Unexplained income u/s 69A - cash deposited during the demonetization period made out of cash in hand (which was more than four months) - penalty proceedings u/s.271AAC - HELD THAT:- In the case on hand, the Income Tax Officer/Respondent, taking into account the fact that the explanation given by the assessee that the cash deposited during the demonetization period made out of cash in hand (which was more than four months) of ₹ 11,10,000/- was against human probability and that there is no explanation for the source and nature of cash deposits in the Savings Bank Account, brought the above unexplained income to tax under Section 69A of the Income Tax Act, 1961. Single Judge, after considering the facts and circumstances of the case, without expressing any view on the merits of the matter, disposed of the writ petition, by granting l....... + More

Revision u/s 263 - As per CIT AO has categorically failed to verify the deduction u/s 54 - ITAT quashing the revision order - HELD THAT:- Essential condition for the exercise of power u/s 263 that the Commissioner of Income Tax must find an error which is found in the assessment order of the Income Tax Officer prejudicial to the interest of the Revenue and conclusion of the Commissioner that the order is erroneous and prejudicial to the Revenue must be based on materials and contentions raised by the assessee on opportunity of hearing being afforded to him. The findings of facts recorded by the Appellate Tribunal is that one of the requisite conditions for the exercise of power under Section 263 of the Act that the Commissioner should consider the assessment order to be erroneous and prejudicial to the interest of the Revenue is not satisfied in the present case. In arriving at such conclusion, the appellate Tribunal has assigned cogent reasons. - Decided against revenue.

Addition u/s 68 - genuineness of the transactions - HELD THAT:- AO should have considered the material produced before him, which have also been enclosed herein. On a specific question being asked to the learned counsel for the revenue - whether the bills referred to hereinabove have been produced before the assessing officer, it is submitted that he does not have complete information with regard to the same. On considering these four bills, we are of the view that if the same were placed for consideration before the assessing officer, then he may have come to a different conclusion than what he has arrived at. We also do not notice that the assessing officer has referred to any of these bills, as produced by the appellant. We are of the view that it would be just and appropriate to direct the assessing officer to reconsider the matter af....... + More

Exemption u/s 11(1)(a) - activity of letting out of halls is covered by the residuary limb of definition u/s.2(15) of the Act and hit by the proviso to Section 2(15) and exempted u/s.11 and 12 of the Act - Whether the entire income derived from Kalyana Mandapam, is utilized for the primary object of the Society? - HELD THAT:- In view of the objects of the trust to be fulfilled, which is for a charitable purpose, the income there from would be entitled to exemption u/s.11(1) of the Act. Whether the income derived from letting out of Kalyana Mandapam, Community Hall and Gnanavapi owned by the appellant/assessee is the income from the House property or business income and whether the same is liable to be taxed or exempted is the other question. The contention of the assessee is that since utilization of the surplus income from the running of....... + More

Validity of demand in respect of firm raised in the name of Partner - TDS u/s 194A - interest paid - failure of the "payee-assessee" to pay the tax directly as per section 191 - fixing of liability on the assessee and its partners as assessee-in-default - Fix the liability to pay the tax on the correct person - HELD THAT:- The burden to prove that the payee-assessee had paid the tax, which the assessee-deductor failed to deduct was placed on the latter ; by production of a certificate from the accountant. The questions are thus answered against the assessee and in favour of the Revenue. It is settled law that a partnership is neither a natural person nor a juris tic person. It has no separate existence than its partners. The liability of a partnership firm is the liability of its partners. As such, fixing the liability of the fi....... + More

Computation of capital gains -Treating ‘Government Securities’ as Bonds or Debentures for the purpose of the third proviso (now fourth proviso) to section 48 - HELD THAT:- Issue decided in favour of assessee as relying on own case [2019 (12) TMI 958 - ITAT KOLKATA]. Appellate forum against the orders of the coordinate bench of this Tribunal - Proposition that, when fixed return is assured on a capital asset, indexation should not be granted, is not correct. Even on buildings or land fixed rental income is earned. Just because there is fixed returning income, it cannot be concluded that on sale of such asset no indexation would be granted of the asset is a long term capital asset. This bench has not been informed as to whether the department has accepted the earlier order of the Tribunal on this issue for A.Y. 2010-11 and A.Y. ....... + More

Reopening of assessment u/s 147 - denial of natural justice - whether the assessee has been granted the opportunity to cross examine Sri.Moideen Koya and his brother Sri.Valiyil Moosa and such persons whose statements have been used to draw adverse inference against the assessee? - HELD THAT:- The order of the learned CIT(A) records that the seller Sri.Moideen Koya has not filed any return of income admitting the income in his sworn statement. The Revenue has not produced any evidence to show whether Sri.Valiyil Moosa has admitted any income from the said transaction. This stand of the Revenue as to whether the said on-money which has been allegedly admitted by Sri.Valiyil Moosa has led to an assessment of higher capital gain tax or whether the said amount has been assessed under any other heads is also not known. These are evidences whic....... + More

TP Adjustment - comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected which provides IT services such as maintenance of software, management of servers, provision of technical support, documentation of software code and ITES service and Back Office services such as quality assurance, vendor management and investor relationship, etc. Disallowance of employee contribution of PF and ESI - HELD THAT:- We notice that in favour of assessee in Hindustan Organics Chemical Ltd. [2014 (7) TMI 477 - BOMBAY HIGH COURT] AND CIT vrs. Ghatge Patil Transports Ltd. [2014 (10) TMI 402 - BOMBAY HIGH COURT] Following the Vegetable product [1973 (1) TMI 1 - SUPREME COURT] we are inclined to follow the jurisdictional High Court decision. Accordingly, the grounds raised by the assessee are allowed. Appl....... + More

Assessment u/s 153A - Addition on account of scrap trading - HELD THAT:- As gone through the orders of the authorities below and found from the record that during the course of regular assessment, the A.O. has not brought on record any evidence to the effect that the assessee has sold any capital asset nor any finding was recorded to the effect that when such asset was acquired to whom it is sold and for what consideration, in absence of any material describing nature of asset, year of acquisition, year of transfer consideration accruing as a result of transfer, the provisions of Section 45 of the Act cannot be applied. A detailed finding has been recorded by the ld. CIT(A) to this effect in para 8 of his appellate order which has not been controverted by the ld. DR by bringing any positive material on record. Accordingly, we do not find ....... + More

Disallowing claim of deduction u/s 54F - plot purchased was of the commercial nature - HELD THAT:- The only condition has been laid in the Sec. 54F is that either a residential house is purchased or constructed a house for residential purposes in stipulated time, meaning thereby of 'construction of a house for residential purpose' is that some construction should be made by the assessee on the plot, whether assessee is physically residing or not in that house, or whether plot on which house has been constructed is of commercial or agricultural nature, is all immaterial. The said condition was fulfilled by the assessee by constructing a house for residential purpose on the plot purchased by her from JDA on auction and said house was consisted of two rooms, boundary wall with iron gate, electricity connection etc. and house was cons....... + More

Revision u/s 263 - survey u/s 133A on 19/02/2015 wherein the assessee company has surrendered amount - addition u/s 40A (3) - HELD THAT:- Karnataka High Court after considering various judicial pronouncement in the case of CIT Vs. Gokul Das Exports [2008 (7) TMI 595 - KARNATAKA HIGH COURT] has held that assessing officer taking one out of two views the assessment order is not prejudicial to interest of revenue. In view of the above judicial pronouncements and various other judgements on the issue the assessment order passed by A.O. cannot be treated as an erroneous and prejudicial to the interest of revenue. In the case of CIT Vs. Vodafone Essar South Ltd. ( [2012 (12) TMI 70 - DELHI HIGH COURT] held that assessing officer before passing assessment order made an enquiry and directed his mind on all aspects. View adopted by him was clearly....... + More

Enhancement of Capital Gain - Initially the value was taken as determined by the Sub-Registrar - Later, on objection raised by asessee, matter was referred to DVO - Application of section 50C, since the land is in Dark Zone - HELD THAT:- As during the course of assessment proceedings u/s 143(3)/148 of the Act, the A.O. has enhanced capital gain by taking value as determined by the Sub-Registrar. However, the assessee has filed objection then the matter was referred to the DVO. DVO done valuation without considering the facts that land is in Ecological Area exists in Dark Zone as declared by Geological Survey of India and Central Ground Water Authority, no construction activities are allowed on that land as well as comparable case of adjacent land was also not considered. DVO has taken excessive rate without considering the average rate i........ + More

Disallowance of claim of interest payable on sales tax, excise duty and customs duty - HELD THAT:- We notice that an identical issue has been considered by the coordinate bench in the assessee’s own case [2017 (12) TMI 570 - ITAT BANGALORE]and it was decided against the assessee. Disallowance of interest payable to micro, small and medium enterprises by invoking section 23 of MSMED Act - A.R submitted that the Income tax Act does not provide for any such disallowance - HELD THAT:- We notice that an identical issue has been considered by the coordinate bench in the assessee’s own case and it was decided against the assessee in assessment year 2008-09 [2017 (12) TMI 570 - ITAT BANGALORE] Weighted deduction made by the assessee u/s 35(2AB) - assessee had claimed weighted deduction on the gross amount of expenditure incurred by it....... + More

Reopening of assessment - Addition u/s 68 - client code modification - HELD THAT:- Client code modification has been carried out by the broker in the case of the assessee. According to the information available in the reasons recorded, client code modification is allowed to the brokers by the stock exchange, within a limited window of time after business hours, for rectification of any mistakes in punching of the client code while carrying out transaction of purchase and sale on behalf of the customers. AO has alleged in the reasons recorded that client code modification has been done for shifting of the profit or loss by the assessee. But there is no material to infer that such client code modification has been done with malafide purpose of shifting of the profit or evasion of the tax. There is no material before the Assessing Officer to....... + More

Netting off of the interest income against interest expenditure - taxing interest received during pre-construction period under the head "Income from other sources" - contention that where the fixed deposits are inextricably linked with the business of the assessee, the interest income therefrom has to be set off against the preoperative expenses of the assessee - HELD THAT:- We find that the assessee has deposited the funds which were not immediately required for the assessee’s business and as and when required, they were immediately withdrawn and used for business purposes. Therefore, there is a distinction in facts between earlier years where the Tribunal decided the issue against the assessee, and the AYs before us. Thus following the decision of the coordinate bench of ITAT, Mumbai in the case of Kamat Hotels (India) ....... + More

Royalty payment - extraordinary jurisdiction of this Court - HELD THAT:- Royalty payment for one company was only for the 'technology' component like in Maruti Suzuki India Ltd., while the royalty payment was for 'technology and the use of brand' as in assessee / appellant company. Such inherent deficiencies were pointed out thereby making the entire system faulty and fraught with loopholes. Now, it is revealed, during the course of the arguments that the TPO's order was accepted by the AO and the final order of assessment was passed in November 2019. It is not clear whether the assessee / appellant approached the DRT with objections against the draft assessment order. The assessee / appellant ought to have approached the ITAT against this final order of assessment. In such circumstances, this Court opines that the rem....... + More

TDS u/s 195 - payments made to Opportunity International as Fees for Technical Services - disallowance under Section 40(a)(ia) - provisions of Section 90 of the Income Tax Act read with the Double Taxation Avoidance Agreement between India and USA - HELD THAT:- Admittedly, the issue relating to Section 90 of the Income Tax Act read with Double Taxation Avoidance Agreement between India and United States of America has not been raised before the Assessing Officer or before the CIT (Appeals) or before the ITAT. But for the first time, the appellant/assessee has raised the issue before this Court and the said issue has also been raised in the substantial questions of law - There is no occasion to decide this issue viz., as to whether the disallowance under Section 40(a)(ia) without considering the provisions of Section 90 of the Income Tax A....... + More

Assessement framed u/s.143(3) based on a non-est return filed - Whether the return filed on 31/03/2014 for the Assessment Year 2012-13 is a non-est return and not a return u/s.139(5)? - Before the Income Tax Appellate Tribunal, the learned counsel who appeared on behalf of the assessee, contended that an opportunity of cross examination of Shri. Stephen John was not provided to the assessee by the CIT (Appeals) that too even after raising the said issue before the CIT(Appeals) - HELD THAT:- Since the appellant/assessee has raised the issue of opportunity of cross examination of Stephen John and the same was given to the assessee and for the same, the matter is remitted back to the CIT (Appeals), we are of the view that there is no infirmity in the order of the Income Tax Appellate Tribunal and thus, we find no merit in the Tax Case appeal....... + More

Jurisdiction of Court entertaining this appeal - whether situs of the Settlement Commission was within the jurisdiction of this Court? - HELD THAT:- Doctrine of dominus litis or doctrine of situs of the appellate Tribunal do not go together; and a dominus litis indicates that the suitor has more than one option, whereas the situs of an Appellate Tribunal refers to only one High Court wherein the appeal can be preferred. As pointed out that situs of a Tribunal may vary from time to time and it could be Delhi or some other place or Chennai as in the case on hand and the determination of jurisdiction of the High Court should be based on the relevant Statute and that the Parliament never contemplated to have a situation of this nature and if the cause of action doctrine is given effect to, invariably more than one High Court may have jurisdic....... + More

Carry forward of the depreciation loss - beyond the eight year period mandated under the provisions of Section 32 - HELD THAT:- The restriction of 8 years for carry forward and set off of unabsorbed depreciation was dispensed with, with a view to enable the industries to conserve sufficient funds to replace plant and machinery. Standing Counsel appearing for the Revenue would point out that those amendments took place with effect from 01.4.2002 and would accordingly apply in relation to the assessment year 2002-03 and the subsequent years whereas in the assessee's case, the depreciation loss, which they sought to carry forward is for the assessment year 1997-98. The proper manner, in which, the modification has to be understood, is to the effect that from the assessment year 2002-03, if the eight years' period was not lapsed, then....... + More

Disallowance u/s 14A read with Rule 8D - disallowance for deduction u/s 10A - HELD THAT:- No expenditure was incurred by them for earning the exempt income. The assessee were not able to substantiate that fact before the authorities or before the Tribunal. Both CIT(A) and the Tribunal re-appreciating the factual matrix and found that the investment during the year increased from Opening Balance of ₹ 3,21,68,40,000/- to Closing Balance of ₹ 5,17,93,70,000/-. Assessing Officer also found that the value of the assets also increased substantially to ₹ 1,84,18,32,000/- from ₹ 1,76,96,30,000/- and therefore applied Rule 8D and made additions under Section 14A of the Act and we find no error in the order of the Assessing Officer as confirmed by the CIT(A) and the Tribunal. Accordingly the Substantial Question of Law No.1 ....... + More

Stay of demand - as directed the petitioner to pay 20% of the disputed amounts, as a pre-condition for stay of the remaining amount confirmed against the petitioner, pending disposal of the appeal - HELD THAT:- Dispose the writ petition by quashing Exts.P4, P9 and P14 orders of the 2 nd respondent and directing the 1st respondent to consider and pass orders on Exts.P3, P8 and P13 appeals within an outer time limit of six months from the date of receipt of a copy of this judgment, after hearing the petitioner. Also make it clear that till such time as orders are passed by the 1st respondent in the appeal as directed above, and the order communicated to the petitioner, recovery steps pursuant to Exts.P2, P7 and P12 demand notices shall be kept in abeyance. The petitioner shall produce a copy of this judgment together with a copy of the writ petition before the 1 st respondent for further action.

Penalty u/s 271(1)(c) - Defective notice - non specification of charge - HELD THAT:- Since appropriate limb has not been specified in the subject notice and therefore, the principles of natural justice could be said to be have been violated. More or less, similar proposition has been laid in other binding judicial precedents as tabulated by us. Failure to frame specific charge against the assessee during penalty proceedings would be fatal to penalty proceedings itself and the same could not be sustained in the eyes of law. The revenue is unable to demonstrate that specific charge was ever framed and confronted to the assessee during penalty proceedings. Therefore, respectfully following the binding judicial precedents favoring the assessee, on the issue, we find substantial force in legal grounds raised by Ld. AR, in this regard. Provisio....... + More

Estimation of income - bogus purchases - HELD THAT:- We direct the AO to restrict the addition limited to the extent of bringing the G.P. rate on disputed purchases at the same rate of other genuine purchases. Disallowance of interest - CIT(A) deleted the said addition on the ground that the interest free funds available with the assessee at the beginning of the year whereas the interest free advance - HELD THAT:- We find that the Ld.CIT(A) has rightly followed the decision in Reliance Utilities & Power Limited [2009 (1) TMI 4 - BOMBAY HIGH COURT] as the interest free funds available with the assessee at the beginning of the year was much more then the interest free advances. We uphold the order of the CIT(A) and dismiss the second ground of appeal of the revenue.

Gross profit addition - non rejection of books of accounts - Assessee accepting gross profit @ 56% as per the order of Settlement Commission for immediately preceding seven assessment years - CIT-A granted part relief to the assessee in a non-maintainable appeal - HELD THAT:- Assessee, before the AO during the assessment proceedings, agreed to estimation of gross profit @ 56% of sales/turnover and this act of the assessee obviously stopped the AO from making further enquiry or observations and going deep into the books of account of the assessee and to take recourse of procedure mandated in section 145(3) - assessee cannot be held as aggrieved from such addition which has been made on the voluntary consent of the assessee before the AO during assessment proceedings in the line of the Income Tax Settlement Commission. We safely presume tha....... + More

Profiteering - Vires of Section 171 of CGST Act and Chapter XV of the CGST Rules - vires of Rule 123, 129 and 133(3) of the CGST Rules - violation of Articles 14, 19(1)(g), 50, 256 and 300A of the Constitution of India - HELD THAT:- Keeping in view the orders passed by this Court in Phillips India Limited Vs. Union of India &Ors. (W.P.(C) No.3737/2020) as well as M/s Samsonite South Asia Pvt. Ltd. Vs. Union of India & Ors. (W.P.(C) No.4131/2020 and M/s Patanjali Ayurved Ltd. Vs. Union of India & Ors. (W.P.(C) No.4375/2020), [2020 (7) TMI 614 - DELHI HIGH COURT] this Court directs the petitioner to deposit the principal profiteered amount (i.e. ₹ 7,53,854/- and ₹ 35,898/-) in six equated monthly installments commencing 30th September, 2020 - However, the interest amount directed to be paid by the respondents as well as penalty proceedings are stayed till further orders. List on 03rd November, 2020.

Provisional attachment of factory premises and residential premises - grievance is that the authority while issuing fresh GST DRC-01A has simultaneously issued GST DRC-01 - HELD THAT:- According to the learned counsel appearing for the writ applicant, his client is yet to reply to the notice issued in Form-01A. It is only thereafter that the further proceedings under GST DRC-01 could have been initiated. Our attention has been drawn to page-85 of the paper book which is the representation addressed by the writ applicant to the Assistant Commissioner of State Tax-04 (Enrocement), Surat, bringing this fact to his notice. This writ application is disposed off with a direction to the Assistant Commissioner of State Tax-04 (Enrocement), Surat respondent No.4, to immediately look into the representation dated 26th August 2020 referred above and....... + More

Violation of principles of natural justice - Validity of assessment orders - petitioner seeks one more personal hearing and some time to produce evidences in support of its contentions, which is ignored - HELD THAT:- No serious objection is raised by the revenue to the suggestion given of the Court that the impugned order of assessment be set aside and be redone de novo after affording ample opportunity to the petitioner. The impugned orders of assessments are set aside and the matter remanded to the Assessing Authority to be redone - Petition allowed by way of remand.

Detention and seizure of goods - Confiscation of goods - case of Revenue is that various irregularities were noticed by the authorities concerned at the time of seizure and detention of the goods and the conveyance - HELD THAT:- We are of the view that we should not interfere at the stage of adjudication of the confiscation proceedings under Section 130 of the Act. The adjudication proceedings shall proceed in accordance with law. However, we are inclined to grant some relief to the writ applicant so as to protect the goods getting damaged, but at the same time keeping in mind the interest of the State also. We direct the writ applicant to deposit an amount of ₹ 1,70,787/- towards tax and penalty with the authority concerned and also furnish a bank guarantee to the tune of ₹ 17,07,876/- of any Nationalized bank. On deposit of ....... + More

Renting of immovable property service - Deduction of property taxes and other statutory levies - Valuation of rental income - inclusion of notional interest on the security deposit - exemption of tax under the general exemption of ₹ 20 lakhs - whether the property tax & other statutory levies paid/ payable by the applicant be deducted from the rental income for the purpose of arriving at the value of rental income? - HELD THAT:- It could easily be inferred from Section 15(2) that any taxes, duties, cesses, fees and charges, levied under any law for the time being in force, shall include in the value of taxable supply. In the instant case the property tax is levied, under the Karnataka Municipalities Act 1964, by the BBMP in Bangalore. Further the only exclusions from the value of the taxable supply are the taxes, duties, cesses,....... + More

Levy of GST - Services are in relation to conduction of examination - Bihar School Education Board, educational institution - Whether the services performed by them are exempted by virtue of item (b) of Sr. No. 66 of Notification No. 12/2017-CT (R) dated 28.06.2017? - HELD THAT:- The Notification No. 14/2018-CentaI Tax (Rate) dated 26.07.2018 inserted a clarification in Notification No. 12/2017 -Central Tax (Rate) dated 28.06.2017 that the Central and State Educational Boards shall be treated as Educational Institution for the limited purpose of providing services by way of conduct of examination to the students. Thus the BSEB becomes an Educational Institution for the purpose of conduction of examination, in terms of the Notification. It is observed, from the letter dated 06.12.2018 of BSEB, submitted by the applicant containing referenc....... + More

Territorial Jurisdiction - case of petitioners is that the complaint against the two accused relates to matters outside the jurisdiction of the Gurugram court and, therefore, the proceedings should be transferred to a competent court at Delhi - petitioner next submits that all the referable 16 firms/companies, their Bank Accounts and Registered Offices are in Delhi and that is how, the Gurugram court gave a prima facie view on the jurisdictional aspect, in its order dated 20.03.2020. HELD THAT:- Let notice be issued, returnable in three weeks.

Provisional attachment order - no proceeding pending under Sections 62, 63, 64, 67, 73 and 74 of CGST Act - exercise of power under Section 83 of CGST Act - HELD THAT:- This Court is of the view that Rule 159(5) of the Central Goods and Services Tax Rules, 2017 is squarely applicable to the facts of the present case - the rule states that Any person whose property is attached may, within seven days of the attachment under sub-rule (1), file an objection to the effect that the property attached was or is not liable to attachment, and the Commissioner may, after affording an opportunity of being heard to the person filing the objection, release the said property by an order in FORM GST DRC-23. It is deemed appropriate to direct the respondent No.1 to treat the present writ petition as an objection under Rule 159(5) of the Central Goods and ....... + More

Constitutional Validity of Rule 90(3) of the CGST Rules - Refund the excess tax - HELD THAT:- Issue notice. List on 09th December, 2020. The order be uploaded on the website forthwith.

Filing of amended undertaking for the payment of tax in installments - Manual filing of Form GSTR 3B - revocation of cancelled GST registration number - enabling the facility to allow filing Form GSTR 3B return with part payment of tax - HELD THAT:- When Mr. Podar was confronted whether his client has abided by the undertaking filed by him in this Court, Mr. Podar submitted that his client has not been able to comply with the terms of the undertaking. In such circumstances, there is no further scope of examining the main matter - As the main matter itself is dismissed for non-compliance of the order passed by this Court, the civil application, which is on board today, also stands disposed of accordingly.

Refund of SGST & IGST - export of goods - Zero Rated Supply - rejection of refund on the ground that the petitioner had availed duty drawback on export of the goods @1% of FOB Value do not call for interference under writ jurisdiction - HELD THAT:- The authority found that the refund of Input Tax Credit on export of goods and services was without payment of tax for the period August 2017. In fact, the assessee had availed duty drawback at the rate specified in column - All these facts were in the mind of the officer to deny the refund. It is restrained further for commenting further with regard to the eligibility or otherwise qua claim of refund on IGST and CGST, as it would be in the domain of the appellate authority to examine issue, in case the petitioner chooses to avail the remedy, in accordance with law. Petition dismissed.

Best Judgement Assessment - Levy of GST - allegation that the appellant has failed to respond to the above notices issued and failed to avail the opportunities of personal hearing provided to them in the present appeal - filing of GSTR-3B - wilful suppression of facts or not - levy of interest - penalty - January, 2019 to February, 2019 - CGST/APGST Act, 2017. Whether the best judgment orders through estimating the outward taxable supplies by A.A, are based on any dependable and authentic evidence/basis or not? - HELD THAT:- The best judgment assessment under Section 62 can be made only when the dealer fails to file the return specified in Section 39(1) of the Act, read with Rule 61(1) of the Rules, that is the return in Form GSTR-3. Nothing else. Whether the appellant's contention that Section 62 cannot be invoked as GSTR-3B is not a....... + More

Profiteering - foot wear (Shoes) - allegation that the Respondent had not passed on the benefit of rate reduction when the rate of GST was reduced - contravention of provisions of Section 171 (1) of the CGST Act, 2017 - penalty - HELD THAT:- It has been revealed that the Respondent had not passed on the benefit of rate reduction when the rate of GST was reduced from 18% to 5% on foot wear, as per the provisions of Section 171 (1) of the CGST Act, 2017 for the period w.e.f. 27.07.2018 to 30.11.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017. It is also clear from the record that the Respondent has also paid the entire profiteered amount in the Consumer Welfare Funds of the Central and the State Governments along with interest. It is also revealed from the perusal of the CGST Act and the R....... + More

Levy of GST - activity of maintaining the facilities at the layout from the funds collected from the members of the Society - Service or not? - GST for the amount pertaining to the un-expired period - Recovery of cost of water from members on monthly basis - collection of lump-sum amount as endowment fund, the proceeds of which would be utilized for maintenance charges in terms of the maintenance - Exemption in terms of N/N. 12/2017 entry no 77 respect of the value of the maintenance amount collected from the members of the society to the extent of ₹ 7,500/-. Is the activity of maintaining the facilities at the layout from the funds collected from the members of the Society a service attracting GST Maintenance involves upkeep and maintenance of amenities and due to the length of the period roads, drainages and other UGD facilities n....... + More

Input tax credit of tax paid or deemed to have been paid - Whether the term “other civil structure” used in the definition of “Plant and Machinery” restricts the Land filling Pit from considering it as Plant & Machinery and thereby restricts ITC to be availed on it? - HELD THAT:- Section 17(5)(d) of the CGST Act, 2017 denies availment of ITC on goods and services when supplied for construction of an immovable property (other than plant and machinery) on his own account including when such goods or services are both are used in the furtherance of business. Here, two aspects are noteworthy. One is that such goods and services should be used for the construction of an immovable property and the other is that the activity is carried on his own account. Applicant does not deny that the land filling pit is an immovab....... + More

Grant of Anticipatory Bail - notice to the Department not issued - evasion of GST - HELD THAT:- Issue notice to the respondents through all modes including email returnable on 20.10.2020.

Classification of supply - supply of services or not - treatment or process of body building by fabrication and other processes carried out on chasis of motor vehicle owned by others - rate of GST - service Code (tariff) for above stated activity of body building carried out on another person’s chasis of motor vehicle - If not supply of services, what will be the nature of this supply, tariff code and rate of GST for such supply? Whether the applicant’s activity amounts to supply of goods (motor vehicle) that merits classification under HSN 87 (depends upon the type of vehicle supplied) or amounts to Supply of Services classifiable under SAC 9988? - HELD THAT:- In the instant case, the applicant procures various goods such as raw steel etc. as inputs for fabricating the bus body on the chasis supplied by the principal on deliv....... + More

Classification of goods - Maize Bran (cattle feed) - chargeable to CGST @2.5% under Sl. No. 103 A of N/N. 01/2017-CT (Rate) or Chargeable to NIL rate as per Sl. No. 102 of N/N. 02/2017? - HELD THAT:- Maize Bran is used as a major supplement for cattle feed. The word ‘supplement’ is defined in dictionary as “a thing added to something else in order to complete or enhance it.” Therefore, Maize Bran is a product which is added to cattle feed to complete it or enhance it. This literally means that Maize Bran is not a cattle feed in itself but is added to cattle feed to enhance or improve its quality/nutritional value or to complete it. It is also seen from the submission of the applicant that they are time and again stressing on the fact that the maize bran produced by them is cattle feed and should be rightly classifi....... + More

Requirement to take GSTIN - Agents - Requirement to take registration under GST - Supply of goods or services on behalf of other taxable person - Section 22 of CGST Act, 2017 - Section 24 of CGST Act, 2017 - HELD THAT:- The applicant is required to fulfill the requirements of infrastructure and manpower before commencement of operations of the Centre as per the instructions of the Company and will continue to possess it during the whole tenure and it’s renewal of this contract; the applicant shall permit the representatives of the Company to conduct spot checks in order to ensure that the applicant is functioning in compliance to the Company’s instructions rules & regulations and as per the directions of the Company; shall not use any other course material other than those supplied by the company; the applicant undertakes ....... + More

Principles of Natural Justice - denial of supply of copies/extracts of the seized documents - denial of reasonable opportunity to defend - Section 67(5) of the CGST Act, 2017 - HELD THAT:- From order sheets as detailed, ever since conduction of search till passing of the impugned order, it is evident that due and sufficient opportunity was afforded to petitioner to produce the remaining relevant documents which had not been recovered during search. The explanation given by petitioner for not producing documents sought by Revenue was that the same are maintained in soft copy in computer while in regard to other documents sought by the Revenue, there was no explanation. This obviously gives an impression that the remaining relevant documents which could not be seized during search are still in possession of petitioner and therefore supply o....... + More

Auction of consignment - order not supplied to petitioner - HELD THAT:- On the last date of hearing i.e. 14th September, 2020, Mr. Dayan Krishnan, learned senior counsel for petitioner had sought time to place on record an undertaking by way of an affidavit. To obviate any future controversy, an authorized representative of the petitioner is directed to meet Terminal Manager, ICD- Tughlakabad, on 22nd September, 2020 and finalise the amount due and payable by the petitioner to the respondent for the said nine containers - Till further orders, the petitioner shall make payment in accordance with the paragraphs 4 (a) and (b) of the affidavit dated 14th September, 2020. List on 28th September, 2020.

Implementation of the order - provisional assessment of goods - import of dry dates - petitioners contend that the respondents are not complying with the aforesaid Orders-in-Appeal, whereas the respondents contend that the aforementioned conditions have not been complied with by the petitioners - HELD THAT:- Without getting into the merits of this controversy, the writ petitions are disposed of with the direction that, if the aforesaid three conditions are complied with by these petitioners, namely the bonds are given, the bank guarantees are given and the phytosanitary certificates are given to the concerned authorities, the goods in question shall be released by the respondent authorities within a period of one week from the date of receipt of the same. Petition disposed off.

Legality and validity of the seizure of goods - the case of the Department against the writ applicants is that the goods, i.e, scraps in different forms seized from the premises were found to be imported without payment of appropriate customs duty by wrongfully availing the benefit of the notification - HELD THAT:- The larger issues, more particularly the legality and validity of the seizure, shall be examined on the next date of the hearing including the preliminary objection raised on behalf of the respondents as regards the alternative remedy available to the writ applicants. However, having regard to the submissions made by Mr. Parikh, we would like to balance the equities at this stage. We would like to see that the writ applicants do not have to suffer a huge loss in their business, and at the same time, we must also ensure that the....... + More

Power of Customs Officers as Police officers - Power to arrest - Classification of offences u/s 135 of the Customs Act, 1962 - High Seas Sale - It appears from the materials on record and the pleadings that the respondent no.2 is also contemplating to institute criminal prosecution for the offences punishable under Sections 132 and 135 respectively of the Customs Act, 1962. HELD THAT:- Any person can be arrested for any offence under the Customs Act, 1962, by the Customs Officer, if such officer has reasons to believe that such person has committed an offence punishable under Section 132 or Section 133 or Section 135 or Section 135A or Section 136 of the Customs Act, 1962, and in such circumstances, the Customs Officer is not obliged to follow the dictum of the Supreme Court as laid in the case of Lalitha Kumari (supra). When any person i....... + More

Request for return of passport - Smuggling - Gold Bars - It is challenged only on the ground that if the passport is returned to the respondent, he will flew away from India and there is possibility of abscond and he will not return to India for investigation - Sections 135(1) (a), 135 (1) (b), 135(1) (i) (a) of Customs Act, 1962 - HELD THAT:- A solution has to be found within the parameters of law to deal with the case of the petitioners. The petitioners will have to face proceedings under the Customs Act for the alleged violations. Therefore, their passports cannot be handed over to them at this juncture. In order to strike an harmonious balance between the necessities of law and the requirements of the petitioners to have their stay in India validated so as to avoid being prosecuted under the Foreigners Act, 1946, the FRRO, Chennai, wh....... + More

MEIS Scheme - mistake while submitting Shipping bills - the petitioner's representative instead of entering 'Y' for each line item, selected 'Y' only for the first line item and did not make any selection for remaining items - contention of respondents is that the Director General of Foreign Trade cannot be blamed for the lapse committed by the writ petitioner - HELD THAT:- The exporter ought not to suffer for the inadvertent mistake committed by him. When the filing was done manually, Section 149 of Customs Act provides for effecting corrections. Now, there has been a shift from the manual system to EDI System. In the EDI System, approval is also automated. Since the petitioner had opted only for 'Yes', as far as the first line item is concerned and did not opt for the remaining items, by system default, for t....... + More

Time Limitation for issuance of SCN - Seizure Order - Section 110 of the Customs Act 1962 - HELD THAT:- The respondents may file their counter affidavit in these proceedings within a period of three weeks from today. Rejoinder affidavit, if any, be filed within a period of one week thereafter. The respondents are at liberty to move the CESTAT for early listing of the appeal or the stay application in the meantime. List the Special Leave Petition on 15 October 2020.

Service of SCN - respondent nos.2, 3, 4 & 5 states that her clients have received confirmation from D.C. SVB, New Delhi to the effect that no notice from other customs locations have been issued to the petitioner - HELD THAT:- Keeping in view the fact that since only one show cause notice has been issued to the petitioner by Delhi Customs, this Court is of the view that the procedure prescribed under paragraph 9.2 of the Circular dated 09th February, 2016 is not applicable to the present case. Consequently, the letter dated 17th January, 2020 issued by respondent no.5 is quashed and the respondent no.2 is directed to expeditiously adjudicate the Show Cause notice dated 10th July, 2018 preferably within a period of six months, in accordance with law. Petition disposed off.

Smuggling - Betel Nuts - Whether the goods are indigenous or imported, however pending adjudication above goods were released provincially under Section 110A of the Customs Act, 1962 on a condition that the petitioner will deposit ₹ 70.51 lakh? - HELD THAT:- At this stage, learned counsel for the petitioner put forth the Intimation Notice for my perusal under Section 150 of the Customs Act, 1962 for disposal of the subject Dry Betel Nuts. He submitted that this notice deserves to be stayed, since condition precedent for provincial release, is sub-judice before this Court. Hearing of the petition is deferred, stand over to 30-09-2020. Till next date the Notice dated 8th September, 2020 issued by the Superintendent CPF, Champai under Section 150 of the Customs Act, 1962 is stayed.

Valuation of imported goods - Batteries - rejection of declared value - suppression and misdeclaration of import price of goods - HELD THAT:- So far as the batteries imported from M/s Power ROC Company Ltd. vide three bills of entries dated 24.1.2007 is concerned, the bill of entries were assessed provisionally and were pending finalisation. Accordingly, the impugned order is bad under Section 28 of the Customs Act, as the provisional assessment is still not finalised. Accordingly, the demand in respect of three bills of entry nos. 101168, 101169 and 101167 is set aside. In the present case, the appellant has imported VRLA batteries 6-V/4.5 GLA/4.2 AH/4.5 A.H. We also find that the show cause notice was issued by relying upon the data from seized hard disc and pen drive. However, the appellant was informed later on that the said pen drive....... + More

Maintainability of appeal - contention of learned counsel for the petitioner that the appeal has not been admitted nor any notice has been issued to it as yet, cannot be entertained in the present petition - Release of seized goods - release sought on the premise that the statutory appeal filed by the petitioner against the order of seizure under Section 128 of the Act has been decided in its favour - Section 110 of the Customs Act, 1962 - HELD THAT:- As far as prayer in the present writ petition to give effect to the order passed by the Commissioner under Section 128 of the Act is concerned, the appropriate course of action for the petitioner would be to approach the adjudicating authority, which has passed the order of confiscation of goods, to give effect to the order passed by the appellate authority i.e. for releasing the seized good....... + More

Valuation of imported goods - old and used Digital Multifunctional Devices - rejection of transaction value - enhancement of the value of the imported goods on the basis of Chartered Engineer’s Certificate - non-submission of specific licence for importation from the DGFT - CBEC Circular No.4/2008-Cus dated 12.02.2008 - HELD THAT:- The ld. Commissioner (Appeals) has relied upon the CBEC Circular No.4/2008-Cus dated 12.02.2008, which deals with valuation of second hand machinery/capital goods and has upheld the enhancement of the declared value based on the valuation done by the Chartered Engineer at the instance of the Department. In the same circular in Clause 2(iii), it has been provided that however the transaction value of Rule (3) cannot be rejected by ab initio application of Rule 9, in as much as, one cannot, before rejecting....... + More

100% EOU - benefit of exemption Notification No. 53/97- Cus dated 3.6.1997 - benefit denied observing that the respondent had not procured the necessary permission from the competent authority i.e. Development Commissioner to clear the goods in DTA by availing the concessional benefit under EPCG Scheme - whether the respondents are to be denied the benefit of exemption Notification No. 53/97-Cus dated 3.6.1997, allowed at the time of import two DG Sets in 1997, on clearance of said two DG Sets on being obsolete in DTA to EPCG License holders at concessional rate of duty? HELD THAT:- The adjudicating authority simply denied the benefit of Notification No. 53/07-Cus dated 3.6.1997 observing that the respondent had not procured the necessary permission from the competent authority i.e. Development Commissioner to clear the goods in DTA by av....... + More

Provisional release of the seized goods - IGST refund - duty drawback - it was opined that the goods were grossly overvalued to claim undue benefits of enhanced IGST refund and Drawback - Section 113(i) and 113(ia) of the Customs Act, 1962 - HELD THAT:- From the facts available it appears that while determining the quantum of bank guarantee, departmental authorities have taken into account the amount of IGST paid and would be admissible as refund on exportation of the impugned goods. The prima facie case of the department is that appellant have overvalued the goods to claim higher export benefits. If the goods have been overvalued then the appellants would have paid the higher IGST at the time of the clearance of goods for export. We do not find any merits in inclusion of the IGST amount paid while determining the quantum of bank guarante....... + More

Penalty - Anti Dumping Duty (ADD) deposited with interest before issuance of SCN - validity of SCN - quantum of penalty - HELD THAT:- The appellant had deposited the entire amount of Anti Dumping Duty along with interest before issuance of the show cause notice. Since the department has accepted such facts, that as per the provisions of sub-section(5) of Section 28 ibid, the appellant was required to be issued with the show cause notice only for deposit of the penalty amount of 15% of the short levy duty. However, instead of issuing the show cause notice for recovery of the 15% amount of penalty, the department had proceeded against the appellant for confirmation of the 100% penalty in respect of the short paid amount of duty - Since, there is no ambiguity in interpretation of the provisions of sub-section (5) of Section 28 ibid, with reg....... + More

Validity of SCN - Penalty under Section 114 of the Customs Act - abetting in Smuggling - export of red sanders - prohibited goods - case against appellant is that he procured red sanders and also stores the same in his godown at Delhi - demand based on statements of persons, which were later retracted - HELD THAT:- Learned Authorised Representative points out from para 34.3 of the show cause notice, it is mentioned that this appellant knowingly engaged in negotiation and illegal supply of red sanders for fraudulent exports and actively associated himself in smuggling of red sanders to Shri Lin of China with the help of other members of the syndicate. Thus for the said act of omissions and commissions, is liable to penalty under Section 114 of the Customs Act, 1962. However, in para 35 of the show cause notice wherein the party put to noti....... + More

Imposition of penalty u/s 114(iii) and Section 114AA of the Customs Act - allegation of abetting the fraudulent export of goods - availment of undue export incentives drawback/ DEPB/ focus products scheme, etc. - export of various goods by inflating value - HELD THAT:- The appellant as an employee carried out the instructions and directions of his employer. Further, the appellant had not filed any documents before the Customs Department. Thus, the allegation of attempt to export goods improperly is not established. Accordingly, we set aside the penalty imposed under Section 114(iii) of the Act. Penalty under Section 114AA of Customs Act - HELD THAT:- The allegation of aiding and abetting is not proved. However, it is found that the appellant have knowingly made documents like invoices and packing list for export and had further knowledge ....... + More

Levy of personal penalty for abetment - Quantum of Penalty - Section 114 of the Customs Act - Smuggling - illegal export - red sanders wood logs - HELD THAT:- The appellant Sachin Kumar was a transport agent who arranged the truck for the exporter and appellant No. (2) Venugopal acted as a CHA for clearance of the goods at the NMPT, Mangalore and appellant No. (3) Ravichandra arranged the CHA and the container. Further, the goods were stuffed at the KSDL factory, Bangalore in the presence of Mr. Hashim, Director of the exporter company and Superintendent of Central Excise and thereafter it was sent to Mangalore and from Mangalore it was exported. During the investigation DRI recorded the statement of Mr. Hashim, Director of exporter company and also the appellants. In the statement of Mr. Hashim, he has clearly stated that he was responsi....... + More

Smuggling - Gold - allegation is that along with the other accused namely Shahbaz and Abdul Lais, the petitioner/3rd accused used ladies as carriers for smuggling gold through various Airports in India - retraction of statements - offence punishable under Section 135 of the Customs Act, 1962 - HELD THAT:- The Customs Officials are not Police Officers. The confession, though retracted, is an admission and binds on the petitioner. Statement given under Section 108 of the Customs Act, which is inculpatory, is not hit by the provisions under Sections 25 and 26 of the Evidence Act. Whether the statements of the co-accused could be used against the petitioner is a question to be determined by the trial court. It is, therefore, premature for this Court to discard the materials against the petitioner in the form of statements under Section 108 of....... + More

Defreezing of Bank Accounts of petitioner (third party) - freezing of account on the ground of illegally availed Integrated Goods and Services Tax (IGST) refund of an exporter was deposited in the bank account of the petitioner - section 110(5) of the Customs Act, 1962 - HELD THAT:- Section 110(5) of the Customs Act, 1962 was inserted in the Customs Act by the Finance (No.2) Act, 2019 with effect from 01.08.2019 - Evidently, the action of freezing the bank account i.e., on 07.12.2018 was undertaken prior to insertion of the aforesaid provision w.e.f. 01.08.2019. Prima-facie this provision may not be applicable to the case of the petitioner. Additionally, as per the condition mentioned in sub-section (5) of section 110, the initial period of freezing the bank account i.e., not exceeding six months has expired long back. That apart, even if....... + More

Winding up of Company - Section 20(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 - change of place of registered office of company - HELD THAT:- Considering the lapse of 17 years since the reference dated 20.12.2002 was received from the BIFR in the year 2002/2003 and the Financial Position of the Company as disclosed in the affidavit of the Company as also the Official Liquidator, as, the total assets and the net worth of the Company exceeds the liabilities, as also in view of the three arbitration awards in its favour and the affidavit of Bank of India dated 29.04.2013 this Court is of the view that as the recommendation of the BIFR is not binding and conclusive upon this Court in view of the Division Bench judgment relied upon by the Company's counsel upon the case of J.M. MALHOTRA AND OTHERS VERSUS UNION OF IN....... + More

Sanction of Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The Official Liquidator has filed his report dated 20th February, 2020 inter alia, stating therein that the affairs of the Transferor Company have been conducted in a proper manner - From the materials on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy. Since all the requisite statutory compliances have been fulfilled, Petition is made absolute in terms of prayer in the Petition.

Approval of the Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - HELD THAT:- It is seen that the scheme is not detrimental to the applicant companies, its shareholders and creditors. The applicants, its members and creditors are the best judge to protect their interest. In the absence that the scheme is not fair, just and reasonable or that it is in contravention of statutory portions and for public interest, the decision of the shareholders and creditors, who have overwhelmingly voted in the favour of the scheme should be up held - upon considering the approval accorded by the members and creditors of the Petitioner companies to the proposed Scheme, and the affidavits filed by the Reg....... + More

Approval of the Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 - HELD THAT:- In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal, sanctions the Scheme of Amalgamation, which are annexed as Annexure "A9" with the Company Petition as well as the prayer made therein - Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners. Petition allowed.

Sanction of Scheme of Merger - Sections 230-232, Section 234 of the Companies Act, 2013 - HELD THAT:- Taking into consideration the application and the documents filed herewith, we propose to issue the following directions with respect to calling, convening and holding the meeting of Equity Shareholders, secured and unsecured creditors or dispensing the same which are as follows: i. Considering the Covid-19 situation, the Applicant Company is dispensed from holding physical meeting of Equity Shareholders, Secured Creditors and Unsecured Creditors All the directions are to be complied with strictly in accordance with the applicable law including forms and formats contained in the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - the present application stands allowed by convening with the meetings of the shareholders an....... + More

Sanction of Scheme of Arrangement - Sections 230 to 232 read with Section 66 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of law and is not contrary to any public policy. None of the parties concerned have come forwarded to oppose the Scheme of Arrangement - Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition filed by the Petitioner Companies are made absolute in terms of prayer clause (a) & (b) of Company Scheme Petition. All concerned regulatory authorities to act on a certified copy of this order along with the Scheme duly certified by the Deputy/ Assistant Registrar, National Company Law Tribunal, Mumbai Bench.

Removal of name of the Petitioner from the impugned “List of Disqualified Directors” prepared by the Respondents - change of status of the Petitioner in the records of the Respondents No.1 and 2 from “disqualified directors” - disqualified directors under Section 164(2)(a) of the Companies Act, 2013 - HELD THAT:- In the case of MUKUT PATHAK & ORS., YOGESH KHANTWAL, AARTI KHANTWAL, AND VINEET WADHWA VERSUS UNION OF INDIA AND ANR. [2019 (11) TMI 319 - DELHI HIGH COURT], this Court has come to a categorical conclusion that the proviso to Section 167(1)(a) of the Act, which came into force w.e.f. 07.05.2018, cannot be applied retrospectively. In the present case, admittedly, the Company itself stood struck off the register on 30.06.2017 and was restored only on 22.10.2019, and the default on its part as also that o....... + More

Seeking Convening and holding of AGMs - situation of deadlock on the Board of the company - It is the case of the Petitioner that Respondents No.2 and No.4 did not take active part in the day to day affairs of the Respondent No.1 Company, and that it was the Petitioner and Respondent No.3 who took efforts to promote the business of the Respondent No.1 - HELD THAT:- The admitted position is that there is a default within the meaning of section 96 of the Companies Act, 2013 in conducting the AGM of the company, albeit with both sides blaming each other for the default. There was exchange of correspondence in so far as the financials were concerned. Given the indurate positions of both sides as revealed during the course of arguments, we do not see this being resolved to satisfaction at all. The internecine quarrel has already taken its toll....... + More

Restoration of the name of the Company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The true copy of Income Tax Returns for financial years 2013-14, 2014-15, 2015-16 and 2016-17 along with TAN Certificate have been found attached with the petition as Annexures A8 (colly), respectively - It could also be seen that the petitioner-company has maintained bank account with State Bank of India and the statement from 01.04.2015 to 31.03.2017 and another account maintained with Kotak Mahindra Bank ranging from 01.04.2015 to 31.03.2017 have been attached at Annexure A-9 of the petition. The petitioner-company has earned revenue in the financial year 2013-14 to 2016-17, therefore, it is just and equitable to restore the name of the petitioner-company into the Register of Companies, maintained by the ROC - t....... + More

Condonation of delay in filing appeal - power to condone the delay beyond a period of 45 days - appellants admittedly received the certified copy of the order on 19.12.2019, they chose to file the statutory appeal before NCLAT on 20.07.2020 - Winding up of Company - contentions raised by the learned counsel for the appellants are twofold namely (i) that the Appellate Tribunal erred in computing the period of limitation from the date of the order of the NCLT, contrary to Section 421(3) of the Companies Act, 2013, and (ii) that the Appellate Tribunal failed to take note of the lockdown as well as the order passed by this Court on 23.03.2020, extending the period of limitation for filing any proceeding with effect from 15.03.2020 until further orders - Section 420(3) of the Companies Act, 2013. Computation of period of limitation from the da....... + More

Approval of Amalgamation Scheme - Sections 230 to 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The main object of the Transferee Company is to get engaged in the work of developers, promoters, colonizers, builders, town planners, designers, civil engineers, construction contractors for real estate development of all kind whether on freehold or leasehold properties, owned by the company or otherwise, sale and purchase of land and properties, plotted development and generally to deal in the real estate business - The Board of Directors of the Transferor Companies have approved the present Scheme vide Resolution dated 16th July 2018. The other necessary requirements have also been fulfilled as per the directions given by this Bench from time to time. The Company Peti....... + More

Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The Transferor Company Number 4 is carrying on the business of leasing, finance, hire purchase and to finance, lease operation of all kinds of purchasing, selling, hiring or letting on hire all kinds of plant and machinery, equipment, computers, motor cars, trucks, motor lorries and to assist in financing of all and every kind of their purchase of deferred payment or similar transactions and to subsidies finance of assist in subsidizing or financing the sale and maintenance of such goods - The Transferee Company's main object is to lease and hire-purchase and general finance company and to acquire and to provide on lease or to provide on hire purchase basis al....... + More

Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The Company Petition is allowed and the Scheme of Amalgamation annexed with the Petitions is hereby Sanctioned. The Scheme approved shall be binding on the Shareholders, Creditors and employees of the Companies involved in this Scheme. The Appointed date of the Scheme is 01.04.2017 - While approving the Scheme as above, it is further clarified that this Order will not be construed as an order granting exemption from payment of stamp duty or taxes or any other charges, if payable, as per the relevant provisions of law or from any applicable permissions that may have to be obtained or. even compliances that may have to be made as per the mandate of law. The scheme is sanctioned.

Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The Company Petitions is/are allowed and the Scheme of Amalgamation annexed with the Petition(s) is hereby Sanctioned. The Scheme approved shall be binding on the Shareholders, Creditors and employees of the Companies involved in this Scheme. The Appointed date of the Scheme is 1st April, 2018. While approving the Scheme as above, it is further clarified that this Order will not be construed as an Order granting exemption from payment of stamp duty or taxes or any other charges, if payable, as per the relevant provisions of law or from any applicable permissions that may have to be obtained or, even compliances that may have to be made as per the mandate of law - ....... + More

Sanction of Scheme of Amalgamation - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not contrary to public policy - From the material on record, the Scheme appears to be fair and reasonable and is not contrary to public policy Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No. 4232 of 2019 is made absolute in terms of prayer clause of the Company Petition. The Scheme is sanctioned hereby, and the appointed date of the Scheme is fixed as 1st April 2019.

Sanction of Scheme of Merger by Absorption - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme of Merger by Absorption appears to be fair and reasonable and is not in violation of any provisions of law and is not contrary to public interest - Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition filed jointly by the Petitioner Companies are made absolute in terms of prayers made in CSP No 3442 of 2018 of the Company Scheme Petition. The Petitioner Companies are directed to file a copy of this Order along with a copy of the Scheme of Merger by Absorption with the concerned Registrar of Companies, electronically, along with E-Form INC-28, within 30 days from the date of receipt of the Order from the Registry - The Petitioner Companies to lodge a copy....... + More

Restoration of the name in the Register maintained by the Registrar of Companies, Maharashtra, Pune (RoC) - section 252(3) of the Companies Act, 2013 read with rule 87-A of National Company Law Tribunal Rules, 2016 - HELD THAT:- It appears that the petitioner company had entered some business dealings in respect of some other land with a company, Synergyone Infradevelopers Private Limited. Following disputes, Synergyone Infradevelopers Private Limited filed a complaint with the police authorities, who registered a First Information Report (FIR) against the petitioner company and its directors for cheating, criminal breach of trust, fraud and misappropriation of funds - On 23.05.2018, the Petitioner Company addressed a letter to Janta Land Promoters Private Limited, the company entrusted with the construction of the school on the allotted ....... + More

Sanction of Scheme of Merger by Absorption - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of Law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, Joint Company Scheme Petition No. C.P. (CAA)/4311/MB/2019 filed by the Petitioner Companies are made absolute in terms of prayer clause (a) of the Joint Company Scheme Petition. Petitioner Companies are directed to lodge a certified / authenticated copy of this Order and the Scheme with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 60 working days from the date of the receipt of the certified copy of the Order, for the purpose of adjudication of stamp duty payable.

Approval of Scheme of Merger by Absorption - Section 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of law or contrary to public policy - Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition No. 3420 of 2019 filed by the Petitioner Companies is made absolute in terms of prayer Clause 26(a) to 26(c) of the Company Scheme Petition. The Petitioner Companies are further directed to file a copy of this Order along with a copy of the Scheme with the concerned Registrar of Companies, electronically in e-Form INC-28, within 30 days of the receipt of copy of this Order - The Petitioner Companies are directed to lodge a copy of this Order and the Scheme duly certified by the Deputy or Ass....... + More

Sanction of the Composite Scheme of Amalgamation and Arrangement - section 230 to 232 of Companies Act 2013 - HELD THAT:- From the material on record and after perusing the clarifications and submissions of the Petitioner Companies to the Report and the Supplementary Report filed by the Regional Director, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition CP (CAA) 4051/MB/2019 filed by the Petitioner Companies is made absolute in terms of prayer clauses (a), (c) and (d) of the Company Scheme Petition. The Petitioner Companies to lodge certified copy of this order along with a copy of the sanctioned Scheme attached thereto, with the concerned Collector of Stamps, for t....... + More

Review of order - correction of an error ‘apparent on the face of record’ - Section 420(2) of the Companies Act, 2013) r/w Rule 11 of the ‘NCLAT’ Rules, 2016 - HELD THAT:- It is to be pointed out that the power to ‘Review’ is not an ‘inherent power’ and must be showered by Law either expressly or by necessary implication. As a matter of fact, the power to ‘review’ is a creation of statute. Indeed, a ‘Review Jurisdiction’ cannot be pressed into service as an ‘Appellate Jurisdiction’. Moreover, the ‘Power of Review’ is not to be confused with an Appellate power. A ‘review’ cannot be claimed or asked for merely for a fresh hearing or arguments or the correction of an erroneous view taken earlier - It is an axiomatic principle in Law th....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - HELD THAT:- The Ld. Adjudicating Authority have failed to consider the facts that there was a pre-existing dispute between the parties much prior to filing of application under Section 9 of the IBC. The impugned order cannot be sustained in the eye of Law and in view of the Judgment of the Hon’ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] and is hereby fit to be set aside and the Appeal is allowed. ‘Corporate Debtor’ is released from the rigor of the ‘Corporate Insolvency Resolution Process’. All actions taken by the ‘Interim Resolution Professional / Resolution Professional’....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP on justified reasons - The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. The instant petition is filed on misconceived fact and law and against the object of Code. Since the Respondent agreed to settle the claim of the Petitioner, subject to substantiating it, we are inclined to dispose of the instant petition directing the Respondent to settle the claim of the Petitioner, provided the Petitioner submitted requisite documents - Petition disposed off.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is not in dispute that Petitioner has rendered his faithful services to the Respondent in good faith without getting his fees settled before his services. Therefore, the Respondent has rejected the case of Petitioner purely on legal grounds by taking advantage of limited scope available to the Petitioner to invoke provisions of Code. It is true that the Respondent can legally deny the legitimate claim of Petitioner by taking advantage of summary proceedings as provided under the provisions of Code. In any case, professional fee to an experienced person like the Petitioner cannot be mere travelling expenses incurred. Though the instant Petition is not maintainable under the prov....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is settled position of law that the provisions of Code cannot be invoked for recovery of outstanding alleged amount(s), but it can be invoked to initiate CIRP for the justified reasons as per objective of the Code. The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. The instant Company Petition is not a fit case to initiate CIRP and the Parties can prosecute the alternative remedy by way of Mediation, which is already filed on 31,12,2019, before the District Legal Services Authority, Ben....... + More

Impleadment of application - condonation of delay - whether the Applicant is a proper and necessary party to be impleaded in the main Company Petition, whether it has come with a bona-fide claim and reasons for seeking extension of time lines in the CIRP; and whether any prima facie case is made out on merits for any interference to be made by this Authority? HELD THAT:- Basic facts about the commencement of the CIRP vide order dated 27.09.2019, steps taken by the RP, Public Announcement seeking/invitation for expression of interest, the last date for the same, the treatment of the Applicant's EOI etc. are not in dispute and are part of record. However, the Applicant pleads ignorance of the same and contends that the CIRP started only in the first week of February 2020. This assertion we find to be patently untenable as the Code itsel....... + More

Approval of Resolution plan - IRP omitted the application (financial credit) as part of the Committee of Creditors (COC) - failure on the part of IRP to classify the creditor - withdrawal of CIRP under Section 12A of IBC, 2016 - HELD THAT:- A COC validly constituted by the IRP with a 90% voting share is required to approve the withdrawal of an application earlier admitted resulting in the initiation of CIRP of the Corporate Debtor by this Tribunal sitting as an Adjudicating Authority as named under IBC, 2016. Referring to the provisions in relation to the constitution of the COC under IBC, 2016, Section 21(1) of the Code provides upon determination of the financial position after collation of all claims received against the Corporate Debtor the IRP shall constitute the COC and in terms of Section 21(2) it shall comprise of all the financi....... + More

Whistle blower Activity - this case is "cooked up" "stage managed" by Financial Creditor/Corporate Debtor/Resolution Professional, defrauding one and all - HELD THAT:- There is no sufficient proof of loan from Financial Creditor/Applicant to Corporate Debtor. Further, the Corporate Debtor has in reply affidavit admitted "Loan". There are two letters from applicant to Corporate Debtor seeking repayment of the alleged loan. The Registry is directed to communicate this order to Resolution Professional by email as well as by speed post - Issue a copy of this order to IBBI for their information and records. Post the matter on 20.03.2020 for further hearing.

Permission for withdrawal of present matter - Stay of constitution of Committee of Creditors - CIRP process withdrawn - HELD THAT:- It would be necessary to consider the facts as they happened i.e., in chronological order. The Application bearing CP (IB) No 262/9/HDB/2019 was filed by the Operational Creditor M/s. Sri Chaitanya Chlorides u/s 9 of the Code against the Corporate Debtor on 23.04.2019. After affording an opportunity of being heard to the Corporate Debtor, this Adjudicating Authority has admitted the said Application vide its order dated 16.12.2019. Thereafter few more Applications bearing CP (IB) No. 736/9/HDB/2019, CP(IB) No. 774/9/HDB/2019 etc., were filed u/s 9 by the Operational Creditors of the Corporate Debtor including Applicants in IA No. 178/2020 and 179/2020 being considered in this common order. These applications ....... + More

Exclusion of period of 7 days from CIRP end date i.e., 06.02.2020 for the purpose of approving Resolution Plan - HELD THAT:- Considering the submissions, facts and circumstances of case, stage of CIRP, and in view of the decision of CoC in its 9th meeting, this Adjudicating Authority observes that only a short time period is left for completion of CIRP and it would be in the interest of all stakeholders to allow the completion of CIRP rather than going for liquidation of the Corporate Debtor. Accordingly, it is approved to exclude a period of another 7 days from calculation of CIRP period which is ending on 06.02.2020. As such the applicant will have another 7 days w.e.f. 07.02.2020, for completion of CIRP process of the Corporate Debtor. This exclusion is granted on having considered the steps already taken by the RP and the current stage of CIRP in the case of the present Corporate Debtor i.e., M/s. Indu Projects Limited. Application disposed off.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt - existence of debt and dispute or not - HELD THAT:- Section 5(21) of the IBC defines an “Operational Debt” to mean “a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.” Section 5(2) of the IBC defines the term “Operational Creditor” to be a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred - Thus, only if the claim falls within one of the three categories as listed above, can it be classified as an oper....... + More

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC at the relevant time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Petition admitted - moratorium declared.

Unauthorized and illegal withdrawal of amount made by the ex-management of the Corporate Debtor - CIRP process - Section 66(1) of I&B Code - HELD THAT:- This Bench does not have any doubt that in terms of Section 66(1) of the Code, the Respondents No. 1, 2 and 3, during the Corporate Insolvency Resolution Process period, carried out these transactions with intent to defraud the creditors of the Corporate Debtor. This case is fully covered under Section 66(1) of the Code. This Bench is also satisfied that the ex-directors were aware of the Moratorium Order of 17.09.2019 under Section 14 of the Code. This Bench finds the ex-directors of the Corporate Debtor Company to be guilty of willful disobedience of the Order of this Bench dated 17.09.2019. The Respondents No. 1 and 2, i.e., the ex-directors of the Corporate Debtor being found viol....... + More

Extension of time granted to the Applicant to make deposit - restraint on Liquidator of the Respondent Company from alienating the property and/or creating any interest of whatsoever nature - HELD THAT:- The liquidator was present during the virtual hearing and did not raise any objection for the request made by the Applicant. This Bench considering the extraordinary situation created by the Covid-19 Pandemic is inclined to grant time for the Applicant to make the payment. This Application was filed on 26/06/2020 - Even though the time sought by the Applicant had already elapsed, considering the overall situation, the Applicant is allowed to make the balance payment along with interest at the rate of 12% per annum within 30 days from the date of this order. Application allowed.

Disciplinary proceedings against the Insolvency Professional (IP) who is member of ICSI - Assignment of Liquidator - alleged contraventions of sections 208(2)(a) and 208(2)(e) of the Insolvency and Bankruptcy Code, 2016 (Code), regulations 7(2)(a), 7(2)(h) and 7A of the IBBI (Insolvency Professionals) Regulations, 2016 (IP Regulations) read with clauses 1, 2, 11, 12 and 14 of the Code of Conduct contained in the First Schedule of the IP Regulations - inadvertent error or not - voluntary liquidation process - rejection of AFA. HELD THAT:- From Regulation 7A of IP regulations, it is clear from the said Regulation that one of the essential conditions for undertaking any assignment by an IP is that he should have a valid AFA which is issued by the IPA with which he is enrolled. In other words, without AFA, an IP is not eligible to undertake a....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is admitted fact that the Corporate Debtor has not sent the reply as required under Section 8(2) of the IBC, 2016, according to which, the Corporate Debtor shall within a period of 10 days of the receipt of demand notice or copy of invoices mentioned in sub section (1) bring to the notice of the Operational Creditor, the existence of dispute or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such disputes. Before initiating a proceeding under Section 9, the operational-creditor is required to fulfil the conditions mentioned under Section 8(1), if he has not sent the demand notice as required under S....... + More

Settlement agreement - withdrawal of CIRP - HELD THAT:- Indeed, the settlement arrived at between the Parties are not in dispute. Further, pursuant to the ‘Memorandum of Understanding’ dated 01.09.2020, it is brought to the notice of this Tribunal that the 1st Respondent/Parsvnath Developers Ltd. had received the Demand Draft bearing No. 004069 for ₹ 12/- Lakhs from the Appellant. Added further, the Resolution Professional, Mr. Naresh Kumar Munjal informs this Tribunal that he is yet to receive the remuneration for the month of August and September, 2020 and in respect of the ‘Miscellaneous Expenses’, he had raised his invoice to an extent of ₹ 53,000/- etc. - In view of the fact that, the ‘Memorandum of Understanding’ dated 01.09.2020, was reached between the Parties culminating in settleme....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Application admitted - moratorium declared.

Attachment of property of Corporate Debtor - Maharashtra Protection of Interest of Depositors Act, 1999 - HELD THAT:- The assets of the Corporate Debtor have been wrongly attached vide MPID order dated 01.02.2012. The MPID order sought to attach the properties of Dhanlaxmi cooperative society and the name of the Corporate Debtor is not notified in the MPID notification, but the properties of the Corporate Debtor have been attached and sealed. Further due to illegal attachment of properties, the resolution professional could not take control of the said properties, appoint valuer etc. to perform his duties under the I&B code. The order of attachment under the notification dated 01.02.2012 under the MPID Act to the extent of property Shop No. 21, Ground Floor, Bonanza Arcade, Amboli, S. V. Road, Andheri West, Mumbai-400058 is set aside. Application allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - Operational Debt due and payable by the Corporate Debtor - Whether the invocation of the arbitration clause between the withdrawal of the first petition vide order dated 13.03.2018 and the issue of the second demand notice dated 23.08.2018 to the Corporate Debtor should be treated as “pre-existing dispute” within the meaning of section 5(6) of the IBC? - HELD THAT:- The invocation of the arbitration clause by the Corporate Debtor between 13.03.2018 (when the first Company Petition bearing CP (IB) No.1823/2017 was dismissed as withdrawn with liberty), and 23.08.2018 (when the second demand notice came to be issued by the Operational Creditor to the Corporate Debtor), is of no consequence an....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jurisdiction - power of Tribunal to grant stay/pass order of status quo - Retention of documents, digital devices and other things seized/recovered - section 17(4) of the PMLA - whether the Appellate Tribunal has jurisdiction to grant stay or passed any order of status quo which has the consequence of stalling the investigation? HELD THAT:- Section 26 (1) clearly provides that the appeal to this Tribunal is to be preferred against an order passed by the Adjudicating Authority. The Adjudicating Authority has passed the impugned order under Section 8(3) of the said Act allowing the application filed by the Respondent in the interest of investigation and interest of justice and permitted that the records seized in the case to be retained in terms of Section 17(4) of the PMLA, 2002. Since the order under challenged is an order passed by the A....... + More

Grant of Bail - Money Laundering - scheduled offences - submissions of applicant is that the applicant is an innocent person and has been falsely implicated in the case, he is having no previous criminal history and in jail since 07.01.2020 - HELD THAT:- The schedule offence was registered on 30.11.2007 by the CBI and the applicant co-operated in the aforesaid schedule offence and thereafter, charge sheet was filed before the Special Judge, CBI (Central), Lucknow on 06.10.2009, then the applicant surrendered before Special Judge, CBI (Central), Lucknow and he was released on bail on 15.12.2009, thereafter, the Enforcement Directorate registered the ECIR on 31.03.2010 and started investigation, but the applicant was not taken into custody under Section 19 of The Act and no Provisional Attachment Order under Section 5 of The Act was issued ....... + More

Money Laundering - allegation of depositing demonetized notes of more than ₹ 44 crores in accounts of various persons, including his own, and thereafter transferring it through RTGS into accounts of various other persons at Delhi and Kolkata, mostly in fictitious accounts - HELD THAT:- The petitioner is in fact the main player in the whole episode. It was submitted that he is the person who actually brought the demonetized cash to the Bank where it was allowed to be deposited in the accounts of others persons without their knowledge and subsequently, they were transferred through RTGS to other accounts. It was submitted that Shashi Kumar and Rajesh Kumar had given blank cheques to the Bank for being used in case they defaulted in the loan repayment and, having been given in good faith, were misused, in connivance with the Bank offic....... + More

Money Laundering - proceeds of crime - alleged purchase of fleet of cars out of the ill-gotten money and received about ₹16 crores in one year from Shell companies for bribing/ fixing cases in income-tax department - Section 120B/420 IPC and Section 13(2) read with 13(1) PC Act - Grant of Regular Bail. HELD THAT:- Issue Notice.

Jurisdiction of the National Company Law Tribunal, Hyderabad Bench-I, Hyderabad, to entertain the appeal - Money Laundering - diversion of money - Section 60(5) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The issue sought to be raised including the power under Article 226 of the Constitution of India is no longer res integra. In a recent pronouncement, the Apex Court in M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD. VERSUS STATE OF KARNATAKA & OTHERS [2019 (12) TMI 188 - SUPREME COURT] has dealt with the same, which states that the jurisdiction of the NCLT delineated in Section 60(5) cannot be stretched so far as to bring absurd results. Thus, the NCLT has got no jurisdiction to go into the matters governed under the PMLA - the proceedings have been initiated before the jurisdictional Court by the petitioner pursuant to the Fin....... + More

Money Laundering - interplay between Section 306, and Section 308, of the Code of Criminal Procedure, 1973 - revocation of the tender of pardon - HELD THAT:- The Certificate, of the Public Prosecutor, in the present case, does not allege that, before the Court, the respondent concealed anything essential, or gave false evidence. In fact, a holistic reading of the application, filed by the petitioner before the learned Special Judge, reveals that the grievance of the petitioner is, essentially, that the respondent has not cooperated during investigation, and has withheld material in his possession. Mr. Handoo is right when he contends that non-co-operation, during investigation, is not one of the circumstances contemplated, by Section 308 (1), as justifying issuance of certificate by the Public Prosecutor. Quite obviously, this is because ....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Money mobilization - Public issue - Whether the Company came out with the Offer of RPS [Redeemable Preference Share] as stated in the Interim Order? - whether the Offer of RPS is in violation of Section 56, Section 60 and Section 73 of Companies Act, 1956? - HELD THAT:- As neither the company nor the directors have disputed the same. Also perused the documents/information obtained from the 'MCA 21 Portal' and other documents available on records. It is noted, that OIL has issued and allotted RPS to 4,191 investors during the financial years 2011-12 and 2012-13 and raised a total amount of ₹ 5,46,48,000/- - number of allottees and funds mobilized has been collated from the information from Ministry of Corporate Affairs (MCA) Portal and the documents submitted with the complaint received by SEBI. Therefore, it is possible that....... + More

Non-compliance of summons issued by SEBI - whether the appellant has violated provisions of Section 11C(3) of the SEBI Act? - whether clause 43 of the Listing Agreement has been violated by not disclosing to the Stock Exchange the alleged variations between the projected utilization of funds and the actual utilization of funds raised through the preferential allotment? - HELD THAT:- Though the appellant may be charged with non-submission of full information the submission of the appellant that the management of the appellant was new etc. has to be given some weightage while imposing the penalty. Given this and the facts of the matter, we are of the view that the amount of penalty at the rate of ₹ 10 lakh on this violation is on the higher side particularly when the appellant did provide part of the information readily available with....... + More

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

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

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

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

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

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

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

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

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

Condonation of delay in filing applications for substitution of Legal Heirs (LRs) of the deceased appellant - common application for substitutions of LRs has been filed on 01.11.2018 i.e. around 370 days from the date of death of the deceased appellant - HELD THAT:- There is a huge delay of 370 days in filing the application. It is not the case of the proposed appellants that they are not aware of the pendency of the appeals before Appellate Tribunal, it is also not the case that the proposed LRs were not running the Company or that the Company was closed after the sad demise of deceased appellant for one year. In the present case, there is not only a huge delay but also there is no sufficient explanation as to why there is a delay of 370 days in filing the application. In the present case, there is not only a huge delay but also there is....... + More

Rent-a-cab service - appellant is providing several numbers of vehicles to BSNL etc. on monthly basis against considerations - it was alleged that M/s AHT & T despite providing taxable services to various customers and realizing the values of the said services, did not disclose the same to the department and thereby have deliberately suppressed the material facts with intent to evade payment of service tax - HELD THAT:- It cannot be disputed that both in “renting” and “licensing”, de facto possession of the thing is enjoyed. Difference is well carved out under the law wherein both, de jure possession and control is given, but in “renting”, it is right-in-rem whereas in “licensing”, it is right-in-persona. When rent-a-cab scheme operator gives the car on rent, de facto possession is, of c....... + More

Classification of services - service classified in more than one category of taxable service - clients were granted the right to sell the goods using the trade mark 'LUX' owned by the appellant in return of the consideration mentioned in the said agreement - SCN was issued proposing demand of service tax under the category of "Management Consultancy Services" for the period 01.04.2002 to 09.09.2004 and under the category of "Intellectual Property Services" for the subsequent period 10.09.2004 to 15.02.2005. HELD THAT:- The issue stands settled in favour of the appellant assessee by series of decisions rendered by the various coordinate Benches of this Tribunal wherein it has been held that the intellectual property service which is made the subject matter of service tax levy is transferred prior to the date of ....... + More

Refund of service tax - respondent has deposited lumpsum amount during investigation and same was not recovered from the customers - Principles of Unjust Enrichment - HELD THAT:- It is evident that concurrent finding of fact has been recorded that respondent has not passed on burden of ₹ 1,00,00,000/- to the customers which was deposited by him during investigation/adjudication. Finding so recorded is a finding of fact, based on consideration of relevant material on record. We, repeatedly asked the learned counsel for the appellant to point out any evidence which may indicate that the burden was passed on by the respondent, but the learned counsel for the appellant has failed to show any document, therefore, concurrent finding of fact recorded by the Tribunal and the authorities below cannot be said to be perverse. Appeal dismissed.

CENVAT Credit - input services - construction of landfill in setting up of Common Hazardous Waste Treatment, Storage and Disposal Facility on Build, Own and Operate basis - denial on the ground that the same is a works contract service involving civil construction that was covered under the exclusion clause of the definition of ‘input services’ under Rule 2(l)(A)(a) of the CENVAT Credit Rules, 2004 - HELD THAT:- Going by the language of para 3 of the show-cause notice one thing is clear that setting of landfill is a mandatory requirement of the guidelines set by the State Pollution Control Board and the said construction was made for storage and disposal of Hazardous Waste which can be equated with construction of immovable property but not other than plant and machinery as found in the definition of works contract services. F....... + More

Levy of Service Tax - Transportation of Goods through Pipelines / Conduit Services - the transportation charges are being separately recovered from the buyers in addition to the base price of crude oil - HELD THAT:- The question of service tax levy would arise only in the situation covered in the former case and not definitely in the later case. We find that the whole purpose of the arrangement is to execute the sale transaction in terms of MOU entered by the appellant with the customers like Indian Oil Corporation, for purchase and sale of crude oil, sample copies of which are annexed with the appeal paper book. We are of the view that had there been no arrangement for sale of crude oil to the buyer oil companies, there would have been no case for the appellant assessee to undertake the transportation of goods. It is only in order to hon....... + More

Classification of services - Business Auxiliary services or not - appellants are having authorized service station to carry out repairs, reconditioning or restoration of four wheeled motor vehicles manufactured by M/s Hero Honda Ltd. - services of promotion or marketing to the Bank/Non-banking Financial Institutions and Insurance Companies, who are providing loans to the customers - HELD THAT:- The Tribunal in various cases has consistently held that promotion and marketing of loans and finance on behalf of the banking and non-banking financial institutions should appropriately be classifiable as Business Auxiliary Service and service tax liability is required to be discharged on such taxable service - In this case, admittedly the appellants did not pay the service tax into the Government exchequer and thereby, contravened the statutory p....... + More

Condonation of delay in filing appeal - sufficient reason for condonation of delay given or not - removal of defects including the requirement of pre-deposit - HELD THAT:- It is apparent from a reading of the delay condonation application that only casual statements have been made without any details or supporting documents. According to the Appellant, an accountant had been entrusted to file the appeal but since he had suddenly gone on leave, a new counsel was consulted. The Appellant has not stated as to how the Appellant acquired knowledge that the accountant had not filed an appeal. The Appellant has also not stated on which date the Appellant acquired knowledge that the appeal had not been filed by the accountant. We are not impressed by the facts stated in the Application that the Appellant had been prevented by sufficient cause from filing the appeal within the stipulated period Application rejected - appeal dismissed.

Taking up Tax Appeals for final hearing on a particular date - HELD THAT:- All the four appeals have been admitted on few substantial questions of law involved in the matter. We also take notice of the order passed by a Co-ordinate Bench of this Court in the Civil Applications preferred by the original appellant seeking interim-relief. It is not in dispute that the original appellant has deposited 25% of the amount of demand with interest with the department. It is also not in dispute that the larger issue involved in these appeals is being looked into by the Supreme Court and the Supreme Court is yet to decide the same. The decision of the Supreme Court should be awaited for the better adjudication of the substantial questions of law involved in the present Tax Appeals. It would not be appropriate to fix the Tax Appeals for final hearing. Let the decision of the Supreme Court be pronounced.

Principles of Natural Justice - petitioner took the stand that certain documents are to be provided by the respondents so that they could submit a consolidated reply to the show cause notice - first respondent however decided that the petitioner is not entitled to the said copy of the report and fixed the personal hearing on 29.07.2019 - HELD THAT:- The adjudication process cannot be stalled. But then, in the case on hand, the petitioner's demand is for the supply of a copy of the Scrutiny report prepared by the third respondent. It is admitted in the counter affidavit itself that verification exercise was undertaken - the contention of the learned Standing Counsel cannot be agreed with, that the verification exercise undertaken by the third respondent is an integral part of the adjudication process. It cannot be. The first respondent....... + More

Security Service - Reverse Charge Mechanism - requirement to deposit service tax on the portion of 75% of taxable value towards receipt of security service was made applicable for the first time w.e.f. July 2012 - whether the appellant is liable to deposit service tax under Security Service under reverse charge when the entire service tax amount has been reimbursed to the service provider who has deposited the same with the Govt. Treasury as claimed by the appellant? HELD THAT:- The original authority while confirming demand has observed that since the tax paid challans copies do not have legible bank seal, the same could not be relied. The appellant has also submitted the payment confirmation from the CBEC website showing the challan wise tax payment - No finding has been given by the learned Commissioner (Appeals) with regard to the sub....... + More

Refund of accumulated credit - ascertainment of eligible refund amount in terms of the formula prescribed in Rule 5 of the Credit Rules - input services availed for export of services - period from April 2012 to June 2012 - HELD THAT:- n the instant case, the lower authority has allowed refund of ₹ 4,73,929/- and rejected the balance refund of ₹ 3,47,183/-. While arriving at the total turnover, they have taken the aggregate of the value of export invoices for which payment has been received (₹ 6,79,78,169/-) and the value of export invoices for which payment has not been received in the relevant period (₹ 4,62,61,441/-), i.e. total ₹ 11,42,39,610/- in the denominator, whereas, in the numerator, they have considered ₹ 6,79,78,169/- i.e. the value of export services. In both the numerator and denominator,....... + More

Refund of Service Tax - Club or Association Service - principles of Unjust Enrichment - Section 11B of the Central Excise Act, 1944 - HELD THAT:- A refund could be granted if the conditions laid down under Section 11B are satisfied and the primary condition is the principle of unjust enrichment. This test the appellant is unable to clear since the appellant is nowhere disputing the fact that it had passed on the duty element to its customers. There has also been an admission that as and when the refund is obtained, the duty element collected from its customers would be paid back. By this safe play, the appellant has ensured itself no loss since the same has been recovered and it has come in appeal by taking a chance. The fact that the appellant has passed on the tax element to its service recipient, the refund of which is not made as on d....... + More

Club and Association Service - Meaning of club or association - Body of Persons - demand of service tax under the category of ‘club or association services’ and ‘business exhibition service’ on various heads of income broadly categorized under sponsorship from members for seminars and workshops, sale of publications, grants received from Government and European Commission and miscellaneous receipts - periods involved in the two show cause notices are from April, 2007 to March, 2012 and April 2012 to March, 2013 - HELD THAT:- The taxable service under section 65(105) (zzze) of the Act has also been amended by adding the expression ‘or any other person’ after the expression ‘to its members’ thus widening the tax net to include non-members of club or association as well - With effect from July ....... + More

Principles of Estoppel - levy of service tax in respect of payments of salary to expats - Nature of transaction between Appellant and its Parent Company - Deduction of TDS by the Appellant from remuneration paid - employer-employee relationship or not - Demand of service tax alongwith interest and penalties - receipt of services from Canon Inc. Japan (Foreign Company) - reverse charge mechanism - period 01.04.2015 to 30.06.2017 - Difference of Opinion - Matter referred to Third Member. HELD THAT:- In view of the difference in opinion as stated in the order of proposed by the learned brother Member (Judicial) matter is referred to the Hon’ble President for resolving the difference between the two members of the bench - Following question is proposed for reference to third member: i. Whether in view of the para 4.17 of the order propo....... + More

Refund of service tax - service tax paid for the services received in the SEZ - Condition No. 3(f) (ii) under Notification No. 40/2012-ST - HELD THAT:- Condition No. 3(f) (ii) under Notification No. 40/2012-ST provides for the unit in a SEZ claiming exemption by way of refund, to have paid the amount indicated in the invoice/ bill or as the case may be, challan, including the service tax payable, to the person liable to pay the said tax or the amount of service tax payable under reverse charge, as the case may be, under the provisions of the said Act. The Court below have erred in misconstruing the condition in clause (f) of Sl. No.(ii) of the Notification No. 40/2-12-ST as the requirement is SEZ developer or unit has paid the service tax payable under reverse charge or as the case may be. Admittedly, appellant have paid the service tax u....... + More

Non-payment of Service Tax - Man Power Recruitment and Supply Agency Services - It is the case of the petitioner that the impugned order dated 27th September, 2016 came to be passed by the respondent no.1 in absence of any reply or any evidence being produced by the petitioner - HELD THAT:- The petitioner was registered under section 69 pursuant to the Act-1994 for providing “Man Power Recruitment and Supply Agency Services”. However the petitioner did not file the return in Form ST3 and did not deposit the service tax collected by him from his clients. It was also found by the adjudicating authority on scrutiny of the documents submitted and verified during investigation that the petitioner did not correctly declare his total service amount and purposefully concealed the income from service provided by him. The petitioner als....... + More

CENVAT Credit - input services - services of insurance agents when portion of premium amount (consideration towards output service) - reverse charge mechanism - service not liable to tax - credit has been denied solely on the premise that the insurance service (for sale of ULIP policies) is exempted service, since no service tax is paid on the premium pertaining to the investment component - HELD THAT:- The Ld. Commissioner committed a fundamental error in assuming that the sale of ULIP policy by the appellant results into provision of exempted service. We are of the considered view that the appellant is only engaged in rendering the insurance services and merely for the reason that portion of the premium amount charged in respect of ULIP policies is not liable to tax, it cannot be said that the said service is exempted output service whe....... + More

Refund of Advance Service tax paid - refund claimed on the ground that there was absolutely no service provided - Rule 6 (3) of the Service Tax Rules, 1994 - Time Limitation. When advance amount is paid for a service and such service could not be provided due to amalgamation, whether Section 11B ibid. applies when refund of the above amount is claimed? - HELD THAT:- There is no dispute as to the eligibility or otherwise for refund except the claim being rejected as barred by limitation. There is also no dispute that both the service provider and the service recipient having merged into a single entity, there was no service provider or service receiver. Hence, the service for which the agreement was signed could not be provided also since the same would have amounted to providing a service to the self. Further, even Rule 3 of the Point of ....... + More

CENVAT Credit - input services - Short term hotel accommodation - rent-a-cab - outdoor catering - period from April 2015 to March 2016. Short term hotel accommodation - HELD THAT:- The crew is necessarily required to seek the required instructions from the Rig Manager, which is a pre-requisite for such crew before they assume their duties at the rig. In the absence of such instructions, the Appellant’s crew would be unable to carry out the designated task in the desired manner. Therefore, the Appellant had no choice but to accommodate its crew in such circumstances and when the transportation facility for transporting the crew members was unavailable due to unforeseen circumstances. The said service extended to its personnel by the Appellant would not qualify as a service availed for personal consumption - thus, the said service is ....... + More

Refund of the accumulated Cenvat credit - Place of provision of service - intermediary service - rejection of refund on the ground that the services provided by the Appellant are not to be considered as ‘export of service’ as the services were executed in India - Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012-C.E. (N.T.), dated 18th June 2012 - period from October 2014 to September 2015. Whether the services provided by the appellant qualify as ‘export of services’or ‘intermediary services’? - HELD THAT:- CBEC vide Guidance Note dated 20th June 2012, had few conditions which are to be satisfied for a service to be designated as export of service - In the present case, the service provided by the Appellant satisfies all the above mentioned conditions and hence, is an export of....... + More

Time limitation - Refund of CVD / Excise duty - case is yet to be decided even after 16 years lapsed - HELD THAT:- The impugned show cause notices are very interesting to read as it exhibits complete non-application of mind. The claim of the writ applicant put forward almost 16 years back is yet to be decided by the authority because, according to the respondents, the original record of the claim is not available. We fail to understand that if the claim of the writ applicant could not be looked into and decided by the authority for want of necessary materials, then the authority could have taken an appropriate decision one way or the other for passing an appropriate order. We fail to understand what was the good ground for the department to issue three show cause notices. The respondents are directed to decide the claim of the writ applic....... + More

Rejection of Refund claim - time limitation - section 11 B of the Central Excise Act, 1944 - HELD THAT:- The appellants had two units, one in DTA unit and other is 100% EOU, refund claim have been filed by both the units. DTA have cleared the goods against CT-3 to their 100% EOU and have claimed refund. The 100% EOU has claimed refund for goods exported. Earlier in the proceedings the matters was remanded by tribunal - The appellants are of the view that both Appeal are within the limitation of one year. It is seen that the Appeal No. E/13076/2018 pertains to period October’ 12 to Dec.’12 and the refund claim was filed on 04.10.2013 - In appeal no. E/13077/2018 pertains to the period April’13 to June’13 and refund claim was filed on 09.04.14. In these circumstances it is seen that in both these cases the refund has....... + More

Reversal of proportionate Cenvat credit - common input/input services used for manufacture of dutiable as well as exempt goods - Rule 6(3A) of the Cenvat Credit Rules, 2004 - HELD THAT:- The issue arising out of the present dispute regarding determination and payment of amount as per the formula prescribed under sub-rule (3A) of Rule 6 ibid is no more open for any debate in view of the Co-ordinate Bench decision of the Tribunal in the case of the appellant itself COMMISSIONER OF CENTRAL EXCISE & ST, RAJKOT VERSUS M/S. RELIANCE INDUSTRIES LIMITED [2019 (3) TMI 784 - CESTAT AHMEDABAD]. There are no merits in the impugned order passed by the learned Commissioner (Appeals) - appeal allowed - decided in favor of appellant.

Reversal of Cenvat Credit - clearance of iron ore fines - separate excisable goods but exempted commodity or not - whether iron ore fines in question are needed to be considered as exempted goods, being sold for consideration during the relevant period as provided under the amended provisions of Rule 6 (1) of CCR, 2004? - HELD THAT:- It is foremost important to understand the procedure or the activity of the appellant. Not only from the show cause notice, but from the appellant’s submission, the admitted procedure adopted by the appellant in manufacturing the final product i.e. ‘sponge iron’ is that, the appellant procures iron ore etc., as the input for manufacturing sponge iron. The iron ore lumps of different sizes are first crushed and are then segregated by screening. It is thereafter that requisite sized iron ore /....... + More

Irregular availment of CENVAT Credit - contravention to Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - demand based on various statements - reliability on Chartered Engineer’s Certificate - discrepancies pointed out by the department with regard to the “Transportation of Goods” from the factory of M/s.Industrial Associates to the factory of the appellant - Failure to Produce Documents - non-appearance against summons - HELD THAT:- The inputs received by the appellants were duly entered in their RG-23A Part-I for the period from August, 2008 to January, 2009 and such records were subject to scrutiny by their jurisdictional Central Excise Officers and the credits were being availed with the knowledge of the Revenue and by reflecting the inputs in the records. In such a ....... + More

Extended period of Limitation - suppression of relevant facts or not - Section 11A of Central Excise Act - valuation under Rule 8 of the Central Excise (Valuation) Rules 2000 - HELD THAT:- The extended period of limitation in the present case was not available to the Revenue Authorities and therefore, the Show Cause Notice issued to the Assessee on 19.8.2010 could not cover the period in question viz., 2007-2008 to 2009-2010 except to the extent of one year from the date of issuance of Show Cause Notice on 19.8.2010 and therefore, the learned Tribunal was justified in holding in favour of the Assessee to that extent. We fail to understand that when the Assessee had changed its method of valuation on the advice of the Department's Authority himself based on some Audit objection as indicated in the communication dated 17.1.2008, how by ....... + More

Clandestine Removal - shortage of finished goods - Kraft Paper - main evidence for making allegation of clandestine removal and raising demand is computer printouts - Corroborative evidences or not - reliability of statements - period from April, 2009 to July, 2012 - HELD THAT:- As per section 36B of Central Excise Act, 1944, printed material produced by the computer shall be admissible as evidence only when the condition mentioned in Sub-section (2) and other provision contained in the said section 36B are satisfied. As per the condition laid down in subsection (2) the statement of computer printout must be produced by the computer during the period for which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the....... + More

CENVAT Credit - inputs not received - forged and fake invoices - chain of company/firm(s) created by Shri Gaurav Mungad - such cenvat credit was utilised towards payment of duty on the goods exported, and thereafter obtained undue rebate claim - proper opportunity of hearing not given - principles of natural justice - HELD THAT:- The case of Revenue is mainly based on the statements of the aforementioned persons. In spite of the categorical request for cross examination of the aforementioned persons, in the adjudication proceedings and also of some other persons connected with the investigations, who had verified the cenvat credit records and the documents of the appellants as well as the officers involved in scrutiny and sanctioning of the rebate claims. But this request of the appellants have been arbitrarily refused by the ld. Commissi....... + More

Recovery of Short paid duty - fabrication of steel tanks for Oil Companies - allegation that the appellants did not obtain Central Excise Registration even after exceeding the SSI exemption limit of turnover ₹ 1.00 Crore - Extended period of limitation - whether the tanks fabricated by the assessee are goods and whether they are liable to Central Excise duty? - Difference of Opinion - Majority decision. HELD THAT:- The appellant manufacture tank in their factory, although some parts of the tanks are finally attached at the buyers’ premises only. I agree with the submission of the learned counsel for the appellant that the impugned goods when left the factory is incomplete and unfinished tanks. But they are still classified as tanks and is liable to excise duty under CETH 73090090 of CETA. The learned Member(Technical) has cons....... + More

Hearing of appeal - supply of necessary documents - HELD THAT:- The appeal is taken up for hearing after handing over the necessary statements relied upon by the adjudicating authority in passing the impugned order to the Appellant. Valuation - short payment of duty - allegation that even though their Miraz unit sold Motor Spirit blended with Ethanol and collected duty on the whole quantity of Motor spirit including duty on Ethanol, but failed to discharge the excess duty collected on ethanol under Section 11D of Central Excise Act, 1944 - whether the appellants are required to deposit the amount of ₹ 75,94,886/- on the quantity of ethanol of 712.290 KL blended with 13533.580 KL of Motor Spirit(Petrol),when the resultant quantity of 14245.850 KL of EBP was sold as Motor Spirit ,under Section 11D, and interest under Section 11DD of C....... + More

CENVAT Credit - inability to maintain separate accounts for consumption of common inputs and inputs services - scope of rule 6(3) of CENVAT Credit Rules, 2004 - two options under the Rules, mutually exclusive or not? - HELD THAT:- It is clear from a reading of CENVAT Credit Rules 2004 that rule 6(1) and rule 6(2) complement each other and are in contradistinction with rule 6(3) which, qualified by the non obstante clause, operates on its own. The latter is unambiguously clear in conferring the privilege of exercising of option to the assessee. It was, therefore, not appropriate for the adjudicating authority to resort to computation that yielded higher revenue. It would be appropriate for the adjudicating authority to consider the matters afresh after giving an opportunity to the appellant to furnish the computation preferred by them but ....... + More

Classification of goods - RBD Palm Stearin which they manufacture from refined palm oil - classified under Central Excise Tariff heading 1511 9090 or not? - benefit of N/N. 03/2006- CE dt.01.03.2006 (S.No.9) (as amended) - CBEC Circular No.81/2002-CUS dt.03.12.2002 - period September, 2008 to September, 2010 - extended period of limitation - HELD THAT:- The issue has been settled by the Hon’ble Apex Court in October, 2010 in the case of CCE, C AND SERVICE TAX VERSUS JOCIL LTD. [2010 (12) TMI 24 - SUPREME COURT] and it has been held that Palm Stearin is classifiable under Central Excise Tariff Heading 3823 and not under CTH 1511. Thus, it has been decided against assessee and in favour of the revenue - Respectfully following the judgment of the Hon’ble Apex Court in the case of JOCIL Ltd, it is held that the appellant’s p....... + More

CENVAT Credit - inputs - M.S. Plates used in fabrication of final products as well as for platforms used as accessory to capital goods - applicability of restriction introduced in Explanation to Rule 2(k) for the relevant period of June, 2007 - HELD THAT:- The appellants have used the MS Plates both as inputs for fabrication of machinery, which is their final product liable to duty and have also used the MS Plates as Steel Platform for fabrication of their finished product being machinery. Thus, the MS Plates used in steel platform are also admittedly used in the factory of production. Rule 2(k) of CCR defines, “inputs as all goods used in the factory by the manufacturer of the final product”. Accordingly, the appellant is entitled to cenvat credit on MS Plates - appeal allowed - decided in favor of appellant.

Valuation - undervaluation - “Polo” and “Vento” models of their car - related party transaction - interconnected undertakings - Mutuality of Interest - Section 4(3)(b) of the Central Excise Act, 1944 - four SCN for same transactions and same period - Impact of the CAG report of 2014 on determination of value - benefit of cum-duty price - extended period of limitation - change of opinion - demand of interest - various penalties. Whether the Commissioner could have considered and adjudicated four different Show Cause Notices in respect of the same transactions for the same period proposing to demand duty by invoking different routes to the valuation of Goods Cleared? - HELD THAT:- We cannot agree with the method adopted by the Commissioner while dealing with the three Show Cause Notice dated 06.02.2015. Commissioner ....... + More

Rectification of Mistake/Review of Order - non-compliance with the rules of natural justice - HELD THAT:- While it may be a fact that Ext.P5 communication was issued to the petitioner without hearing him on his Rectification of Mistake Application, that by itself may not justify an interference with Ext.P5 communication in these proceedings under Art.226 of the Constitution of India. A reading of Ext.P4 document clearly reveals that, although styled as a Rectification of Mistake Application, it is in effect an application seeking a review of Ext.P3 order of the Assistant Commissioner. Under the Statute in question, there is no express power of review conferred on the Assistant Commissioner. As a statutory authority, he cannot be seen as possessing any inherent power of review either. Ext.P5 communication of the Assistant Commissioner, tha....... + More

CENVAT Credit - fake purchases - It was alleged that M/s.Abhay Chemicals, Jammu had not purchased raw materials from their stated suppliers and therefore they could not have manufactured any finished goods in the absence of procurement of raw materials, with the sole intent to facilitate undue cenvat credit to their buyers - HELD THAT:- The allegations in the show cause notice of taking irregular cenvat credit is based on a communication dated 30.02.2012 received from the Additional Commissioner, Customs & Central Excise, J & K, Jammu, stating that the several units in their jurisdiction located in Jammu & Kashmir appear to be not actually engaged in the manufacturing activities - Further, it is found that the appellants have led evidence that they have received the inputs along with duty paying documents. Further, the appella....... + More

Transfer of CENVAT Credit - closure of Delhi unit & merger with its Baddi unit - Rule 10 of CCR - HELD THAT:- Admittedly appellant have maintained proper record of their transactions including taking of cenvat credit on the eligible inputs. Appellant have claimed transfer/ shifting of their Delhi unit to their Baddi unit. But from the finding of the Court below, it is found that no finding have been recorded with respect to the claim of shifting of Delhi unit to Baddi unit and its consequent merger with the Baddi unit. Shifting of a factory to another site is the primary condition under Rule 10(1) alongwith liabilities of the Delhi unit, if any, and Rule 10(3) provides for additional condition that such transfer/ unit or factory should include transfer of stock of input as such or in process, or the capital goods to the new site and s....... + More

CENVAT Credit - Iron Steel, G.I. Flat, MS Beam, MS channel, Flats, Joist, old and used plates, New MS Plates, PPGI profiles sheets etc. used in erection of EOT crane (during the gestation period) for the new factory - steel structures, nut and bolt, electrical items, 122 KV, Gantry column, 132 KV Isolator, earthing wire, etc. utilised in fabrication of the power house station - rejection of cenvat credit on the ground that these items are falling under chapter heading 72 and 73, and thus not specified under Rule 2A(a) of Cenvat Credit rules. HELD THAT:- It is admitted fact that the items have been utilised in the factory of production for erection of new machinery, of EOT crane, utilised in fabrication of the power house station, which are capital goods and are essential for setting up of the factory which manufactures dutiable goods - Al....... + More

Applicability of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 to the cases involving confiscation and redemption fine - Rejection of the declaration made by the petitioners by the Designated Committee formed under SVLDRS HELD THAT:- The Coordinate Bench of this Court has done analysis in detail of the provisions of the Scheme in para 6 to 9 of the order dated 24.12.2019 and has also discussed the frequently asked questions (FAQs) and flyers issued by the Central Board of Indirect Taxes as well as the letter dated 20.12.2019 in para-10 to 12 to form a prima-facie opinion that when the Board has issued FAQs, press notes and flyers stating that the scheme grants waiver of interest, fine and penalty, then the scheme would be relatable to redemption fine also, because there is no other fine which is contemplated under the Act coupled....... + More

Benefit of exemption under N/N. 28/2002-CE - Ethanol Blended Petrol (EBP) (Gasohol) - Allegation that the appellant had not complied with the condition of said notifications inasmuch as the EBP did not satisfy the Bureau of Indian Standard’s (BIS) specification 2796:2000 - requirement of deposit of duty under Section 11D of the Central Excise Act, 1944. Revenue’s main contention is that to be eligible for exemption under aforesaid Notifications, inter alia, it is required to show that EBP conforms the BIS 2796:2000 standards. It is their allegation that the Appellant failed to establish that the EBP cleared by them from their Vashi Terminal conforms the BIS specification - appellants, on the other hand, claimed that the tests carried out on the samples of EBP at their Vashi Terminal even though limited to nine out of fifteen t....... + More

Rectification of mistake - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - reversal of Input Tax Credit - Despite objections filed by the petitioner, orders of assessment came to be passed by the Assessing Officer on 31.12.2019 - Non-speaking order - principles of natural justice - HELD THAT:- The impugned orders are clearly contrary to law insofar as they are non-speaking and have been issued in violation of principles of natural justice, despite the specific request of the petitioner for personal hearing. Though the provisions of Section 84 of the Act do not specifically mandate an opportunity of personal hearing, except if the rectification is initiated suo motu at the instance of the Assessing Officer, it goes without saying that for fair disposal of a matter, an assessee/dealer should be heard in person in order to appreciat....... + More

Levy of penalty - Failure to pay Entry Tax in time due to bonafide opinion - import of three heavy road laying vehicles - HELD THAT:- The law, as on date, is to the effect that the imported vehicles brought into the State of Tamil Nadu for use or for sale would be subjected to payment of Entry Tax. Previously, the Hon'ble Division Bench of the Kerala High Court in the case of FR. WILLIAM FERNANDEZ VERSUS STATE OF KERALA AND OTHERS [1998 (1) TMI 501 - KERALA HIGH COURT] had held, in the year 1998, that entry of vehicles from abroad, is outside the scope of Entry Tax Act and therefore not liable for payment of Entry Tax. There are no fault with the petitioner when they had not paid the Entry Tax at the time of import. Furthermore, when the Enforcement Wing of the respondents had insisted for payment of the Entry Tax, the petitioner had ....... + More

Validity of assessment proceedings - allegation is that the impugned proceeding is made on the basis of the Audit Reports/Inspection Proposals proceeded from the Enforement Wing or from ISIC Authorities - HELD THAT:- Circular No.3 dated 18.01.2019 has empowered the Assessing Officers to henceforth independently deal with the assessment without being influenced by the proposals of the higher officials. In view of the Circular No.3 dated 18.01.2019 issued by the Commissioner of State Tax, Chennai, all the impugned proceedings in these Writ Petitions, which proceeds on the basis of the proposals/reports of the Enforcement Wing/ISIC, are set aside and consequently, the matters are remanded back to the Assessing Officer. The Assessees are granted liberty to file their objections with all supporting documents, within a period of 30 days from the date of receipt of a copy of this order. Petition allowed by way of remand.

Restriction on Input Tax Credit (ITC) - Form W - June to September 2014 - Prior sufferance of Taxes - ITC on reversal on wastage - Ineligible claim of ITC on goods. Restriction of the amount for prior sufferance of taxes - Assessing Officer was of the view that some of the sellers from whom the petitioner had purchased the goods had not paid tax to the Government - HELD THAT:- This issue has been dealt with in the case of ASSISTANT COMMISSIONER (CT) , PRESENTLY THIRUVERKADU ASSESSMENT CIRCLE, KOLATHUR, CHENNAI VERSUS INFINITI WHOLESALE LTD. [2016 (9) TMI 1431 - MADRAS HIGH COURT] wherein it has held that Input Tax Credit cannot be disallowed on the ground that the seller has not paid tax to the Government, when the purchaser is able to prove that the seller has collected tax and issued invoices to the purchaser. As such, restriction of th....... + More

Recovery of tax dues (arrears) - Validity of Sale of property in public auction - Improper bidding of the 1/5th share of the petitioner over his ancestral property - Section 50(2)(i) of the Kerala Revenue Recovery Act - HELD THAT:- The attachment of the property and the sale thereof held on 03.10.2008 were in respect of undivided share of the petitioner in the property. The petitioner was not in actual and exclusive possession of the property when the sale was effected and the Government purchased the land. The pleadings would show that the petitioner has been trying to raise funds sufficient for the payment of sales tax arrears. Ext.P2 letter dated 25.03.2017 would show that the petitioner has been making representation to the respondents for reconveyance of the property - At any rate, the petitioner has approached the respondents submit....... + More

Validity of proceedings - petitioner raised a ground that the Assessing Officer, who is a Quasi Judicial Authority, has not independently applied his mind while dealing with the impugned proceedings, but had adopted the reports and proposals of the Enforcement Wing/ISIC Authorities, who are their higher authorities - HELD THAT:- Circular No.3 dated 18.01.2019 has empowered the Assessing Officers to henceforth independently deal with the assessment without being influenced by the proposals of the higher officials. Pursuant to the inspection conducted by the Enforcement Wing Officers, the petitioner company was assessed to the Best of Judgment for the Assessment Year 1994-95, as against which the petitioner had filed an appeal before the Tamil Nadu Sales Tax Appellate Tribunal and by an order dated 25.07.2011, the Tribunal had remitted back....... + More

Validity of assessment Order - time limitation - main contention raised on behalf of the revision petitioner is that the impugned assessment order passed by the Superintendent of Taxes(Assessing Officer) Agartala for the period from 2011-12 to 2014-15 was ultra vires the provisions of Section 33 of the TVAT Act, 2004 because such assessment was absolutely time barred - Imposition of penalty on the ground of evasion of tax by way of concealment of taxable turnover was made without affording reasonable opportunity of hearing to the petitioner - imposition of penalty in terms of Section 53(3) of the TVAT Act after affording reasonable opportunity of hearing to the assessee - non submission of the audited accounts of his company in absence of prescribed form in terms of Section 53(1) of TVAT Act. Whether the impugned assessment order dated 29....... + More

Constitutional Validity of Section Section 2(15)(ix) and 2 (33(vi), explanation I of Tamil Nadu Value Added Tax Act 2006 - Club and association service - principles of mutuality - incorporation of clubs after 46th amendment to the Constitution - HELD THAT:- The theory of mutuality will apply to both incorporated and unincorporated clubs. - Following the decision of Supreme Court in the matter of CALCUTTA CLUB LIMITED / M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT], the petition is disposed off.

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- The issue squarely covered in the case of M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] where it was held that he Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/s Ramco Cements Ltd can be extended only to those dealers t....... + More

Violation of the principles of natural justice - Request for personal hearing rejected - Validity of assessment order - periods 2010-11 to 2015-16 - HELD THAT:- A pre-assessment proposal dated 24.04.2019 was issued by the Officer, wherein no reference was made to communication dated 13.08.2018, though the petitioner has placed on record at page 14 of the document compilation an acknowledgement for filing of the letter requesting personal hearing - In response to the aforesaid notice, the petitioner appears to have filed a letter dated 15.06.2019, for which there is no acknowledgement on record, seeking some more time to submit the required documents. The assessments have however been finalized vide impugned orders of assessment dated 31.07.2019 without reference to either of the requests of the petitioner. Thus, no effective opportunity h....... + More

Maintainability of petition - Validity of assessment order - writ petition after 3 years - Condonation of delay - HELD THAT:- As on date, there is no justification whatsoever to interfere with the order of R1 confirming the assessment and levy of tax. In fact there is no acceptable explanation for the delay of three years in filing this writ petition - The only trigger for filing of this Writ Petition was that the cancellation of penalty had been challenged by the revenue and this can hardly be a ground for interference with the impugned order. Petition dismissed.

Penalty Order - Stay, on condition that the petitioner furnished a simple bond to cover the disputed amount - limited prayer of the petitioner at this stage is for a direction to the respondents to accept the bond offered by him and to direct the Tribunal to dispose the appeal expeditiously - HELD THAT:- It is not in dispute that by Ext.P6 order, the petitioner was granted a stay against recovery proceedings pending disposal of the appeal. The only lapse on the part of the petitioner appears to have been the non-furnishing of the bond within the time stipulated by the Tribunal. It is not in dispute however that Ext.P7 bond was subsequently offered before the respondent authority, but the said authority refused to accept the bond since it was preferred beyond the time stipulated by the Tribunal. Inasmuch as there is no prejudice caused to ....... + More

Input Tax Credit - restriction of the amount of Input Tax Credit claimed in Form W for the months of December 2013 to May 2014 - Prior sufferance of Taxes - ITC on reversal on wastage - Ineligible claim of ITC on goods. Restriction of the amount for prior sufferance of taxes - HELD THAT:- This issue has been dealt with in the case of Assistant Commissioner (CT), presently ASSISTANT COMMISSIONER (CT) , PRESENTLY THIRUVERKADU ASSESSMENT CIRCLE, KOLATHUR, CHENNAI VERSUS INFINITI WHOLESALE LTD. [2016 (9) TMI 1431 - MADRAS HIGH COURT], wherein it has held that Input Tax Credit cannot be disallowed on the ground that the seller has not paid tax to the Government, when the purchaser is able to prove that the seller has collected tax and issued invoices to the purchaser. As such, restriction of the amount of Input Tax Credit on this ground, canno....... + More

Recovery of tax alongwith Interest - allegation that the defendant has failed in paying the tax collected from the plaintiff and so also, the defendant has not filed VAT- 100 Returns - cause of action for the plaintiff to file the suit, present or not. Whether the Trial Court has committed an error in dismissing the suit in coming to the conclusion that there is no cause of action for the plaintiff to sue the defendant? - HELD THAT:- The Trial Court has not committed any error in coming to the conclusion that mere demand made by the Department against the plaintiff cannot raise any cause of action to institute the suit against the defendant. It is also pertinent to note that in Exs.P1 and P3, the Department while passing the order made an observation that the purchase made by the assessee- Company paid the tax, but such of those purchase ....... + More

Validity of assessment order - proceedings on the basis of the proposals/reports of the Enforcement Wing/ISIC - defects with regard to mismatch in their returns vis-a-vis the other dealers - independent application of mind on the part of Assessing Officer - HELD THAT:- In the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT], this Court had considered the claim of the dealers in connection with Input Tax Credit reversal on an alleged mismatch between their returns and the returns filed by the sellers - impugned order on this issue set aside. Independent application of mind on the part of Assessing Officer - HELD THAT:- This Court, in a batch of Writ Petitions in the case of TVL. TARUN CREATION VERSUS THE COMMERCIAL TAX OFFICER, TIRUPUR. [2020 (8) TMI 689 - MADRAS H....... + More

Maintainability of petition - availability of alternative remedy of appeal - income from undisclosed sale transactions - HELD THAT:- The respondent after finding the petitioner's explanation to be unsatisfactory had straight away assumed that the said sum represents income from undisclosed sale transactions. I am afraid that this approach is clearly not sustainable in law - In fact when the matter was taken up for hearing, the petitioner's counsel produced a copy of the certificate issued by the Indian Bank as well as the City Union Bank to show that the transactions in question are between the Directors of the Company and the assessee themselves. The second aspect of the matter pertains to reliance on the stock details report dated 13.02.2020. In this case, personal hearing was held on 31.01.2020. It is quite possible that the pe....... + More

Maintainability of petition - petition was dismissed on the ground of availability of alternative appellate remedy - requirement of pre-deposit being the pre-condition to entertain the appeal - HELD THAT:- During the hearing, it was pointed out that, before the Division Bench, where the writ appeals were originally heard, at the time of admission on 28.11.2019, the learned counsel for the assessee had offered to deposit 10% of the demand made in the impugned assessment for invocation of the statutory remedy before the appellate authority - The said offer was made voluntarily on the side of the assessee, of course, in the context of conditions imposed under the relevant provisions of the TNVAT Act to deposit 25% of the demand/tax due, as pre-deposit being the pre-condition to entertain the appeal. Only in order to get instructions to that ....... + More

Validity of Bihar Value Added Tax Ordinance, 2005 - vested rights accrued to the Petitioners with retrospective effect [before expiry of the period] for exemption from payment of Sales-tax on sale of Finished Products under the Notification- S 0 No.:96 dt. 04.04.1994 and Notification-S 0 No.: 479 dt.22.12.1995 issued under the Industrial Policy, 1993 & 1995. HELD THAT:- This issue can be agitated by the petitioner first with the appropriate authority and thereafter before the appropriate forum in accordance with law. Petition disposed off.

Levy of penalty u/s 47(b) of the erstwhile Kerala Value Added Tax Act, 2003 - registration of Charitable Hospitals - Deferment of assessment proceedings under Section 25 of the 2003 Act, before finalisation of the proceedings under Section 47(b) of the Act - HELD THAT:- It is a fit case where the penalty order Ext.P6 to P16 are not sustainable. In M/s Fortis Healthcare Limited [2015 (2) TMI 1014 - PUNJAB & HARYANA HIGH COURT], the Division Bench of Punjab and Hariyana High Courts after noticing the provisions of Punjab Value Added Tax Act and as well as Power to Impose Sales Tax and VAT clause flowing from entry 54 of list to schedule 7 and Article 366 (29-A) of the Constitution of India did not accept the contention of the state for the applicability of doctrine of severance with regard to the services provided to the indoor patients....... + More

Permission for withdrawal of petition - Grant and continuation with the exemption from payment of Sales-tax - purchase of Raw Materials & on sale of Finished Products to the extent in respect of quantum/amount made in the Industrial Policy - withdrawal of exemption before completion of the period for availing the amount of exemption - petitioner seeks permission to withdraw the present petition as the same has become infructuous. HELD THAT:- Petition disposed of as withdrawn.

Dishonor of Cheque - appellant submits that since the date of service of notice is not mentioned in the complaint so the necessary ingredients for making section 138 of Negotiable Instruments act are lacking - HELD THAT:- Although the service of notice is not mentioned in the complaint, on this ground the summoning order could not be quashed. The question as to whether the complaint is premature would be open to be decided by trial court. So in these circumstances, it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. The prayer for quashing the abovesaid summoning order and proceedings is refused - However, it is provided that if the applicant a....... + More

Adjudication of testimonial worth of prosecution evidence - Dishonor of Cheque - Submission is that the Apex Court decision has taken cognizance of the heavy pendency of the cases in the courts which may result ultimately in the chocking of criminal justice system - HELD THAT:- As requested by the counsel, it is directed that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence through compromise. On such application being moved the concerned court may take adequate steps in accordance with law in this regard and shall provide further opportunity to the accused which shall not exceed a maximum period of four months from today to make an endeavour in this direction. If the decision of the Court given in the light of the ....... + More

Dishonor of Cheque - acquittal of the accused - legally enforceable debt or not - Section 138 of Negotiable instruments Act, 1881 - HELD THAT:- If a cheque is issued in terms of an agreement and the same is dishonored, the amount of the cheque, constitute legally enforceable debt, as the agreement is legally enforceable between the parties - When the complainant is successful in proving the existence of legally recoverable debt and issuance of Ex. P1-cheque and also dishonor of the same, presumption under Sections 118 and 139 of the Act comes into operation and it is for the accused to rebut these legal presumptions. In the present case, accused has not made any attempt to rebut the presumption. When he admitted the agreement-Ex.P6 and also issuance of the cheque Ex. P1, it cannot be said that there is no legally recoverable debt. Even th....... + More

Dishonor of Cheque - legal presumption under sections 118 and 139 of Negotiable Instrument Act - In the absence of specific evidence led by defendant qua maintainability of suit in terms of section 3 of H.P. Registration of Money Lenders Act, Whether the findings of Ld. Court below holding that the suit is barred by section 3 of H.P. Registration of Money Lender Act is legally sustainable? HELD THAT:- Instant suit filed by the plaintiff cannot be held to be not maintainable under Section 3 of the H.P. Registration of Money Lenders Act as the defendant failed to prove that plaintiff falls within the definition of ‘money-lender’ under the Act and also failed to prove that various recovery suits instituted by the plaintiff pertained to that kind of loan which is included under the definition of loan in terms of the Act ibid. Ther....... + More

Dishonor of Cheque - offence punishable under Section 138 of Negotiable Instruments Act, 1881 - Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint? - HELD THAT:- In the instant case, apart from the legal presumption as per Section 139 of the N.I. Act coming into operation, the complainant through oral and documentary evidence has also shown that the supplies of goods to the accused were made and towards the same, the accused was in arrears of payment of money, towards which, he had issued the cheques at Exs.P-3 and P-4. Therefore, the finding of the Trial Court that PW-1 had no authority to lead evidence and the complainant failed to establish the existence of a legally recoverable debt proves to be an erroneous finding. T....... + More

Application filed belatedly - matter is pending for more than five years - Dishonor of Cheque - application under Section 311 Cr.P.C. by petitioner/accused no.3 for recall of complainant for further cross examination was dismissed - principles of natural justice - HELD THAT:- The filing of application at belated stage which does not prejudice to the rights and contention of the petitioner, such application is delay tactics to get the trial delayed.There are no illegality and perversity in the impugned order dated 29.08.2020 passed by the Trial Court - petition dismissed.

Grant of Anticipatory bail - Sections 420, 467 & 471 of Indian Penal Code, 1860 - Dishonor of Cheque - fake E-way bill - HELD THAT:- Though the counsel for the petitioner has vehemently contended that on the E-way bill generated by the petitionerGST was also deposited, however, learned counsel for the petitioner is not in a position to deny the document Annexure R-2/5 which is an electronically generated document which depicts that the E-way bill dated 04.01.2020 was rejected by the complainant on 05.01.2020. He is also not able to explain as to what was the necessity of depositing the GST on the rejected bill. The petitioner prima facie appears to have not only fabricated the E-way bill but has also, in order to create evidence, filed his GST returns on a bill which stood rejected by the complainant on the very next day. The present ....... + More

Appointment of sole arbitrator - Section 11(6) read with Seciton 11(12)(a) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The parties having entered into a business transaction; certain disputes have arisen between them which is to be resolved through arbitration. To that extent the parties are also in agreement. The issue for consideration however, is with regard to the appropriate clause that will operate providing for arbitration and will be applicable in the factual matrix herein. Since the applicant is before this Court invoking the arbitration clause in the purchase order (37 separate purchase orders), it is necessary to take note of the arbitration clause relied upon. Since the transaction entered into between the parties and the dispute having arisen not being in dispute; further the above extracted arbitration clause....... + More

Dishonor of Cheque - vicarious liability of Director of being accused - no specific allegation as against the petitioner to attract the offences under Section 141 of NI Act - issuance of summons without application of mind - principles of natural justice - HELD THAT:- The Hon’ble Supreme Court of India in various cases repeatedly held that the complaint has to specifically say as to how and in what manner Director was responsible for the conduct of the business of the company. Unfortunately in the impugned complaint, the allegations did not satisfy the requirements of Section 141 of NI Act. That apart, the petitioner is being implicated as third accused who is inducted as Non Executive Director of the first accused company, therefore the petitioner is not being made responsible for the day to day affairs of the company and she canno....... + More

Criminal revision petition - Dishonor of Cheque - petitioner /accused preferred this Criminal Revision Case on the grounds that the trial Court and the appellate Court have not appreciated the evidence properly - offence under Section 138 of the Negotiable Instruments Act - HELD THAT:- The scope of Criminal Revision under Section 397 r/w 401 CrPC is very limited and this Court cannot re-appreciate the evidence, unless and until there is a illegality, perversity or impropriety in the findings of the trial Court and the appellate Court. Admittedly, this petitioner / accused was having certain business transactions with the first respondent/complainant. Taking advantage of the same, on 25.03.2012, the petitioner received a sum of ₹ 4 lakhs from the respondent/complainant, by issuing a cheque that he can collect the said amount by depos....... + More

Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - legally valid debt or not - offence committed under Section 138 of Negotiable Instruments Act - HELD THAT:- The petitioner who is the complainant before the trial Court apart from having produced the dishonored cheque (Ex. P1), petitioner bankers memo of dishonor (Ex. P2), respondents-bankers memo of dishonor Ex. P3, legal notice Ex. P4, reply notice Exs. P5 to P8, rejoinder notice Ex. P9 and the complaint in PCR No. 124/2005 (Ex. P10), has not produced any other documents to establish that there is any debt due and liable to be paid. In that Ex. P1 being cheque and Ex. P4 being a demand notice are contended to be sufficient by the petitioner to establish the debt due and liable to be paid by the respondents. The only witness examined being CW. 1 on the part of the ....... + More

Smuggling - Charas - acquittal of accused - accused was acquitted by recording a finding that the case of prosecution was not free from doubt and there were many infirmities in the case of the prosecution to hold that the accused was found to be in possession of charas, as alleged by the prosecution - Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- There are no substance in any of the contentions advanced by the learned counsel for the appellant, except the submission on the quantum of sentence. It is mainly contended by learned counsel for the appellant that the High Court / appellate Court was not justified in interfering with the judgment of acquittal passed by the trial court merely because another view is possible. As noted earlier, in support of his argument that merely because another view is possib....... + More

Direction to the respondents to make the payment of interest for the closed Fixed Deposits account - HELD THAT:- Admittedly, when orders were passed by this Court seeking a writ of Mandamus directing the second respondent Bank to transfer the funds to the loan account with the third respondent Bank, the petitioner had not sought for payment of interest for the overdue deposit. It is also pertinent to mention that the same set of counsels appeared for both, the petitioner and the Bank in the earlier round of litigation. In fact, the earlier order was silent about even the payment of 4% interest from the date of maturity till the date of payment. The said interest is paid by the second respondent Bank only as per the Circular of the RBI binding on them. The maturity value of the deposit as on 29-1-2013 was ₹ 1,06,65,755/-. According t....... + More

Conduct of investigation by the police officer who himself is the complainant - it is alleged that in case the investigation is conducted by the police officer who himself is the complainant, the trial is vitiated and the accused is entitled to acquittal - present matter is placed before the Bench consisting of five Judges - Principles of Natural Justice. Whether in case the investigation is conducted by the informant/police officer who himself is the complainant, the trial is vitiated and in such a situation, the accused is entitled to acquittal? HELD THAT:- The first decision relied upon on behalf of the accused is the decision in the case of BHAGWAN SINGH VERSUS THE STATE OF RAJASTHAN [1975 (8) TMI 147 - SUPREME COURT], which has been subsequently followed and even considered in the subsequent decisions. It is true that in the case of ....... + More

Smuggling - Ganja - acquittal of accused - offence under Section 20(b)(ii)(B) of Narcotic Drugs & Psychotropic Substances Act, 1985 - HELD THAT:- In the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchnama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross-examined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313, Cr.P.C. There is no law that the evidence of police officials, unless supported by independent evidence, ....... + More

Maintainability of complaints - Dishonor of Cheque - insufficiency of funds - proceedings conducted by the trial court including order of cognizance and summoning passed by the trial court - HELD THAT:- he complaints in question though initially have had been filed with a defect of not mentioning name of defacto complainant -the Managing Director of the Company namely Rajat Chadha yet the said defect had been allowed to be removed by the trial court vide order dated 14.08.2017 and the said order though questioned by the petitioner in earlier 561-A petitions was not set aside by this court meaning thereby that the complaints in question are very well competent. Similarly the issue raised by the petitioner about taking on record of preliminary statement original affidavit of the complainant attested by oath commissioner pursuant to the orde....... + More

Dishonor of Cheque - time limitation - Section 142 of N.I. Act - HELD THAT:- Instant application has been after three years of issuance of impugned summoning order, which was passed on 16.08.2017 and as no satisfactory explanation for delay has been given, thus there being undue delay and latches on the part of applicant in filing of this application, this application is liable to be dismissed on this ground alone. Even on merits, so far the contention that impugned complaint is barred by period of limitation prescribed under section 142 NI Act is concerned, it may be stated that a bare perusal of provisions under section 138 and 142 of NI act, makes it clear that the drawee has to send a legal notice within 30 days from the date of return dishonour of cheque and asking for payment mentioned in the cheque to be maid within the 15 days. On....... + More

Bail Application - Smuggling - contraband drugs(heroin) - Whether a person accused of committing an offence under the penal provisions of the NDPS Act is entitled to the benefits of bail due to procedural defects or irregularities? - Whether the accused person can be released on bail if the offence which he/she allegedly commits as is found in the charge-sheet does not suffer the rigour of Section 37 of NDPS Act? HELD THAT:- The procedural defects or irregularities in course of investigation shall not be considered as fatal entitling the benefit of bail to the person accused of committing offence under the penal provisions of NDPS Act. In the instant case, the learned counsels appearing for the parties have tried to persuade this Court that charge- sheet has been filed, charges have been framed and four witnesses have already been examine....... + More

Dishonor of Cheque - the accused neither responded to the notice nor paid the demanded cheque amount - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Session Judge's Court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court? HELD THAT:- Section 138 of the N.I. Act mandates giving of a legal notice but it does not mandate that the said legal notice must be actually and physically placed in the hands of the accused. When a legal notice has been sent with the correct, complete and full address of the accused with appropriate postage and when the said notice was tendered to the accused, if the accused fails to accept the notice and thus fails to c....... + More

Direction to deposit 20% of the cheque amount in terms of Sec. 143-A of the Negotiable Instruments Act - offences punishable u/s 138 of the N.I. Act - discharge of legally enforceable debt due from the accused to the complainant - HELD THAT:- While it is true that there is no compulsion for the accused to plead/prove his defence or rebut the aforesaid presumption at the present stage of the proceedings, in the face of the aforesaid material on record and in the absence of any material to indicate the defence of the accused or that he has rebutted the presumption arising under Section 139 of the N.I Act, in the facts of the case on hand, it can not be said that the trial court exercised its discretion erroneously or improperly by passing the impugned order warranting interference by this Court under Section 482 Cr.P.C. The contention of th....... + More