Withdrawal of exemption granted u/s 10(23C) - seeking for being notified under Section 10(46) - HELD THAT:- Basic difference between the two provisions of the Act viz., 10(23C)(iv) and 10(46) of the Act, is that, while under the first provision, it is only a grant of an approval making an assessee eligible to claim exemption without any certainty of exemption being allowed on any income, since it is subject to scrutiny, the latter provision confers benefit of automatic exemption in respect of the specified income of the assessee as notified by the Central Government in the gazette. Thus, under Section 10(46) of the Act, there is a certainty with regard to claim of exemption. In the facts of the present case, though there are two different provisions of the Act under which the petitioners can claim the benefit, mere fact of petitioners bei....... + More

Addition on account of peak cash deficit worked out by the revenue authorities - Search proceedings - actual cash balance as per the books of account on the date of search when the same books of account was part of the seized material and the same was also not rejected and in fact relied upon the income tax authorities and consequently gave a perverse finding on the facts and circumstances of the case - HELD THAT:- Admittedly, during the course of the search at the residential premises of the assessee on 09.10.2009, cash was found and was seized. The assessee was unable to explain the source of cash and cash book was updated only upto 30.09.2009. The cash balance as per the cash book on the date of search i.e., 09.1.2009 reflects the cash balance of ₹ 1,51,66,209/-. The assessee was asked to explain the cash difference. The assessee....... + More

Validity of Draft assessment order passed u/s 143(3) read with Sections 144C - petitioner states that the impugned draft assessment order as been passed without issuance of a show cause notice, as mandated by Section 143(3A)/144B - HELD THAT:- Mr.Sanjay Kumar, Advocate accepts notice. He states that he does not wish to file any formal reply to the present writ petition. He further states that he has no objection if the petition is allowed and the matter is remanded back to the Assessing Officer for passing a fresh assessment order under Section 143(3) read with Sections 144B and 144C. Learned counsel for the petitioner has no objection to the same. Consequently, the impugned draft assessment order dated 25th March 2021 passed under Section 143(3) read with Sections 144C of the Act and the impugned Assessment order dated 24th May, 2021 pas....... + More

Violation of Section 179 - Liability of directors of private company in Liquidation - whether action is permissible only if the company is a Private Limited company and in respect of a Public limited company, Section 179 of the Income Tax Act is not applicable? - HELD THAT:- The matter is to be remanded back for the purpose of fresh adjudication. In this regard, this Court has considered the scope of Section 179 of the Income Tax Act and its application [2021 (3) TMI 1232 - MADRAS HIGH COURT] In view of the above facts and circumstances, the Show Cause Notice impugned passed by the 1st respondent in proceedings dated 28.02.2018 bearing reference no.AACCS9190G/Block Asst.92-93 is quashed and the matter is remanded back to the first respondent for fresh consideration.

Reopening of assessment u/s 147 - legality of the notice issued u/s 148 - No service of notice u/s 148 of I. T. Act 1961 within the period of limitation - as argued AO Noida had no jurisdiction to issue notice u/s 148 of the Act for re-opening of the assessment - HELD THAT:- This approach of CIT(A) is not proper and is against the settled principle of law. CIT(A) ought to have passed a speaking order considering the all submissions and averment made before him by the assessee or his counsel. Therefore, we set aside the impugned order and restore this issue to the file of Ld.CIT(A) to decide the issue after obtaining Remand Report from the AO as to when notice u/s 148 of the Act was issued to the assessee by the AO at Delhi i.e. ITO, Ward-63(3), New Delhi. - CIT(A) would give a clear finding about the reasons recorded by the AO at Delhi. L....... + More

Expenses of purchase of gold bars - HELD THAT:- Assessee is dealing in gold bullion which is purchased and sold at the market rates applicable on day to day basis. The quantity of gold bullion purchased was 16,469.09 grams and the quantity sold was 16,335.07 grams. This shows that the transactions were not just squaring up the balances but the actual transactions took place. Assessee had accounted for the profits and losses involved in the transactions and had paid the income tax applicable. Assessee and M/s N.K. Gold Medallion Pvt. Ltd. charged and paid VAT as applicable. Turnover declared for the F.Y. 2013-14 by M/s Swaran Traders, proprietorship concern of the assessee, proves the substantial sales to multiple parties. CIT(A) has given a detailed finding and there is no need to interfere with the finding of the CIT(A) and the Ld. DR co....... + More

Levy of penalty u/s 271(1)(c) - assessee’s claim of write off of brought forward unabsorbed depreciation was disallowed by the Assessing Officer while computing book profits under section 115JB of the Act on the premise that cumulative balance in the books of assessee for Financial Year 2002-03 show profits and Reserves & Surplus - HELD THAT:- The assessee made claim on the premise that business loss/unabsorbed depreciation were to be considered on year to year basis. The assessee in support of its computation of claim placed reliance on the decision of Tribunal in the case of Amline Textiles Pvt. Ltd. [2008 (11) TMI 438 - ITAT MUMBAI]. As against this, the Assessing Officer rejected the claim of assessee following aggregation approach, as reflected in the Balance Sheet. Per approach of Assessing Officer there would be no unabso....... + More

Assessment u/s 143 r.w.s 153A - Period of limitation - Exclusion of certain period - The assessee had filed a writ petition in the Hon’ble Allahabad High Court against the direction of Pr. CIT under section 142(2A) of the Act. This fact was communicated by the Assessee to the Auditor with a request to withhold the audit till the decision of the Court. - HELD THAT:- We find merit in the submission of the Assessee that as per the provisions of Section 142(2A) of the I.T. Act, 1961, the time period of 90 days plus further extension of 60 days expired on 21.08.2016. Whereas, the A.O. in the instant case has passed the assessment order on 28.10.2016 and, therefore, the order passed by the A.O. is barred by limitation. Finding given by the Ld. CIT(A) that in view of provisions of Section 153B read with Explanation- (b) the time period sta....... + More

Deduction u/s 80IC - existence of multiple “initial assessment years” - AO has disallowed the claim of deduction of 100% u/s. 80IC of the Act on the ground that the initial assessment year is A.Y. 2004-05 and therefore, for the year under consideration the assessee is eligible for only 30% deduction - HELD THAT:- We find that the AO has simply misunderstood the amendment brought u/s. 80IC and further misunderstood “the substantial expansion” brought by the assessee from A.Y.2009-10. In our considered opinion in the light of the notification issued by the Ministry of Commerce and Industry and in the light of the amendment brought in the Act u/s. 80IC of the Act, the eligibility of 100% deduction would start from initial A.Y. 2009-10. We further find that the AO has allowed the deduction from A.Y.2009-10 to 2012-13 w....... + More

Assessments in the name of non-existent entities - scheme of amalgamation conceived - assessee ceased to be in existence w.e.f. 29.11.2013 on account of amalgamation - HELD THAT:- Following the case of Maruti Suzuki India Ltd. case [2019 (7) TMI 1449 - SUPREME COURT] we are of the considered view that AO as well as ld. CIT (A) have erred in framing / confirming the assessments in the name of non-existent entities, namely, Haryana Gramin Bank and Gurgaon Gramin Bank which are not sustainable in the eyes of law being nullity, hence ordered to be quashed. Consequently, all the appeals filed by the assessee are allowed.

Deduction u/s 54F - primary requirements necessitating transfer u/s 53A of transfer of immovable property act are not satisfied - AO disallowed the deduction claimed u/s 54F of the Act on the ground that transfer of immovable property i.e. house property qua which deduction has been claimed by the assessee, is complete only by way of registered sale deed - HELD THAT:- We are of the considered view that benefit of deduction u/s 54F of the Act cannot be denied to the assessee merely on the ground that conveyance deed has not yet been got registered particularly when the assessee is proved to be in possession of the property in question out of which she was already owner in possession of 1/3rd share since 2008 after making a complete payment of the sale consideration to the vendors and has duly proved her possession over the property by way ....... + More

Reopening of assessment u/s 147 - reasons to believe - HELD THAT:- There is no averment to the effect as to what material facts necessary for assessment were not disclosed by the assessee in the course of original assessment proceedings fully as well as truly. The reasons being justiciable, the AO is expected to record a finding to this effect in the reasons recorded itself. AO has failed on this score. Thus, the reasons recorded when seen on standalone basis do not pass the tests of basic requirement for assumption of jurisdiction u/s 147 of the Act. The notice issued for reopening a completed assessment on the basis of such reasons, is thus, time barred and merge in void. The re-assessment order framed on the basis of a time barred notice, thus, cannot be countenanced in law. Hence, we find merit in the ground raised by the assessee tow....... + More

Accrual of Capital Gain - Surplus which arose on sale through the appellant, of the mortgaged plots of land by the mortgagee of the plots - CIT-A assessment long term capital gain - HELD THAT:- Assessee company has voluntarily sold the mortgaged property and has received the sale proceeds thereof through banking transactions at the market value, hence surplus arising on the sale of agricultural land declared as capital gain by the assessee has been rightly subjected to taxable income of the assessee for the year under assessment. So, finding no illegality or perversity in the impugned findings returned by the ld. CIT(A), ground nos.1, 2 & 3 are determined against the assessee. Addition on account of bad debts written off not due to business exigencies but due to collusive nature of transaction as provided under section 36(1)(vii) - CI....... + More

Penalty u/s. 271 (1)(c) - expenditure incurred on construction of Bus Queue Shelter - Revenue or capital expenditure - HELD THAT:- Penalty was initiated and levied in earlier years but was deleted by ld. CIT (A) and his order has been confirmed by the coordinate Bench of the Tribunal on the ground that when the assessee has brought on record all the true and material facts in the return of income, it is merely a difference of opinion if these expenses are to be treated as capital or revenue in nature and is not a case of furnishing of inaccurate particulars of income. Hon’ble Apex Court in case of CIT vs. Reliance Petro Products Pvt. Ltd. [2010 (3) TMI 80 - SUPREME COURT] held that merely making a claim which is not sustainable in law by itself would not amount to furnishing of inaccurate particulars. We are of the considered view t....... + More

Assessment u/s 153C - Addition u/s 69 - CIT-A deleted the addition - HELD THAT:- As decided in DHARMEN MARBLE & STONE VERSUS ACIT, CENT. CIR. 1 (2) (3) AHMEDABAD. [2021 (7) TMI 1163 - ITAT AHMEDABAD] addition made by the AO has already been deleted by the CIT(A) on merit. The order of the CIT(A) has not been challenged by the Revenue in further appeal. Therefore, adjudication of legal issue at this stage would only an academic exercise. It is not going to materially affect the assessee in any manner. No other proceedings, in consequence to this proceeding qua the assessee are pending. Therefore, we do not deem it necessary to devote time energy for resolving an academic litigation

Addition u/s 50C - sale of land by four co-owners - applicability of the provisions of Section 50C for adoption of deemed full value consideration, while computing the capital gain arising from the sale of land in question - assessee has claimed that the land in question is a Bhumidari land and the ownership is vested with the State Government, hence, the assessee has transferred only the tenancy rights in the land - HELD THAT:- In the case in hand as per the sale deed dt. 26th May 2004 the parties have specifically stated that the land in question is free from any encumbrance and does not fall in the category of ceiling, nazul or leasehold. Therefore, what is transferred by the assessees as per sale deed dt. 26th May 2004 is the ownership of the land for a consideration of ₹ 9,50,000/- whereas the land was valued for stamp duty pur....... + More

Disallowance of deduction u/s 80IAB - income derived from 'Operation and Maintenance Activities' of SEZ - HELD THAT:- A combined reading of provisions of section 80IAB of the Act with section 2(g) and Section 3(10) of the Special Economic Zone Act that a person would be considered as a developer with the grant of letter of approval from competent authority, if the approval has been granted for development, operating and maintaining the SEZ. Therefore, activities of the assessee being a developer, include operation and maintenance of SEZ, and therefore entitled for deduction under section 80IAB of the Act. DR has not disputed or point out any material difference in this year from that of earlier years, so that the Tribunal can take a different view on the issue of claim of deduction under section 80IAB of the Act. Therefore, respec....... + More

Addition u/s 68 - accommodation entry in the name of the Assessee - assessee was asked to produce parties who invested in the Assessee company to prove the genuineness of the transaction but he has shown its inability to produce - CIT-A deleted the addition - HELD THAT:- There is no reference in the order of ld CIT(A) that how he has dealt the requirement of the ld AO of personal examination of the investor which the Assessee has reportedly failed to produce before the ld AO. CIT(A) has categorically mentioned that on account of independent enquiry, no adverse information came to the knowledge of the share holders that those are non- existent or do not have any capacity. He merely deleted the addition on the basis of the confirmation. He ignored the finding of the ld AO that there were a search in case of Shri S. K. Jain, where he confirm....... + More

Penalty u/s 271(1) (c) - Addition on ad-hoc basis - HELD THAT:- AO imposed penalty under section 271(1)(c) of the Act on ad-hoc basis without adducing any evidence on record for concealment of income. Penalty under section 271(1)(c) of the Act is liable to be imposed only where the assessee has concealed its particulars of income or furnished inaccurate particulars. Action of making addition on ad-hoc basis does not result into imposition of penalty u/s 271(1)(c) and hence cannot be termed as either concealment or furnishing of inaccurate particulars of income. We find support from the series of decisions by different High Courts as well the decision of the Co-ordinate Benches of the Tribunal, wherein it was held that when addition is made on estimate basis, penalty is not sustainable in the eyes of law. Departmental Authorities has not b....... + More

Addition on account of Short Deduction of TDS - Intimation u/s. 200A - HELD THAT:- As per the provisions of Sec.201(1), where the assessee, inter-alia, fails to deduct whole or any part of the tax then such persons shall be deemed to be an assessee-in-default. However, as per the first proviso, the assessee shall not be deemed to be assessee-in-default in respect of such tax if the payee has furnished his return of income u/s 139 and has taken into account such payment for computing income and has paid tax due on income declared by him in such return of income. For the same, the payee is required to furnish a prescribed certificate to that effect. Thus, if the assessee could demonstrate the fulfilment of all these requirements, he could not be treated as assessee-in-default. To get the benefit of the proviso, the assessee is directed to d....... + More

Assessment u/s. 144 - Cash deposits into Citizen Co-operative bank account as income of the assessee under the head 'income from other sources' - HELD THAT:- AO has proceeded on the assumption that the cash deposits are after the death of assessee's father, and the assessee could not file all the details before the AO and the CIT(A), we deem it fit and proper to remit the issue to the file of the AO with a direction that AO shall reconsider the issue afresh in light of material filed by the assessee in accordance with law. The assessee is directed to cooperate with the AO by giving all details, failing which, AO can take necessary decision as per law.

LTCG - registered sale deed was executed by the legal heirs of late Sri G. Sattiah - Assessee along with her sister and 6 brothers, sold 12 plots of land and the assessee's 1/8th share in S.R.O. value (after applying the provisions of section 50C - HELD THAT:- Undisputed facts are that the assessee's father, late Sri G. Sattaiah during his lifetime had sold certain piece of land to various vendees and some of the vendees have also passed away and at the request of the vendees and the legal heirs of deceased vendees, the LRs of the vendor, late Sri Sattaiah, have executed registered documents in their favour. In the light of such circumstances, the assessee and her brothers have executed the sale deed, in respect of properties, whose possession of the property was already given. In view of provisions of section 53A of the Transfer ....... + More

Penalty u/s. 271(1)(c) - Non specification of specific charge - irrelevant portion in the notices were not striked off and contended that such a levy of penalty was void ab initio and requested to be deleted - additions pertain to bank deposits and deduction claimed u/s. 80C - HELD THAT:- CIT(A) had observed that the A.O. records satisfaction for imposition of penalty was for concealment of income, however, he omitted to strike off the irrelevant part of the blank printed format notice u/s. 274 r.w.s. 271(1)(c) and thus without striking off the irrelevant portion in the notice contemplates in vitiating the penalty proceedings. The admitted fact that the A.O. has issued blank printed format notices, without striking off irrelevant portion u/s. 274 r.w.s. 271(1)(c) duly signed under its signature. We understand that the A.O. while issuing N....... + More

Penalty levied u/s. 271(1)(c) - transfer of agricultural land were subjected to capital gain tax and as the assessee did not offer the gains in his return of income - As strongly contended that when the assessee sold the impugned piece of agricultural land said land was beyond the distance of 8 KMS from the municipal limits and this was confirmed by the Tehsildar of Sohana - CIT(A) deleted the penalty levied by the AO - HELD THAT:- It is an undisputed fact that the distance of the land sold on the date of CBDT notification No. 9447 dated 06.01.1994 was more than 8 KMS. As equally true that on the date of sale the said distance was less than 8 KMS. We are of the considered view that the chargeability of capital gain tax under such circumstances is a debatable issue. We further find that the appellant claim is well supported by the certific....... + More

Levy of penalty u/s. 271(1)(c) - HELD THAT:- Penalty proceedings u/s. 271(1)(c) of the Act has been initiated by the Ld. AO for concealment of income, but ultimately the penalty has been levied by the Ld. AO for furnishing inaccurate particulars of income. This is a classic case wherein penalty has been initiated under one limb of Section 271(1)(c) of the Act and ultimately levied for another limb of Section 271(1)(c) of the Act. In the case of CIT vs. Samson Perinchery [2017 (1) TMI 1292 - BOMBAY HIGH COURT] had held that concealment of income and furnishing of inaccurate particulars of income in Section 271(1)(c) of the Act carry different meanings/connotations and therefore, the satisfaction of the AO with regard to only one of the two breaches mentioned u/s. 271(1)(c) of the Act, for initiation of penalty proceedings will not warrant/....... + More

Validity of three adjudication orders made passed exparte - challenge on account of the fact that for one tax period and for one dispute, there can only be a single adjudication order - HELD THAT:- Undisputedly, three periods for which the orders had been passed are overlapping. Notice dated 22.12.2020 was issued by respondent no.2 for the period July 2017 to March 2018. It covers the entire period and dispute being sought to be adjudicated in the other two notices as well. At the same time, it is found that by notice dated 22.12.2020, next date fixed was 05.01.2021 but the petitioner could not participate in the same on account of the spread of pandemic COVID-19. Also, in that regard, it has been brought to our notice that realizing the difficulties from the spread of pandemic COVID-19, the Government had itself issued an order dated 01........ + More

Cancellation of bail granted - allegations of tempering of evidence and influencing the witnesses - fake and non-existing firm - HELD THAT:- It is trite law that considerations relevant at the time of grant of bail are different than the considerations at the time of cancellation of bail after the accused has remained in custody. Admittedly, the investigation had started in the year 2018 and was continuing when the petitioner was arrested on 9th February, 2021 and was granted bail on 9th March, 2021 - It may be noted that the petitioner was already in custody and despite having been granted bail on 9th March, 2021 till date complaint has not been filed and in case the petitioner was in custody in the event of the complaint not being filed in 60 days, he would have been entitled to default bail. The finding of the learned CMM was that the ....... + More

Maintainability of appeal - pre-condition for filing the appeal - Demand of tax of ₹ 1,89,810 and equivalent amount of penalty imposed in the penalty order - HELD THAT:- Identical issues have been raised in M/S ABHISHEK SALES VERSUS STATE OF U.P. AND 2 OTHERS [2020 (1) TMI 515 - ALLAHABAD HIGH COURT] has proceeded to direct the petitioner to deposit 20% of the remaining amount of tax in dispute in accordance with Section 112 (8) of the Act within three weeks from the date of order and in which event, the recovery proceedings for the balance amount shall remain stayed till disposal of the writ petition. All the respondents are granted eight weeks' time to file counter affidavit on behalf of State respondents. The rejoinder affidavit, if any, may be filed within one week thereafter. List thereafter - it is directed that the petiti....... + More

Refund of ITC - ITC accumulated due to Invented Tax Structure - denial on the ground that the seller has not remitted tax with the appropriate State/Central Government authorities and disclosed in his GSTR-1 Return - HELD THAT:- On going through the submission of appellant and RFD-06 I find that the out of total amount of refund of ₹ 9,54,051/- only ₹ 6,27,004/- have been sanctioned by the adjudicating authority. The adjudicating authority has accordingly processed the refund application and sanctioned the refund amount ₹ 6,27,004/- under Section 54 of the CGST Act, 2017. Further, he also mentioned in the remark that assessee requested to refund the pending sum of ₹ 6,27,004/- hence RFD-06 is being issued, and in column of RFD-06 “Wrong ITC Claim” ₹ 3,27,047/- (State/UT Tax) has been entered by hi....... + More

Refund of IGST - IGST was paid inadvertently instead of CGST and SGST - refund claim of excess paid CGST - rejection of refund on the ground of time limitation - it is also alleged that reply to SCN does not address the issue of delay in filing refund application - period July, 2017 to March, 2018 - Section 54 of CGST Act, 2017 - principles of natural justice - HELD THAT:- Despite the submission of written reply, adjudicating authority has passed the Orders-in-Original all dated 23-4-2020 wherein he has rejected the refund claims without granting any opportunity of personal hearing to the appellant. Moreover, adjudicating authority did not consider appellant’s request for adjournment of personal hearing until COVID-19 is eased. Thus, it is found that the appellant did not avail the opportunity of personal hearing in the matter. The ....... + More

Rectification of Mistake - typographical error - error apparent on the face of record or not - HELD THAT:- On perusal of the impugned order, it is noticed that such typographical error has indeed occurred in para No.4.1 and 4.2 and needs correction. “Therefore, this corrigendum order is issued, to correct the above mentioned error. Appeal disposed off.

Levy of GST - Forward supply - rate of GST - Tertiary Treated Water supplied by the applicant to Maharashtra State Electricity Generating Co. Ltd. (MAHAGENCO) - falling under Entry No. 99 of N/N. 02/2017-Central Tax (Rate), dt. 28-06-2017 or Entry No. 24 of N/N. 1/2017-Central Tax (Rate) dt. 28.06.2017 - HELD THAT:- As per the parameters tested by the applicant, the properties of processed water generated from the sewage is different than the properties of the original sewage water received in the STP plant. Therefore, the Tertiary Treated Water is purified sewage water and since it is purified water. the same will not fall under Sr. No, 99 of Notification 02/2017-C.T. (Rale) dated 28.06.2017. Since the said entry at Sr. No. 99 mentions that water, other than purified, aerated, mineral, distilled, medicinal, ionic, battery. de-mineralized....... + More

Seizure and detention of vehicle - Ambulance van - detention on the ground that the vehicles did not carry e-way bills - case of the petitioner is that the vehicles are purchased not for resale but for the own use and business purpose of the petitioner and in which case, there was no necessity of regenerating an e-way bill - HELD THAT:- When the respondent No.3 has issued a show cause notice for completing the assessment for levying tax with or without penalty, let the petitioner file reply to such show cause notices. It would be open for the Assessing Officer to carry out the assessment, in accordance with law, after considering the reply of the petitioner. However, considering the prime defence of the petitioner that he is not a registered dealer nor is he dealing in purchase and sale of vehicles and the ambulances have been purchased b....... + More

Refund claim - time limitation - whether the refund application filed by the appellant is time barred by the period of limitations in terms of Section 54 of the CGST Act, 2017? - HELD THAT:- The instant refund application was filed by the appellant on the ground of excess tax payment made by him and it was arised due to not reporting of credit note in GSTR-3B mistakenly and wrongly/erroneously paid the tax on cancelled invoices during the period 2017-18 by filing of GSTR-3B - other remedies are available in the Section 34(2) and Section 39(9) of CGST Act, 2017 but the appellant failed to opt the same and applied the instant refund application on 15-5-2020. The refund application has been rejected by the adjudicating authority by the impugned order on being time barred issue in terms of Section 54 of CGST Act, 2017. There is a settled law ....... + More

Refund of Input Tax Credit - credit accumulated due to Inverted Tax Structure - time limitation - period July, 2017 to March, 2018 - whether application of refund filed by the appellant is time barred as per Section 54 of CGST Act, 2017 as amended, or not? - HELD THAT:- The due date for filing of refund application for remaining period i.e. for the month of Mar., 2018, has been extended upto 31-8-2020, in terms of the CGST Notification No. 55/2020-Central Tax, dated 27-6-2020 - it is obvious that refund application for the period July, 2017 to February, 2018 is time barred as the same was filed on 13-6-2020. Whereas, the refund application for the month of Mar., 2018 falls within time limits. Whether refund claim for the tax period of March, 2018 is inadmissible or not? - HELD THAT:- The adjudicating authority has rejected the refund for ....... + More

Refund claim - zero-rated supplies - appellant did not furnish the DRC-03 as required in case where the refund is applied again after issuance of deficiency memo - sufficient opportunity of being heard not provided - HELD THAT:- The appellant has filed Refund for ₹ 7,35,253/- for which deficiency memo No. ZW0801200310312 was issued stating that supporting documents attached are incomplete. The appellant filed afresh ARN Receipt AA080120043271Y (GST RFD-01), dated 28-1-2020 for ₹ 7,62,291/- for which the show cause notice No. ZO0802200237580 (RFD-08) was issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur on 19-2-2020 and served the same through Common Portal. The appellant only received the e-mail dated 26-2-2020 stating that ‘This mail is in reference to the AA080120043271Y; 26-2-2020 filed by y....... + More

Maintainability of petition - Validity of SCN - SCN asking the petitioner to submit their reply within 30 days - HELD THAT:- The power of judicial review is to scrutinise the processes through which the jurisdiction is taken by the competent authorities in consonance with the law, but not the decision itself. Thus, the Courts always exercise restraint in entertaining a Writ Petition filed against the show cause notices. In the present case, the impugned show cause notice provides all the details regarding allegations. The petitioner is asked to submit their representations/defence or documents to defend their case by availing the opportunity. Therefore, the petitioner is expected to defend their case before the competent authority by submitting their explanations/defence statements and thereafter, the authorities are bound to consider the....... + More

Interest on delayed payment of tax - Section 50 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner submitted a representation to the first respondent on 03.11.2020, which is yet to be disposed of and such representation is entertainable under the provisions of the Act and the Authorities Competent is duty bound to dispose of the same on merits and in accordance with law. The first respondent is directed to consider the representation submitted by the petitioner on 03.11.2020 and pass an order on merits and in accordance with law and by affording an opportunity to the writ petitioner, as expeditiously as possible, preferably within a period of twelve weeks from the date of receipt of a copy of this order - Petition disposed off.

Detention of motor vehicle - RANGE ROVER motor vehicle transported from Coimbatore to Thiruvananthapuram as 'used personal effect' of the 2nd respondent - detention on the ground that the same was transported without the E-way bill - requirement of e-way bill for personal effect goods - Rule 138 of the Kerala Goods and Service Tax Rules, 2017 - HELD THAT:- It must be remembered that goods that are classifiable as used personal and household effect falls under Rule 138(14) (a) of the Kerala Goods and Services Tax Rules, 2017 and are exempted from the requirement of e-way bill. The 2nd respondent had purchased the vehicle after payment of IGST. A temporary registration was also taken apart from the motor vehicle insurance. The decision in the case of KUN MOTOR CO. PVT. LTD. AND VISHNU MOHAN VERSUS THE ASST. STATE TAX OFFICER, SQUAD ....... + More

Release of seized goods - levy of penalty - penalty levied although the matter is yet to be settled finally - goods are properly obtained through legitimate means or not - HELD THAT:- This Court having heard learned counsel for the parties and also on perusal of the materials on record, is of the view that it is the mandate of law that at the time of release, not only the value of the goods but also the penalty as may be payable as per the authorities are liable to be paid for which the owner of the goods may have to execute a bond with security thereof and, as such, in the present case, directing the applicants to execute bond and furnishing Bank Guarantee of the amount mentioned in the said communication cannot be said to be beyond the purview of law. The applicants shall execute a bond and furnish Bank Guarantee in respect of the amount mentioned in the communication - Application allowed.

Violation of principles of natural justice - opportunity of personal hearing not provided - specific case of the petitioner is that while settling the bill amounts received, departments had in fact deducted the tax payable - HELD THAT:- The petitioner's place of business was inspected by the enforcement wing officials on 10.09.2020. Based on the same, show cause notice was issued on 20.10.2020. The petitioner submitted his reply dated 24.12.2020. However, without granting an opportunity of personal hearing, the impugned orders were straightaway passed. This is on the face of it as violative of Section 75(4) of the Tamil Nadu Goods and Services Tax Act, 2017. The matter is remitted to the file of the respondent to pass orders afresh in accordance with law - petition allowed by way of remand.

Refund on account of Assessment/Provisional Assessment/Appeal/Any other Order through portal - refund rejected on the ground that the taxpayer has wrongly filed the refund claim in the category of appeals as there was no amount deposited by the taxpayer while filing the appeal against the MOV-09, dated 16-9-2019 - HELD THAT:- It is found that RFD-01, dated 22-6-2020 was filed with Division for refund of IGST @ 18% and penalty of equivalent amount i.e. ₹ 7,50,618/- deposited in pursuance to appeal allowed by Commissioner (Appeals)-II, State Tax, Haridwar - Further, the appellant has deposited ₹ 7,50,618/- to the Electronic Cash Ledger vide Reference No. 201909160845602, dated 16-9-2019 but had not discharged his liability towards tax and penalty payable under the Act by debiting the electronic cash ledger in consonance to Secti....... + More

Erroneous sanction of refund - export of services - SCN alleged that the period for which the refund claimed is May, 2018, whereas, the relevant payment was received only on 29-1-2019 which did not fall in the range of the relevant period - time limitation - HELD THAT:- In the case on hand the appellant has exported service through invoice dated 31-5-2018. The respondent had, after sanctioning provisional refund, chosen to allege that the refund sanctioned was erroneous and consequently the same is liable for recovery along with applicable interest and penalty under Section 73(1) of CGST Act, 2017 read with Section 54 of CGST Act, 2017. This allegation levelled in the notice to Show Cause (SCN) seamlessly culminated into the impugned Order, as the appellant neither replied to the notice nor appeared for the hearing, holding that the refun....... + More

Jurisdiction or authority to block any input tax credit - Reason to believe - purchase with respect to which, adjudication proceedings are underway against the petitioner in accordance with Section 74 of the UP GST Act, 2017 - manner in which an amount may be determined to be due and recoverable from the petitioner - Rule 86A(1)(a)(i) of the State/Central Goods and Services Tax Rules, 2017 - HELD THAT:- Plainly, there can be no dispute that the Act prescribes the manner for determination of any tax not paid or short paid. Section 74 of the Act provides for determination of input tax credit wrongly availed or utilized by reason of fraud etc through the process of adjudication. Section 78 of the Act further mandates that any amount that may be determined under Section 74 of the Act may not be recovered for a period of three months from the ....... + More

Maintainability of petition - sufficient time was not afforded to the petitioner to represent his case - ex-parte order - principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. Here is violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case - also the order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. Petition disposed off.

Imposition of penalty - section 112(b) of Customs Act - smuggling - diamonds - existence of mens rea or not - reasons to believe - HELD THAT:- Perusal of the said provisions clearly reveals that the penalty under the said provisions can be imposed wherever there is an element of mensrea or conscious knowledge, which is a sine qua non for imposition of penalty. This is evident from a plain reading of Sections 112(b) of Customs Act, 1962 which uses the expressions “which he knows or has reason to believe are liable to confiscation under Section 111”. The facts of the case in hand do not reveal any such element of mensrea or conscious knowledge qua these appellants. The active role of these Appellant, do not justify imposition of heavy penalty under Section 112(b) of Customs Act 1962 - The DRI investigation has not brought any su....... + More

Provisional release of imported goods - Return of bank guarantees - Areca nuts - proper officer in terms of Section 45(1) of Customs Act - country of origin certificate - HELD THAT:- Section 45 of the Act provides all goods imported into India and unloaded in customs area shall remain in the custody of such person as may be approved by the Principal Commissioner of Customs or Commissioner of Customs unless they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII of the Act. On the other hand, Section 100 deals with seizure of goods on a reasonable belief that the goods are liable to confiscation under the Act. In the present case the customs authorities had not seized the goods on such reasonable belief that they are liable to confiscation. On the other hand, the goods ha....... + More

Smuggling - Foreign Origin (FO) Gold - recovery of the gold from the secret cavity beneath the driver’s seat of that vehicle - recording of statements u/s 108 of the Customs Act, 1962 - HELD THAT:- The case diary which has been produced in a sealed cover, has been perused. Undisputedly, the investigation is pending and Challan has not been filed so far. Having regard to the nature of material which has come on record, the release of the applicants during the pendency of the investigation would not be proper as the prosecution is in the process of collecting further evidence against them - application dismissed.

Validity of Notifications dated 04.05.2007, 04.05.2007 and 05.09.2006 - issuance of SCN by proper officer - incompetent authority of Jurisdictional Officer or not - HELD THAT:- The proper officer is defined as “in relation to any functions to be performed under the Act, means the Officer of Customs, who is assigned those functions by the Board or the Commissioner of Customs. Thus, the proper officer is defined so as to include the officer of customs, who is assigned those functions by the Board. In the present case, by invoking the powers under Section 4(1) of the Act, the Board conferred powers to the Commissioner of Central Excise, Goa and authorises him to exercise the powers and discharge the duties conferred or imposed on the Commissioner of Customs, Port Imports, Chennai for the purposes of adjudicating the matters relating to....... + More

Seeking interest on delayed disbursal of refund - circular bearing No.276/186/2015-CX.8A dated 01.06.2015 - HELD THAT:- Admittedly, there is no interim order in the appeal filed by the respondents and therefore, the petitioner is entitled for the interest as ordered by this Court - But, in spite of the orders passed by this Court and in spite of the circular bearing No.276/186/2015-CX.8A dated 01.06.2015, the first respondent had refused to pay interest to the petitioner and had driven the petitioner to come before this Court once again for his entitlement. The earlier order is very clear as to the interest. The respondents are directed to pay the interest due to the petitioner within a period of four weeks from the date of receipt of a copy of this order - Petition allowed - decided in favor of petitioner.

Seeking release and return of detained containers - entitlement of compensation towards the container idling charges - in spite of petitioner's request, the respondents have not taken any steps to release the containers as specified - HELD THAT:- This Court is of the considered opinion that imports and exports are to be done by following the procedures contemplated and by complying with the mandatory requirements. The relief as such sought for in the present writ petition to direct the respondents to forthwith release and return the containers, itself is absurd. Such a relief requires adjudication in view of the fact that there are statutory requirements and compliance of the terms and conditions with the Customs Cargo Service Provider and other aspects of the matter. Without adjudicating all those factors, the High Court cannot issue....... + More

Grant of default bail - Smuggling - contraband gold bars - discharge of burden of proof u/s 123 of the Customs Act, 1962 - offence punishable under Section 135(1)(b)(i)(A) and Section 135(1)(b)(i)(C) of the Customs Act, 1962 - HELD THAT:- The petitioners in the instant case have been granted default bail as per the proviso (a) (ii) of Section 167(2), CrPC as the investigating authority could not submit the final complaint within the prescribed period of 60 (sixty) days considering the fact that the offences under Section 135(1)(b)(i)(A) and Section 135(1)(b)(i)(C) of the Customs Act, 1962 are punishable with rigorous imprisonment which may extend upto a period of 7 (seven) years and fine. As the provisions of Chapter XXXIII (Provisions as to Bail and Bonds) are applicable also in respect of the default bail granted as per the proviso (a)(....... + More

Maintainability of appeal - Form No. CA-1 under Rule 3(1) of the Customs (Appeals) Rules, 1982 read with Section 128 of the Customs Act - Confiscation - Foreign Currency - HELD THAT:- The form prescribed for filing an appeal before the Commissioner (Appeals) is CA-1, though Column No. 4 seeks for providing the date of communication of the order appealed against, the same cannot be controlled the manner in which an appeal is to be preferred. If there are separate dates on which different appellants had received the orders, those different dates can be provided in the column. Further, when right of appeal is a vested right and a creation by the statute, the form prescribed or any column in the form so prescribed cannot control the right to file an appeal. Appeal to the Commissioner of Appeals cannot be determined either by the rules governi....... + More

Refund claim of Additional Customs Duty (ACD) - rejection on the ground that as per correlation sheet, the description in Bill-of-Entry and invoices did not tally and the last digit in the Bill-of-Entry No. 9252028 was entered as “3” instead of “8” - inadvertent mistake - rejection without ascertaining/verifying the claim of the appellant submitted by the letter containing revised correlation sheet duly certified by the Chartered Accountant - HELD THAT:- The mistake, as canvassed by the Learned Advocate for the appellant, appears to have been explained, but however, the same requires to be verified with the support of documentary evidences like the certificate or self-supporting letter like the one dated 07.12.2019 filed by the appellant. Since this requires factual verification based on the documents, and also tak....... + More

Classification of imported goods - Supari - reliability on the opinion of the FSSAI notified laboratory - reliability and completeness on the test report given by the CRCL (Central Revenues Control Laboratory), Chennai - validity of speaking orders - Whether the opinion of the FSSAI notified laboratory can be relied upon for classification of the imported goods? - HELD THAT:- The report very clearly stated in its first page that the physical appearance of the betel nuts are “Brown Colour Whole Nuts” and in the page No. 3, the opinion has been given by the Lab stating that the sample description confirms to BETEL NUTS (BOILED SUPARI) as stated in the test memo. The FSSAI notified lab report can be considered only for the purpose of “fitness for human consumption” and it cannot be considered for the classification of....... + More

Seeking return of bank guarantees furnished - import of Areca Nuts - no SCN issued within six months from the date of seizure of the goods - HELD THAT:- The goods had been seized in exercise of powers under Sub-section (1) of Section 110 of the Act. On the other hand, it appears that they had been kept in the custody of the proper officer, pending verification of the country of origin certificate. It appears that there was no seizure of goods, as envisaged under Section 110(1) of the Act. On the other hand, the instant case relates to clearance of imported goods as governed by Chapter VII of the Act. Sections 45, 48 and 49 deal with the manner in which the imported goods ought to be kept pending their clearance upon submission of bills of entry under Section 46 thereof. In the present case the customs authorities had not seized the goods ....... + More

Finalization of assessment order - grievance of respondent/writ petitioner has been that the appellants are not giving effect to the decision of the Appellate Tribunal in M/S. GLOBAL INDUSTRIES VERSUS THE COMMISSIONER OF CUSTOMS COCHIN [2011 (2) TMI 742 - CESTAT BANGALORE] - HELD THAT:- The appellants inform this Court that the appeal filed against Ext.P9 order is pending before the Supreme Court. It is not in dispute that the appeal is pending and the appellants do not have an order of stay in their favour against the implementation of the decision of the CESTAT. The undisputed fact situation is that the Supreme Court has not stayed the operation or implementation of decision of the CESTAT. The appellant is under obligation to implement the order of the CESTAT and ought to have complied with the writ of mandamus issued by this Court - Appeal dismissed.

Deemed Export scheme - supplies effected by the petitioner to M/s. Reliance Petroleum Limited for their project at Gujarat - new refinery project or not - applicability of exemption granted under the Customs Notification No. 36 of 1997, dated 11-4-1977 - HELD THAT:- As seen from the impugned orders, without any basis, just based on the Department of Economic Affairs Clarification, the respondents have rejected the petitioner’s claim for Customs duty exemption under the Notification dated 13-6-1997 issued by the Ministry of Finance (Department of Revenue). Hence, this Court is of the considered view that the impugned orders, namely, the order in appeal passed by the second respondent dated 5-6-2015 as well as the order of the Original authority dated 25-5-2010 passed by the fourth respondent have been passed by total non-application ....... + More

Permission to mutilate the imported goods - 459 packages weighing 55.740 MT of mixed wet strength scrap paper (silicon paper and coated) - seeking allowance of clearance of the goods under the exemption claimed for waste paper - HELD THAT:- The Government of India, Ministry of Commerce and Industry, Department of Commerce, Directorate General of Foreign Trade (DGFT), in exercise of powers conferred under Section 3 of the Foreign Trade (D&R) Act, 1992 r/w Paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, introduced a policy condition for items under EXIM Code 4810 of Chapter 48 of ITC (HS), 2017, Schedule-I (Import Policy) - This was vide a Notification, dated 31.01.2020 in Notification No. 45/2015-2020. The policy condition for items under EXIM Code 4810 was free, but import of stock lot was....... + More

Scope of the contract - Change in the price of Gold Bars due to change in rates of Customs duty - revision in the price of Gold bars imported, which was still in stock and is not sold till date - appellant submitted that the Corporation could not have insisted for revised payment of customs duty at the enhanced rate as the same has already paid along with the customs duty - whether the Corporation like any other importer of gold has a right to sell the gold after a particular date at the rate fixed by it? - HELD THAT:- Admittedly, the appellant had not made any payment to the respondent- Corporation and the appellant has not sustained any loss from the transaction in question. The issue decided in the case of BANGALORE BULLION TRADERS, BANGALORE VS. MINERALS AND METAL TRADING CORPORATION LIMITED, BANGALORE [2003 (2) TMI 546 - KARNATAKA HI....... + More

Claim due to floods during December 2015 - Both parties made submission that Customs Duty has already been settled and therefore, the order impugned is set aside - HELD THAT:- In view of the fact that the 4th respondent remitted the Customs Duty, there is no further adjudication needs to be entertained with reference to the grounds raised in the present writ petition. The writ petition stands disposed of.

Valuation of imported goods - rejection of declared value - purchase of urea by the Appellant from the Government of India on High Sea Sale - inclusion of miscellaneous charges of ₹ 17/- per MT paid by the Government of India to STE, in assessable value - inclusion of notional 2% High Sea Sale Commission in assessable value - invocation of extended period of limitation - confiscation - penalty. HELD THAT:- The order of the Custom, Excise and Service Tax Appellate Tribunal in M/S. INDIAN FARMERS FERTILIZERS CO-OPERATIVE LIMITED (IFFCO) VERSUS PRINCIPAL COMMISSIONER OF CUSTOMS, JAMNAGAR [2020 (2) TMI 1134 - CESTAT AHMEDABAD] is upheld - it was held in the case that 2% Notional High Sea Sale Commission could not have been added to the assessable value - neither the amount of ₹ 17/- per MT paid by the Government of India to the ST....... + More

Grant of fresh CHA License - HELD THAT:- This appeal is disposed off with liberty to the appellant to make a fresh application for grant of CHA License, which be considered by the Competent Authority in accordance with law. In the event, the application for grant of fresh CHA License is rejected, it will be open to the appellant to take recourse to statutory remedy of appeal provided for in Regulation 9(4) of the Custom House Agent Licensing Regulations, 2004.

Seeking registration of scrips - benefit under Merchandise Exports from India Scheme (MEIS) - invocation of procedure for cancellation of scrips as set out u/s 9(4) of Foreign Trade (Development and Regulation) Act, 1992 - HELD THAT:- Upon a comparison of the details contained in the bills of export of goods under which the petitioner has claimed duty drawback, with the bills of the parties to the transaction, it is found that the numbers and date tally. It is thus clear that the export documents have been executed by the petitioner. The petitioner also confirms that the FTWZ has neither claimed nor been granted any benefit under MEIS Scheme in regard to the instant transactions. If at all such claims had been advanced, they would have been barred under the provisions of 3.06 (vii) of the policy note. The procedure set out for issuance of....... + More

Refund of excess amount of tax - import of RBD Palm Oil - enhancement of rate of customs duty vide N/N. 29/2018-Cus., dated 1-3-2018 - validity of the notification - date on which notification came into effect, and the effect of notification on impugned bills of entry - HELD THAT:- The Notification No. 29/2018-Customs, dated 1-3-2018 came into effect from the date of its publication in the official website of the respondent as per the Office Memorandum - there is no dispute that the Notification was uploaded in the official website on 6-3-2018. Therefore, the rate of duty, as was in existence prior to the said publication of the Notification No. 29/2018-Customs, dated 1-3-2018 in Notification No. 50/2017-Customs, dated 30-6-2017, was applicable for assessment of the Bill of Entry No. 5409602, dated 1-3-2018. The respondents will have to p....... + More

Sanction of Scheme of Amalgamation - Section 230 - 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- The Petitioners have made the instant Petition before this Tribunal, among other things, seeking final sanction to the proposed Scheme of Amalgamation - The date of hearing of the Petition filed jointly by the Petitioners for sanctioning of the Scheme is fixed on 13.09.2021. Notice of hearing of the Petition in form NCLT 3A shall be advertised once in English newspaper "Financial Express" and in Bengali newspaper "Aajkal" not less than 10 (Ten) clear days before the aforesaid date fixed for hearing.

Attachment of premises - Priority of charge/mortgage over the premises - priority over the dues of the Income Tax department or not - commencement of proceedings under the SARFAESI/Securitisation Act - Whether the secured debt assigned in favour of Petitioner has a priority over Government dues/tax dues? - HELD THAT:- The issue decided in the case of THE STOCK EXCHANGE, BOMBAY VERSUS VS. KANDALGAONKAR [2014 (10) TMI 368 - SUPREME COURT] while considering the question whether the lien exercised under Rule 43 of the Stock Exchange can be said to be a superior right to the Income Tax dues, which may become payable by virtue of the Stock Exchange being a secured creditor, has held that the Income Tax Act does not provide for any paramountcy of dues by way of Income Tax - Supreme Court while holding thus, referred to its own decision in the ca....... + More

Seeking to restore the name of the Company in the Register maintained by the Respondent/RoC - Section 252 of the Companies Act, 2013 - HELD THAT:- Upon perusing the documents, it is seen that the Company has not placed on record any document to show that they have been active and carrying on its business operations immediately two years preceding the date of strike off. However, a perusal of other communications which are placed along with the written submissions discloses the fact that the Company is having future prospects of running the same for the purpose of which it was incorporated. It is significant to point out here that while considering an Application under Section 252(3) of the Companies Act, 2013, this Tribunal cannot focus only on the past activities, however, is also required to look into the future prospects of the Company....... + More

Seeking to restore the name of the Company in the Register maintained by the Respondent/RoC - Section 252 of the Companies Act, 2013 - HELD THAT:- Taking into consideration the provisions of Section 252 (3) of the Companies Act, 2013 which vests this Tribunal with a discretion where the Company whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when the name was struck off and also keeping in consideration that it is just to do so can restore the name of the Company in the register and in the interest of all the stakeholders including members of the Company, its employees as well as the revenue and the Applicant itself who seeks restoration of the name of the Company in the register being maintained by RoC. The Registrar of Companies, Chennai is ordered to restore the ori....... + More

Seeking restoration of name of the Company in the Register maintained by the Respondent/RoC - Section 252 of the Companies Act, 2013 - HELD THAT:- The Company has not placed on record any document to show that they have been active and carrying on its business operations immediately two years preceding the date of strike off. However, a perusal of other communications exchanged between the Government of Tamil Nadu and Applicant Company and also from the Memorandum of Understanding, it is seen that the Company is having future prospects of running the same for the purpose of which it was incorporated. Taking into consideration the provisions of Section 252 of the Companies Act, 2013 and more particularly the 'just' ground as envisaged under sub - section (3) of Section 252 of the Companies Act, the restoration of the name of the Applicant Company in the register maintained by the Respondent, is ordered, subject to the directions imposed. Application allowed.

Winding up petition - proceedings transferred to NCLT - Section 434(1)(c) of The Companies Act, 2013 - HELD THAT:- The exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, in such cases of complex facts, financial statements & claims will be inappropriate and such question of facts may not be properly adjudicated at all under Article 226 of the Constitution of India. Such fact finding exercise necessarily should be undertaken by the appropriate fact finding Tribunal and Authorities. The winding up proceedings pending before the learned Company Judge are not at the advance stage of the winding up of the Company and the said proceedings are pending for long period since 1986 without much of the progress and that may be apparently because the Assets of the Company were sold in favour of M/s. Shree Indust....... + More

Settlement of the dues of Respondent No.9 - seeking to fix meeting with Time, Date and Venue fixed may be fixed by the Court to take further steps for settlement of dues - HELD THAT:- Let the meeting of these parties and other related parties as indicated in the Order dated 17.2.2021 passed by this Court take place at Bombay in the office of Respondent No.9 M/s. ASREC (India) Ltd., on 24th and 25th June 2021 at 11:00 a.m. It is expected that the concerned parties involved in this dispute particularly, Respondent No.5 and Respondent No.9 shall make it a point to convene and hold such meeting and proceed further in appropriate manner in the letter and spirit of the earlier directions of this Court and undertake the process of settlement of the dues as indicated in the said Order dated 17.2.2021. Let the Report of such meeting be filed by both these parties and be placed before this Court on the next date of hearing. List the matter again on 1.7.2021.

Validity of one time settlement - hurried settlement - auction price converted to term loan - various aspects ignored in winding up proceedings - petitioners herein are guarantors of the default unit M/s Ganpati Pulp and Paper Mills Ltd. - HELD THAT:- The hurried One Time Settlement of GSFC with SIL in favour of which even the major part of the auction price was converted into a term loan by GSFC and in the repayment of which, SIL defaulted, still instead of again taking over the assets and re-auctioning them, GSFC chose, for the reasons best known to it to enter into One Time Settlement with SIL at a mere ₹ 60 lakhs and that is a matter to be looked into by the NCLT. The said SIL is also said to have stopped its production activities and the assets of GPPML sold to it under Section 29 way back in the year 1990 are still in disuse o....... + More

Recall of order - applicant was not impleaded as a party to the writ petition, for which the points raised in the recall application could not be properly represented before the court - re-activation of the Directors Identification Number (DIN) - HELD THAT:- In the present case, the challenge in the writ petition was that the DIN of the writ petitioner could not be deactivated since the writ petitioner had complied with the requirements to be complied with by the directors by filing annual reports and financial statements of the concerned financial years. However, it is specifically admitted in paragraph no. 18 of the writ petition that the petitioner is taking appropriate steps in respect of the marking of the respondent no. 4, that is, the Tirupathi Properties & Investment Private Limited as having management dispute. Thus, the mark....... + More

Seeking approval of Tribunal for sanction of scheme of Amalgamation - section 230-232 of the Companies Act, 2013, read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- On going through the approvals accorded by the members and creditors of the Petitioner Companies to the Scheme and the affidavits filed by the Regional Director, Eastern Region, Ministry of Corporate Affairs, the rejoinders filed by the Petitioner Companies to the observation of the Regional Director and the rejoinder thereto, there appears to be no impediment in sanctioning the present Scheme. The Petitioners shall abide by the undertakings given in their affidavits. Since all the requisite statutory compliances have been fulfilled, the scheme is approved - application allowed.

Sanction of the Composite Scheme of Arrangement - Section 230(6) read with Section 232(3) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - directions regarding issuance of various notices also issued. The Petitioner(s) shall supply legible print out of the scheme and schedule of assets in acceptable form to the registry and the registry will append such printout, upon verification to the certified copy of the order - petition disposed off.

Approval of Scheme of Amalgamation - Section 230(1) read with Section 232(1) of the Companies Act, 2013 - directions sought for dispensing with the meeting of equity shareholders of the Applicant Companies, Secured Creditors of Applicant No. 1 and Unsecured Creditors of Applicant No. 1 to Applicant No. 4 and Applicant No. 6 who have already given their consent to the Scheme - HELD THAT:- Various directions regarding dispensation of meetings issued - directions regarding issuance of various notices also issued. The application disposed off.

Seeking restoration of name of the Company in the Register of Companies maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Company is doing its business as a going concern basis - Applicant further stated that the Company would file necessary Financial Statements and Annual Returns soon after restoration of the name of the Company with the Registrar of Companies, Hyderabad and prayed the Tribunal to revive this Company. After hearing the Learned Counsel for Applicant and after perusal of material documents on record, the report of the RoC, Hyderabad and after going through the provisions of Section 252(3) of the Companies Act, 2013, this Tribunal is of the view that the Company was in existence and it is a going concern and name of the Company to be restored in the Register of Companies ....... + More

Sanction of the Scheme of Amalgamation and Arrangement - Section 232(3) of the Companies Act, 2013 - HELD THAT:- It is ordered that even after the sanction of the scheme, the Admobile Private Limited will be liable for all liabilities as per the letter of Income Tax Department relating to Admobile Private Limited, as it is a demerged company and it is not getting dissolved. The scheme is approved with various orders issued - the scheme is approved - application allowed.

Sanction of the Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 - HELD THAT:- The scheme is approved alongwith various directions with regard to sanction of scheme also issued. Application allowed.

Approval of Scheme of Amalgamation - Section 230(1) read with Section 232(1) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - directions regarding issuance of various notices also issued. The scheme is approved - application allowed.

Prayer to be transposed as the Respondent in Company Petition - HELD THAT:- This Application is not filed with any bona-fide purpose. It is filed almost 2 years from the date on which the Petitioner No. 3 decided to withdraw himself as one of the Petitioners. In this case, the remaining Petitioners completed their arguments in main petition and when we called upon Respondent No. 2 to make his submissions, this application came to be filed by Petitioner No. 3. It appears to us that. Petitioner No. 3 has filed this Application only to delay the hearing of the main petition. It is seen from the record that Petitioner No. 3 has consented to join as the petitioner. He had signed vakalatnama of Mr. S. Subha Reddy. Later on, he withdrew the same. It is alright if he does not wish to continue as the Petitioner but he cannot be added as Respondent....... + More

Restoration of name of Company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- Section 252(3) of the Companies Act, 2013 confers on this Tribunal powers to Order to restore the name of the Company in the Register maintained, provided such application is filed by (i) the Company or (ii) by any Member or (iii) any creditor or (iv) any workmen of the Company within 20-years from the date of publication of the notices under Section 248(5) in Official Gazette about striking off name of such Company provided further that it is seen from the material on record that at the time its name being struck off, the Company was doing its business or carrying its operations. The Company had not generated any revenue from its operations during the financial years 2010-11 to 2013-14 and 2016-17 to 2017-18, and in all t....... + More

Scheme of Arrangement - seeking to dispense with the meetings of the Equity Shareholders and Unsecured Creditors of all the Applicant Companies and Secured Creditors of Transferee Company - Sections 230 to 232 Read with Section 66 of the Companies Act, 2013 and Rule 3(2) of the Companies (CAA) Rules, 2016 - HELD THAT:- The Companies have followed extant provisions of Companies Act in framing the Scheme in question, which are duly approved by the Board of Directors of the Companies involved. The Statutory Auditors/Chartered Accountants of the Companies have also issued respective Certificates by inter-alia certifying the details of shareholders, creditors, and compliance of accounting treatment as prescribed U/s 133 of the Companies Act, 2013 with reference to the Scheme in question. The Applicant Companies have disclosed all the material ....... + More

Liquidation of the Company/Corporate Debtor - no viable resolution plan was provided to CoC - Section 33(1)(a) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Despite all possible steps as required under the Code taken during the CIRP, the CoC did not receive any viable resolution plan/proposal for revival of the Company. The CoC in its wisdom has resolved with 100% voting share in favour of the liquidation of the Company. This Authority has no reason before it to take a contrary view in terms of Section 33(1)(a) of the Code. Therefore, it has no option than to pass an order for liquidation of the Company in the manner laid down in Chapter III of the Code. The Corporate Debtor i.e. M/s. ISR Infra Private Limited shall be liquidated in the manner as laid down in Chapter-III of the Code - Application allowed.

Appellant seeks clearance of lease rent and maintenance bill for the year 2019-2020, alongwith Interest - seeking clearance of water bill dated 07.02.2020 as well - Resolution Plan approved by Adjudicating Authority - HELD THAT:- In this case, there is apparent mistake that the lease rent and the electricity and water bill all are essential supply and should form part of Insolvency Resolution Process cost vide Chapter -IX IBBI (Insolvency Resolution Process for Corporate Persons) Regulation 2016, Regulation 31& 32 and R/w Section 5(13) (e) and 14(2) of the Code - The Adjudicating Authority has approved the ‘Resolution Plan’ which is at Annexure-E page - 70 of the Appeal paper book vide Clause 6.2 has clearly stated that in case the actual CIRP is higher than the estimated CIRP cost the Resolution Applicant will pay the hig....... + More

Lease agreement - lease entered into in accordance with law for renewing the existing lease hold rights, subsequent to notice under SARFAESI - It was contended by the Applicant that the execution and registration of the Lease Deed dated for a period of 20 years, being subsequent to issuance of the SARFAESI Notice was unlawful as being violative of Section 13(13) and the spirit of SARFAESI Act, 2002 - right of the mortgagor to put the property on lease conditional upon Section 65A(2) of Transfer of Property Act, 1882 - Clarification sought of the judgement in the case of Delhi Administration V/s Gurdip Singh Uban and Others [2000 (8) TMI 1106 - SUPREME COURT] - HELD THAT:- There are no provisions in the IBC which permits us to review the judgment passed by this Tribunal. The provisions of Rule 31 of NCLAT Rules, 2016 is also not applicable....... + 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 - reply to the demand notice made or not - HELD THAT:- This Adjudicating Authority is satisfied that the Operational Creditor has proved its case by placing evidence that default has occurred for which the Corporate Debtor was liable to pay. Reply to demand notice - HELD THAT:- It is seen that no reply to the demand notice served u/s. 8 of the Code was ever made by the Respondent to indicate either existence of dispute or proof of payment of the impugned debt. In fact, during the initial phase of the instant proceedings upto 13.02.2020, the Respondents sought time for settling the matter and for filing Joint Memo of Settlement, but there was no representation thereafter........ + More

Liquidation of the Corporate Debtor - appointment of Liquidator - cessation of the moratorium declared under Section 14 of IBC - HELD THAT:- The Applicant has filed Form - H from which it is evident that the Fair value and Liquidation value in respect of the assets of the Corporate Debtor is arrived at ₹ 6.35 Crore and ₹ 5.50 Crore. Since the CoC in its 8th meeting held on 31.03.2021 after discussing and deliberating about the current affairs of the Corporate Debtor by taking into consideration that there was no Eol being received from any prospective Resolution Applicant, even after the same was issued twice and also keeping in view of the fact that the Corporate Debtor is not running its business and based on its commercial wisdom has decided to liquidate the Corporate Debtor. The liquidation of corporate Debtor is ordered - the liquidator is appointed - application allowed.

Dissolution of the Company - voluntary liquidation - Section 59(7) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- On examining the submissions made by the Learned Liquidator and after perusing the documents annexed to the Application it appears that the affairs of the Company have been completely wound up and the assets of the Applicant Company have been completely liquidated and as such the Applicant Company deserves to be dissolved. Accordingly, in exercise of the powers conferred under Section 59(8) of IBC, 2016, the dissolution of M/s. Angalaparameswari Finance Private Limited is ordered and the Applicant Company shall stand dissolved from the date of this order. Application allowed.

Acceptance or rejection of Resolution plan by CoC - Interference allowed with the commercial wisdom of CoC or not - Seeking to set-aside the decision of the Committee of Creditors (COC) of the corporate debtor in approving the resolution plan of the third respondent - HELD THAT:- A bare perusal of the decision in K. Sashidhar [2019 (2) TMI 1043 - SUPREME COURT], made it clear that while rejecting or approving a resolution plan, the commercial wisdom of the COC cannot be interfered or modified by the Adjudicating Authority, as long as the resolution plan approved by the COC satisfies the requirements under Section 30(2) of the Code. The Hon'ble Apex Court in K. Sashidhar and in various subsequent decisions and also the Hon'ble NCLAT have categorically held that the COC while exercising its commercial wisdom can reject the resolutio....... + More

Rejection of the claim in relation to the Operational Creditor - non admission of the claim in relation to the Financial Creditor - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is seen from the records that these operational creditors were supplying dairy products and sea foods and other food products to the Corporate Debtor for a long time and as such they are Operational Creditors in relation to the Corporate Debtor. However, it is seen from the written submissions made by the Resolution Professional that after the initiation of the CIRP, the RP has taken steps to keep the Corporate Debtor as a going concern and many of the Trade Creditors who are the Applicants herein have supplied materials during the CIRP period and have also received payments for supply of such materials during the CIRP period. Further,....... + More

Dissolution of Corporate Debtor - 54(1)(a) and Regulation 14 of IBBI (Liquidation Process Regulations 2016 or any other provisions of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is a fact on record that there are no realizable assets held by the Corporate Debtor so as to form a Liquidation Estate and to distribute the proceeds thereof. Accordingly, this Adjudicating Authority in exercise of the powers conferred under Section 54(2) of the I & B Code, 2016, deems it proper to pass an order of the dissolution of the Corporate Debtor. Thus Corporate Debtor herein i.e., M/s. Sristek Clinical Research Solutions Limited stands dissolved from the date of this order. Liquidator also stands relieved. In the instant case, however, neither any compromise or arrangement could be arrived at u/s. 230 of the Companies Act, nor any amount wa....... + More

Validity of approved Resolution Plan - submission of Resolution Plan beyond the date prescribed in Form-G - decision of CoC to approve the plan - no objection shown before RP and CoC to dispute the claims placed - Whether there has been material irregularity in exercise of powers by the Resolution Professional during the Corporate Insolvency Resolution Period? - HELD THAT:- The RP has published the list of creditors on 24.08.2018, 29.11.2018, 10.12.2018 and finally on 24.01.2019 and in these lists the claims of the Appellant were shown as disputed claims. These lists were displayed on website, however, the Appellant has not raised any objection before the RP and CoC that the estimate of the amount of claims has not been shown in the lists - In this Application in Paras 16, 17, 21 to 30 there are specific allegations that the Appellant&rsq....... + 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 date of default is 22.01.2018 and the present application is filed on 24.01.2019. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete. There is a pre-existing dispute among the parties and the same is validate....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Homebuyers/flatowners - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The petitioner is representing the members of 300 flat owners, out of total 644 flats and as per the requirement of Section 7 of IBC, 2016 proviso, an application needs to be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent of the total number of such creditors in the same class whichever is less. Since, the petitioner is representing 300 flat buyers, the petitioner is a registered Association duly elected by the 300 flat buyers and there is a resolution of the Association, which authorizes the petitioner to pursue the matter, the petitioner has fulfilled the minimum requireme....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority is of the view that the Corporate Debtor in its reply to the demand Notice dated 19.12.2019 does not dispute the fact that the salary to the Operational Creditor has to be paid however, a condition has been laid that the Operational Creditor has to first recover the outstanding dues of ₹ 10,00,000/- from the customers therefore, it is a clear admission of default and this Adjudicating Authority does not have to indulge in the details or the terms of the Contract/Appointment letter. Pre-existence of dispute - HELD THAT:- The Corporate Debtor has rendered two different dates i.e. 10.12.2019 and 19.12.2019 for the alleged legal....... + More

Compromise and Arrangement - taking back the immovable and movable property or actionable claims of the ‘Corporate Debtor’ - affected person or not - compromise failure or not - promoters can act as resolution applicant or not - HELD THAT:- In the present case, the ‘Liquidator’ is playing the role of a ‘Resolution Professional’, since the ‘compromise proposal’ is placed before him, which is equivalent to a ‘Resolution Plan’. Further the ‘Resolution Applicants’ are entitled to be present when the ‘Resolution Plans’ are opened and placed before the ‘Committee of Creditors’ as per Scton 30(5) of the Code. At this juncture, they may point out whether one or other ‘Resolution Applicant’ is ineligible in terms of Section 29(A) of the Code....... + 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 - quantum of outstanding amount - HELD THAT:- In this case it is observed that there is no confirmation of counter claim of corporate debtor from operational creditor, even in the reply to the demand notice, it was unsupported by the invoices, delivery challans and GST payments. Truck Number - one of the consignment number is not correct and all the invoices and deliveries are of one day. Simply making GST payment cannot prove that they have supplied the material to the other side. The Corporate Debtor has never raised that they have due recoverable from the operational creditor prior to the issue of the reply to the demand notice. Rule 46 of CGST Rules, R/w Rule 48 of C....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - although the contingent liability was existing, the same was not shown in the Annual Return - documents concerned were public document - whether Appellant is justified to carry the appeal only because the Adjudicating Authority had given directions to produce the Balance Sheets? - HELD THAT:- The Application under Section 9 of IBC has been pending before the Adjudicating Authority since December, 2019. Keeping in view Section 9 of the IBC, it was required to be ordered upon in 14 days with Limited Notice to the Corporate Debtor. When above interim order was passed, the matter has been carried to this Tribunal and on 10th August, 2020 relying on the judgment of V. Padmakumar Vs. Stressed Assets Stabilisation....... + More

Validity of approved Resolution Plan - challenge on the ground that in the Resolution Plan towards statutory dues and claims the approval was settled at Nil Value and the claims stood extinguished - HELD THAT:- The Reply of Respondent No. 2 refers to the approved Resolution Plan at Annexure R-1 page 63 and reference is made to Paragraph 3.5 which deals with proposal for Operational Creditors where the Resolution Applicant stated that Liquidation Value payable towards full and final extinguishment of statutory dues and claims is expected to be Nil and the Liquidation Value is insufficient to meet the dues of even secured Financial Creditors and thus the minimum statutory discharge payable is Nil and so Nil payment has been proposed towards statutory dues and claims. Adjudicating Authority has considered the Revised Position of claims recei....... + More

Seeking setting aside of the rejection of claim of the Applicant by the Liquidator - Section 42 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Applicant charging 12% interest on the outstanding amount is not wrong. Moreover, the contention of the Respondent that the assignment of debt (if it can be so called) in the form of letters of ultimate suppliers, require stamp duty to be paid as mandated under law. However, the Respondent has admitted to the fact that ₹ 3,61,595/- was reflecting in the books of accounts of the Corporate Debtor, on the basis of which the Respondent admitted the said principal amount. Therefore, there are no reason in delving into the approval of the principal amount and the claim of the Applicant including interest is due and payable by the Corporate Debtor. The claim of the Applicant in respec....... + More

Seeking approval/revision of Resolution Plan - claim of the applicant is that after the approval of the Resolution Plan, the applicant has approached the GNIDA for sanction of the plan which is still pending for approval by the Respondent - HELD THAT:- Section 60(5)(c) of IBC, 2016 says that any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code shall be considered by the Adjudicating Authority. A bare perusal of the provision of Section 5 (14) of IBC, 2016, shows that the insolvency resolution process period means the period of one hundred and eighty days beginning from the insolvency commencement date and ending on one hundred and eightieth day - this period of 180 days may be extended un....... + More

Liquidation of Corporate Debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The reasons assigned in the application with respect to initiating liquidation of the corporate debtor appears to be genuine in the present market scenario and convincing. Apart from that the period of CIRP has already expired long back without any resolution plan and therefore, there is no option other than liquidation of the corporate debtor although there was no voting of the CoC for liquidation of the corporate debtor. The liquidation is allowed - application allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt or not - disbursement of loan and its non-payment is proved by the documents placed on record - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Since the disbursement of the loan is proved vide Bank's statement of the Financial Creditor for the period 18/04/2016 to 29/03/2019, issued by the Bank of Maharashtra showing the disbursement of loan to the Corporate Debtor and the amount outstanding has been admitted by the Corporate Debtor vide its confirmation letter duly signed and sealed mentioned above, and since the admitted default of non payment of the outstanding amount is proved on the basis of documents placed on record by the Financial Creditor including various notices and reminders recalling the o....... + More

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

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

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

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

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

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

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

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

Validity of attachment of property - whether it is permissible for the Assistant Director, Directorate of Enforcement, acting under the provisions of Prevention of Money Laundering Act, 2002, to ask the Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis-à-vis certain properties which, admittedly, have not been attached under Section 5 of the said Act and have, in fact, been left out of attachment order already made by and confirmed by the competent authority? HELD THAT:- In the instant case, except issuing the impugned communication dated 18.03.2020 to the concerned Tehsildar directing him not to issue revenue extracts of even those properties earlier belonging to Zahoor Ahmad Shah Watali and his family members, that too, by an officer of the rank of Assistant Director, not designated in sub-section (1) of Sectio....... + More

Attachment of property involved in money laundering - proceeds of crime - interpretation of statute - expression “reason to believe” which is different from “reason to suspect” - HELD THAT:- Section 5(5) of the PML Act, 2002 makes it clear that order of attachment of competent authority shall be provisional in nature and said authority is under a statutory obligation to file a complaint before the adjudicating authority within 30 days from the date of attachment - Section 8(1) of the PML Act, 2002 makes it obligatory for adjudicating authority to examine the complaint and if he has “reason to believe” that any person has committed an offence, it may serve a notice to said person calling upon him to indicate the sources of income, earning or assets. It may also issue show-cause notice to such person. Aft....... + More

Seeking pre-arrest bail - scheduled offences - first contention of respondent is that the offences under PML Act cause a serious threat not only to the financial system of the country but also integrity and sovereignty and for the offences under the PML Act, pre-arrest bail should not be granted - HELD THAT:- There cannot be any straitjacket formula for exercising jurisdiction under Section 438 Cr.P.C. and it all depends on the facts and circumstances of the case and where the fundamental right to personal liberty of accused is involved Courts cannot exercise jurisdiction mechanically - In the case on hand admittedly summons were issued to the petitioner in the year 2017 directing him to appear before the officials whereas the case of the petitioner is that he received summons in the year 2020 only and he mentioned reasons why he was not ....... + More

Money Laundering - illegal diversion of funds - schedule offence - supply of Gold Bullion or there was only paper transaction - Section 33 of the Sale of Goods Act - HELD THAT:- In the case at hand, the picture is totally different. The criminal Court can independently come to a conclusion that the 22 fixed deposits were proceeds of crime and they were projected as untainted money from MJPL (A3) and Suresh Khatri (A4). The other distinguishing feature in this case is that, the total proceeds of crime is ₹ 318.75crores, out of which, the 22 fixed deposits represent only ₹ 143crores and for the balance amount which has gone into the kitty of MJPL (A3), they can be prosecuted as abettors of the offence of money laundering committed by KGPL (A1). Lastly, the order of the Adjudicating Authority in this case, has not attained finali....... + More

Bail application - Money Laundering - proceeds of crime - possession of moveable and immoveable assets - misuse of official position - Section 13(2) read with Section 13(1)(e) of the P.C. Act - HELD THAT:- Continuing with the detention of the appellant to face the trial in the present case would not serve the cause of justice. Even if the appellant had earlier not appeared, the fact of the matter remains that he had faced trial in the P.C. Act matter and his appeal remains pending. The High Court, in the impugned order dated 25.11.2020, declined the bail at the given stage but directed the Trial Court to proceed with the trial on day-to-day basis and also gave liberty to the appellant to apply for bail afresh, if trial did not conclude within six months from the date of production of copy of its order. The fact remains that this appeal is....... + More

Scope of review petition - error apparent on the face of the record or not - validity and/or legality of the registration of Enforcement Case Information Report (ECIR) in proceedings - effective alternative remedy under Section 8 of The Prevention of Money Laundering Act - territorial jurisdiction - HELD THAT:- It has to be observed that the scope of the Review petition is very limited. The learned Additional Solicitor General appearing for the respondent-Enforcement Directorate submitted that under the guise of Review, the review applicants are only trying to re-argue the case. Therefore, we are not traversing into the submissions made by the parties. For the purpose of reviewing the matter, the matter has to fall within Order 47 of CPC. In the guise of seeking review, it cannot be reargued. This Court has dismissed the writ petition on ....... + More

Seeking pre-arrest Bail - Money Laundering - cheating gullible depositors by attracting them towards different schemes of money investment with false promise of providing high returns - creation and growth of ponzi firms - HELD THAT:- Existence of a prima-facie case regarding nexus of the petitioner with the Saradha Group cannot be denied. Grant of bail to him by the Supreme Court of India in another case also cannot afford him a ground to seek pre-arrest bail in the present case, inasmuch as he was granted bail in the said case solely on health ground while he was admitted in Apollo Hospital, Bhubaneswar. Admittedly, he has since been discharged from the said hospital. There is no reproach on contention of the counsel for the petitioner with regard to invoking the jurisdiction under Section 438 of Cr.P.C. in respect of the person accused....... + More

Money Laundering - scheduled offences - will the judgments of the Supreme Court rendered under the NI Act can be simply applied to the PML Act? - scope of Section 141 of the NI Act and Section 70 of the PML Act - HELD THAT:- The NI Act offences are not economic offences, unlike offences under the PML Act. A prosecution under Section 138 of the NI Act stems from a civil dispute between the drawer and the drawee of a cheque. It gets a criminal colour, only when the drawer fails to pay the drawee within the stipulated period. Whereas, offences under the PML Act are economic offences and can by no stretch of imagination be equated to a prosecution between a drawer and a drawee under the NI Act. It is well settled that statutes not dealing with the same subject matter cannot be said to be in pari materia. Constitution Bench of the Supreme Cour....... + More

Petition pertains to the stage prior to completion of investigation and filing of complaint by Respondent - Summons issued pertaining to the same ECIR, in respect of which present petition is filed - HELD THAT:- An arguable issue arises in the present case, which needs consideration. There is no dispute about the fact that petitioner nos. 1 to 3 are already enjoying an order of interim protection given by the Supreme Court in the pending writ petition. It is only the petitioner no. 4 who is presently apprehending coercive action in pursuance to summons issued by respondent no. 2. Further investigation undertaken by respondent no. 2 can proceed, subject to the result of the present writ petition - issue notice to respondents, returnable on 30.04.2021.

Seeking grant of Regular Bail - Money Laundering - Scheduled Offences - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - requirment for fulfilment of two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - HELD THAT:- The declaration by the Supreme Court in Nikesh Tarachand Shah's case [2017 (11) TMI 1336 - SUPREME COURT] would render the twin conditions prescribed in Section 45(1) of the PMLA for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under ....... + More

Money Laundering - scheduled offences - Material present to constitute offence - amendment of PML Act in the year 2009 - applicability of schedule offences’ is concerned to an act committed prior to amendment - HELD THAT:- Part B of the Schedule provides that in Paragraph one, besides several offences under the Indian Penal Code, Sections 120-B, 419 and 420 are included vide Section 13 of the Prevention of Money Laundering (amendment) Act, 2009 (since repealed by Repealing and Amending Act, 2019 (31 of 2019) - It is apt to note that the Complaint of the ED in S.C.No.1 of 2019 impugned and is challenged under Section 482 of the Cr.P.C., simply adopts the Charge Sheet contents/accusations against the Accused No. 13 therein who is the Petitioner/Accused No. 12 in this Criminal Petition. There was a Charge Sheet and Supplementary Charge....... + More

Grant of anticipatory bail - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - Money Laundering - scheduled offence - HELD THAT:- By Act 13 of 2018 Section 45(1) of the PMLA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words “punishable for a term of imprisonment of more than three years under Part A of the Schedule” as occurring in Section 45(1) before the judgment of the Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] were substituted with the words “under this Act”. As per learned ASG, after such amendment, the defect on the basis of which the....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rejection of refund claim of service tax - construction of Government buildings - refund arising as a result of restoration of exemption benefit of N/N/. 12/2012 and 25/2012 dated 20/06/2016 - Prospective effect or retrospective effect - Rule 173-S of the Central Excise Rules, 1944 - it was held by High Court that the notification No. 12/2012 & 25/2012 ceased to exist w.e.f. 01/04/2015. The exemption was revived by notification dated 01/03/2016. But since it was prospective in effect, the appellant was not entitled for any exemption, which the appellant was aware of and with open mind and eyes deposited the service tax due with interest. HELD THAT:- There are no infirmity in the view taken by the first authority, which has been rightly affirmed by the Customs, Excise and Service Tax Appellate Tribunal, as well as the High Court. There is no merit in this appeal - appeal dismissed.

Classification of services - contract for supply of mud and spreading and dumping of earth on agricultural land - classifiable under site formation and clearance service, excavation, earth moving and demolition service or not - period 01 October, 2007 to 31 March, 2008 - time limitation - it was held by CESTAT that findings of the Adjudicating Authority that since the agricultural land was subsequently converted into commercial land, the activity undertaken by the appellant prior to the said conversion would become taxable subsequent to conversion of the land, cannot be agreed upon. HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.

Maintainability of appeal - Classification of services - Whether or not, the Boards and the University are educational institutions. If the Boards and University are found to be educational institutions, the services provided to them are exempt? - it was held by High Court that Once it is held that the service recipients are educational institutions, the impugned show-cause notices are rendered unsustainable. HELD THAT:- The Special Leave Petition under Article 136 of the Constitution, need not be entertained - the Special Leave Petition is accordingly dismissed.

Benefits as far as the Chit Fund Companies - Nature of activity of "chit fund business" - cash management / fund management - whether classifiable under the category of "banking and other financial services"? - HELD THAT:- This Court is of the considered opinion that the benefits conferred by the Supreme Court is to be extended and in respect of all other allegations, an adjudication is to be entertained with reference to the findings made by the Original Authority/Appellate Authority - the Original Authority or the Appellate Authority, as the case may be, made certain findings in respect of the claim made by the petitioner. As far as the benefits conferred by the Hon'ble Supreme Court in the case of UNION OF INDIA AND ORS. VERSUS M/S. MARGADARSHI CHIT FUNDS (P) LTD. ETC [2017 (7) TMI 224 - SUPREME COURT], are conc....... + More

Refund of Cenvat credit - during the period the respondent was not registered as service provider - CESTAT allowed the refund - N/N. 5/2006-C.E. (N.T.), dated 14-3-2006 - notice was served on the first respondent, the same returned with the postal endorsement ‘left’ as early as 8-6-2019 - first respondent did not even intimate the Revenue about the change of office - HELD THAT:- Tribunal stated the legal position that the State should not be enriched at the costs of its citizen. There can be no quarrel over the said proposition. However, the Tribunal failed to consider as to whether the Commissioner (Appeals) was justified in passing the common order dated 18-12-2013 allowing the appeals filed by the first respondent-assessee. Several grounds have been raised by the Revenue before the Tribunal, which could be seen from the gro....... + More

Interest on late payment of sanctioned refund - Section 11BB of Central Excise Act, 1944 - despite order, refund not ordered till date - HELD THAT:- The refund claim of the appellant stands already allowed with consequential relief. Since the order of Commissioner (Appeals) is silent about the sanction of interest and the law if mandates the interest to flow consequent to sanction of refund that shall be covered under the order of consequential relief already passed by Commissioner (Appeals). There are no cause of action as of now available with the appellant to challenge the said order. The appropriate remedy would have been sought by filing an application to the Department seeking implementation of the impugned order No.81/2019 dated 25th November, 2019. The appeal is, therefore, held to be pre-mature, accordingly, stands disposed of giving liberty to the appellant to approach the Department.

Refund of erroneous payment of service tax - time limitation - submission of required documents - principle of unjust enrichment - HELD THAT:- Rule 2(bc) of Service Tax Rules, refers to the meaning of ‘body corporate’ in Section 2(7) of the Companies Act, wherein any other body corporate which includes a LLP is specifically excluded from the definition of body corporate. Thus, the appellant as a LLP, is not required to pay service tax under the reverse charge mechanism during the period under dispute. It is held that the appellant is entitled to refund of the service tax paid erroneously under reverse charge, as per the refund application - the adjudicating authority is directed to grant refund within a period of 45 days from the date of receipt of a copy of this order with interest for the period starting after three months from the date of refund application till the date of grant of refund. Appeal allowed - decided in favor of appellant.

Levy of service tax - Banking and Other Financial Services - Interest earned from lending of Gold - Safe-vault services allegedly provided to foreign sellers - period from 01.04.2014 to 31.03.2015 - HELD THAT:- The issue decided by Division Bench of the Tribunal in M/S. INDIAN OVERSEAS BANK VERSUS THE COMMISSIONER OF CENTRAL EXCISE & ST [2020 (3) TMI 751 - CESTAT CHENNAI] and the appeal has been decided in favour of the assess. The submissions, therefore, is that in view of the aforesaid decision, of the Tribunal, the order impugned in the present appeal should be set aside. Appeal allowed - decided in favor of appellant.

Levy of service tax - professional services - services provided by an advocate or a partnership firm of advocates providing legal services - HELD THAT:- A compliance affidavit has been filed by the Principal Commissioner, GST & Central Excise Commissionerate, Bhubaneswar enclosing the copies of instructions issued on 9th April, 2021 and 15th April, 2021 reiterating, inter alia, that the services provided by an advocate or a partnership firm of advocates providing legal services to any person other than a business entity and to a business entity with a turnover up to rupees ten lakhs in the preceding financial year are exempted from levy of service tax. Petition disposed off.

Validity of SCN - Jurisdiction - demand of service tax on services provided or received which all are not exempted under the provisions of the Act - petitioner falling under the definition "service provider" so as to issue show cause notice with reference to certain services rendered by the petitioner, or not - HELD THAT:- This Court is of an opinion that the High Court is expected to be slow in entertaining a writ petition against a show cause notice. A writ against a show cause notice may be entertained only if the said notice is issued by an incompetent authority having no jurisdiction or if an allegation of malafides is raised. Even in case of raising an allegation of malafides, the authorities against whom such an allegation is raised, is to be impleaded as party respondent in his personal capacity. In all other circumstanc....... + More

Classification of services - renting of immovable property service or Support Services of Business and Commerce - appellant/assessee is the first Electronic Software Technology Park promoted and funded by the Government of Kerala and is a State Government Company - amount received from KSITIL is towards Business Support Service or not - inclusion of notional interest on refundable deposits in value of taxable supply - taxability of sale of space or time for advertisement - bus service plying between the Technopark and Kariyavattom - tour operator service or not - time limitation - interest - penalties. Classification of services - assessee had acquired land and developed ETP by constructing buildings, roads, continuous power and water supply, security service, communication, housekeeping, medical attention including ambulance service etc........ + More

CENVAT Credit - input services - services used in setting up their plants at the industrial township called Sri City - Rule 2(l) of the Cenvat Credit Rules, 2004 as amended with effect from 1-4-2011 - Department wants to deny them the benefit of the CENVAT credit on the ground that ‘services related to setting up of a factory’ which were specifically included prior to 1.4.2011 were no longer specifically included post 1.4.2011 - levy of interest and penalty - HELD THAT:- The definition of ‘input service’ prior to 1.4.2011 had two parts- a main part of the definition and an inclusive part of the definition. This inclusive part specifically included the services availed for setting up the factory. After 1.4.2011, it has three parts- a main part, an inclusive part and an exclusive part. The services used for setting u....... + More

Levy of Service tax - amount collected towards liquidated damages - agreement to tolerate breach of timelines stipulated in the contract - agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act - period involved in all the appeal is after 01.07.2012 - interest - penalty - HELD THAT:- There is substance in the submission advanced by the learned counsel for the appellant that no service tax is payable on the amount collected towards liquidated damages as this issue has been decided by the Tribunal in favour of the appellant in M/S SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR [2020 (12) TMI 912 - CESTAT NEW DELHI] where it was held that It is, therefore, not possible to sustain the view taken by the Principal Commissioner that penalty amount, for....... + More

Levy of service tax - liquidated damages recovered by the appellant for acts of default - delayed or deficient supplies by various suppliers - consideration for tolerance of an act or not - penalties - HELD THAT:- There is substance in the submission advanced by the learned counsel for the appellant that no service tax is payable on the amount collected towards liquidated damages as this issue has been decided by the Tribunal in favour of the appellant in M/S SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR [2020 (12) TMI 912 - CESTAT NEW DELHI] where it was held that It is, therefore, not possible to sustain the view taken by the Principal Commissioner that penalty amount, forfeiture of earnest money deposit and liquidated damages have been received by the appellant towards “consideration&....... + More

Levy of service tax - Customs House Agent Services - business of freight forwarding wherein various activities in relation to transportation of goods in the course of import/export by sea and air undertaken - non-taxable service - non-taxable territory - Circular of the Board No. 197/7/2016-S.T dated 12/08/2016 - extended period of limitation - HELD THAT:- The appellant is authorized to act as a CHA under Customs Housing Agent Licensing Regulations and has been granted a license. Further, it is found that the main revenue of the appellant comes from providing exclusive freight forwarding activity which accounts for substantial income of the appellant. Perusal of the definition of ‘CHA’ as provided in the Finance Act as well as in Regulation, it is found that the scope of CHA service is restricted only to the licensed activitie....... + More

Legality and validity of the show-cause notice - pre-show-cause notice consultation - procedural infraction of impugned SCN - the pre-show-cause notice consultation dated 12.4.2019 calling upon the petitioners at 13.55 hours to remain present before the respondent No.2 at 16.00 hours on the same day - compliance of the Circular dated 10.3.2017 issued by the Board - HELD THAT:- In view of the Circular, it is clear that the Board had made issuance of preshow- cause notice consultation mandatory for the Principal Commissioner/Commissioner prior to the issuance of show-cause notice in cases involving the demands of duty above ₹ 50 lac and that such consultation was to be done by the adjudicating authority with the assessee as an important step towards the trade facilitation and for promoting necessary compliance, as also to reduce the n....... + More

Classification of services - GTA services or not - appellant is transporter of timber/firewood for forest Department of Government of Madhya Pradesh - cartage Challan equivalent to the consignment note or not - period 2013-14 to 2015-2016 - HELD THAT:- The carting Challan in this case is only for internal control of forest department. Such carting Challan is not equivalent to a consignment note which is issued by the transporter. The consignment note is a negotiable instrument and the transporter is bound to deliver the goods to bonafide holder of title, as mentioned in the consignment note. Such element of ‘consignment note’ are absent in the ‘carting Challan’. The carting Challan is not equivalent to consignment note. Accordingly, the appellant has not rendered the services as per the definition of GTA under the Finance Act - appeal allowed - decided in favor of appellant.

Benefit of abatement of 76% under N/N. 01/2006-S.T., 21/97-S.T., 39/97-S.T., 40/97-S.T., 12/2001-S.T., 8/2003-S.T., 12/2003-S.T., 18/2003-S.T., 19/2003-S.T., 2/2004-S.T., 9/2004-S.T. and 10/2004-S.T. - appellant had availed the Cenvat credit in respect of GTA Service - HELD THAT:- The same issue for previous period in the appellant’s own case came before this Tribunal in M/S NJ DEVANI BUILDERS PVT. LTD VERSUS C.S.T. & S.T. -AHMEDABAD [2019 (6) TMI 213 - CESTAT AHMEDABAD] and this Tribunal has held that the appellant is entitled for the abatement Exemption Notification subject to reversal of Cenvat Credit. This very order was challenged before the Hon’ble High Court in MESSRS NJ DEVANI BUILDERS PVT. LTD VERSUS UNION OF INDIA [2020 (11) TMI 798 - GUJARAT HIGH COURT] wherein the Hon’ble Gujarat High Court set aside the ....... + More

Nature of transaction - Service or not - Manpower recruitment and supply service or not - appellant had utilised services of the seconded employees of other firm under contract of employment - employer - employee relationship - case of appellant is that only employees working in foreign group company were deputed to its group company in India, hence is not covered under service provided from outside India - reverse charge mechanism - HELD THAT:- There is no doubt that the service said to be provided by M/s. Imasen Electric Industrial Company Ltd., Japan to the appellant were not taxable in eyes of law, especially when the appellant treated the amount paid to the said persons as salary in terms of Income tax rules and deducted the income tax on the same, in this regard the appellant produced Form No. 16 issued under Income Tax Act, which s....... + More

Principles of natural justice - matter was adjudicated ex-parte, in the absence of the petitioner - petitioner did not appear before the respondent - levy of service tax in respect of service rendered to members - HELD THAT:- One more opportunity can be extended to the petitioner to present its case before the respondent. It is true that a person who did not avail of the opportunity for hearing cannot later complain about violation of principles of natural justice. However, considering the fact that Ext.p11 request was made citing the COVID-19 pandemic and considering the fact that it the specific case of the petitioner that E-mail dated 03-03-2021 fixing the date of hearing on 25-03-2021 had not come to the notice of any of the office bearers of the petitioner, it is only appropriate such opportunity is extended to the petitioner. It is ....... + More

Rebate Claim - rejection on the ground that the application seeking rebate was not filed within the time prescribed - exports effected by the appellant during August 2015 to March 2016 - section 11B of CEA - HELD THAT:- A reading of Section 11B of the Act makes it explicitly clear that claim for refund of duty of excise shall be made before the expiry of one year from the relevant date. The time prescribed under Section 11B of the Act was earlier six months which was later on amended on 12.05.2000 by Section 101 of the Finance Act, 2000. Rule 18 of the Central Excise Rules and the Notification dated 06.09.2004 did not prescribe any time for making any claim for refund as Section 11B of the Act already mandated that such application shall be filed within one year. Section 11-B of the Act being the substantive provision, the same cannot yie....... + More

Cenvat credit - Bill of Entry in the name of the supplier of the raw material i.e. M/s Marico Limited - goods were received by the appellant as a job worker and used in the manufacture of goods on the job work basis - HELD THAT:- Right from the Show Cause Notice the case of the department is only that whether the appellant is entitled for the Cenvat credit on the strength of Bill of Entry which is in the name of principal supplier M/s Marico Limited along with declaration given by M/s Marico Limited. There is no dispute about receipt, use of the goods supplied by M/s Marico Limited under the cover of Bill of Entry along with declaration in favour of the appellant. Even though the Bill of Entry is in the name of M/s Marico Limited but on the basis of declaration it is established that the material has been supplied to the appellant for job....... + More

Refund of CENVAT Credit - pre-deposit made under protest - invoices issued fraudulently - rejection on the ground of time limitation - Section 11B (5) (ec) of Central Excise Act, 1944 - HELD THAT:- There is no denial for the fact that ₹ 10,30,000/- was deposited by the appellant at the stage of investigation itself. Any deposit made at the time of investigation is settled to be an amount to be called as pre-deposit under protest. The second proviso to section 11B of CEA is sufficient to hold that the adjudicating authority below has wrongly invoked Section 11B ofCentral Excise Act to hold the impugned refund as barred by time. The relevant date in terms of 11 B (ec) shall be the date of the final order which is 10 November, 2017. The application for refund in question has been filed on 9 July, 2018 as is apparent from the documents ....... + More

Condonation of delay - Earlier, the petition dismissed by the HC on the ground that the writ petitioner (the appellant herein) had a statutory alternative remedy of preferring an appeal before the Tribunal - HELD THAT:- Against the order passed by the Commissioner on February 23, 2018, the appellant had a statutory alternative remedy of preferring an appeal before the Tribunal. The appellant, however, preferred a writ petition before the High Court on July 16, 2018,which petition was dismissed on July 26, 2018 for the reason that the writ petitioner had a statutory alternative remedy of preferring an appeal before the Tribunal. There is no good reason as to why, after the order was passed by the High Court dismissing a writ petition on the ground that the writ petitioner had a statutory alternative remedy of preferring an appeal before th....... + More

Entitlement to Interest within three months of the date of final order of this Tribunal - amount deposited by way of pre-deposit as per the stay order of this Tribunal - Section 35FF of CEA - HELD THAT:- The Commissioner (Appeals) have erred in making reference to Section 11BB instead of the correct Section 35FF, and have passed erroneous order. Thus, the impugned order is set aside and further following the ruling of Supreme Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT], the appellant is entitled to interest @ 12% per annum from the date of deposit till the date of refund - thus, the adjudicating authority is directed to grant interest as directed within a period of 45 days from the date of receipt on service of copy of this order. Appeal allowed - decided in favor of appellant.

100% EOU - CENVAT Credit - input services - Event Management services - Outdoor Catering services - Mandap or Shamiana Service - Rent-a-Cab service - denial on the account of nexus and also on the ground of absence of such services will not directly have an impact on the quality and efficiency of provisions of taxable services - HELD THAT:- The appellant is a 100% Export Oriented Unit registered under Software Technology Park of India (STPI) scheme and has been availing input services for rendering its output services. Appellant has been claiming refund of accumulated tax credit under Rule 5 of CENVAT Credit Rules, 2004. The adjudicating authority does not dispute the usage of impugned input services for providing the output services but has disallowed the credit only on the ground that these are not connected with the business activity o....... + More

Maintainability of petition - alternative remedy of appeal was not exhausted - question of facts - HELD THAT:- Preferring an appeal is the rule. Entertaining a Writ Petition before exhausting the appellate remedy is an exception. Undoubtedly, writ proceedings may be entertained before exhausting the appellate remedy. The power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinize the processes through which a decision is taken by the competent authority by following the procedures as contemplated, but not the decision itself. Therefore, the routine entertainment of a Writ Petition by dispensing with appellate remedy is not preferable and such an exercise would cause injury to the institutional hierarchy and the importance attached to such appellate institutions. The appellate institutions pro....... + More

Violation of principles of natural justice - service of notice - adjudication procedure under Section 33A(1) and Section 37C of the Central Excise Act, 1944 not followed - HELD THAT:- A perusal of the paper book reveals that it is the case of the Revenue Department that though summons had been served upon the petitioner on 17th September, 2018, yet it had neither appeared before the respondent Department nor any documents had been filed on its behalf. It was only after the respondent-Department contacted the petitioner’s auditor, that he appeared and made a statement. Later also efforts were made to serve the petitioner with notices, however, the petitioner was not available at the given address. Keeping in view the fact that the demand is a high-pitched one and subsequent notices issued by the respondent to the petitioner had not b....... + More

Condonation of delay of 107 days in filing the appeal - sufficient explanation for condonation of delay not provided - resignation of the concerned official dealing with excise matters - availability of alternate remedy by way of appeal - Section 35G of the Central Excise Act, 1944 - HELD THAT:- The delay of 107 days is not inordinate for the 1st respondent/Appellate Authority to dismiss the appeal as the precious rights to agitate the issue arising out of the order passed by the 2nd respondent/Commissioner of Customs and Central Excise, Salem cannot be denied to the petitioner unless there is an inordinate delay which has not been answered properly and condonation of the delay will cause prejudice to the interests of the Revenue. The alternate submission of the Learned Counsel for the respondents that the remedy lies by way of an appeal ....... + More

Interpretation of statute - 'the person chargeable with the duty', in the main part of sub-section (1) of Section 11A of the Central Excise Act, 1944 - by such person or his agent in the Proviso - whether only one person can be charged with the duty on a given goods or otherwise? - Clandestine removal - demand of duty from two companies SAS and ASRM, who jointly involved in the manufacturing of the goods - HELD THAT:- The appeal admitted on substantial questions of law. Due to efflux of time, we are of the view that it may not be necessary to adjudicate these appeals and decide the substantial question of law as the department has availed the opportunity granted by the Tribunal in the impugned order and issued Show Cause Notices afresh, which are slightly different from the Show Cause Notices, which have ultimately culminated into....... + More

Refund of unutilised Cenvat Credit in cash - Credit lying in the books of accounts at the time of closure of factory being 28.6.2017 - non-submission of reliable supporting documents related to refund claim - applicability of Rule 5 of CCR, 2004 - HELD THAT:- Reliance placed in the case of UNION OF INDIA VERSUS SLOVAK INDIA TRADING CO. PVT. LTD. [2006 (7) TMI 9 - KARNATAKA HIGH COURT] holding that the appellant is entitled to refund of the amount of Cenvat Credit lying in their Cenvat Credit account on closure of business - further it is held that the appellant is entitled to interest as per Rules, as per section 11BB of Central Excise Act, i.e. three months after the date of application till the date of grant of refund. Appeal allowed - decided in favor of appellant.

Jurisdiction for passing adjudication order - duty/tax involved in the present case exceeds ₹ 2 crore - Circular No. 1049/37/2016-CX dated 29-Sep-2016 - HELD THAT:- Very same issue was decided in M/S PALAK DESIGNER DIAMOND JEWLLERY VERSUS UNION OF INDIA [2019 (8) TMI 714 - GUJARAT HIGH COURT] - The issue involved in the said judgment was whether the Order-In-Original in respect of the Central Excise matter passed by Joint Commissioner is legal and correct or since the amount involved is more than ₹ 2 Crores the competent authority to issue the Show Cause Notice and pass the adjudication order should be Commissioner, and it was held that it cannot be said that the Joint Commissioner had no jurisdiction to issue the Show Cause Notice and adjudicate the same. Following this principle in the present case also when there is a clear....... + More

CENVAT Credit - inputs or not - menthol oil/flakes - Jurisdiction of supplier - sanctity of promulgation of such geographically delimited harbours of privilege - HELD THAT:- From the record of proceedings, it is found that the several independent arguments for setting aside the demand of duties, and the imposition of detriments, was disregarded by the adjudicating authority on the assurance of the finding of lateral jurisdiction on goods not having been supplied - It would, therefore, appear that the adjudicating authority was influenced entirely by the finding of non-manufacture on the part of the supplying units by the coordinate statutory functionary which ceases, owing to nullification by the coordinate bench of the Tribunal, to sustain the impugned order in the absence of any other limb. In the circumstances of these facts as well as....... + More

Clandestine Removal - reliability of statements - sufficiency of evidence or not - cross-examination of statements - persons failed to stand the earlier statements - principle of preponderance of probability - difference of opinion - Majority Decision - HELD THAT:- The two types of standards of proof applied in proceedings are ‘proof beyond reasonable doubt’ and ‘proof of preponderance of probability. The appreciation of evidence in either of these types of standards of proof differs depending on the facts involved. In a serious case such as evasion of duty by fraud, the degree of appreciation of evidence has to be higher than in a case of allegation of mere delay in payment of duty though in both cases the evidence has to be appreciated on the preponderance of probability. In adjudication proceedings, there may be facto....... + More

Principles of Natural Justice - petitioner did not informed about the summons to their counsel regarding the personal hearing - the impugned order was passed without providing personal hearing to the learned counsel who represented petitioner - HELD THAT:- This Court is of the considered opinion that in all circumstances, the parties aggrieved are bound to prefer an appeal before the appellate authority. However, in certain circumstances, the Courts are bound to consider whether the denial of opportunity caused certain prejudice to the interest of the person aggrieved. In the present case, admittedly, the summons were issued to the petitioner. However, the learned counsel for the petitioner entered appearance in the proceedings before the respondent on 04.03.2014 itself. Thus, there is a possibility that the petitioner would not have info....... + More

Reversal of CENVAT Credit - spent wash and press mud - waste/exempt goods - common inputs used in manufacture/clearance of spent wash and press mud in terms of Rule 6(2) and Rule 6(3) of Cenvat Credit Rules, 2004 - HELD THAT:- The very same issue was considered by the Tribunal in the appellant’s own case M/S. BANNARI AMMAN SUGARS LTD. VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, SALEM COMMISSIONERATE [2018 (11) TMI 1449 - CESTAT CHENNAI] where it was held that press mud does not fit into the definition of “exempted goods”, as defined under 2(d) of CCR because it is not an excisable good; nor can it be termed as a final product because it is not manufactured or produced from input or using input service. The demand cannot sustain and requires to be set aside - Appeal allowed - decided in favor of appellant.

Rejection of Refund claim in cash of differential duty - SCN was not issued - principles of natural justice - Section 142 (3) of the C.G.S.T. Act, 2017 - HELD THAT:- The Order-in-Original has been passed undoubtedly without the issuance of Show Cause Notice. The Commissioner (Appeals) in the impugned Order has also observed that one Shri P. Veera Kumar appeared before the Adjudicating Authority, but however, both the authorities below are silent as to whether the said person, who is alleged to have been heard, was well-versed with the law and the change in law and whether the said person was authorized by the appellant-company to argue before the authorities. It is the basic tenet of our Constitution that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. The fundamental principle has ....... + More

CENVAT Credit - common input services on trading activity / traded goods - non-maintenance of separate accounts under Rule 6(2) of Cenvat Credit Rules - non-filing of declaration as contemplated in Rule 6 (3A) - suppression of facts or not - extended period of limitation - HELD THAT:- The Tribunal in the case of Dalmia Bharat Sugar & Industries Ltd., vs. CCE [2017 (10) TMI 1027 - CESTAT NEW DELHI] has followed the decision in the case of Mercedes Benz India Pvt Ltd [2015 (8) TMI 24 - CESTAT MUMBAI], wherein it was observed that the Commissioner is not justified in insisting that appellant reverse cenvat credit in terms of Rule 6(3)(i) of Cenvat Credit Rules. The claim of the appellant is that they have already reversed on proportionate basis, the cenvat credit along with interest amount payable in terms of Rule 6(3A). However, the Dep....... + More

Refund of excise duty - benefits under the Northeast Industrial Policy - UPVC Pipes, fittings etc. - N/N. 20/2008-Central Excise dated 27.03.2008 - HELD THAT:- As the Notification dated 27.03.2008 provides for a legal right to the assessee to claim for a special rate to be fixed in the event of there-being any add-ons to the goods manufactured, it is considered that without an appropriate decision being taken on such claim for special rate, it would be inappropriate for the department to proceed against the petitioners as per the rates provided in the Notification dated 27.03.2008. This petition stands disposed of by directing the Principal Commissioner of GST Guwahati to consider the aforesaid application of the petitioner dated 03.04.2021 claiming for a special rate to be fixed on the basis of the add-ons made to the goods manufactured - petition allowed.

Utilization of CENVAT Credit on Education Cess and Secondary & Higher Education Cess, for payment of Excise duty - period post amendment of Cenvat Credit Rules w.e.f. 01.03.2015 - penalty - HELD THAT:- The decision by the Hon’ble Delhi High Court in CELLULAR OPERATORS ASSOCIATION OF INDIA AND OTHERS VERSUS UNION OF INDIA AND ANOTHER [2018 (2) TMI 1264 - DELHI HIGH COURT] has analysed the issue whether Education Cess and Secondary & Higher Education Cess can be utilized for payment of service tax / excise duty after the introduction of amendments in Rules 3 (7) (b) of Cenvat Credit Rules,2004 by Notification No.12/2015-CE (NT) dt. 30.04.2015 - The demand raised under the SCN for recovery of the wrongly availed cenvat credit is legal and proper. Penalty - HELD THAT:- Taking into consideration that the issue is of interpretatio....... + More

Exemption from tax - sale of Intra-ocular lenses - exempt under the provisions of the TNGST Act or not? - Third Schedule to the TNGST Act read along with Section 8 - HELD THAT:- This Court is of the considered opinion that whether the exemption granted is general in nature or certain conditions are impliedly or expressly imposed is the point to be considered. The object of Section 8 of the TNGST Act is to grant exemption in respect of the goods and such exemption is subject to such restrictions and conditions as may be prescribed by the appropriate Government - there is no further classification or condition is required in respect of the grant of exemption. The Third Schedule to the TNGST Act unambiguously stipulates “goods exempted from tax by Section 8”. It commences “the following goods produced or manufactured in Ind....... + More

Validity of the notice issued by the first respondent in proceedings - recovery of arrears of sales tax due - It is contended that there was a failure on the part of the first respondent in initiating action to recover the sales tax arrears, within a reasonable period of time - HELD THAT:- This Court is of the considered opinion that the petitioner purchased the subject property on 31.06.2006. The sales tax defaulter has to pay the arrears of sales tax within a period of 30 days, as contemplated under the provisions of the Act. If the arrears of sales tax is not paid by the defaulter and if no appeal was filed against the order passed by the Original Authority, then the Authority Competent is empowered to initiate action against the defaulter to recover the arrears of sales tax by following the procedures contemplated under the TNGST Act........ + More

Maintainability of petition - alternative remedy of appeal was not exhausted - validity of assessment order - HELD THAT:- Admittedly, the present Writ Petitions are filed challenging the final assessment orders and therefore, the petitioner is bound to exhaust the statutory remedies provided under the provisions of the Act. The importance of the appellate remedy at no circumstances be undermined, as the appellate authorities are the final fact finding authorities - Preferring an appeal is the rule. Entertaining a Writ Petition before exhausting the appellate remedy is an exception. Undoubtedly, writ proceedings may be entertained before exhausting the appellate remedy. The power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinize the processes through which a decision is taken by the compet....... + More

Levy of Entry Tax - Seeking forbearance on respondents and their subordinates from demanding or collecting entry tax on the imported goods - import of Rolls Royce Ghost Motor Car Vehicle bearing chassis number - HELD THAT:- The common man are motivated and encouraged to behave as a lawful citizen and pay tax and to thrive hard to achieve social justice in the society. If the rich, affluent and reputed persons fails to pay the tax as applicable, then this Court with pain, records that it would be a long way to achieve the constitutional goals - Even philosophically, accumulation of wealth or possessing the world's prestigious Car, Rolls Royce would not be of any assistance for a better life in our great Nation, as our country is enriched with culture and social values. Thus, this Court is of the considered opinion that the nonpayment o....... + More

Disciplinary action against the officers for granting irregular refund - name of the respondent/writ petitioner was included in the panel of Deputy Commissioner of State Tax, for promotion to the post of Joint Commissioner of State Tax but a stay was invoked and the promotion was not granted - period from 2007-08 and 2008-09 - HELD THAT:- It is admitted position that the name of the respondent/writ petitioner was included in the panel of Deputy Commissioner of State Tax, for promotion to the post of Joint Commissioner of State Tax for the panel year 2019-20. Though application for vacating the interim order passed inI.A.No.2 of 2018 in W.P.No.16392 of 2018 was filed, for reasons which may not detain us, the said application has not been disposed of and, therefore, the interim order passed earlier continues to remain in force. In view of s....... + More

Permission for withdrawal of SLP - petitioner contends that the impugned order was passed without giving an opportunity to the petitioner to place their stand before the Court - HELD THAT:- The petitioner is permitted to withdraw the special leave petition and file a review application before the High Court bringing these aspects to the notice of the High Court. The SLP dismissed as withdrawn.

Classification of goods - rate of tax - HDPE Bags or HDPE Woven Sacks - exigible to tax @ 4% or 8% respectively or not? - to be classified under Entry-129 of List-C of the OST Rate Chart - HELD THAT:- Entry 136 specifically talks of HDPE woven sacks. Merely because the last portion of Entry No.136 states "and other plastic goods except those specified elsewhere in this notification", it would not exclude HDPE woven bags and HDPE woven sacks from Entry 136 - What is included in Entry No.129 is HDPE bags and as held by this Court in State of Orissa v. M/s Auro Plastics [2015 (9) TMI 1456 - ORISSA HIGH COURT], HDPE bags and HDPE woven sacks are not the same product. With there being no doubt that what was sold by the Petitioner was HDPE woven sacks, which is clearly specified as such in Entry 136, there is no scope to bring it with....... + More

Condonation of delay - sufficient cause - Request for Reopening of assessment order for accepting declarations in Form ‘C’ - power of authorities to reopen the proceedings after lapse of four years - sufficient cause for delay present or not - Section 21(4) of the Andhra Pradesh Value Added Tax Act, 2005 - HELD THAT:- The declaration in Form ‘C’ or Form ‘F’ or the certificate in Form ‘E-1’ or Form ‘E-II’ under the AP VAT Act is to be filed within the time frame as envisaged in Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 - A perusal of the said Rule shows that the assessee is required to furnish the declaration in Form ‘C’ or ‘F’ or ‘E-1’ or ‘E-II’ within three months after the end of the period for wh....... + More

Maintainability of petition - remedy of appeal was not exhausted - petition entertained only on the ground of delay, valid or not - Revision of Assessment - HELD THAT:- The power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinize the processes through which a decision is taken by the competent authority by following the procedures as contemplated, but not the decision itself. Therefore, the routine entertainment of a Writ Petition by dispensing with appellate remedy is not preferable and such an exercise would cause injury to the institutional hierarchy and the importance attached to such appellate institutions. The appellate institutions provided under the statute at no circumstances be undermined by the higher Courts. The appellate forums are the final fact finding authorities and more s....... + More

Seeking grant of anticipatory bail - fraudulent Input Tax Credit - forged invoices - Sections 408, 420 of IPC - HELD THAT:- The offence is alleged to have committed between 01.01.2020 and 10.03.2021, petitioner was named in the FIR, suspecting his role. It is stated that the petitioner is presently working in the office of the Additional Commissioner of Commercial Taxes (Enforcement), South Zone, Bengaluru. He has been arraigned as accused No.6 in the charge sheet. The charge sheet has been filed keeping open the further investigation of the case under Sections 173(8) of Cr.P.C. The petitioner has undertaken to cooperate with the further investigation of the case and abide by other conditions. The involvement of the petitioner in the alleged offence has to be established by the prosecution during the trial - the relief sought by the petit....... + More

Arrears of sales tax - actual defaulter - collection of arrears after lapse of 14 years - case of petitioner is that recovery of arrears of sales tax is to be made against the defaulter and not against the petitioner - HELD THAT:- The petitioner's are the bonafide purchasers of the property and cannot be liable to attachment. This Court is of the considered opinion that the arrears of sales tax was due in for year 1992 - 93 under the CST Act, 1956 - The arrears of sales tax is to be collected from the second respondent after a lapse of 14 years and meanwhile the property was sold by the third respondent who was one of the Ex-Director of the second respondent Company and other co-owners also there and they are not directors and not connected with the second respondent. The first respondent has not collected the recovery of sales tax vigilantly from the defaulters. Thus, the actions initiated after lapse of many years cannot be sustained. Petition allowed.

Input tax credit - benefit of credit to be extended in respect of the transactions occurred prior to the issue of amendment in the Tamil Nadu Act 5 of 2015 - HELD THAT:- The issue decided in TVL. BHARATH TRADERS VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE COMMERCIAL TAX OFFICER, SOUTH AVANI MOOLA STREET CIRCLE, MADURAI [2019 (8) TMI 1699 - MADRAS HIGH COURT] where it was held that Since the substitution in the present case only seeks to set right an anomaly it necessarily has to be effective from the date of inception of the Act itself, retrospectively. Petition allowed.

Maintainability of petition - remedy of appeal was not exhausted - petition entertained only on the ground of delay, valid or not - Validity of assessment order - challenge on the ground that the assessment orders are passed against the provisions of the Tamil Nadu Goods and Services Tax Act, 1956 and in violation of decision of the Hon'ble Division Bench of this Court in various judgments - HELD THAT:- The power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinize the processes through which a decision is taken by the competent authority by following the procedures as contemplated, but not the decision itself. Therefore, the routine entertainment of a Writ Petition by dispensing with appellate remedy is not preferable and such an exercise would cause injury to the institutional hierarch....... + More

Maintainability of petition - availability of efficacious alternate remedy - bar on appeal/objection against the impugned order - order has been passed ‘giving effect to’ the order of this Court - Seeking refund alongwith interest - HELD THAT:- This Court is of the opinion that the present case does not call for any interference under Article 226 of the Constitution, as an efficacious alternative remedy is available with the petitioner under Section of 74 of DAVT Act. The petitioner has failed to demonstrate any patent illegality like violation of principle of natural justice or of fundamental rights in the impugned order. The Court had merely directed the respondents to decide the claim of the petitioner in accordance with law. Since the Court has not decided the matter on merits, the impugned order cannot be said to be &lsqu....... + More

Classification of goods - powder quoting material - to be classified under Central Excise Tariff Heading (CTH) 39 or under Entry 51 of 3rd Schedule of the Act? - applicability of Notification dated 03.04.2005 - Section 4(1)(b) of Central Excise Act - HELD THAT:- Section 4(1)(b) of the Act prescribe for liability to tax and rates thereof. Section 4(1)(ii) prescribes that in respect of goods mentioned in 3rd Schedule, the tax shall be levied at the rate of five and half percent. Entry 51 of Schedule III of the Act covers industrial inputs and packing materials as may be notified. The State Government has issued a Notification dated 30.04.2005 notifying the industrial inputs and packing materials. Entry 133 of the aforesaid Notification covers Chapter Heading No.3907, which in turn covers polyacetals, other polyethers and epoxide resins, in ....... + More

Rectification of mistake - error apparent on the face of record or not - escaping of turnover - refund the excess Input tax credit - HELD THAT:- The impugned order at Ext.P4 has considered this aspect and it has been observed by the rectifying authority that the petitioner/dealer has failed to produce the invoices and had admitted that the suppliers failed to upload the invoices and therefore the tax was not remitted to the exchequer and hence the impugned tax credit came to be rejected. Escaped turn over - HELD THAT:- The same point was considered in the rectification order with a finding that the turn over taken for assessment was only in respect of Form No.10 relating to the traders. The turn over of Form No.10B was not taken in the order of assessment and so there is no question of giving credit of payment as per Form No.10B. With the....... + More

Violation of principles of natural justice - impugned order passed without granting any further opportunity of hearing to the petitioner - penalty u/s 67 of the KVAT Act - HELD THAT:- The petitioner was not granted an opportunity of hearing in the matter, the impugned order at Ext.P8 is quashed and set aside and the matter is remitted for fresh consideration to the 1st respondent State Tax Officer. The petitioner to appear before the 1st respondent State Tax Officer at 11.00 A.M on 21.07.2021 along with all necessary records and then to abide by the further directions of the 1st respondent State Tax Officer. He shall co-operate the 1st respondent State Tax Officer in disposal of the matter without seeking any adjournments. The learned counsel for the petitioner prays that till disposal of the issue of the penalty the notice at Ext.P10 be ....... + More

Validity of assessment order - assesses have not filed option letter for payment of tax under compounding scheme - discrepancies in the turnover - HELD THAT:- This Court is of an opinion that the impugned order stipulates that regarding the difference in the turnover, the dealers have file Form WW and Profit and Trading and loss account for the Month of December 2014 only. At the time of filing Form WW, they have reported that the total sales turnover is ₹ 56,08,055/- in the Trading Account. At that time of inspection, they have not reconcile the above turnover before the Enforcement Officials. Now, they have stated that the correct turnover is ₹ 62,52,658/- only. But the trading account, they have reported the turnover is ₹ 56,08,055/- only. At that time personal hearing also, they have not reconcile how they have shown....... + More

Interest on amount claimed - entire case of the petitioner is that the amount which the respondents had claimed under the provisions of The Goa Value Added Tax Act, 2005 was already with the respondents and therefore, there was no question of claiming any interest on the said amount - HELD THAT:- The Tribunal, after having accepted the petitioner's case that there was no valid consideration of their main contention or that there was no reason assigned for rejection of his main contention, would have remanded the matter to the Assistant Commissioner of Commercial Taxes and Appellate Authority and not the Commissioner to exercise power under Section 25(4) of the said Act. The impugned order is modified and it is directed that the petitioner's appeal before the Assistant Commissioner of Commercial Taxes and Appellate Authority to res....... + More

Validity of assessment order - erroneous application of the provisions of the TNVAT Act and the assessment orders passed which resulted exercise of jurisdiction erroneously - input tax credit to be considered for the purpose of passing an assessment order or not - applicability of amendment as issued in the Tamil Nadu Act, 13 of 2015 with effect from 29.01.2016 - HELD THAT:- Usurping the powers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority, which is c....... + More

Smuggling - phensedyl codeine cough syrup 100 ml bottle - main argument raised by the Ld. counsel for the petitioner is that there is infirmity in drawing of the samples and the proper procedure has not been followed by the NCB (respondent) at the stage of drawing the samples - HELD THAT:- In the instant case, as per the prosecution 200 bottles of phensedyl codeine cough syrup were recovered. The seized bottles were of the same size and were having batch numbers on them i.e. batch No. PHB7217 & PHB7236. Therefore, in these circumstances, since these were cough syrup bottles which are ordinarily available in the market for treating cold and cough, cannot be said to have different concentration of medicines as they are prepared under the same formulation as per their batch numbers. Therefore, there is no infirmity in the manner in which....... + More

Dishonor of Cheque - Fraudulent transaction or not - existing debt or advance payment - presumption available under Section 139 of the N.I.Act - no reply to the notice has been given - whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability? - Section 138 of the Negotiable Instruments Act, 1881. HELD THAT:- While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. In M/S. BALAJI SEAFOODS EXPORTS VERSUS MAC INDUSTRIES LTD. [1998 (10) TMI 528 - MADRAS HIGH COURT], the Madras High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is,....... + More

Termination of dealership - breach of Clause 45 (d) of dealership agreement - Co- operative Society appointed as dealer, involved in a criminal offence or not - petitioner was convicted under Section 138 of Negotiable Instruments Act, 1881, for dishonor of cheque - heinous case or case involving moral turpitude or otherwise? - HELD THAT:- Apex Court in the case of P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] has reiterated that proceedings under Negotiable Instruments Act are basically civil in nature having criminal colour. Apex Court has defined the proceedings aptly as "civil sheep in a criminal wolf's clothing" and has reiterated the law laid down - Similarly, in M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VERSUS KANCHAN MEHTA [2017 (10) TMI 218 - SUPREME C....... + More

Dishonor of Cheque - Trial Court awarded punishment in the form of imprisonment for the said offence - dispute is amicably settled with the respondent no.2-complainant, with regard to the offence, after the order of conviction is passed - complainant filed an affidavit interalia stating that if the order of conviction passed against the applicants is quashed and set aside, he has no objection - compounding of offences - HELD THAT:- This Court, in the case of Khokhar Iliyas Bismilla Khan Vs. State of Gujarat & Anr. [2021 (6) TMI 868 - GUJARAT HIGH COURT] , had an occasion to deal with a similar issue which is involved in the present matter, where it was held that Taking into account the fact that the parties have settled the dispute amicably, in view of this court the compounding of the offence is required to be permitted. Thus, when t....... + More

Dishonor of Cheque - chque was signed by the Husband (who was not the joint holder) - allegation is that ingredients as contemplated in Section 138 of the Negotiable Instruments Act having not been fulfilled - debt or liability on the part of the drawer of the cheque or not - Section 138 of the Negotiable Instruments Act - HELD THAT:- It is evident that to take action against non-payment of any cheque amount due to its return by the bank as unpaid, there should exist any debt or liability on the part of the drawer of the cheque and the recipient of the cheque. In the present case, it is the admitted stand of the parties that there was no debt or liability on the part of the petitioner to the complainant. Therefore, mere issuance of cheque belonging to the petitioner would not suffice to attract Section 138 of the Negotiable Instruments Ac....... + More

Dishonor of Cheque - non-CTS-2010 cheque - valid cheque or not - scope of four corners of Section 138 of the Negotiable Instruments Act - Scope of circular issued by Reserve Bank of India dated 18.3.13 - time limitation - HELD THAT:- The circular issued by Reserve Bank of India dated 18.3.13, which has been pressed into service to put forth the contention that the non-CTS-2010 cheque is an invalid cheque, however, clause (c) of the circular issued by Reserve Bank of India provides that all residual non-CTS-2010 cheques with customers will continue to be valid and accepted in clearing houses (including the Cheque Truncation System (CTS) Centres) for another four months up to July 31, 2013, subject to a review in June, 2013. From the said clause it is evident that validity is given till 31.7.2013, which is subject to review. However, no mat....... + More

Dishonor of Cheque - suit barred by limitation or not - denial of execution of pronote - suit is filed only after 8 years from the date of execution of the pronote - time limitation in case post dated cheque issued - HELD THAT:- The cheques dated 28.04.2008 and 28.04.2009 were not presented for collection and both cheques had lost their validity. Insofar as the cheque dated 28.04.2011 is concerned, the complaint was lodged and referred before Lok Adalat. The last payment made by the defendant on 21.09.2012 and it was duly recorded and the complaint was closed by an order dated 21.09.2012 which was marked as Ex. A8 - Insofar as the receipt of ₹ 10,00,000/-, the execution of pronote and the issuance of cheques are concerned, the defendant, during his cross examination, categorically admitted that the plaintiff entrusted a sum of ͅ....... + More

Dishonor of Cheque - condonation of delay in filing the complaint - trial court failed to grant extension, inspite of being allowed by suo moto petition - HELD THAT:- Even though the trial Court referred the averments made in the complaint, the sworn statement and documents marked on behalf of the complainant, it has not given its consideration to the dates of events which are mentioned above before condoning the delay in presenting the complaint. It is settled position of law that there must be application of mind before taking cognizance of the offence by the Court when there are several dates of events as mentioned - The impugned order does not speak that the Court has taken the said events into consideration before proceeding to pass the impugned order. The matter remanded for fresh consideration by the trial Court keeping in mind the....... + More

Dishonor of Cheque - supply of information about the location of the original case records - it was submitted that while the impugned order was passed, the facts with regard to the trial of the case under Section 138 of the NI Act was not taken into consideration by the writ Court as the complaint was initially instituted before the learned Chief Judicial Magistrate, Paschim Medinipur - HELD THAT:- The order substantially has been passed in favour of the petitioner/appellant to take appropriate steps with regard to the case records pending with the learned Judicial Magistrate, Alipore as it appears that the case records is pending for inquiry and trial before the learned Judicial Magistrate, 2nd Court at Alipore. The report of the learned Chief Judicial Magistrate was communicated to the registry through District Judge, South 24 Parganas ....... + More

Dishonor of Cheque - service of legal notice - presentation of cheque second time - bouncing of cheques on the ground that the same were not-acceptable to the bank on account of its being non- MICR - applicability of prosecution under Section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- Admittedly the second bouncing of cheques was not on account of any insufficiency of fund in the bank, nor the same was on account of any act of stop payment etc. from the side of the petitioner. Thus, by the time the second presentation of cheques was made in the bank, the same had become not acceptable by the bank on account of being non-MICR cheques. Accordingly, the petitioner had no role to play in return of cheques upon second presentation, but the same were not acceptable by the bank itself on account of technical reasons. As per proviso (a....... + More

Dishonor of Cheque - it is claimed that cheque issued by way of security and not against any legally payable debt - evidences produced or not - burden to prove - principles of natural justice - HELD THAT:- Admittedly, the petitioner did not even lead any defence evidence in spite of grant of opportunity by the learned court below and none of the witnesses whose name appeared as witnesses on Exhibit-A deposed before the court to explain the circumstances under which it was issued. On the other hand, the P.W. 2 is the eye-witness of the entire transaction and has explained the circumstances under which the cheque was issued by the petitioner to the complainant and has fully supported the prosecution case - From the records of the case, it appears that the P.W. 2 clearly deposed that cash of ₹ 1,00,000/- was handed over to the petition....... + More

Maintainability of this criminal miscellaneous petition - exercise of inherent jurisdiction by this Court under Section 482 Cr.P.C. - Matter compromised between parties - HELD THAT:- It is well established and recognised practice that against appellate order confirming the judgment of conviction, the revision petition lies under Section 397 read with Section 401 Cr.P.C. - this Court will not entertain a petition under Section 482 Cr.P.C. where the petitioner has other remedy available under the Code except under exceptional circumstances. After considering earlier judgments of the Hon'ble Supreme Court of India in the case of Madhu Limaye vs. State of Maharashtra [1977 (10) TMI 111 - SUPREME COURT], the Court proceeded to hold that there can be no total ban on the exercise of extraordinary jurisdiction conferred on a High Court under ....... + More

Dishonor of Cheque - service of notice - legally enforceable debt or not - rebuttal of presumption - complainant claims to have sent the legal notice to the accused, but the same was not served upon petitioner - complainant's main grievance is against the Trust - the accused alone was alleged to be the only active Trustee in the said Trust. Service of notice - HELD THAT:- The address of the accused shown in her vakalath in the Trial Court, the cause title in the complaint filed by the complainant before the said Court, and in the memorandum of the criminal appeal before the Sessions Judge's Court and also in the present Criminal Revision Petition before this Court are all the same address, as such, it is established that the complainant issued the notice to the correct address of the accused. The said notice was also tendered at t....... + More

Dishonor of Cheque - Complaint was dismissed hold that, complainant failed to prove the guilt of the accused beyond reasonable doubt - rebuttal of presumption - cheque got executed by exercising force - quantum of amount lent also in dispute - accused has not chosen to step into the witness box to depose regarding his contention - HELD THAT:- It is the settled proposition of law that when the complainant is successful in proving issuance of cheque and its dishonour, unless the accused repays the cheque amount, the offence under Section 138 of N.I. Act is complete and the presumption under Section 139 of N.I. Act arises. In Rangappa v. Sri. Mohan [2010 (5) TMI 391 - SUPREME COURT], the Full Bench of the Hon'ble Apex Court considered its earlier verdict in Krishna Janardhan Bhat v. Dattatraya G. Hegde [2008 (1) TMI 827 - SUPREME COURT] ....... + More

Dishonor of Cheque - issuance of non-bailable warrant - validity of proceedings under Section 482 Cr.P.C. - HELD THAT:- After coming to know that the non-bailable warrant has been issued this is a clear device of challenging the entire proceedings under Section 482 Cr.P.C. It is not known if the police has already arrested the accused as the warrants were issued long back before one year. The summoning order is dated 29.04.2019 which means that for a period of two years the respondents have not appeared before the learned Magistrate. Prima facie ingredients of the offence are made out from the papers on record. On the touchstone of the decision of the Apex Court and in a recent decision of High Court of Gujarat in case of A. H. Patel vs. State of Gujarat reported in [2013 (3) TMI 861 - GUJARAT HIGH COURT] as the facts are similar to this ....... + More

Dishonor of Cheque - funds insufficient - presumption about the existence of legally enforceable debt - rebuttal presumption or not - preponderance of probability - material contradictions in the case of the complainant - HELD THAT:- The complainant in his complaint, as well in his examination-in-chief as PW-1 has stated that the loan was given by him to the accused in the month of July 2012. He has not given any specific day of the month as to the date on which the alleged loan was given. The month is also stated to be July of the year 2012. However, the very same witness in his cross-examination has stated that he lent the money to the accused on 06.08.2012. That means, the complainant was clearly aware the exact date on which the loan is said to have been given by him to the accused. However, for the reasons best known to him, neither ....... + More

Dishonor of Cheque - Filing a case for Suit for recovery of money after initiating action u/s 138 of N.I.Act - Validity of FIR registered - Allegation is that the discount as promised by seller were not provided - matter of contract to be proved by the second respondent for recovering the amount said to be due to him - HELD THAT:- If the FIR registered against the petitioners and two others is read, it appears that the second respondent wanted to purchase laptops from the first petitioner’s business concern and there is no dispute with regard to this. The petitioners dispute offering of discount to the extent of 15 to 18% and claim to have supplied the entire quantity of laptops which is again disputed by the second respondent. But what is important to be noted here is that on 16.11.2018 itself, the second petitioner lodged an FIR w....... + More

Dishonor of Cheque - legality of signature on a money receipt which forms the basis of consideration behind the cheque in question - refusal to to send the document in question to a handwriting expert quite sometime ago - HELD THAT:- The learned revisional Court seems to have erred in holding that the application for seeking the handwriting expert's opinion was filed after the examination of the accused under Section 313 of the Code. In any event, even after examination of the accused under Section 313 of the Code, an accused can seek the opinion of a handwriting expert - If the purported money receipt is not sent to an expert for comparison, it would amount to denying a fair trial to the accused. The application of the petitioners shall appropriately be allowed to send the money receipt to a handwriting expert for comparing the signa....... + More

Dishonor of Cheque - insufficiency of funds - interpretation of statute - Section 138 of the NI Act - imposition of punishment of imprisonment, which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both - whether the learned appellate Court has rightly interfered with the sentence and sentenced to fine only which the accused had already deposited? - HELD THAT:- Here in the instant case, in Section 138 of the NI Act the word "or" has been employed and discretion has been conferred to the Criminal Court sentencing the convicted person for offence under Section 138 of the NI Act. Thus, there is a discretion left with the Criminal Court dealing with complaint under Section 138 of the NI Act either to sentence the accused with imprisonment or to punish the accused with the sentence of ....... + More

Seeking an order to restrain the Respondent from encashing bank guarantees - HELD THAT:- In view of the statement made by Mr. Handoo and the fact that the parties are going to attempt a settlement, Mr. Parag Tripathi, learned Senior Counsel for the Petitioner states that he would not like to press the present petition at this stage and seeks liberty to approach this Court, at a later stage, in case the Respondent initiates steps for the invocation of the bank guarantees. The present petition is dismissed as withdrawn with liberty to the Petitioner as aforesaid.