as to revision of salary and that the ledger do not say that how much amount every month credited to his salary account b....... + More

CIRP - Relating parties - right of representation, participation and voting at the meetings of the Committee of Creditors of the Corporate Debtor - whether the “related party” status of the Respondent No.2 has to be seen on the commencement date of insolvency process or from the date of initiating CIRP? - Sec.5(24) and 5(24A) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is also pertinent to consider that as per Section 5 (12) the CIRP commencement date is to be taken from the date of admission of the application. It is true that Respondent No.2 had resigned from the position as a Director of the Corporate Debtor on 15.11.2019, that is after initiation of an application for CIRP. However, at that moment it cannot be said that the application will be admitted or rejected. So, this argument regarding eligibility a....... + More

Liquidation Order - section 33 (2) of the Insolvency and Bankruptcy Code, 2016 - Prescribed period for filing application - Appointment of Liquidator - Liquidation Cost (Regulation 39B of CIRP Regulations, 2016) - Assessment of Sale as a going concern (Regulation 39C of CIRP Regulations, 2016) - Fees of the Liquidator (Regulation 39D of CIRP Regulations, 2016) Prescribed period for filing application - HELD THAT:- In the present case, the application under section 9 of the Insolvency and Bankruptcy Code, 2016 was admitted on 22-1-2020 and the present application is filed by the Resolution Professional on 19-8-2020. The period of 180 days were completing on 19-7-2020 but as per Notification No. IBBI/2020-21/GN/REG059 dated 20-4-2020, the period of Lockdown is excluded for the purpose of calculating the timelines in CIR Process. Hence, afte....... + 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

Provisional attachment of the properties - while the implementation of the resolution plan was in process, the impugned order has been passed by the Directorate of Enforcement attaching the properties of Respondent No.4, including three properties already mortgaged to the Bank. It is the case of the Petitioner that this has had a negative impact on the CIRP and realization of the debt of the Petitioner from the Respondent No.4 - HELD THAT:- The ED’s order of provisional attachment of the properties of Respondent No. 4 has been passed after the approval of the resolution plan by the NCLT, the said provisional attachment would prima facie be contrary to Section 32A of the IBC. The recent judgment of the Supreme Court in MANISH KUMAR VERSUS UNION OF INDIA AND ANOTHER [2021 (1) TMI 802 - SUPREME COURT] has extensively dealt with this is....... + More

Freezing of Bank Accounts - appellant while assailing the order passed by the High Court, inter alia contended that the freezing of the bank accounts maintained by the appellant company has prejudiced the appellant, inasmuch as, the amount in the account which belongs to the appellant is made unavailable to them due to which statutory payments to be made to the Competent Authorities under various enactments is withheld and the payment of salary which is due to the employees is also prevented - HELD THAT:- If the salutary principle is kept in perspective, in the instant case, though the Authorised Officer is vested with sufficient power; such power is circumscribed by a procedure laid down under the statute. As such the power is to be exercised in that manner alone, failing which it would fall foul of the requirement of complying due proce....... + More

Grant of Anticipatory Bail - Smuggling - Money Laundering - siphoning of funds - predicate offence - proceeds of crime - argument of the learned Senior Counsel that the predicate offence has not been identified and that the prosecution initially started with the proceeds of crime as that from the act of smuggling has later gone to 'kickbacks' in LIFE Mission project - HELD THAT:- This Court had the opportunity to consider the application for anticipatory bail filed by the applicant and it was held that the materials suggested the complicity of the applicant and that the prosecution has to get opportunity to delve further into the allegations in the light of the statements recorded. The applicant was confronted with the statements of the co-accused in this case pertaining to his involvement and he has not been able to give a satisf....... + More

Acquisition of foreign exchange - not bringing into India the goods of the value, quantity and quality for which foreign exchange was acquired by the parties through the appellant bank by seeking remittance on the basis of import documents which are allegedly later found to be not genuine - contravention of Section 8(1) of Foreign Exchange Regulation Act, (FERA) 1973 and Section 8(2) and 8(4) of FERA, 1973 - delay of more than two years in passing the impugned order - HELD THAT:- Without going into the merit of the case and without opining on merit, on the short question of delay in delivering the order, the appeal filed by M/s. South Indian Bank Ltd. is allowed - The impugned order dated 09.03.2009 passed on Show Cause Notice bearing no. T-4/1-B/SDE/AKB/2002-SCN-I dated 04.01.2002 read with corrigendum dated 13.02.2002, limited to the pr....... + More

Provisional attachment of immovable properties - Validity of summons issued under PMLA - Jurisdiction of Director/Deputy Director to attach the immovable properties which were acquired prior to coming into force of the PML Act - properties in possession of the petitioner, proceeds of the predicate crime or not - HELD THAT:- The petitioner does not dispute the authority of the Deputy Director to pass the impugned provisional order of attachment. The constitutional validity of section 5 of PML Act is also not under challenge. The said order as well as the records indicate that a report has been forwarded to the Magistrate under section 173 of Cr.P.C. in relation to the scheduled offences i.e., under section 13(1)(e) read with 13(2) of the PC Act on 28.02.2013. The order reflects the application of mind and also the elaborate reasons to arri....... + More

Seeking extension of the period of interim bail granted - Sections 3/4 of Prevention of Money Laundering Act, 2002 - HELD THAT:- As it is evident that the order dated 09.12.2020 passed in Bail Application No.5974 of 2020 of applicant is not appended with the present application and it is well settled as per the doctrine of merger that the interim order is automatically merged in the final order, and in the present case, the order of interim bail dated 14.10.2020 passed in Bail Application No.5974 of 2020 is merged in the final order dated 09.12.2020 passed in Bail Application No.5974 of 2020, therefore, it is open to the applicant either to move his second bail application under Section 439 Cr.P.C. or challenge the rejection order dated 09.12.2020, but in place of doing so, the present application under Section 482 Cr.P.C. has been moved ....... + More

Money Laundering - seeking a copy of order dated 1st January, 2021 passed under Section 8(3) of the Prevention of Money Laundering Act, 2002 be supplied to the Petitioner - further seeking that the period of at least 45 days in order to enable the Petitioner to approach the Appellate Tribunal under Section 26 of the PMLA, should not be affected. HELD THAT:- Considering the facts and circumstances of the present case, 20 days’ time is granted to the Petitioner to avail of its appellate remedies and physical possession of the immovable property shall not be taken for a period of 20 days from today. The question of law raised is left open. Further, in order to avoid such a dispute in future and to ensure fairness and non-arbitrariness, the Registrar of the Adjudicating Authority under the PMLA shall ensure that in future, all orders pa....... + More

Money Laundering - proceeds of crime - assets disproportionate to known source of income - existence of predicate offence or not - scheduled offence or not - direct allegations are leveled against the accused attracting the ingredients of the offence under section 3 of the PML Act - HELD THAT:- From the plain reading of section 3 read with section 2(1)(u) of the PML Act, it is clear that what is made punishable under section 3 is the activity connected with the proceeds of crime either by getting oneself involved in the process or activity connected thereto or directly or indirectly attempting to indulge or knowingly assist or knowingly be a party to the alleged activities and projecting it as untainted property. The prosecution under section 3 of the PML Act cannot be equated with the prosecution under section 13 of the PC Act. Both are ....... + More

Money Laundering - provisional attachment order - proceeds of crime - existence of predicate offence or not - petitioner as well as the original accused filed their objections to the provisional attachment interalia contending that the properties acquired by the petitioner and her husband were not the "proceeds of crime" - It is the submission of learned counsel for the petitioner that prior to amendment of section 5 of PML Act, the provision postulated a charge for the schedule offence. But this requirement was done away with after the amendment Act 2 of 2013 w.e.f. 15.02.2013 - HELD THAT:- The prosecution under section 3 of the PML Act cannot be equated with the prosecution under section 13 of the PC Act or other offences specified in the Schedule namely IPC or other laws. They are distinct and separate offences. Prosecution u....... + More

Levy of penalty - allegation is that the Petitioner has been held to be a “reporting entity” and a “payment system operator”, under Section 2(1)(wa) and Section 2(1)(rc) of the Prevention of Money Laundering Act, 2002 - case of the Petitioner is that it merely facilitates transactions and does not actually enter into any transactions with either of the parties conducting the same - HELD THAT:- This court is of the opinion that the question as to whether a business like the Petitioner’s, which is of recent origin in India. ought to fall within the ambit of a `payment system’ and whether the Petitioner would be a `payment system operator’ and a `reporting entity’, requires consideration. A perusal of the RBI’s affidavit filed in another writ petition, shows that the stand of the RBI is t....... + More

Petition filed challenging the summon issued - anticipation of threat and coercion during appearance - seeking direction to respondents to abstain from harassing, threatening or coercing the petitioners during questioning - seeking permission of presence of a legal practitioner - seeking to to limit the questioning time between 9.30 a.m and 4.30 p.m - seeking direction to respondents to provide copies of the statements taken from them. HELD THAT:- The question regarding maintainability of writ petition against a summons under Section 50 and the entitlement to have the presence of a legal practitioner during questioning was considered and negated by this Court in C.M. RAVEENDRAN VERSUS UNION OF INDIA ASST. DIRECTOR, ENFORCEMENT DIRECTORATE [2020 (12) TMI 703 - KERALA HIGH COURT]. Therein, reliance was placed on the judgments of the Apex Co....... + More

Maintainability of appeal - competency of Assistant Director to file the appeal - scope of Deputy Director - section 2(1)(c),2(1)(j) & 2(1)(k) of PMLA Act - It is submitted by respondent that no other person or authorities other than authorized authority under the Act can prefer an appeal and that reference has made to the title of the appeal and the affidavit thereto - HELD THAT:- Section 2(1)(c) has defined the word ‘the Assistant Director’ whereas section 2(1)(j) defined the word ‘Deputy Director’ and section 2(1)(k) has defined the words ‘Director, Additional Director and Joint Director. They are being defined as the authorities appointed under sub-section 1 of 49 of the said Act. Section 48 of the said Act specified the classes of authorities for the purpose of the PMLA, 2002(the said Act.). The Dire....... + More

Money laundering - seeking release of provisionally attached mortgaged properties (flats) - proceeds of crime - assignment of debts due and payable by borrowers including the loan in favour of the appellant - case of appellant is that the mortgaged properties were purchased by the borrowers when no such alleged scheduled offence were in the picture and that the title deeds have duly been registered and stamped which makes it further clear that the properties were not acquired from the proceed of crime - HELD THAT:- As per the submission of appellant it appears that no order on appellant’s application for substitution has been passed nor the contention raised in the reply, oral arguments advanced and the written submissions filed by the appellant is found placed in the impugned order. The Adjudicating Authority in the internal page 3....... + More

Grant of pre-arrest bail - petitioner submitted that the relief of anticipatory bail sought by the petitioner is not premature and that the petitioner's reliance on a news article of a reputed news agency for apprehension of arrest by the respondent cannot tantamount to being speculative - whether the petition filed under Section 438 of the Cr.P.C. before the High Court without exhausting remedy before the Court of Sessions Court is maintainable or not? - HELD THAT:- It is trite law that in case of economic offences, which is having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.P.C. But on perusal of the factual matrix of the case on hand, prima facie, there is no material to come to the conclusion that the act of the petitioner is having impact on the financial status of th....... + More

Grant of Bail - Money laundering - fraud with home/flat buyers - siphoning off/diversion of funds - conspiracy and huge loss of public funds - HELD THAT:- But for the Supreme Court's intervention and undertaking painful and strenuous exercise to secure and protect the interest of innocent home/flat buyers, the fraud played by the accused-applicant and other accused in cheating and defrauding thousands innocent home/flat buyers of their hard earned money, could not have been unearthed - The Supreme Court is monitoring the investigation. The Supreme Court had been in pain to note the conduct of the accused-applicant and other accused. They had even violated the Supreme Court orders and did not comply the directions issued on several occasions. The forensic auditors appointed by the Supreme Court had meticulously flagged the fraud and ch....... + More

Grant of Anticipatory Bail - Money Laundering - proceeds of crime - complainant/ officials of ED has made specific allegation that petitioner and his family members has acquired movable and immovable properties worth ₹ 80 lacs from the proceeds of crime of his father-in-law - HELD THAT:- The petitioner was married with Pooja Kumari in the month of June, 2014. Prior to the year 2014 the petitioner and his father have not produced any documentary evidence to show the acquisition of movable and immovable properties save and except ancestral property standing in the name of ancestor of the petitioner but after marriage of the petitioner with Pooja Kumari, daughter of Binay Yadav and Srimati Devi, the petitioner and his family acquired many buses, vehicles and immovable property. The petitioner also made attempt to file income tax return....... + More

Grant of Bail - allegation that some loan was given by the Bank officials on the basis of forged and fictitious documents - it is evident that the applicant never misused the liberty given by the Directorate of Enforcement - HELD THAT:- Investigation was conducted by the investigating officer of Directorate of Enforcement for a period of about 8 years and it was obligatory on his part to discover all the facts and the evidence against the accused persons. In such circumstances, it is a fit case for bail. Let applicant -Rajendra Kumar Mishra be released on bail in the aforesaid Case Crime, on his furnishing personal bond of ₹ 10 lakh and two sureties each of the said amount to the court concerned subject to conditions imposed. Application allowed.

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

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

Forward trade in commodities - Trading Irregularities - Piercing of corporate veil - abuse of position by the MD / Chairman of the Commodity Exchange - Plea of lack of adequate opportunity - principles of natural justice - Issuing show cause notice to the second respondent and not to the first respondent - multiple proceedings have been initiated but have resulted in no culmination over a period just short of a decade. HELD THAT:- We do feel that there was an endeavour to some extent by Respondent No.2 herein to prolong the proceedings but then looking into the enormity of the contents of the show cause notice running into 150 pages with documents spanning 4,000 pages supporting it, a reasonable time had to be given to respond to the same. We may note that the whole enquiry was at the behest of “independent enterprising journalist.&....... + More

Validity of Downgrading petitioner's bank loans' rating to 'IND BB+' from 'IND BBB - Covid-19 pandemic outbreak - Reserve Bank of India has announced moratorium for the period upto 31st May, 2020 vide Circular dated 27.03.2020 - objection regarding territorial jurisdiction - whether third respondent cannot be characterised as “State” within the meaning of Article 12 of the Constitution of India? - HELD THAT:- Even though the third respondent may be located in Mumbai, in as much as part of the cause of action arose within the territorial limits of this Court, this writ petition cannot be dismissed on the ground of lack of territorial jurisdiction. Likewise, reliance on the ouster clauses in the rating agreement is equally misplaced. As third respondent is a private body and not a “State” within t....... + More

Winding up proceedings of Mutual fund scheme - objections to the e-voting results - Need for approval of unit-holders - validity of Regulations 39 to 40 of the Mutual Funds Regulations - majority of unit-holders on the happening of any event which in the opinion of the Trustees requires a Scheme to be wound up - duties of the Trustees under the Mutual Funds Regulations - obligation of the Trustees or Trustee Company - role of SEBI - issuance of direction to SEBI - HELD THAT:- We hold that Regulations 39 to 40 of the Mutual Funds Regulations are valid.When the Board of Directors of a Trustee company, by majority, decides to wind up a Scheme by taking recourse to sub-clause (a) of clause (2) of Regulation 39, the Trustee company is bound by its statutory obligation under sub-clause (c) of clause (15) of Regulation 18 of obtaining consent of....... + More

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

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

Scope of two SCN - different subject matter in both SCN - Sabka Vishwas (Legacy Dispute Resolution) Scheme (SVLDRS), 2019 - petitioner contends that since the contracts of the petitioner with CIPL were the subject matter of the first show cause notice, the second show cause notice with respect to “free of cost” supplies under the contract with CIPL and/or with respect to constitution of NOIDA does not constitute a different matter but is the same matter - HELD THAT:- Though it is also the contention of the counsel for the petitioner that in any case, qua “free of cost” supplies there is no taxation element as held in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] has been held to be a corporation and thus the said questions are no longer res integra b....... + More

Seeking reconsideration of declaration of the petitioner filed under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - eligibility of the petitioner or maintainability of its declaration to avail the benefits of the scheme under the category of investigation, enquiry or audit on the ground that the service tax dues of the petitioner for the related period was not quantified on or before 30th June, 2019 - HELD THAT:- The issue decided in the case of THOUGHT BLURB VERSUS UNION OF INDIA AND ORS. [2020 (10) TMI 1135 - BOMBAY HIGH COURT] where it was held that petitioner was eligible to file the application (declaration) as per the scheme under the category of enquiry or investigation or audit whose tax dues stood quantified on or before 30th June, 2019. In the present case, Petitioner has stated that it received the email of the sa....... + More

Levy of Service Tax - supply of tangible goods - transfer of right to use or not - petitioner was providing material handling object, namely, cranes to Bharath Heavy Electricals Limited (BHEL), the sixth respondent herein, on “transfer of right to use” basis - Section 4 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The petitioner has rendered service. It was supplying tangible goods, viz. 10T Mobile Cranes numbering 11/12 on daily rental basis. These material handling equipments were hired by the sixth respondent BHEL as per the agreement dated 07.12.2011. The terms of the agreement which has been extracted above indicate that the petitioner has not transferred the Mobile Cranes to the sixth respondent BHEL. On the other hand, the petitioner has provided its driver for operating the Cranes. It was under the supervi....... + More

Classification of services - Manpower Recruitment or Supply Agency Service or not - period 16.6.2005 to 2007 - 08 - Department was of the view that for the period prior to 2008, as per the agreements entered by the appellant with various clients, the appellants have rendered MRSA services to the clients - appellant claims that the services are nothing but Information Technology Software Services for which they have been paying service tax after 2008 and that these activities will not fall under the definition of MRSA - suppression of facts or not - extended period of limitation - HELD THAT:- it can be seen that the control and supervision of the staff / qualified personnel supplied to the premises of the client (ABN AMRO Bank) is with the appellant (contractor) only. Though certain personnel are supplied to the premises of the client for ....... + More

Renting of immovable property service - Failure to file periodic ST-3 returns - service pertaining to commercial development of vacant rail land by construction of multifunctional complexes - HELD THAT:- The non-registration of appellant under service tax has been heavily objected. However, it is acknowledged that Development Agreement with respect to Sarai Rohilla Railway Station has got terminated and that the said termination will have an effect upon quantum of liability. Accordingly, the request of learned Counsel for appellant for remanding the matter for fresh decision has been acknowledged. The matter remanded back to the respective adjudicating authority and order accordingly with the direction to the Adjudicating Authority to re-adjudicate the issue after taking into consideration the termination of the said Development Agreement and subsequent proceedings - Appeal allowed by way of remand.

Reopening of matter - case closed for the purpose of statistics holding that the both sides are at liberty to file application before the Tribunal to reopen the matter as and when the case is disposed by the Hon'ble High Court or in case of any change of circumstance - applicability of provisions of Section 35C of the Central Excise Act, 1944 - HELD THAT:- The writ petitions were heard by the learned Single Bench and by order dated 09.03.2012, this Court directed that the personal hearing of the respondent-assessee scheduled to be held on 09.03.2012, shall not go on until further orders. When this matter was brought to the notice of the Tribunal, the Tribunal has disposed of the appeal by the impugned order with liberty to the parties to file an application to reopen the matter - the correct approach would be to keep the appeal pendin....... + More

Levy of service tax - Export Pass fee and Import fee - Storage License Renewal fee - Excise Staff Salary and Overtime charges - Permit fee paid to the State Excise department - Reverse charge Mechanism - Section 117 of the Finance Act, 2019 - HELD THAT:- The learned Commissioner has wrongly considered the fee paid by the appellant to the State Excise department and various other Government departments/agencies as having an element of a quid pro quo in it and hence services provided by the State Excise department. We also note that the fee charged for grant of license is not a consideration for service, but a price charged for “exclusive privilege” parted by the State, the export fee does not have an element of service and therefore not a service and accordingly not subject to levy of service tax. The State Legislature is empow....... + More

Manpower Recruitment or Supply Agency Service - seconded employees - demand on the ground that the appellants have not paid service tax on receipt of Manpower Supply Service and had not complied with the conditions prescribed in Notification No. 12/2013-ST dated 01.07.2013 - HELD THAT:- In order to classify any service under the manpower recruitment or supply agency service the following conditions need to be satisfied: i. The agency must be any person ii. It must be engaged in providing a specified service iii. The specified service is recruitment or supply of manpower iv. The service can be provided “temporarily or otherwise’ v. The service may be provided directly or indirectly vi. The service may be provided in any manner vii. The service must be provided to any other person. An identical issue was decided by this Tribunal....... + More

Liability of service tax - reverse charge mechanism - case of applicants is that the writ-applicant is a cooperative society and not association of the individuals. Therefore, the liability to pay the service tax would be of the recipient of the services and that would be the ONGC - HELD THAT:- By amendment, which has been permitted to be carried out, it is brought to the notice of this Court that the service recipient being ONGC Ltd. had already deposited the requisite service tax with the concerned authority and the payments were then made to the writ-applicant society. This writ-application is not entertained as the impugned order is appealable under Section 107 of the Act. However, we would like to seek the responsibility of the respondent no.2 as regards the case put up by the writ-applicant that the service recipient being ONGC Ltd........ + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - short payment of service tax - declaration was rejected by respondent No.4 on the ground of ineligibility with the remarks that the amount of service tax liability was not quantified finally before 30.06.2019 and that investigation was going on - HELD THAT:- In response to summons dated 10.04.2019, petitioner had submitted letter dated 04.06.2019 furnishing details of royalty paid to the government and service tax / GST paid on the said royalty payment, the details of which have been mentioned at page 43 of the paper-book which comes to the total figure of ₹ 47,37,377.00. However, at page 43 we find a note that the said service tax liability was not acceptable to the petitioner. From these two documents, no acknowledgment or admission of service tax liability by the petitioner....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - eligibility of the petitioners or maintainability of the declaration to avail the benefits of the scheme under the category of investigation, enquiry or audit on the ground that service tax dues of the petitioners for the related period was not quantified on or before 30th June, 2019 - HELD THAT:- In Thought Blurb Vs. Union of India [2020 (10) TMI 1135 - BOMBAY HIGH COURT], this court faced with a similar issue referred to provisions of the Finance (No.2) Act, 2019 and to the circular dated 27th August, 2019 of the Central Board of Indirect Taxes and Customs, where it was held that there are no hesitation to hold that petitioner was eligible to file the application (declaration) as per the scheme under the category of enquiry or investigation or audit whose tax dues stood quantified....... + More

Invocation of Extended period of limitation by third SCN - Imposition of penalty on Directors - Cleaning Activity - services to government hospitals, educational institutes and non-commercial organizations, though a sizable portion of the revenue was generated from Sanjay Gandhi Post Graduate Medical Institute, Lucknow [SGPGMI] - HELD THAT:- The Department was aware of the facts when the first show cause notice was issued and, therefore, the extended period of limitation could not have been invoked in the third show cause notice. The Additional Director General has ignored the order passed by the Tribunal on November 20, 2018 on the first and the second show cause notices for the reason that the said notices or the order of the Tribunal had not been submitted by the Appellant. The Appellant in reply to the show cause notice had made a spe....... + More

Site Formation and Clearance Excavation and Earth Moving and Demolition Services - benefit of the mega Exemption Notification No. 25/2012-ST dated 20 June, 2012 - availability of exemption under Serial Number 13(a) and 14(a) could not be taken up before Commissioner due to lack of proper representation by the Advocate - HELD THAT:- From the description of the contracts in the Show Cause Notice as well as order in original, it is found that it is quite likely that many of them may relate to roads, canals and railways. If that is the case then the Appellant might be entitled to benefits under Serial Number 12, 13 and 14 of the Service Tax Notification in respect of services provided by them subject to fulfillment of the other necessary conditions. The learned Counsel for Appellant has pointed out that the matter was not represented properly....... + More

Principles of Natural Justice - respondent herein has merely inform the petitioner that on verification of the records it was found that the petitioner was not registered for paying service tax - Construction of Residential Complex Service - HELD THAT:- There is no order that has been passed by the 3rd respondent for it to be quashed or set aside. It further appears the 3rd respondent sent several reminders to the petitioner on 26.2.2013, 04.03.2013 and thereafter issued summons to the petitioner. Meanwhile, the petitioner has furnished some of the details and has applied for a centralised registration on 13.1.2013 under the category for “Construction of Residential Complex Service”. Since the petitioner is admittedly liable to tax and has obtained centralised registration, it is for the department to investigate and issue appropriate notice and in case there was non-payment of tax by the petitioner. Petition dismissed.

Classification of services - Banking and other Financial Services or otherwise? - entire interest component collected as equated monthly installments on transactions relating to "Financial Leasing Services including equipment leasing and hire-purchase" - absence of any mechanism to bifurcate the processing or management charges - period prior to 01.03.2006 - HELD THAT:- Explanation 1 to section 67 of the Finance Act prior to 18.04.2006 contained a specific exclusion vide sub clause (viii) excluding interest on loans. Though section 67 was substituted by Finance Act 2006 w.e.f. 18.04.2006, the corresponding Service Tax Determination of Value Rules 2006 vide rule 6(2)(iv) again excluded interest on loan from the purview of valuation of taxable services. However, the Board vide circular No.80/10/2004-ST dated 17.09.2004 clarified t....... + More

Levy of Service Tax - amount of liquidated damages/penalty collected by the appellant for non-compliance of the terms of the procurement contracts - amount collected towards theft charges from consumers for un-authorized use of electricity or for tampering of meters - period of dispute is from July, 2012 to March, 2016 - whether the appellant is providing a “declared service” contemplated under section 66E(e) of the Finance Act, which service became taxable w.e.f July 1, 2012? - HELD THAT:- Liability has been fastened upon the appellant under section 65B read with section 66E(e) of the Finance Act for the period from July 2012 till March 2016 for the reason that by collecting the said amount the appellant had agreed to the obligation to refrain from an act or to tolerate the non-performance of the terms of the contract by the ....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Procedural irregularity - Substantial right - Amnesty Scheme seeking waiver of interest and penalty - Rule 6A of the CESTAT (Procedure) Rules, 1982 - HELD THAT:- From the reading of the Rule, it is evident that with respect of one order, single appeal irrespective of number of show cause notices may be filed. The petitioners undisputedly had filed single appeal with respect to more than one show cause notices. Filing of appeal before Tribunal is a substantial right whereas filing of declaration under Amnesty Scheme is mere procedural formality as declaration is maintainable if eligibility conditions are complied with which are enumerated under Section 123 to 125 of the Finance Act, 2019. Indubitably, the petitioners are complying with all the eligibility conditions. Thus, the Petiti....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - eligibility of the petitioner or maintainability of his declaration to avail the benefits of the scheme under the category of investigation, enquiry or audit on the ground that the service tax dues of the petitioner for the related period was not quantified on or before 30th June, 2019 - HELD THAT:-All that would be required for being eligible under the above category is a written communication which will mean a written communication of the amount of duty payable including a letter intimating duty demand or duty liability admitted by the person concerned during inquiry, investigation or audit. For eligibility under the scheme, the quantification need not be on completion of investigation by issuing show-cause notice or the amount that may be determined upon adjudication. The issue i....... + More

Benefit of SVLDRS - Credit of amount deposited prior to SCN towards Interest - Levy of Service Tax - Supply of Tangible Goods Services - petitioner had not obtained a registration - period April 2008 to March 2013 - extended period of limitation - HELD THAT:- Sub-Section (2) to Section 124 states that the relief computed under Sub- Section (1) shall be subject to the condition that any amount paid as pre-deposit at any stage of appellate proceedings under an indirect tax enactment or as deposit during enquiry, investigation or audit, shall be deducted when issuing the final settlement. In the present case, the petitioner has, admittedly, remitted amounts of ₹ 66.05 and ₹ 16.58 lakhs as deposits even prior to the issuance of show cause notice. However, the petitioner has specifically demarcated the amount of ₹ 66.05 lakhs....... + More

Levy of penalty u/s 78 of the Finance Act, 1994 - demand of service tax on Construction of Complex Service (CCS) for the period from 2006-07 to 2009-10 - residential apartments constructed by the appellant - tripartite agreement - HELD THAT:- A perusal of the documents placed on record would indicate that the appellant was involved in providing taxable service under the category of Construction of Complex Service (CCS), which included construction of residential complex as well on account of the appellant having constructed semi-finished flats/villas by the time of the commencement of the National Games in 2002. This semi-finished job required further construction in order to complete the same into residential flats/villas, which was undertaken by the appellant under construction agreements with the respective owners/customers, which clea....... + More

Refund of Education Cess and Secondary & Higher Secondary Education Cess - benefit under N/N. 39/2001-CE dated 31.7.2001 availed - period from January-2007 to May-2007 - HELD THAT:- The judicial discipline also would require to give effect to the order of the higher appellate authorities and not to once again initiate the actions of recovering the very refund claim, which has been given to the petitioner after a long drawn battle. Issue Notice for final disposal, returnable on 8.3.2021. Interim relief in terms of paragraph 18.B. is granted, till the returnable date. Learned Central Government Standing Counsel, Mr.Parth Divyeshvar waives service of Notice for and on behalf of the respondent No.1.

Permission for withdrawal of appeal - amount involved in the appeal is below the prescribed monetary limit - HELD THAT:- Appeal is disposed of as withdrawn.

Validity of Direction of the Tribunal to issue fresh SCN - demand beyond the scope of original SCN - power of Tribunal in making certain observations with regard to the validity of the CENVAT Credit Rules, 2004 qua the provisions of Section 37 of the Act - validity of proceeding to direct the original authority to issue a show cause notice to the appellant/assessee as regards its very entitlement for CENVAT credit - HELD THAT:- The Tribunal appears to have suo motu taken up for consideration as to whether credit of service tax paid or payable on taxable service is allowable. The Tribunal suo motu proceeded to refer to Section 37(2), Section 11AB of the Act and made certain observations, which are in the nature of conclusive observations. The learned counsel for the assessee had argued that the assessee had been put on notice only regardin....... + More

Principles of Natural Justice - serious grievance on the part of the petitioner is that not only there has been no specific order passed by the concerned authority denying the opportunity of cross examination to the petitioner, it has chosen to decide both the show cause notices in a common order, which has been passed on dated 4.9.2020 without even availing opportunity of hearing - HELD THAT:- So far as insistence on the part of the petitioner for personal hearing is concerned, the Court is not inclined to entertain that plea as the virtual hearing is being conducted right from the time the lock-down had been effected, even in those matters which are quite contested and one of them is the present matter also. So far as the request of cross examination made by the petitioner dated 19.8.2020 is concerned, we notice that in the Order-in-Ori....... + More

Refund of tax amount paid - Amount paid under protest - applicability of time limitation - It is the case of the petitioner that by oversight it had not paid duty on goods captively consumed and had also wrongly availed Input Tax Credit, MODVAT Credit under the provisions of the Central Excise Rules, 1944 - HELD THAT:- Excess after adjustment of cumulative tax liability has to be refunded back. Question of invoking the limitation prescribed under Section 11B of the Central Excise act, 1944 is misplaced as the amount paid pending investigation are nothing but the amount paid “under protest” as has been held by the Hon’able Supreme Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT]. Thus, the observation of the first respondent Settlement Commission that the petitioner was required t....... + More

Refund claim - Period of limitation - Relevant Date - Finalization of provisional assessment - It is contended that, the time limit of one year to claim refund will apply from the date of finalization of order of assessment by the Assistant Commissioner of Central Excise. Therefore, the Tribunal erred in considering the finalization of prices between the appellant and the oil companies as the relevant date for claiming refund as per Section 11B of the Act - Whether CESTAT having considered the assessment as provisional, has erred in equating the date of finalization of price by customers to finalization of assessment? - HELD THAT:- Admittedly, the application for refund made by the appellant on 24.08.2006 was rejected by the Assistant Commissioner by an order dated 24.05.2007. Being aggrieved by the order of the Assistant Commissioner, th....... + More

CENVAT Credit - duty paid on re-exportation of the capital goods - denial of Cenvat credit on the ground that as per Rule 3(5A) there is no provision to clear the capital goods without payment of duty for export - HELD THAT:- Though there is no mention about export of capital goods in rule 3(5A) but in general any export of goods does not attract duty as the export goods can be cleared either under bond or under claim for rebate. The appellant has relied upon the various judgment wherein the issue of payment of duty in terms of Rule 3(5A) has been dealt with in respect of export goods. However both the lower authority have not dealt this situation in detail, after considering the relevant judgment on the issue. The appellant also vehemently argued that even if Cenvat credit is not available, since the goods have been exported the appellan....... + More

CENVAT Credit - trading activities - non-maintenance of separate records for taxable as well as exempt activities - Rule 6(3A) of CENVAT Credit Rules, 2004 - Interpretation of the term “CENVAT Credit taken on input services during the financial year” appearing in clause ( c) (iii) of sub-Rule 3A of Rule 6 of CENVAT Credit Rules, 2004 as they were prior to amendment on March 01, 2016 - HELD THAT:- The appellants have been from time to time submitting intimation under Rule 6(3A) of CENVAT Credit Rules, 2004 showing full calculation of the manner in which they have arrived at the reversal of CENVAT Credit. In these circumstances, it is apparent that there was no suppression or mis-declaration on the part of the appellant and, therefore, the extended period of limitation could not have been invoked. It is also seen that with effec....... + More

Refund of excess amount of excise duty paid - appeal has been rejected by the learned CESTAT on the sole ground that petitioner had not been able to produce the clearance certificate from the Committee on Disputes (COD) - HELD THAT:- The learned CESTAT proceeded on an erroneous understanding that the appeal instituted by the appellant could not be entertained since the COD permission had not been obtained. Learned Tribunal gave a liberty to the appellant to seek restoration of the appeal after obtaining the COD permission. However, that requirement has been done away with by virtue of the judgment rendered by the Apex Court. The reasoning of the learned Tribunal in dismissing the appeal does not exist. The matter is remitted to the learned CESTAT for hearing the appeal on merits - Petition allowed by way of remand.

Principles of Natural Justice - after long 15 years of the remand by the Appellate Tribunal, respondent No.2 scheduled personal hearing of the show cause notice - petitioners not put to notice of transfer of call book at any juncture in the interregnum is permissible under the law - grievance on the part of the petitioner is that the inordinate delay of 15 years in purported adjudication of the said show cause notice in the post remand period of the order of the appellate Tribunal is ex facie without jurisdiction, without authority of law and in clear breach of the principles of natural justice and such action is liable to be set aside on the various grounds raised before this Court. HELD THAT:- In the case of SIDDHI VINAYAK SYNTEX PVT LTD. VERSUS VERSUS UNION OF INDIA & 2 [2017 (3) TMI 1534 - GUJARAT HIGH COURT], this Court extensive....... + More

CENVAT Credit - denial of credit mainly on the ground that there was no service rendered by ABMCPL to the appellant which could be defined as input service for them as the arrangement between ABMCPL and its member companies (including appellant) was merely sharing of common expenses and there was no concrete proof that these expenses were made for such services provided by ABMCPL which were used by the appellant in manufacture of their final product - HELD THAT:- The confirmation of the demand has been made on the pretext of having no nexus, direct or indirect, between the impugned services and the manufacturing activities of the Appellant. The Adjudicating Authority has observed that the impugned bills/ invoices have been issued on the basis of performances of previous years of the user companies and not on the basis of actual services r....... + More

Seeking for restitution of amount deposited by petitioner - petitioner had voluntarily deposited the amount only with a view to avoiding the amount of interest, penalty etc. - HELD THAT:- There is no quarrel to the proposition that if any payment is made by the assessee, as a condition precedent for hearing an appeal, the same does not bear the character of duty, but has the character only of security deposit and the same is required to be refunded the day appeal is disposed of by the authorities inasmuch as, the parties are put back to the situation of a show cause notice against the assessee being adjudicated by the authority. Therefore, the deposit made during the course of investigation and before the issuance of the show-cause notice or for hearing of the appeal, the assessee is entitled for the refund in the event of the appeal bein....... + More

Interest on delayed refund of Central Excise duty paid - Whether interdepartmental communication or departmental circulars in respect of an interpretation of a statutory provision will have any effect even when the interpretation sought to be projected is in conflict and/or contrary to law declared by the jurisdictional High Court? - N/N. 33/99 dated 08-07-1999. Notification No. 33/99 dated 08-07-1999 - HELD THAT:- It is seen that once the judicial pronouncement is made by the High Court or by the Supreme Court, unless the same is subsequently interfered with by judicial means, the same will have a binding effect on all Subordinate Authorities including the quasi judicial authorities like the respondent in the present case. Unless the respondent Department come up in any appeal and seek to reagitate the issues already decided by this Cour....... + More

Recovery of MODVAT Credit - Capital goods or not - H.R. Plates/Coils - used in construction of platform for Conveyor Gallaries - whether can be regarded as machine, machinery, plant, equipments apparatus, tools, or appliances or their components spare parts and accessories specified at Explanation I (a), (b) or any other goods specified at Explanation 1(c) or 1(d) or 1(e) to Rule 57-Q or not? - immovable property being a non excisable goods attached to earth or not - penalty under Rule 173Q of erstwhile Central Excise Rule 1944. HELD THAT:- The Division Bench of this Court in M/S MANIKGARH CEMENT (A DIVISION OF CENTURY TEXTILES & INDUSTRIES LIMITED) VERSUS THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE [2017 (8) TMI 829 - BOMBAY HIGH COURT] found that the Authority had not rendered a factual finding as to the manner of use of manufa....... + More

Imposition of penalty u/r 25 of CER - Second stage Dealer - Violation in respect of issuing Invoice - whether, the first respondent is correct in holding that the appellant has not contested the commission of fraud when all along the appellant is contesting and participating in the proceedings - scope of the adjudication order - HELD THAT:- Rule 25 of Central Excise Rules would clearly stand attracted to the case on hand. Rule 25 deals with 'confiscation and penalty'. Sub-Rule (1) states that subject to the provisions of Section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer (a) removes any excisable goods in contravention of any of the provisions of the rules or the notifications issued under the rules or (d) contravenes any of the provisions of the rules or the notificatio....... + More

Principles of Natural Justice - appellant submitted that the order passed by the Commissioner (Appeals) has been passed ex-parte for the reason that though the appellant had sought adjournment on January 23, 2018 since it received the letter intimating that hearing would take place on January 23, 2018 itself, but instead of adjourning the matter, the Commissioner (Appeals) decided the appeal on merits - HELD THAT:- It transpires from a perusal of the order passed by the Commissioner (Appeals) that initially a letter dated December 13, 2017 was sent to the appellant for appearance on January 8, 2018 but since the appellant did not appear nor any adjournment was sought, another letter dated January 10, 2018 was sent to the appellant by speed post for appearance on January 23, 2018. However, on that date, a letter dated January 23, 2018 was ....... + More

CENVAT Credit - Deposit Insurance and Credit Guarantee Corporation for insuring the deposits of the customers - HELD THAT:- The issue is decided in the case of BANK OF MAHARASHTRA, BANK OF BARODA (FORMERLY KNOWN AS DENA BANK) , BANK OF BARODA, UNION BANK OF INDIA, STATE BANK OF INDIA VERSUS COMMISSIONER, CGST & CX, PUNE-II, COMMISSIONER OF SERVICE TAX-I AND IV, MUMBAI, COMMISSIONER OF CENTRAL EXCISE [2020 (10) TMI 300 - BOMBAY HIGH COURT] where it was held that the credit is allowed. Appeal is remanded back to the CESTAT for fresh decision in conformity with the decision rendered by the Larger Bench - appeal allowed by way of remand.

Maintainability of petition - availability of an equally alternative remedy stipulated under the Statute - violation of principles of natural justice or not - HELD THAT:- The petitioners have failed to establish how the order passed is in "total" violation of the principles of natural justice. What prejudice, much less serious in nature, stands caused on account of non-examination of the witnesses, is also not born out from the material on record or demonstrated. The assessing authority has found the petitioners and concerns associated with them, dealing in the product i.e. production/trade of cigarettes, which are excisable under the Act. On 13th December 2013, a raid was conducted, inter alia, at the petitioner's premises, and got recovered huge stocks of more than two crores of cigarette sticks. The petitioners were arres....... + More

SEZ unit - Eligibility of HSD/fuel for exemption from Central Excise Duty - Rule 27 of Central Excise Rules - HELD THAT:- In the present case, Fuel/HSD is used to run the capital equipment deployed directly in the manufacturing process. No exemption is sought for fuel used in running of vehicles/other equipment not connected with the eligible activity. The capital equipment deployed have a direct nexus with the manufacturing process as, in their absence, the equipment cannot be run and there would, consequently, be no manufacture/eligible activity. HSD/fuel is thus consumed in the running of the capital equipment which is intrinsic to the process of manufacture itself. The respondent has itself accepted this position as exemption is granted with demur to fuel/HSD used in running vehicles owned by the petitioner and denied only to leased e....... + More

CENVAT credit availed and distributed by the respondent prior to getting registered as an input service Distributor - penalty under erstwhile Rule 15(4) of the CENVAT Credit Rules, 2004 - CHA Services - services availed after the goods has been cleared from the place of removal. CENVAT credit availed and distributed by the respondent prior to getting registered as an input service Distributor under the Act - penalty under erstwhile Rule 15(4) of the CENVAT Credit Rules, 2004 - HELD THAT:- The issue has already been decided in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS DASHION LTD [2016 (2) TMI 183 - GUJARAT HIGH COURT] where it was held that It is true that the Government had framed Rules of 2005 for registration of input service distributors, who would have to make application to the jurisdictional Superintendent of Central Excise....... + More

Recovery of Tax - Attachment and auction of property - Right of buyer of property in Auction - Validity of action on the part of respondent no.1/ District Industries Centre in refusing to transfer the property - priority of dues - mortgage of property - HELD THAT:- The issue about priority of dues, inter se between the respondent nos.2 and 3, is no longer res integra but is covered by the judgment of the Full bench of the Madras High Court in THE ASSISTANT COMMISSIONER (CT) , ANNA SALAI-III ASSESSMENT CIRCLE VERSUS THE INDIAN OVERSEAS BANK, M/S. SUPER RECORDING CO. LTD. [2016 (12) TMI 373 - MADRAS HIGH COURT] where it was held that the rights of a Secured Creditor to realise secured debts due and payable by sale of assets over which Security Interest is created, would have priority over all debts and Government dues including revenues, ta....... + More

Attachment of immovable property - It is the case of the Department that it proceeded to attach the immovable property in question as it is the estate of the deceased (original assessee). On the other hand, the case of the writ applicant is that, it is not the estate of his deceased father, but it is his self acquired property - HELD THAT:- Let Notice be issued to the respondents, returnable on 09.03.2021. Mr. Kathiriya, the learned AGP waives service of Notice for the State Respondents. Mr. Kathiriya shall file reply prima facie pointing out that the materials on record indicate that the immovable property in question is the estate of the deceased.

Validity of attachment order passed before the expiry of period of filing of an appeal - service of notice - HELD THAT:- submission of the revenue to the effect that the entire tax becomes payable immediately upon dismissed of an appeal by the first appellate authority thus, appears to be misconceived - An assessee aggrieved by an appellate order should have the full benefit of the period granted for filing of appeal and it is only thereafter that proceedings may be initiated recovery of the disputed demand. There is support in this regard from a decision of a learned Single Judge of this Court in COIMBATORE PIONEER MILLS LIMITED VERSUS COMMERCIAL TAX OFFICER, PEELAMEDU NORTH ASSESSMENT CIRCLE, COIMBATORE AND ANOTHER [2007 (3) TMI 696 - MADRAS HIGH COURT] wherein a direction has been issued to the Department not to initiate steps for reco....... + More

Scope of SCN - Cancellation of assessee's registration on grounds different from those disclosed in the show cause notice - cancellation of registration of the assessee with retrospective effect - U.P. Value Added Tax Act, 2008 - HELD THAT:- There can be no dispute that before cancellation of registration, a reasonable opportunity of hearing has to be afforded to the affected dealer. In the present case, the notice does not disclose the exact nature of the charge leveled against the assessee inasmuch as it does not disclose the names of the other dealers with whom the assessee is alleged to have entered into fake and bogus transitions. Neither the show cause notice disclosed the exact nature of such transactions, nor the volume of such transactions nor the name of the dealer with whom asseessee is alleged to have traded in goods after....... + More

Input Tax Credit - denial of ITC in the hands of purchasing dealer or recovery from the seller for failure to deposit the tax - Section 19(1) of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The State had preferred an appeal in THE ASSISTANT COMMISSIONER (CT) CHENNAI VERSUS SRI. VINAYAGA AGENCIES [2020 (4) TMI 141 - MADRAS HIGH COURT] has dismissed the writ appeal, holding that respondent are directed to allow the ITC in the hands of purchasing dealer under Section 19(1) of the Act. Appeal dismissed - decided against appellant.

Levy of Tax - transfer of right to use of goods or not - supply of cranes under the agreement to the Bharath Heavy Electricals Limited - Section 4 of the Tamil Nadu Value Added Tax Act, 2006 - tax levied on the ground that the petitioner has effected sale within the meaning of extended definition of sale under Section 2(33) of the Tamil Nadu Value Added Tax Act, 2006 of transfer of right to use of goods - HELD THAT:- Though it is the contention of the learned counsel for the petitioner that they have paid the service tax and have registered with the Service Tax Authority, there are no records to substantiate the same before the this Court. The Hon'ble Supreme Court in Bharath Sanchar Nigam Limited and Another Vs. Union of India and Others, [2006 (3) TMI 1 - SUPREME COURT], has enumerated the situation, under which, there would be tran....... + More

Classification of goods - Bicycle Chain Cover, Bell, Cycle Stand, Handle Grip Cover and Cycle Seat Cover, accessories - whether taxable as unclassified items, at the rate of 13.5% under Schedule-V of the Act or the bicycle parts to be notified under entry at item no. 19 of Schedule II Part-A of the Act taxable at the rate of 5%? - Section 59 of The U.P. Value Added Tax Act, 2008 - HELD THAT:- Tribunal has taken note of the material and evidence relied upon by the assessee. Yet, it misdirected itself in approach in as much as without first deciding whether the commodities in question were parts of bicycles it considered the question whether they were 'accessories of bicycles'. Undisputedly, there is no schedule entry of 'accessories of bicycles' or of 'accessories', under the Act. It was also not the argument of the....... + More

Levy of tax - Inter-state sale - applicability of benefit of section 6(2)(b) of the Central Sales Tax Act - Section 3(a) of CST Act - HELD THAT:- In the assessee's own case, an identical issue was considered by the Hon'ble Division Bench of this Court in the decision reported in TRACTORS & FARM EQUIPMENTS LTD. VERSUS STATE OF TAMIL NADU AND ANOTHER [1998 (6) TMI 559 - MADRAS HIGH COURT] which went in favour of the petitioner - assessee holding that the sale was an inter-state sale under Section 3(a) of the Act. Following the said decision, the show cause notices issued to the assessee in respect of other years were also set aside. When the said judgment was placed before the Tribunal, the Tribunal, in paragraph 18 of the impugned order, noted the decision and held that the said decision would squarely applicable to the assesse....... + More

Review petition - Eligibility to get the benefit of subsidy in terms of the Chhattisgarh Naye Cinemagharon Ya Multiplex Cinemagharon Ke Nirman Ko Protsahan Yojna Ke Sahayta Anudan Niyam, 1982 - eligibility not being the ‘Swamis’ (Proprietor) which was not properly considered - scope of Rule 3 of the 1982 Rules with reference to the date of commencement of operation of Cinema Hall/Multiplex was never adjudicated by the Bench while finalizing the matter - HELD THAT:- The provision contained herein is not with regard to imposition to any additional burden but is with regard to the "relaxation" given, by deleting the rider under Rule 3 of the 1982 Rules. The Rules of 1982 clearly provide for subsidy in respect of the Cinema Hall/Multiplex, construction of which was started after 01.07.1991. Of course, there was a rider t....... + More

Maintainability of refund claim - Realization of the amount without authority of law - rejection of claim holding that in absence of any statutory provision under JVAT Act the learned JCCT had no jurisdiction to allow the refund application of the petitioner - HELD THAT:- It is the case of the petitioner, undisputed by the respondent that petitioner is not a registered dealer under JVAT Act, 2005 nor has been assessed to tax under the Act. No demand notices were raised against the petitioner as such to the effect that any tax is due against him. Petitioner claims to have made deposit of ₹ 61,74, 899/- in order to ensure continuity of business and to avoid coercive action without any demand of tax since the goods transported by the petitioner were already excisable to Central Sales Tax to the tune of ₹ 58,05,157/- which were pa....... + More

Seeking directions to the respondents to disburse the refund amount alongwith interest - reduction of admissible ITC on purchase of coke - Section 38 of the Gujarat Value Added Tax Act, 2003 - HELD THAT:- It is not in dispute that the writ applicant-Company was given an incentive on tax for the relevant period as mentioned in the petition by the authority, as sanctioned for the respective years - In view of the determination order passed under Section 80 of the GVAT Act, the full amount of refund has not been disbursed by the respondents. It is an admitted fact that the respondents-authorities have not invoked the Section 39 of the GVAT Act, which provides the powers to withhold the refund in certain cases. The time limit to initiate proceedings under GVAT Act is lapsed. It is required to be noted that Section 35 gives power to the author....... + More

Refund - Seeking return the amount of tax collected from the different parties during the said period of assessment - non-communication of the cancellation of registration at the end of the respondents - It is the case of the writ applicant that after some business transactions, later on he came to know about his cancellation of registration with effect from 12.04.2010 and accordingly, he was duty bound to return the amount of tax collected from the different parties during the said period of assessment - HELD THAT:- It appears that at the time of search, it was informed by the writ applicant that he had made the payment to different parties to the tune of ₹ 8,14,250/- by way of cheque. Despite of this, the authorities had collected the tax to the tune of ₹ 9,05,318/-. Also, since 2014, the respondent authorities have not issu....... + More

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- Petitioner fairly submits that the issue involved in this Writ Petition is squarely covered by a decision of this Court in, M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] wherein it was held that till such time the order of this court in the case of M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] is either stayed or reversed it is incumbent upon all....... + More

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- Petitioner fairly submits that the issue involved in this Writ Petition is squarely covered by a decision of this Court in, M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] wherein it was held that till such time the order of this court in the case of M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] is either stayed or reversed it is incumbent upon all....... + More

Doctrine of Promissory Estoppel - Withdrawal of subsidy granted on account of change of opinion - whether the benefits already granted to the petitioner as promised under the Industrial Policy 2004-09 can be withdrawn later on only in the light of change of opinion of the respondents? - definition of captive power plant - benefit of exemption of capital investment made in the captive power plant. Whether the petitioners would be entitled for the benefit of promised subsidy as per the industrial policy of 2004-09 is concerned? - HELD THAT:- In order to attract more and more Business Enterprises establishing industrial units in the State of Chhattisgarh, the State Government had given certain incentives in the industrial policy. One such policy was that of granting State Infrastructure Cost Fixed Capital Investment Subsidy. Granting of the ....... + More

Classification of goods - rate of tax - Brass fittings i.e., Elbow, Tee, Socket, Union, Hex Nipples, Hose Colour, Pillar tap Inner fittings, etc. - Bib Cocks Brass or C.P., Brass Ball cock, brass Long body Bib cock C.P., Brass Short Body Bib Cock C.P., Brass Sink Cock C.P., Brass Angle Cock C.P., Brass Wall Mixers C.P., Brass Showers C.P., Brass shower Arm C.P., Brass Foot valve, etc - taxable at the rate of 12.5% or to be treated as items coming under Entry 3(2) of Third Schedule of the KVAT (Amendment) Act, 2005 and taxable at the rate of 4%? - Validity of Clarification under Section 94 of the KVAT Act, 2003 - HELD THAT:- Chapter 74 deals with “Copper and articles thereof”. The Note at the beginning of the Chapter says that it would take in alloys of copper also. Several items of copper are dealt with under different four di....... + More

Rectification of mistake - compounding scheme under Section 7-C of the Tamil Nadu General Sales Tax Act, 1959 - According to the authority, the act of the petitioner fell foul of 7-C of the Tamil Nadu General Sales Tax Act, 1959 - HELD THAT:- Section 55(3-A) of TNGST Act categorically states that the power of rectification can be exercised by the assessing authority even though the original order of assessment was subject matter of an appeal or revision. It is true that the appeal filed by the petitioner was dismissed and the same was also confirmed. It appears that the order passed by the appellate authority dismissing the rectification petition was also confirmed - That again will not come in the way of Section 55(3-A) of the Act from having its statutory effect. Notwithstanding any of the adverse orders, which the petitioner suffered, ....... + More

Levy of penalty under Section 10-A of the Central Sales Tax Act, 1956 - alleged offence committed by the petitioner under Section 10(b) and Section 10(d) of the said Act - concessional rate of tax against Form C under Section 8(3)(b) of the Central Sales Tax Act, 1956 - it was alleged that the dyeing units were dyeing the yarn or fabric supplied by their customers. It was therefore stated that the dyeing units were not engaged in any manufacturing activity - job work/works contract or not - HELD THAT:- In the present case, the endorsement in certificate of registration given to the petitioner in Form B under Central Sales Tax Act, 1956 is confined for re-sale and/or for manufacture or processing of goods sale. Admittedly, there was no re-sale of the goods purchased by the petitioner. The petitioner was also not engaged in mining or in the....... + More

Period of limitation for completion of assessment in remand proceedings - Vires of Section 9(2)(g) of the Delhi Value Added Tax Act, 2004 - notice of default assessment of tax and interest as well as notice of assessment of penalty - Section 34 of the DVAT Act - HELD THAT:- The assessment had to be completed within a period of four years. The impugned order relates to the year 2010-11 for which limitation expired on 31st March, 2015. The date of the impugned order is 15th January, 2021, which indicates that the same is ex-facie barred by limitation. We are not impressed with the submission advanced by Mr. Satyakam that the impugned order is within limitation in terms of Sub-section (2) of Section 34. The said provision is entirely inapplicable in the present facts and circumstances. The impugned order has not been passed in consequence of....... + More

Benefit of Section 5(3) of the Central Sales Tax Act, 1956 - Non-fulfilment of export obligation - case of the State is that the respective dealers would not be entitled to the benefit of Section 5(3) of the Act because what were exported, were not those goods, which were purchased - HELD THAT:- The Tribunal considered the entire factual matrix, took note of the documents, which were filed, which established that the coffee seeds were purchased and what was exported was instant coffee. The Tribunal had to consider as to whether the goods purchased by the exporter were actually exported as such or as a different commodity - After taking note of all the features as well as documents, the Tribunal held that the dealers were entitled to exemption under Section 5(3) of the Act, as the coffee seeds supplied by the dealers were roasted, ground, ....... + More

Dishonor of Cheque - conviction under Section 138 of Negotiable Instruments Act, 1881 - debt payable to the complainant present or not - misuse of cheque - Section 357(3) of Cr.P.C. - HELD THAT:- The learned courts below have given consistent finding in favour of the opposite party no. 2 that the cheque was issued in discharge of debt. This court finds that the learned courts below have given consistent finding of facts after due appreciation of the evidences on record and have rightly held the petitioner guilty of offence under Section 138 of Negotiable Instruments Act, 1881. This court also finds that the basic ingredients of offence under Section 138 of Negotiable Instruments Act have been satisfied in the present case and accordingly, the judgement of conviction of the petitioner does not call for any interference in revisional jurisd....... + More

Seeking grant of Anticipatory Bail - allegation of Receipt of Monthly Bribe - Tax officers - It was alleged that the tax was being evaded by ensuring that there was no checking or verification of the documents or goods, while being transported to and from the State of Punjab - alleged register maintained by the Munshi cannot be looked into for the purpose of implicating the petitioner in the said FIR as there is no proof regarding the fact whether these books were maintained in the regular course of business nor is there any certificate to that effect - non-compliance of Section 17A of the Prevention of Corruption Act as amended - HELD THAT:- In the celebrity judgment of Devender Kumar vs. CBI [2019 (1) TMI 1665 - DELHI HIGH COURT], it has been held that by incorporating Section 17A as it reads by itself, the intention of the Legislature ....... + More

Smuggling - Heroin - Alleged Recovery of 2.850 kgs of Heroin from the Office of Dart Air - Cross-examination of independent witnesses - Name of the appellant as mentioned in the Airway Bill - Testing of the contraband - Alleged Recovery of 180 grams of Heroin from the Premises of the Appellant - HELD THAT:- There are several questions that arise in the context of the evidence led by NCB. The first question that arises is why would a person who had already booked a consignment come to the courier agency on the next day to enquire about the parcel. Such enquiries could have been made telephonically and it may have been possible to make it online as well. However, Mr. Manchanda submitted that that is a matter of secret information and therefore, there is no evidence in this regard required to be led. This contention is not persuasive. Cross-....... + More

Dishonor of Cheque - seeking one effective opportunity to the petitioners to lead their defence evidence - Section 45 read with Section 73 of Negotiable Instruments Act for examination of the hand writing expert and for the report of the FSL - HELD THAT:- Regarding first application the contention of the petitioners was that the cheque in question had been stolen by Mr. Davinder Kalra @ Raju Kalra, proprietor of the complainant Company with the help of unknown person and was misused by hatching a criminal conspiracy with the complainant. Neither the handwriting nor the ink of the cheque matched in any manner. The cheque had been manipulated and fabricated by the complainant. Said Davinder Kalra was unable to explain as to how the cheque, which was a bearer cheque, was presented and how it was crossed and made into an account payee cheque........ + More

Dishonor of Cheque - Seeking a decree of the amounts - Commercial Summary Suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 - the advocates for the plaintiff sent a notice under section 138 of the Negotiable Instruments Act, 1881 to the defendant inter alia stating that the defendant had acknowledged the debt due and payable to the plaintiff and in case of failure to pay, the plaintiff would be constrained to initiate criminal action under section 138 of the said Act - failure on the part of Defendant to respond to the said notice or make repayment - HELD THAT:- Though serving a notice under section 80 of the CPC is mandatory, the same is capable of being waived. Naturally, whether there is a waiver or not, would depend on the facts and circumstances of the case. In fact, the plea for want of notice under sect....... + More

Seeking grant of Anticipatory Bail - Compliance with the condition imposed by the learned Appellate Court to deposit 20% of the compensation amount in the form of bank draft within 60 days - HELD THAT:- This Court is of the considered opinion that once bail was granted to the petitioner on the condition of deposit of 20% within a period fo 60 days and thereafter a period of about 1½ years has elapsed and the petitioner has not deposited 20% of the compensation amount, the learned Appellate Court was justified in cancelling the bail because express condition of bail has been violated by the petitioner. The reliance made by the petitioner on Vivek Sahni's [2019 (7) TMI 1561 - PUNJAB AND HARYANA HIGH COURT], is also of no avail in view of the fact that now the law has been laid down by the Hon’ble Supreme Court Surinder Sing....... + More

Smuggling - Smuggling - ganja - Whether the conviction of the appellant by the trial court for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the NDPS Act is just and proper, having regard to the oral and documentary evidence available on record? - HELD THAT:- From the appreciation of the evidence of the witnesses examined by the prosecution, it is found that statements of all these witnesses under Section 161(3) of the Code do not bear any date. Further, statement under Section 161(3) of the Code of PW-1, who is the star witness of the prosecution around whom the entire case of the prosecution revolves, has not at all been recorded. Statements of the witnesses under Section 161 of the Code recorded by the Police during the course of investigation plays a major role during the course of trial. After lodgi....... + More

Dishonor of Cheque - time limitation - grounds raised in the petition is that the alleged date of advancement of loan was barred by limitation - complaint averments disclose that the alleged loan transaction is more than four years and the same is barred by limitation - cheque was presented without an endorsement and it is not in dispute that it is a self-cheque - offence is made out under Sections 138 and 139 of the NI Act constituting an offence or not. Whether this Court can quash the proceedings in coming to the conclusion that the issuance of self cheque in respect of the time barred debt? - HELD THAT:- The very contention of the petitioner is that it is a time barred transaction; the same has to be decided only after recording the evidence not at the preliminary stage of taking the cognizance. It is settled law that whether it is ti....... + More

Dishonor of Cheque - acquittal of accused - Rebuttal of presumption - Whether the learned trial court has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in cases arising out of 'Cheque Bounce" under Negotiable Instrument Act 1881? - HELD THAT:- Both the documentary and oral evidence adduced by the complainant coupled with the presumption arising under section 118 and 139 of the Negotiable Instrument Act 1881 clearly indicates that, the complainant has discharged the initial burden on him to show that, the accused has issued the cheque by for ₹ 52,000/- and the said cheque was issued for existence of legally enforceable recoverable debt and liability. The accused can rebut the presumption by two ways one by cross-examining the complainant and the other is by ....... + More

Dishonor of Cheque - rebuttal of presumption arising under Section 139 of the N.I.Act - burden to prove - legally recoverable debt or other liability - HELD THAT:- In perusing the oral evidence of PW.1 with reference to his written complaint and his evidence in examination-in-chief, it is evident that nowhere he has stated the date when he has given loan amount. Only for the first time in the cross-examination he states on 18.08.2009 he has given loan amount in cash and he himself went to the house of the accused and paid that amount which is not a natural course of conduct of a person in such situation. The two witnesses Mohd.Mukthar and Mohd.Rafi who were stated to be present at the time of giving loan amount, were not examined. Admittedly, the said amount was not withdrawn from any Bank or from his account. PW.1 states that the amount ....... + More

Dishonor of Cheque - offence punishable under section 138 of Negotiable Instrument Act 1881 - the complainant-Bank issued demand notice on 30-07- 2007, the accused did not reply the aforesaid notice, nor repaid the amount - HELD THAT:- This complaint was filed as if the accused has borrowed the loan and in discharge of the said loan accused issued the Ex.P.1-cheque. Loan borrowed by the father of the accused had admittedly become time barred long back. Without mentioning the true and correct facts and suppressing the true facts this complaint was filed making a false allegation against the accused. Even the contents of the notice are false. Therefore no statutory presumption under N.I Act can be raised in favour of the complainant-Bank when a false contention is taken and true facts are suppressed before the Court. On perusal of the evide....... + More

Dishonor of Cheque - allegation is that having issued the Cheque towards discharge of his debt due to him, the petitioner has issued stop payment instructions to the banker to defraud him - Section 138 of the Negotiable Instruments Act - HELD THAT:- The respondent in his cross examination stated that apart from 3 acres of horticultural land and wet land, he owns 8 acres of dry land and he cultivates pineapple, ginger and groundnuts. The fact that of respondent owning the horticultural and agricultural lands and cultivation of the same was not disputed in his cross examination - Taking into consideration the aforesaid aspects, the contentions of the petitioner regarding the lending capacity of the respondent is untenable. Therefore, this Court does not find any perversity in the finding of the Courts below about lending capacity of the res....... + More

Dishonor of Cheque - honourable acquittal - full exoneration - conviction of the respondent u/s 138 of the Negotiable Instruments Act - claim for backwages - HELD THAT:- It has been averred in the complaint before the Labour Court that during the period of his conviction and acquittal, the respondent was not gainfully employed. The fact of acquittal of the respondent by this Court, was made aware to the petitioner, in March, 2011 itself, which is indicated from the application for amendment filed before the Labour Court (Annexure-B/pg.13), pursuant to which the petitioner, ought to have reinstated the respondent in service, in March, 2011 itself, since the reason for his termination, did not survive and could have availed the benefit of the services of the respondent till the time of his superannuation. The petitioner, for reasons, best k....... + More

Seeking grant of Regular Bail - Smuggling - Charas - contraband item - offences under section 20/25 of the NDPS Act - HELD THAT:- In the instant case, GD entry No. 0011A was recorded on the basis of the secret information received. So, at the stage of bail factual matrix of the case cannot be looked into and the same would be seen during the course of trial. The petitioner was arrested alongwith his co-accused, who is involved in two other cases of NDPS Act and no doubt he was carrying only 555 Gms. of Charas, which according to the counsel for the petitioner is less than the commercial quantity but his co-accused was carrying 955 grams of conrtraband, so at this stage, it would not be proper to consider the alleged recovery to be an individual recovery as both of them were travelling in the same vehicle. Co-accused is a habitual offender....... + More

Dishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1881 - compounding of offences - HELD THAT:- The petitioner is reported to be in custody, having surrendered on 12.02.2021, consequent upon the dismissal of his appeal. Now that the offence is compounded and the impugned judgments and orders are set aside, the petitioner Ratnakant Krishna Gaude will have to be released forthwith. Revision application disposed off.

Dishonor of Cheque - burden of proof on complainant to establish his case - rebuttal of presumption - fulfilment of requirements under section 138 of Negotiable Instruments Act - HELD THAT:- No doubt the said presumption is a rebuttable presumption. It is for accused to rebut the presumption cast in favour of complainant to prove to the contrary that there never existed any legally recoverable debt or liability. This rebuttal of presumption has to be made by accused not by merely putting vague suggestions and denials in cross-examination. Accused will have to do something more than just mere denials either by producing cogent material evidence or by eliciting in cross-examination of PW.1 with regard to loan amount having been repaid or non-existence of any legally recoverable debt. It is only when such rebuttal is made, with cogent materi....... + More

Right to be appointed / function as Chairperson Intellectual Property Appellate Board, till a new chairperson of Board is appointed - The applicant seeks extension of the term of the incumbent Chairperson of the board - Crossing the age limit of 65 years - Trademarks Act, 1999 - HELD THAT:- Section 84 (2) of the TM Act no doubt states that a bench of the board shall consist of a judicial and a technical member. However, it is “subject to other provisions” of the TM Act. Section 84(3) commences with a non obstante clause and stipulates, by Section 84(3)(a) that a chairperson may, “in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench.” Th....... + More

Right on power of attorney (POA) holder - Maintainability of a private complaint under Section 200 of the Code at the behest of the original complainant - HELD THAT:- The original complainant, Mr. Jakka Vinod Kumar Reddy, has filed a complaint under Section 200 of the Code against respondent Nos.2 and 3 herein for the aforesaid offences through his power of attorney holder, Mr. Jakka Kiran Reddy. In the said complaint, it is specifically mentioned that the power of attorney holder is well acquainted with the facts of the case and he has been duly authorized by the original complainant to file the complaint at his behest. A copy of the power of attorney dated 13.12.2019 executed by the said Mr. Jakka Vinod Kumar Reddy is also filed. In the said power of attorney, it is specifically mentioned that the original complainant is living in Bangk....... + More

Dishonor of Cheque - acquittal of the accused - section 138 of Negotiable Instrument Act 1881 - Whether the learned trial court has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in cases arising out of 'Cheque Bounce" under Negotiable Instrument Act 1881? - HELD THAT:- The question of issuing statutory demand notice under section 138 of N.I Act arose only after receipt of the dishonour memo by the Bank. Before receipt of the said intimation the complainant cannot send or could not send demand notice mentioning future date as a Bank intimation regarding dishonour of cheque. The endorsement by the postal authorities, the seal of the postal department on cover and postal receipts coupled with contents of the said notice clearly indicates that the notice was sent on ....... + More

Dishonor of Cheque - insufficiency of funds - acquittal of the accused - HELD THAT:- In the constructive imputation, notice to be considered as they are in the same cluster of management of the company. Accused No.3 is the authorized signatory to cheque. In the second notice issued address, names are there but notice is addressed to accused No.3. In the light of first presentation due knowledge of impugned notice have thereunder the impact and hyper technicality cannot be allowed to veto the regular process of law. In the context and circumstances There is no lacunae in presentation of the cheque. Another point that was submitted by learned counsel Sri.Chokka Reddy for respondents is that there is an agreement not to take action for first two years on the face of it which defence neither was raised nor could be accepted to exonerate the a....... + More