Power to transfer cases u/s 127 - Stay on transfer of case - Period of limitation for passing an assessment - intra-Court appeal - This is a case where the assessment files are being transferred from one city to a neighbouring city hardly 158 kms. away, in the same State. What inconvenience can this cause to V.V. Minerals No.2, especially when they have business and offices in several cities? Held That:- We are aware that Section 127 of the IT Act does not create any geographical classification. Nevertheless, the judgments of Courts should not be read as Euclid's theorem, but, should be understood in the context in which they were rendered, and a blind and pedantic following of precedents is not expected of Constitutional Courts. First submission of Mr. Lakshmi Narayanan, Mr. Senthil Kumar submitted that V.V. Minerals No.2 had challen....... + More

No adjudication on the appeal - Counsel appearing for the Income Tax Department submits that there would not be an aversion to the Commissioner of Income Tax Appeal, in case an appropriate direction is issued for the adjudication of the appeal - HELD THAT:- Dispose of this writ petition with a direction to the 1st respondent to take a call on the appeal Ext.P2 or interim application preferred against the assessment order as expeditiously as possible, within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of hearing to the petitioner in accordance with law. Till such time, coercive action if any pertaining to Ext.P1 order is ordered to be kept in abeyance. It is made clear that the interim direction shall be operative only till the adjudication of the appeal.

Exemption u/s 11 - proof of charitable activity - Assessee was granted registration under section 12AA by order dated 20/06/1988 - non applicability of provisions of sec.2(15) - HELD THAT:- As decided in assessee's own case [2015 (7) TMI 169 - KARNATAKA HIGH COURT] referring to the provisions of the KIDA Act [Karnataka Industrial Areas Development Act, 1966], and principle laid down in the aforesaid decision of the HonbIe Delhi High Court in the case of India Promotion Organization [2015 (1) TMI 928 - DELHI HIGH COURT] in our view, will clearly show that the Assessee does not driven primarily by desire or motive to earn profits but to do charity through advancement of an object of general public utility. The assessee is operating on no profit basis. This is substantiated by the actual income received on operations of the Assessee and ....... + More

Condonation of delay - delay of 30 days - HELD THAT:- As on 22nd of April 2019 the learned CIT - A passed two orders in case of the assessee for same assessment year 2013 - 14 in two subject matters i.e. one was against the order passed u/s 143 (3) of the act and second was against the order passed u/s 154 of the act withdrawing MAT credit. On the legal advice, the assessee preferred an appeal, which was delayed by 30 days. According to us, delay was for the ‘sufficient cause’ and assessee did not derive any benefit by filing delayed appeal. Further, before ITAT, cause of justice must be served and pedantic approach should be abdicated. Therefore relying on the decision of the honourable Supreme Court in case of collector, land acquisition versus MST Katiji [1987 (2) TMI 61 - SUPREME COURT] we condone the delay and proceed to ....... + More

Revenue recognition of the work completed to the returned income - return was selected for scrutiny assessment under CASS - HELD THAT:- The assessee has recognized the revenue in Assessment Year 2015-16 onwards when the completion exceeded 30%. The reasons for the reduction in the estimated cost of project from ₹ 362 crores as on 31.03.2014 to ₹ 349.53 crores as on 31.03.2016 has been well explained at para 37 of the AS 7 which is mentioned elsewhere and the reason for reduction in the estimated cost so far as the case in hand is concerned is due to selling cost which was earlier taken at ₹ 25 crores which was reduced rs. 12.35 crores. It is pertinent to note that the assessment order for Assessment Year 2014-15 was filed on 29.09.2015. This means that the Assessing Officer was well aware of the revenue recognition in As....... + More

Disallowance u/s 40(a)(i) - Selling Expenses payments to non-resident agents - HELD THAT:- It is not in dispute that the issue is same as have already been considered in earlier year by the Tribunal [2017 (9) TMI 820 - ITAT DELHI]. The parties are also same. Tribunal examined the issue in the light of agreement and material on record and found that the agent had their base situated in Abroad and moreover services were also rendered by them outside. Therefore, assessee is not required to deduct tax at source while making payments in question. A.O. in the assessment order has also made disallowance since in earlier year also of the same issue and no TDS have been deducted. Therefore, the facts being identical, no disallowance is required in the matter. We, therefore, following the Order of the Tribunal in the case of assessee for the A.Y. 2010-2011, set aside the Orders of the authorities below and delete the addition. - Decided in favour of assessee.

Depreciation on Non-compete Fee @25% - HELD THAT:- Respectfully following the consistent view of the Tribunal [2019 (6) TMI 542 - ITAT MUMBAI] we direct the A.O. to allow deprecation on non- compete fee @ 25% by treating it as an intangible asset. Disallowance of depreciation on adoption of wrong actual cost of various fixed assets - HELD THAT:- As decided in own case [2019 (6) TMI 542 - ITAT MUMBAI] Co-ordinate Bench has restored this issue back to the file of Assessing Officer after placing reliance on the earlier order of Tribunal in assessee’s own case for assessment year 2006-07. Disallowance of interest under section 36(1)(iii) - AO held that the investments have been made by utilizing borrowed interest bearing funds in the aforesaid subsidiary companies AND the investment is unrelated to the business of assessee - HELD THAT:-....... + More

TP Adjustment - AMP expenses - international transaction or not - Admission of additional evidence - HELD THAT:- As held in various decisions that if the evidence goes to the very root of the matter and essential for rendering substantial justice, then, the same is required to be admitted. Since, in the instant case, the ld.CIT(A) has forwarded those additional evidences to the AO for his comments in the shape of a remand report and since the additional evidence goes to the root of the matter and are essential for rendering substantial justice, therefore, we do not find any merit in the grounds raised by the Revenue for admission of such additional evidence in violation of Rule 46A of the IT Rules. We find the Hon'ble Delhi High Court in the case of Jubilant Foodwork Pvt. Ltd. [2014 (8) TMI 353 - DELHI HIGH COURT] has held that the ex....... + More

Slump sale of windmills - Short term capital gains - definition of undertaking is given in 2(42C) and section 2(19) - AO denied the claim of the assessee treating the gains of the windmill as long term capital gains u/s 50B of the Act and treated the same as gains on depreciable assets u/s 50 - whether the windmill constitutes separate undertaking or not? - HELD THAT:- Though the assessee has not separately maintained the books of accounts, separate ledger accounts are maintained and claiming deduction u/s 80IA separately for the income generated from the individual units each year. As per the Profit & Loss account, we observe that the assessee is computing profits separately, from wind mills and in a position to ascertain the income and expenditure separately for the windmills as well as for the assessee's business. Coordinate Be....... + More

Validity of assessment u/s 153A - Presumption of the documents seizued u/s 292C - assumption of jurisdiction by the A.O under Sec. 153C - pre-mended Sec. 153C applicability - whether A.O had wrongly assumed jurisdiction under Sec. 153C of the Act, despite the fact that no money, bullion, jewellery or other valuable article or thing or any books of accounts or documents belonging to the assessee were seized during the course of the search proceedings conducted - scope of amendment to section - HELD THAT:- It is the date of search that has to be considered to be the relevant date for the purpose of applying the amended provisions of Sec. 153C(1) of the Act. As such, in the case before us as the search proceedings were conducted on Cosmos group on 24.09.2014, therefore, the provisions of pre-amended Sec. 153C (i.e prior to amendment w.e.f 01....... + More

Reopening of assessment - treating Exempt Interest and Rental income under section 10(24) as Taxable income of the assessee - non providing the sufficient opportunity of being heard, without providing the copy of recorded reason for issuing the notice under section 148 - HELD THAT:- Assessee has not filed any return of income U/s 139(1) of the Act and the A.O. has initiated reassessment proceedings U/s 147/148 by issuing notice U/s 148 on the basis of AIR information showing the interest income received by the assessee from SBBJ. Exemption claimed by the assessee U/s 10(24) of the Act was denied by the A.O. and consequently, the entire income as shown in the return of income has been assessed to tax while framing the reassessment order on 23/12/2017. Since no body has appeared and attended the proceedings before the ld. CIT(A), therefore,....... + More

Revision u/s 263 - bogus purchases - AO had not examined the genuineness of the purchase transaction - whether the PCIT is justified in setting aside the assessment order and directing the learned Assessing Officer to pass the assessment order de novo by calling relevant details, applying the relevant law in an objective manner? - HELD THAT:- PCIT perused the assessment order and assessment records and found that the assessment order dated 21/12/2017, passed by the learned Assessing Officer under section 147/143(3) was erroneous insofar as prejudicial to the interest of the revenue. The impugned order does not show that the review of the assessment order dated, 21/12/2017 by the JCIT is the sole basis for exercise of jurisdiction under section 263 of the Act by the ld. PCIT. Forward of the case by the JCIT is only triggered the process of....... + More

Revision u/s 263 - Case is selected for limited scrutiny u/s 143(2) - inadequate or no inquiry - Large other expenses claimed in the Profit & Loss A/c and Mismatch between income/receipt credited to P&L A/c considered under other heads of income and income from heads to income other than business/profession - HELD THAT:- It is not in dispute that under the limited scrutiny the Ld. A.O is required to keep his investigation and examination limited to the extent of the reasons for which limited scrutiny has been taken up. So his focus should be limited to the reasons but in such situation what is required from the A.O is to put best of his focus and pinpointed examination of information of the assessee so as to arrive at the correct income of the assessee. The file records should speak by itself that the A.O has given/delivered his b....... + More

Exemption of the indexed cost of acquisition and improvement - AO denied assessee claim of cost of improvement stating that he did not furnish any proof to substantiate cost of improvement on the sold property, Ld.AO also denied - HELD THAT:- Coming to quantification of construction/improvement carried out by assessee on plot purchased, there is mention of of some construction in the year 2005-06 being new building of 1400 sq.ft RCC roofing and shed 500 sq.ft with AC sheet roofing in valuation report dated 06/12/2012 by SPR Associates, placed at page 14 to Annexure 1 in paper book, The valuation report values new building constructed by assessee at ₹ 1,000/- per sq.ft and ₹ 800/- per sq.ft for shed, approximately valuing at 14 lakhs and 4 lakhs respectively. Further assessee has not been able to establish the balance amount be....... + More

Long term capital gain - section 45(2) applicability - Property received by assessee on partial partition of Hindu Undivided Family - expenses claimed u/s 37(1) - Properties held as stock in trade by the joint family before they were allotted to the respondent on partition - substantial question of law involving in the case or not? - whether tribunal was correct in law in holding that the provisions of Section 45(2) and 49(1) of the Income Tax Act are not applicable in respect to the property received by assessee on partial partition of Hindu Undivided Family and thereby deleting the long term capital gain? - as per tribunal cost of the properties received in partial partition of HUF to be adopted as claimed by the assessee under Section 37 (1) of the Income Tax Act as deduction while computing the income under the head ‘Profit and ....... + More

Time limit for completion of assessment and reassessment u/s 153 - Fresh Order passed in remand proceedings - whether order passed by the assessing officer is beyond the period of limitation as prescribed under Section 153(2A)? - HELD THAT:- As perused the submissions of the assessee, the paper book etc. from which it could not derived whether the assessee has received from MPSEB an amount to the extent of 85% of the cost of the equipment. Therefore, obviously, the CITA) has accepted the arguments of the assessee of its face value. The various circumstances as existing in the instant case go to raise a lot of doubt in the entire transaction. One aspect that is absent in the instant case is the enquiry from the State Electricity Board with reference to the sale invoice raised on the assessee, the lease agreement entered into with the asses....... + More

Stay petition - Direction to petitioner to pay 20% of the disputed demand pending disposal of the appeals but on an application preferred by the petitioner before the Principal Commissioner of Income Tax [2nd respondent] order was passed reducing the amount to 15% of the disputed demand - HELD THAT:- Petitioner is ready to pay an amount of ₹ 25,00,000/- [Rupees Twenty Five lakhs only] as against the demand in Ext.P6 order pending disposal of the appeals by the Appellate Authority. Taking note of the peculiar situation that existed during the pandemic period when the petitioner’s business has come under a lockdown, we deem it appropriate to dispose this writ petition by directing the 3rd respondent, before whom Ext.P2 series of appeals are pending, to consider and pass orders on the same, after hearing the petitioner, within si....... + More

Stay of recovery - petitioner paid an amount equal to 20% of the tax demand - Attachment over the bank accounts of the petitioner - HELD THAT:- Respondents have already recovered an amount of ₹ 1,51,00357/- from the petitioner through garnishee proceedings, and the appeal preferred by the petitioner against the assessment order has been heard finally by the 2nd respondent Appellate Authority, who is expected to pass orders in the appeal in the near future, there need not be a further recovery effected from the petitioner at this stage. Accordingly, while upholding the recovery already effected by the respondents for the time being, we deem it to be sufficient for safeguarding the interests of the revenue pending disposal of the appeal by the 2nd respondent. Writ petition is disposed, by directing the respondents to lift the attachme....... + More

Reopening of assessment - bogus purchases - According to AO, merely using of banking channels for payments could not establish the genuineness of the transaction, when the accommodation entry provider has himself on oath submitted that they are providing accommodation entry - HELD THAT:- Similar matter has been adjudicated by this Tribunal. It has been brought to my notice by the ld.AR of the assessee that this Tribunal has deleted similar addition in the case of M/s. M.B Jewellers & Sons vs. DCIT [2018 (5) TMI 1695 - ITAT KOLKATA] wherein on similar grounds/facts the additions made by the AO on the strength of statement of ShriRajendra Jain had been deleted. - Decided in favour of assessee.

Correct head of income - Interest from Fixed deposits made in connection with Contract business - income from ‘Other sources’ or ‘Business income’ - HELD THAT:- As noted that though the assessee has replied to the AO vide dated18-12-2017 the aforesaid facts like the FDR was used as security for obtaining the contract and was essential condition for bagging the contract, however, the assessee has not bothered to give any material/evidence to show that the interest accrued on the FDRs/deposit was incidental and that the main purpose of FDR’s was it was a condition for getting the contract or to avail the bank guarantee/security deposit/ E-money/tender money etc. As noted that the assessee only made these contentions, but failed to produce any material to substantiate his contention that the interest accrued fro....... + More

Addition u/s. 56[2] [viib] - method for valuation of the shares - equity and preference shares allotted by assessee to various residents at a premium of ₹ 800 per share - Discounted Cash Flow [DCF] method for valuation of the shares as per assessee v/s net asset method prescribed under Rule 11UA(1)(c)(b) as per revenue - HELD THAT:- As decided in M/S. VBHC VALUE HOMES PVT. LTD., M/S. VBHC VALUE HOMES PVT. LTD.[2020 (6) TMI 318 - ITAT BANGALORE] it is seen that the Tribunal has followed the judgment of Hon’ble Bombay High Court rendered in the case of VODAFONE M-PESA LIMITED VERSUS PRINCIPAL COMMISSIONER OF INCOME-TAX AND 6 OTHERS [2018 (3) TMI 530 - BOMBAY HIGH COURT] and restored the matter back to the file of the AO for a fresh decision with some directions that AO should follow DCF method only and he cannot change the method opted by the assessee as has been held by the Hon’ble Bombay High Court. Grounds raised by the assessee are allowed for statistical purposes.

Penalty u/s 271(1)(c) - non specification of charge - defective notice - Disallowance on account of interest - AO has to prove that there was concealment of particulars of income or that the assessee has furnished inaccurate particulars of such income - HELD THAT:- A bare perusal of the notices issued to the assessee u/s 274 read with section 271(1)(c) of the Act goes to prove that assessee has not been called upon to explain if it has concealed the particulars of income or furnished inaccurate particulars of such income. As relying on Manjunatha Cotton [2013 (7) TMI 620 - KARNATAKA HIGH COURT] we are of the considered view that when the assessee has not been specifically made aware of the charges leveled against it as to whether there is a concealment of income or furnishing of inaccurate particulars of income on his part, the penalty u/s 271(1)(c) of the Act is not sustainable. - Decided in favour of assessee.

Disallowance of miscellaneous expenses - non business expenses - HELD THAT:- As noticed that due to the bad conditions of the road and since it is hilly terrain due to the incessant rain and bad weather the conditions of the road are bad and, therefore, the truck drivers incurred expenses for repairs of the trucks, (frequent tyre burst etc.) for which the local repair shops insist on cash and were reluctant to give any bills/vouchers. The truck drivers claimed the refund from the assessee the expenses through self made vouchers and since the assessee’s central office is at Kolkata it was not possible to collect all the vouchers. These expenses in cash duly shown in the ledgers and books regularly maintained in the course of business and later are put cumulatively under the head ‘Miscellaneous Expenses’ for which only sel....... + More

Disallowance u/s 14A r.w Rule 8D(2)(iii) - assessee had offered a suo motto disallowance - HELD THAT:- As relying on own case [2019 (10) TMI 995 - ITAT MUMBAI] we restore the matter back to the file of learned AO on similar lines. The learned AO is directed to reappreciate the disallowance made by the assessee and invoke Rule 8D only if not satisfied with assessee’s working of disallowance. It is made clear that if the disallowance is computed in terms of Rule 8D(2)(iii) then apart from the directions of Ld. CIT(A) to exclude certain investments, those investments which have not yielded any exempt income during the year under consideration would also be excluded as per the decision of ACIT Vs. Vireet Investment (P.) Ltd. [2017 (6) TMI 1124 - ITAT DELHI]. Accordingly, Ground No.1 of assessee’s appeal may be treated as partly al....... + More

Penalty u/s 271 (1)(c) - defective notice - as per AO assessee has furnished inaccurate particulars by claiming ‘Provisions of Fines & Penalties’ in its ITR and concealed the income to that extent - HELD THAT:- AO has not made it clear under which limb of the provisions of Section 271(1)(c) of the Act, the penalty is being levied. There is glaring discrepancy between initiation of the penalty and levy of penalty. This is a jurisdictional issue arising out of the penalty order before us. DR heavily relied on the judgment of Sundaram Finance Ltd. Vs CIT [2018 (5) TMI 259 - MADRAS HIGH COURT] and argued that the Hon’ble High Court held that where notice did not show the nature of default, it was a question of fact. The assessee has understood purport and import of the notice, hence, no prejudice was caused to the assess....... + More

Grant of Statutory Bail - offence under Section 132(1)(b) & (c) and 132(5) of the CGST Act 2017 - inability to deposit cash security - it is the contention of the petitioners that due to Covid-19 pandemic, the family members are unable to raise funds and deposit the amount - HELD THAT:- The petitioners are ordered to be released on bail on executing their own bond for a sum of ₹ 50,000/- each, before the Superintendent of the concerned prison, in which the petitioner has been confined and thereafter on their release - each of the petitioners shall furnish two sureties who shall deposit title deeds of immovable properties each to the value of ₹ 20lakhs before the Additional Chief Metropolitan Magistrate (EO-I), Egmore, Chennai within four weeks from the lifting of the lock down or the commencement of the Court's normal functioning, failing which the bail granted by this Court shall stand dismissed automatically.

Filing of Form TRAN-1 - transitional credit - time limitation - vires of Rule 117(1A) of Haryana GST Rules, 2017 - HELD THAT:- The Petitioner has challenged vires of Rule 117 (1A) of Rules, however we do not think it appropriate to declare it invalid as we are of the considered opinion that Petitioner is entitled to carry forward Cenvat Credit accrued under Central Excise Act, 1944. The Respondents have repeatedly extended date to file TRAN-I where there was technical glitch as per their understanding. Repeated extensions of last date to file TRAN-I in case of technical glitches as understood by Respondent vindicate claim of the Petitioner that denial of unutilized credit to those dealers who are unable to furnish evidence of attempt to upload TRAN-I would amount to violation of Article 14 as well Article 300A of the Constitution of India....... + More

Exemption from GST - service of providing vocational training courses at Vocational Training Centre, Bankura - applicability of entry no 64 or 66 of Notification 12/2017 - Central Tax (Rate) dated 28/06/2017 (State Notification No. 1136-FT dated 28/06/2017), as amended time to time - HELD THAT:- The applicant is not the Government or local authority. Entry No. 64 of the Exemption Notification is not, therefore, applicable. A reference is made to the services provided by the applicant as a project implementation agency under the Deendayal Upadhyaya Grameen Kausalya Yojana. It is exempt under Entry 71 of the Exemption Notification. However, the applicant provides no evidence that BEMVT is acting as a project implementation agency under the above scheme. Clause h(ii) of the Exemption Notification defines an “approved vocational course&....... + More

Requirement for registration of Liquidator under GST - Sale of assets of company in Liquidation - HELD THAT:- NCLT appoints the ‘resolution professional’ (hereinafter RP), as defined under section 3 (27) of IBC, as the liquidator subject to her consent. If she is already registered as a distinct person of the corporate debtor in terms of Notification No. 11/2020 - Central Tax dated 21/03/2020, she should continue to remain registered till her liability ceases under section 29 (1) (c) of the GST Act. It may be noted that the RP/liquidator acts as the authorized person of the corporate debtor. Once an insolvency professional takes registration as the authorized person of the corporate debtor, it remains in effect with suitable amendment in the certificate of registration if the status or person of the authorized person gets chan....... + More

Levy of GST - Maintenance and Repair Contract with respect to the machinery and equipment it had supplied - reverse charge mechanism - N/N. 10/2017 - Integrated Tax (Rate) dated 28/06/2017 - HELD THAT:- The MARC Holder maintains suitable structures in terms of human and technical resources at the sites of BCCL. It ensures supervision of the equipment, supply of spares and consumable and overheads for 5000 annual working hours for seventeen years, indicating sufficient degree of permanence to the human and technical resources employed at the sites. The MARC Holder, therefore, supplies the service at the sites from fixed establishments as defined under section 2 (7) of the IGST Act. The location of the supplier should, therefore, be in India in terms of section 2 (15) of the IGST Act. Supply of the MARC Holder to BCCL is not, therefore impo....... + More

Classfication of supply - supply of patent-applied LED stem (long bulb) with fittings when both are manufactured in the applicant's factory and supplied as a single unit - GST Tariff Code - rate of GST - Composite supply or Mixed Supply - HELD THAT:- Chapter 94 falls under Section XX which covers 'Miscellaneous Manufactured Articles'. Lamps and light fittings can be of any source and made of any material. Further, those lamps and light fittings covered under Chapter 85 are not covered under this heading by the specific exclusion in the Chapter Notes. Further, lamps for exterior lighting are covered under CTH 9405. In the instant case, the product is a LED lamp fixture with LED light integrated into it which can function independently as garden lights. Therefore, they are classifiable under CTH 94054090 as 'others electric ....... + More

Search and Seizure - presence of witnesses in case of search - Sealing of premises of petitioner - Section 67 of the CGST Act - allegation of evasion of tax - HELD THAT:- In terms of sub-section 10 of Section 67, presence of two or more independent and respectable inhabitants of the locality is necessary as witness to the search. The search is yet to take place in the present case and the counsel for respondents has duly assured this court that the aforesaid provision will be complied with therefore no direction in this regard at this stage is required - Another submission of counsel for petitioner is that the search should be carried out in the presence of the Advocate, but counsel for petitioner has failed to point out any statutory provision or any such legal right in favour of the petitioner. The submission of the counsel for petitioner to carry out the search and seizure operation in the presence of the petitioner cannot be accepted - Petition dismissed.

Refund of Input Tax Credit - exports of goods outside India - Zero rated supplies - Section 54 of the Central Goods and Services Tax Act, 2017 - denial of refund on the ground that petitioner had exported goods through foreign Post Offices, while Notification dated 04th June, 2018 read with Circular No.14/2018-Customs dated 04th June, 2018 has notified Exports by Post Regulations, 2018 w.e.f. 21st June, 2018 which provides for an entry to be presented to proper officer at the foreign Post Office of clearance - HELD THAT:- Issue Notice. List on 9th September, 2020.

Filing of Form TRAN-I - availment of credit of excess VAT reflected in Returns - technical glitches on the GST Portal - vires of Rule 117(1A) of Haryana GST Rules, 2017 - HELD THAT:- The Petitioner has challenged vires of Rule 117 (1A) of Rules, however we do not think it appropriate to declare it invalid as we are of the considered opinion that Petitioner is entitled to carry forward Cenvat Credit accrued under Central Excise Act, 1944. The Respondents have repeatedly extended date to file TRAN-I where there was technical glitch as per their understanding. Repeated extensions of last date to file TRAN-I in case of technical glitches as understood by Respondent vindicate claim of the Petitioner that denial of unutilized credit to those dealers who are unable to furnish evidence of attempt to upload TRAN-I would amount to violation of Arti....... + More

Delay in filing GST returns - demand notice includes the interest and as well as the gross tax whereas it should have been on the net tax excluding the input tax credits - HELD THAT:- This writ petition is disposed off directing the 1st respondent to afford an opportunity of being heard to the petitioner with regard to the details expressed in the representation and take a decision as expeditiously as possible within a period of two months from the date of receipt of a copy of this judgment. It is made clear that till such time, the operation of Exhibit-P7 demand notice is ordered to be kept in abeyance.

Levy of GST - charitable trust - appellant providing legal, medical, psychological and financial support to the women and their children surviving violence and abuse - supply of services or not - reverse charge mechanism - HELD THAT:- The applicant makes payments not to the supplier of the services, but as financial support in the form of reimbursement to the recipient survivor. It is, therefore, not liable to pay GST based on reverse charge mechanism on such payments - The applicant does not charge any consideration for facilitating the legal aid and other assistance. Such activities of the applicant, therefore, does not result in ‘supply’ of service as defined under section 7 (1) of the GST Act. The applicant is not, therefore, liable to pay tax thereon.

IT software related consulting services - Export of services or not - services provided by the applicant to the foreign client through the Principal - ITC claim - payment of fees received by him in INR from the Principal - Export Remittance - levy of IGST or CGST and SGST - HELD THAT:- In the instant case, the applicant provides IT software related consulting services in the area of Oracle ERP w.r.t Oracle Financials to Doyen for a consultancy fee laid down in the consultancy agreement. Therefore, the said activity satisfies the conditions of Section 7(1){a) and is a supply under GST. As per Para 5 of Schedule II read with Section 7(1A), this supply is a supply of services. Therefore, the applicant is liable to pay GST at appropriate rates on the supply of consultancy services to Doyen. In respect of the questions whether, such supply of ....... + More

Maintainability of Advance Ruling application - issue pending before the Jurisdictional authority - Classification of goods - Unmanufactured Chewing Tobacco - applicability of N/N. 01/2()17-Compensation Cess-(Rate) - HELD THAT:- As per the first proviso to Section 98(2) of CGST/SGST Act, 2017 the authority shall not admit the application where the question raised in the application is already pending or decided in any proceeding in the case of an applicant under any of the provisions of this Act. In the case at hand, it is established that on the issues raised by the applicant before this authority, the Central Tax authorities have initiated proceedings and the same is pending before the Jurisdictional authority at the time of filing of this application. Therefore, the application cannot be admitted and is to be rejected without going into the merits of the issue.

Residential Complexes or not - building consists of more than one residential unit - One unit is occupied by the customers and the other units are occupied by his father, brother and sister, who are all not depending upon the customer, Single residential unit or not - N/N. 11 of 2017-CT(Rate) dated 28.06.2017. HELD THAT:- Advance ruling can be extended only in respect of supplies made or intend to be made by the applicant based on the facts of such supply. As the details or transaction of supply on which advance ruling is sought is not furnished the application cannot be admitted and Accordingly rejected. The application is not admitted as the applicant failed to furnish the details of supply made or proposed to be made by him for which ruling was sought.

Classification of goods - rate of GST - Knitted Fabrics - Woven Fabrics - Woven Fabric bonded with Non-woven Fabric - Covers for pillow, latex block, mattresses - Foot Runner - Pillow Sheet - Chenille Yarn - Poly Propylene Extrusion Yam - Poly Propylene Texturized Yarn - Polyester Texturized Yarn. Knitted Fabrics - HELD THAT:- ‘Knitted Fabrics’ manufactured and Supplied by the applicant is classifiable under CTH 60. Further classification is not possible as only further technical details are not provided. The applicable rate is 2.5% CGST provided vide Sl.No.221 of Schedule I of Notification 1/2017 CT(R) dated 28.06.2017 as amended and 2.5% SGST provided vide S.No. 221 of Schedule I of Notification No. II(2)/CTR/532(d-4)/2017 vide G.O. (Ms) No.62 dated 29.06.2017. Woven fabric - HELD THAT:- ‘Woven fabric’ manufactur....... + More

Classification of goods - Chewing Tobacco - product intended for manufacture - applicable rate of Compensation Cess - HELD THAT:- The cutting process prescribed in this note is along with the remarks ‘but not tobacco ready for smoking’. This explanation of HSN clearly brings out the classification in the Customs tariff at 240120, which covers tobacco products for further manufacture and not for consumption as such as in the case of the applicant. From the explanation given by ICAR-CTRI Central Tobacco Research Institute and Explanatory General notes to chapter 24, it is seen that only tobacco which is cured at farm level for before supply to market would fall under this classification as ‘Unmanufactured tobacco’. The fermentation that the applicant claims is by adding jaggery water does not get covered under this. ....... + More

Classification of goods - Tank and all Tank parts supplied by applicant - whether classified under the HSN code “87100000-Tank and other armoured fighting vehicles, motorized, whether or not fitted with weapons and parts of such vehicles”? - Whether parts manufactured specifically by applicant for TANK shall be considered under 87100000? - Whether parts and accessories supplied by their vendor specifically manufactured for Tank Parts and the same is not supplied to any other company will come under the HSN 87100000? - HELD THAT:- Tank is classified under CTH 8710 0000 while parts which satisfies the essential conditions i.e., they must be identifiable as being suitable for use solely or principally with Tanks and must not be excluded by the provisions of the Notes to Section XVII and must not be more specifically included in e....... + More

Applicability of GST - transactions between TANGEDCO Ltd. & TANTRANSCO Ltd, engaged in the generation and distribution of electricity - Deposit Contribution Works - TANGEDCO, Government Entity or not - Transmission Charges for Natural Gas. GST applicability on the transactions between TANGEDCO Ltd. & TANTRANSCO Ltd - HELD THAT:- Activity of payment of expenses incurred by TANTRANSCO relating to vehicle hire charges, maintenance of sub-stations, salary payments, etc and paid by TANGEDCO & accounted as receivable in the books of the applicant. The said activity is not one involving services of distribution of electricity and therefore the exemption under Sl. No. 25 of Notification No. 12/2017-C.T. (Rate) dated 28.06.2017 is not available for the stated transactions - Activity at Sl.No. 5 of Para 5.2 relates to receipt of Service....... + More

Credit of CGST sanctioned previously - final refund of balance amount - HELD THAT:- They pray for and are permitted to obtain instructions on or before the next date of hearing. List the matter on 10th July, 2020.

Refund of excess amount - transitional credit - HELD THAT:- The respondent vide order dated 24.06.2020 has now categorically accepted that there was excess amount, which is liable to be refunded to the petitioner. The petitioner had also adjusted the same from transitional credit availed by the petitioner towards its tax liability - the question of payment of interest by the petitioner under Section 50 of the said Act, does not arise as the said amount is sought to be refunded. The writ petition is therefore liable to be closed in the light of the subsequent order dated 24.06.2020 of the respondent. Petition disposed off.

Seizure - Smuggling of Gold - offences under sections 133 and 135 of the Customs Act, 1962 - HELD THAT:- It is seen that the petitioners have committed very serious offence and the offences registered against the petitioners are clearly attracted. Moreover, they have been arrested and remanded to judicial custody. Further, there is apprehension that the accused persons would have continued in indulging in mobilising gold in huge quantity. Therefore, this Court is not inclined to grant bail to the petitioners, and these criminal original petitions are dismissed.

100% EOU - shortage of imported materials and non-movable items - Import of silk yarn and grey silk fabrics without payment of duty availing relevant Notifications 53/2007 & 52/2003 - HELD THAT:- The officers of DRI have found in addition to the shortages detected by the auditors, shortages in respect of goods claimed to have been re-imported by the appellants in consequence to the rejection of the same by the foreign buyer. The appellants have argued that as the warehousing period is not over, the demand is premature. Whereas, we find that Learned Commissioner has confirmed the demand in terms of the Notification No. 53/97 dated 03.06.1997 and 52/03 dated 31.03.2003 as the goods were neither utilized within the prescribed period nor any extension was sought. It is found that among other conditions, Notification No. 52/2003 requires t....... + More

Classification of imported goods - Micropore, Transpore and Tegaderm - whether eligible for exemption contained in notification No. 21/2002-Customs dated 01/03/2002 as amended from time to time or not - contention of the appellants is that their products are rightfully eligible for the exemption contained in the notification under the description “Skin Barriers Micropore Surgical Tapes”, whereas Department contends that there exists a product which suits the description “Skin Barriers Micropore Surgical Tapes” and the notification should not be read as per convenience. HELD THAT:- The department has established that a product named and known as “Skin Barriers Micropore Surgical Tapes” exists. The evidence of the same has been supplied as RUD to the appellants. Under such circumstances, the appellants co....... + More

Valuation of imported goods - LED TV of different models and empty pendent box - enhancement of value of goods based on NIDB data - HELD THAT:- We are convinced with the order passed by the Ld.Commissioner, merely on the basis of NIDB Data without following the provisions of Customs Act and Valuation Rules. In various decisions, it has been held that the NIDB Data cannot be substituted for Customs Valuation Rules. In case of CENTURY METAL RECYCLING PVT. LTD. AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [2019 (5) TMI 1152 - SUPREME COURT], the Hon’ble Supreme Court has given a categorical decision that the valuation has to be ascertained only by complying with the provisions of Section 14 of the Customs Act, 1962 read with Customs Valuation Rules, 2007. As the Ld. Adjudicating Authority has completely ignored the provisions of Customs Act and Valuation Rules, we are of the view that the impugned order is not sustainable. Appeal dismissed - decided against Revenue.

Sealing of Complete Warehouse - grievance of the petitioner is that the rented warehouse of the petitioner, the petitioner has not been able to use the said warehouse despite the petitioner paying the rent to the landlord - HELD THAT:- Mr. Harpreet Singh has taken instructions and he states that the petitioner may approach the respondents today, or tomorrow, and that necessary orders would be passed for placing the goods in question in a bonded warehouse, and deasealing of the petitioner’s warehouse, so that the petitioner could put the same to use. So far as the petitioner’s prayer for a direction to the respondents to pay the rent for the period that the rented warehouse premises have remain seized is concerned, in these proceedings, we are not in a position to pass any such directions as the same would involve determination....... + More

Condonation of delay in filing appeal - Time Limitation - appellant had challenged the order of 4th December, 2012 before Commissioner (Appeals) but after a delay of more than 90 days from the date of order - Section 35 of CEA, 1944 - HELD THAT:- The appellant had challenged the order of 4th December, 2012 before Commissioner (Appeals) but after a delay of more than 90 days from the date of order. It is apparent from the appeal that the Order-in-Original was received by the appellant on the date of order itself, as it is mentioned in para (xii) of the appeal. The delay despite admitted receipt of the order is opined to be highly unreasonable. The only ground taken for the said delay is the change of lawyer. The said ground is not supported by any document nor even the affidavit of any of the lawyers to this effect has been filed. Otherwis....... + More

Revocation of CHA License - forfeiture of security deposit - penalty - fraudulent import of Areca Nuts and Black Pepper - misdeclaration of country of origin and thereby mis-using ISFTA and SAFTA - HELD THAT:- The respondent commissioner passed the impugned order of revocation and penalty without examining any evidence, and without ensuring that the appellant CHA/CB is given proper opportunity of hearing to meet the allegations in the show cause notice. Neither the evidence were seen by the Adjudicating Authority, nor a copy of the same was provided to the appellant, CB. This error is glaring, particularly in respect of the investigation by the DRI, Bangalore, as no report for the same is even cited in the show cause notice or suspension order. It is further evident that when the Adjudicating Authority himself did not have the relied upon....... + More

Smuggling - Gold Bars - concealment of Gold Bars in the socks arriving from the Dubai Airport - Retraction of statements - Absolute Confiscation - Penalties - HELD THAT:- The appellant firstly concealed the gold bars in his Socks and also not declared to the Customs. This clearly shows the intention of the appellant to avoid declaration as well as evasion of duty. There is no evidence to show that the appellant had bona-fide belief and intend to declare the gold bars and pay the Customs duty. In this circumstances the gold bars brought by him from Dubai is clearly liable for confiscation. Confiscation of goods - Retraction of statements - HELD THAT:- even if the statement recorded under 108 is not considered the fact of smuggling of gold by the intercepting by the Customs Officer is not in dispute, therefore, the act of smuggling of gold ....... + More

Levy of Anti-Dumping Duty - Import of the Nylon Multi­Filament Yarn originating in or exported from China PR, Korea RP, Taiwan and Thailand on provisional assessment basis - It is the case of the writ applicants that the failure on the part of the respondent No.1 is causing injury to the domestic industry - Principles of Natural Justice - opportunity of hearing sought - HELD THAT:- We may only say that the respondent No.1, Union of India, shall look into the recommendations made by the designated authority and take an appropriate decision in accordance with law within a period of eight weeks from the date of the receipt of the writ of this order. Application disposed off.

Release of Drawback amount payable to petitioner - HELD THAT:- We are surprised to hear that despite the letter dated 19.03.2019 addressed by the respondent No.2/DRI to respondent No.1/ Commissioner of Customs, no steps have been taken by the latter so far to release the drawback amount payable to the petitioner in respect of the Shipping bill dated 09.10.2015 - Mr. Harpreet Singh, learned counsel for the respondent No.1 states that he may be permitted to obtain instructions from the Department. List on 29.06.2020.

Refund of SAD - Chartered Accountant Certificate which was required to be submitted along with claim of refund in terms of Notification No. 102/2007-Cus. Dt. 14/09/2007 was issued after the death of the said Chartered Accountant - CBEC Circular No.06/2008-Cus. dt. 28/04/2008 - HELD THAT:- It is the request of the appellant that issue may be remanded to the Original Adjudicating Authority to examine the issue regarding non-availment of Cenvat Credit in terms of the Notification and Circular. It is also the fact that the refund was sanctioned by the Refund Sanctioned Authority which was not reviewed and fresh Show Cause Notice was issued for recovery of the refund sanctioned. However, since the request of ld. Advocate is only for remand. It is fair to the both appellant and Department to have a re-look of the Chartered Accountant Certificate and deal with the issue as per law - Appeal allowed by way of remand.

Validity of investigation conducted by a investigating officer - It is the grievance of the petitioner that the respondent have been harassing him under the guise of an enquiry/investigation and hence, has invoked the inherent powers of this Court under Section 482 of Cr.P.C. - HELD THAT:- In the present case in hand, the petitioner has complained of harassment by the respondent based on a complaint and seek for this Court's intervention by way of a direction. The term 'harassment' by itself has a very wide meaning and hence, what could be harassment to the petitioner may not be the same to the investigating officer. While summoning any person named in the complaint or any witness to the incident complained of, the investigating officer shall summon such person through a written summon under Section 160 Cr.P.C., specifying a p....... + More

Habeas Corpus Petition - Validity of Detention Order - Smuggling - Gold - It is the contention of the respondents that earlier, the petitioner was arrested for having smuggled 1200 grams of gold - HELD THAT:- The orders of remand passed against the petitioner were not furnished to her depriving her fundamental right to submit an effective representation to the detaining authority for revocation of the detention order. Therefore, the petitioner is entitled to succeed on this ground and consequently, the impugned order of detention is liable to be quashed. The Habeas Corpus Petition is allowed.

Seizure of Gold - provisional release of goods - Section 110(2) of the Customs Act 1962 - HELD THAT:- The facts with regard to seizure of the gold the extension of time and its communication to the petitioner much less issuance of the ordinance are not in dispute. Sub-Section 2 of Section 110 of the Customs Act and proviso added later on enables the Principal Commissioner of Customs or Commissioner of Customs to give further period of six months by informing the person after recording the reasons which, in the instant case has already been done. However, the extension would not come into play in case the goods are provisionally released under Section 110(a). The equity can be struck by issuing directions to the respondent for deciding the request submitted vide Ext.P5 for provisional release of the goods in accordance with law after affording an opportunity of hearing to the petitioner - Petition disposed off.

Exemption for Customs duty - import of three textile machines - inclusion of new items in the exemption - Amendment is retrospective or prospective - Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 - HELD THAT:- The question whether the relevant customs notification was retrospective in nature becomes academic. However, since the Director General of Foreign Trade had declined to grant relief to the company holding that the said notification had no retrospective effect and the learned Single Judge, on the other hand, allowed the writ petition taking a contrary view, the said issue is also addressed - aforesaid notification dated November 04, 1999, was introduced for further amending the notification No. 29/97-cus dated the 1st April, 1997 and giving a retrospective effect would mean that the same would relate back to ....... + More

Cancellation of summons - Jurisdiction - Import of jewellery in violation of Baggage Rules - High Profile case - Connivance of the Police officers - prohibition on customs authority for initiating enquiry under Section 108 of the Customs Act, 1962 - offence under Section 133 of Customs Act - HELD THAT:- The Commissioner of Customs on 26th March, 2019 prima facie formed his opinion to enquire and seek presence of the petitioners in connection to an incident that occurred on the night of 15/16th March, 2019 and sought aid in enquiry directing Joint/Additional Commissioner of Customs, AIU, NSCBI, Airport, Kolkata to issue summons to the petitioners and the petitioners were directed to appear before Additional Commissioner of Customs (Airport Administration) on 8th April, 2019 for giving evidence and/or produces documents or things in relatio....... + More

Forged import licence - Imposition of penalty under Section 112 and 114 AA of the Customs Act - allegation that, the appellant have imported wireless transmitting/receiving apparatus, satellite communication equipment, etc. against the forged import licence purported to have been issued by the Wireless Planning and Coordination (WPC), Wing of the Ministry of Communication and Information Technology, Government of India. HELD THAT:- Though the WPC approvals were not appropriately issued, the investigations have not brought out categorically whether the equipments imported and cleared on the strength of such forged WPC approvals were in violation of technical norms prescribed for such equipment for importation or not. Also, no findings in this regard have also been given in the impugned order-in-original. It is also noted that for the equip....... + More

Valuation - rejection of declared value - import of Synthetic Rubber PBR Non Oil Off Grade Loose Lumps in Super Sacks Packing - Confiscation - Penalty - HELD THAT:- The CIPET Test Report supports the correct description of the impugned goods in the Bills of Entry, which is rather more detailed than mentioned in the CIPET Report and thus there is no misdescription. We also find that there is no admission of Appellant admitting to undervaluation, or of any extra financial consideration apart from the declared transaction value, paid to the overseas supplier. Further, there is no evidence that the appellant and overseas supplier are related parties or that the invoice value was not the transaction value. The Department has failed to show any contemporaneous evidence of higher price, and thus the transaction value cannot be rejected, as held ....... + More

EPCG Scheme - import of the Mercedes car - allegation for use for personal purpose of director - concessional rate of Customs Duty - N/N. 97/2004CUS - export of service under “Tour and Travels services” as per prevailing the import - export policy - Circular No. RE-08/20032004 dated 7 May 2008 - HELD THAT:- since the imported capital good being a car which is a movable capital equipment and there is no allegation in the show cause notice or in the findings given in the order-in-original that the capital goods imported under the EPCG licence have been found in possession of the importing firm and its Director and was found parked at the residence of the Director - there are no violation of the condition of the EPCG licence has been done on this count as the vehicle found in the possession of the importing firm and no evidence h....... + More

Maintainability of appeal - time limitation - appeal rejected on the ground that same has not been filed in time as provided under Section 128 of the Customs Act, 1962 which required that an appeal need to be filed before Commissioner (Appeals) within a period of 60 days from the date of the communication of the order-in-original - HELD THAT:- Even if the order of final assessment has been sent by the registered post to their Johari Bazar address same cannot be considered as the proper service of the order as per the provision of Section 153 of the Customs Act, 1962. Since the appellant were not available at the given address, we find that date of receipt of the order need to be taken as 25 July 2015 on which the order was actually been provided to the appellant and statutory time limit may be calculated from this date as provided under S....... + More

Reimbursement of liquidation expenses of vessels/tugs - winding up of company - HELD THAT:- The official liquidator has rightly rejected the claim for supply of food provision on board on 4th September, 2017 in the sum of ₹ 42,040/-. The claim for port charges in the sum of ₹ 6,51,473/- is rightly rejected on the ground that official liquidator had taken possession on 6th February, 2018 and as the same were neither approved by this Court nor informed to the official liquidator prior to incurring such expenses and thus could not be considered as liquidation expenses. The manning expenses were incurred by the applicant without permission of this Court and without conveying such expenses to the official liquidator before taking possession by the official liquidator. The official liquidator rightly rejected the claim for reimburse....... + More

Fraud/cheating - damaged/second hand vehicle - primary allegation of the complainant/respondent No. 2 is that all the petitioners have cheated her by giving a different vehicle, which was not booked by her and the said vehicle was second-hand defective vehicle, for which she cannot run the vehicle - HELD THAT:- The selling of vehicle by the manufacturer to the dealer and the purchase of vehicle by customer from the dealer by its own choice by executing all necessary documents and it is a purely business transaction. The dealer while selling a vehicle obviously explained the features/benefits to its customer and equally the customer by its option purchased such vehicle and such transaction cannot be termed as an inducement on the part of the manufacturer/dealer/ sub-dealer within the purview of law. In the given case, there is nothing to r....... + More

Oppression and Mismanagement - Transfer of Shares - siphoning of funds - act of oppression against the minority shareholders or not - petition filed after a delay of 4 years of cause of action - failure on the part of respondents in their capacity as directors of the company to comply with the fiduciary duty towards expulsion of petitioners Nos. 1 and 2 - increase of share capital. Whether the company petition filed after a delay of 4 years of cause of action is maintainable? - HELD THAT:- The facts are overwhelmingly loaded against the respondents as the acts of oppression and mismanagement are continuing till date. Considering the facts of the present case the petitioners are continuously knocking the doors of various forums to redress their grievances since 2010 and finally filed this petition on April 5, 2013 under sections 397, 398 a....... + More

Rejection of prayer of the petitioner for delivery of possession of the premises/flat - Sub-Section (2) of the Section 452 of Companies Act, 2013 - HELD THAT:- The scheme referred to, the quarter/premises being part of the entitlement in terms of service and the settled principles of law which have spelt out the proposition regarding the provisions of Sub-Section (2) of Section 452 of the Companies Act (earlier Sub-Section (2) of Section 630 of the Companies Act, 1956), I am of the opinion that the accused/opposite party is unnecessarily dragging the issue relating to vacating the quarter/premises belonging to the company on different pretext. In view of the conduct of the accused/opposite party and the provisions of law along with the settled principles, it can be held that the order dated 17- 4-2019 passed by the Ld. ACJM, Durgapur is n....... + More

Maintainability of petition - oppression and mismanagement - Stay of the Extra Ordinary General Meeting - whether the Petitioners were successful in making out a case for interference by this Tribunal by invoking Section 241 and 242 of the Companies Act, 2013? - HELD THAT:- The reading of Sections 397 and 398 provides a right to members of a company who comply with the conditions of Section 399 (Section 244 of the New Act) to apply to the court for relief under section 402 of the Old Act (Section 242 of the New Act) or such other reliefs as may be suitable in the circumstances of the case, if the affairs of a company are being conducted in a manner oppressive to any member or members including any one or more of those applying. Therefore, we have to understand Section 399 of Old Act (Corresponding to Section 249 of New Act) to arrive at a....... + More

Whether Section 391 (6) of the Act empowered this Court to interdict the process, set in motion by the complaint, dated 15th February, 2019, addressed by NSDC to the EOW? HELD THAT:- The criminal proceedings cannot be stayed, under Section 391 (6) of the Act. “Civil proceedings” alone can be so stayed. In the present case, pursuant to the complaint, dated 15th February, 2019, addressed by NSDC to the EOW, the record reveals that the EOW is merely looking into the matter, for which purpose it had called the applicant, to appear before it, vide the notice dated 23rd April, 2019 supra. The said notice cannot even be termed a “show cause notice”, as it merely states that the complaint of NSDC was being looked into, and requested the applicants to appear, before it, in that regard. No action, prejudicial to the applican....... + More

Maintainability of application before NCLT - Notification dated 24.3.2020 issued by the Ministry of Corporate Affairs, New Delhi - default in the present case was below rupees one Crore - HELD THAT:- This issue has not been discussed by the National Company Law Tribunal at all. The petitioner is therefore permitted to approach against the said order dated 5.5.2020 passed by the National Company Law Tribunal before the National Company Law Appellate Tribunal, or file a review application before the NCLT itself. We are not inclined to entertain the present civil revision petition and we leave it free for the petitioner to approach the National Company Law Tribunal itself or the Appellate Tribunal, as the case may be, for raising the said issue. The amendment Notification dated 24.3.2020 depends upon the facts of the case and unless this iss....... + More

Grant of Bail - collusion in fraud - petitioner has been charge-sheeted under section 447 of the new Companies Act - HELD THAT:- There are no substance in the argument of the learned Counsel for the SFIO that the twin conditions prescribed under section 212(6) of the New Companies Act, 2013 start with negation of bail to the accused and the court could grant bail to such an accused only if the court records a satisfaction qua the accused being ‘not guilty’ of the alleged offence and also a satisfaction that if released on bail the accused is not likely to commit any similar offence again. Also this court does not find substance in the insistence of the learned counsel for the SFIO that the application of the twin conditions, as prescribed under Section 212(6), are mandatory and have to be applied to all the considerations of g....... + More

Disqualification from appointment as a Director - change of status of the petitioner in the records of the respondent Nos. 1 and 2 from the list of disqualified directors - unfreezing of Directors Identification Number and the Digital Signature Certificate (DSC) of the petitioner - Section 164(2)(a) of the Companies Act, 2013 - HELD THAT:- It is apparent that the petitioner is seeking a writ in the nature of mandamus directing the respondents No. 1 and 2 not to consider the petitioner as a disqualified director under Section 164(2)(a) of the Companies Act, 2013 and for a further direction to change the status of the petitioner in the records of the respondent Nos. 1 and 2 from the list of disqualified directors and consequently unfreeze the Directors Identification Number and the Digital Signature Certificate (DSC) of the petitioner - The....... + More

Jurisdiction of Writ Court - Transfer of shares - case of petitioner is that the 2nd respondent illegally misused the DP share transfer forms and committed fraud, cheating, breach of trust by transferring the share of 4.5% in their name, though the said transfer was directed to be kept in abeyance - HELD THAT:- The Hon'ble Supreme Court of India in the decision in JAI SINGH AND ORS. VERSUS MUNICIPAL CORPORATION OF DELHI AND ANR. AND VICE-VERSA [2010 (9) TMI 1235 - SUPREME COURT] has considered the nature and scope of power under Article 227 of the Constitution of India and held that The Exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a 'bull in a china shop' to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This corrrect....... + More

Fresh re-auction order - reserve price reduced in fresh auction - Company under liquidation - there was no participant in the first round - No cogent reason is reflected from the orders passed by the learned Company Judge in respect of grant of permission relating to reduction in the reserve price and re-auction was held - HELD THAT:- If the Court feels that the price offered in the auction is not the adequate price, the Court can certainly order for re-auction and in the present case, a person i.e. present appellant has offered ₹ 2,80,00,000/- more in the matter, and therefore, fresh auction is inevitable. Another important aspect of the case is that the sale was confirmed on 02.03.2020 in presence of advocate of respondent No.2 with a direction to deposit entire sale consideration within a period of 60 days from the date of the or....... + More

Reference of matter for arbitration - Works Contract - Invitation for tender for carrying out the balance work - privity of contract or not - Petition had sent pre-termination notice to respondent no.4, on the ground that respondent no. 4 had committed delay and breaches against the contractual delivery date of 12 months i.e. by 17th January, 2014 the respondent no.4 was not in a position to complete the said works - Micro, Small and Medium Enterprises Development Act, 2006 - HELD THAT:- There is no privity of contract between the petitioner and respondents no. 2 and 3 - In view of various clauses of the contract, there is nothing on record to show that respondent no.4 had taken consent of the petitioner to give sub- contract to respondent no.2, who in turn gave further sub- contract to respondent no.3. Moreover, this Court in order dated....... + More

Suppression of facts - Change in management - the petitioners did not seek any permission from BIFR for any change in the management - increase in authorized share capital - HELD THAT:- It appears that there are disputed questions of facts as stated by both the sides on affidavit. Moreover, it is also not in dispute that BIFR was functional when the interim order was passed by this Court. It appears that the petitioners have suppressed the material facts on record when the interim order was passed by this Court by pointing out that resolution dated 27.11.2015 was contrary to the directions of the BIFR in its order dated 18.2.2009. However, the petitioners did not point out that BIFR had already sanctioned the scheme on 17.7.2013 after taking into consideration the order dated 18.2.2009 and subsequent various orders passed from time to tim....... + More

Change of physical status of land - resume of possession of land - HELD THAT:- This Court is of the view that such a prayer cannot be granted at this stage, when there are no specific facts asserted on affidavit by the applicant as to when and by whom was the applicant informed about alleged construction activities on the subject land and the exact nature of such construction activities. Thus, there is no occasion for directing the Official Liquidator to file an affidavit to demonstrate that the physical condition of the subject land as was in existence in August, 2019 continues to be so on date. Application dismissed.

Principles of Res-Judicata - Maintainability of application - Winding up order - physical condition and status of the lands, over which the applicant claims a right - HELD THAT:- It defies comprehension as to how, in the face of the order, dated 24th April, 2020, and the observations entered, by this Court, in para 7 thereof, the applicant could maintain yet another application, with the very same prayer, without curing the defects/defaults highlighted in para 7 of the said order. There is no question, here, of application of the principle of res judicata. The fact of the matter is that an application containing an identical relief, already stands dismissed, by this Court, on the ground that such prayers could not be urged without, in the first instance, placing specific facts, on affidavit, regarding the alleged construction activities, ....... + More

Transfer of shares pending - right to subscribe for rights issue - HELD THAT:- The urgency expressed by the applicants is on account of the rights issue announced by Reliance Industries Ltd (RIL). The applicants claim that certain shares of RIL, which are registered in the name of CRB Capital Markets Limited (CCML) belong to them and their applications for transferring the said shares are pending. They claim that they should also be entitled to subscribe the rights shares of RIL based on their claim to shares of RIL registered in the name of CCML. This Court is not persuaded to accept that the rights entitlement of CCML to subscribe to the shares of RIL ought to be renounced in favour of the applicants. However, it the duty of the Official Liquidator to ensure that maximum value is realised for the assets of the CCML. If the shares of RIL....... + More

Transfer of shares pending - entitlement to subscribe right shares - HELD THAT:- This Court is not persuaded to accept that the rights entitlement of CCML to subscribe to the shares of RIL ought to be renounced in favour of the applicants. However, it the duty of the Official Liquidator to ensure that maximum value is realised for the assets of the CCML. If the shares of RIL are not subscribed or renounced, the entitlement would lapse and the same would be of no benefit to CCML or the applicants. In the circumstances, this Court considers it apposite to direct that its rights entitlement of CCML to subscribe to RIL’s shares be sold at the maximum value as available. Application disposed off.

Principles of Natural Justice - refusal to transfer the shares - principal grievance of the appellant in this appeal as well as as argued by the counsel for the appellant is, that the Company Judge has erred in disposing of the application of the appellant, without considering the merits thereof and in terms of the order dated 13th May, 2020 in applications of others and to which the appellant was not a party - HELD THAT:- The appellant, after the alleged purchase of shares in 1997 and refusal of transfer thereof to its name soon thereafter, remained quiet for nearly 14 years, till about October, 2011 when CA No.2436/2011 was filed for directions for transfer of the shares to its name and which application was opposed by the counsel for OL and probably owing to which opposition, the then counsel for the appellant deemed it appropriate to ....... + More

Grant of Interim Bail - COVID-19 pandemic situation - main thrust which has been canvassed by learned counsel for the applicants is that due to Covid-19 (Corona Virus) infection, the applicants being diabetic patients have great risk to their lives if they are kept in jail where there are much chances of they being infected by Corona Virus - HELD THAT:- As a result of fraudulent activities, the Company has defaulted against outstanding liabilities of ₹ 3578/- crores approximately to Banks and Public Financial Institutions thereby causing wrongful loss to them and their acts and omission are punishable under section 447 and 448 of the Companies Act, 2013. Learned Assistant Solicitor General appearing on behalf of the respondents through his objection filed has drawn the attention of the Court that the applicants have been arrested fo....... + More

Admiralty Act - action in rem - Is there a conflict between actions in rem filed under the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 and the provisions of Insolvency and Bankruptcy Code, 2016 and if so, how is the conflict to be resolved? - HELD THAT:- An action in rem can be filed and the ship arrested before the moratorium under Section 14 of the IBC comes into force or during the moratorium period or even when the corporate debtor is ordered to be liquidated. A maritime claimant ought to be permitted to enforce his right in rem and obtain an order of arrest of the ship in question. This will enable him to perfect and / or crystallize his maritime lien or maritime claim as available to him under the Admiralty Act. The action in rem will not proceed till the moratorium is in place. This will ensure that the rig....... + More

CIRP - Reimbursement of Compounding fees - Who is responsible for offence or compounding of offence under the Income Tax Act which was committed much before the initiation of CIRP proceedings - HELD THAT:- Admittedly the CIRP commenced vide order dated 7-8-2017 by the Adjudicating Authority under section 7 of the I&B Code and Mr. Savan Godiawala was appointed as Interim Resolution Professional and subsequently confirmed as Resolution Professional of the Corporate Debtor thereafter, vide order dated 27-8-2018 passed by the Adjudicating Authority, the Appellant Mr. Savan Godiawala was appointed as the Official liquidator of the Corporate Debtor i.e., Respondent No. 2. It is also admitted fact that on 31-3-2016 Income-tax Office, Shri Mandip ACIT, Income-tax Department filed complaint under section 276-B read with Section 278-B of the In....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - possession of apartment with stipulated time limit - HELD THAT:- In the present case, the Respondent emphatically contends that it could not commence construction despite approval of the building plan dated 23rd July 2013, as the said approved imposed certain pre-conditions including but not limited to (a) obtaining grant of approval by Ministry of Environment and Forest, (ii) Fire Safety Approval before the commencement of construction. The Respondent obtained environmental approval on 12th December 2013, and the said approval reiterated the requirement for approval of the Fire Department. Therefore, the Respondent applied for Fire Safety Approval on 23rd October 2013, before starting any co....... + More

CIRP Process - scope of Financial Creditor - whether the 'Inter-Creditor Agreement' devising a mechanism for enforcement of rights qua the 'Corporate Debtor' would bar an individual Creditor from triggering 'Corporate Insolvency Resolution Process' in the event of default qua outstanding liability in respect of its financial debt without the consent of other lenders forming the consortium of the same 'Corporate Debtor' - HELD THAT:- The statutory right across the ambit of Section 7 of the 'I&B Code' cannot be curtailed or made subservient to any 'Inter-Creditor Agreement'. The contractual rights, unless recognised by the statute as a permissible mode, would not override the statutory mechanism and right created and enforceable under statute - The language employed in this clause is eloqu....... + More

Approval of Resolution Plan - Section 31(1) of the Code - CIRP process - extension of CIRP period till 3-1-2019 - HELD THAT:- The resolution plan states that upon NCLT Approval Date, an Interim Monitoring Committee will be constituted. The constitution of the Committee is given in para no VIII of the plan. The terms of the plan and its implementation schedule is stated to be 90 days from the approval of the plan by the Adjudicating Authority. The RA will make full and final payment of ₹ 5150 lakhs to secured financial creditor i.e. SBI out of which ₹ 500 lakhs will be deposited at the end of 30 days from the approval of the resolution plan and the balance ₹ 4650 lakhs will be paid in an Escrow Account within 90 days from the approval of the resolution plan. The payment of ₹ 24.43 lakhs to operational creditors is p....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - scope of Financial Creditor - HELD THAT:- On detailed perusal of the clause 64 & 65 it is evident that a transaction will fall in the residuary clause (f) of section 5(8) under the category of financial debt, only if the transaction has commercial effect of borrowing, as such it will not fall within the category of financial debt. Moreover, Hon'ble Supreme Court in this clause 65 made reference to real estate allottee in order to conclude this observation which is not the case here as the transaction is in relation to purchase of land which does not fall within the ambit of real estate transaction. This bench is of the view that the contentions/ or claims being raised by the M/s. Vers....... + More

Maintainability of application - challenge on the ground that Winding up Petition against Shree Ram Urban Infrastructure Ltd. has already been admitted by the Hon'ble High Court of Bombay on 5th October, 2016 - HELD THAT:- The similar issue fell for consideration before the Hon'ble Supreme Court in Forech India (P.) Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. [2019 (1) TMI 1442 - SUPREME COURT]. In the said case, the Hon'ble Supreme Court noticed the pendency of the Application under sections 433 and 434 of the Companies Act, 1956 and winding up petition, being 42 of 2014 was filed by Forech India Ltd. before the Hon'ble High Court of Delhi. It was held by this Appellate Tribunal that since there was no winding up order by the Hon'ble High Court, the Financial Creditor's petition would be maintainable. As a re....... + More

Time Limitation - section 7 of the Insolvency and Bankruptcy Code, 2016 - CIRP process - HELD THAT:- The effect of Section 18 of the Limitation Act, 1963 is that an acknowledgment of liability in respect of a right made in writing and signed by the debtor before expiration of prescribed period for a suit or an application would result in a fresh period of limitation being computed from the time when acknowledgment was so signed. It is abundantly clear that such acknowledgment of liability must be made by the debtor in writing and signed by him before the expiration of prescribed period of limitation. The ample evidence brought on record by the 'Financial Creditor' and not disputed, denied or refuted by the 'Corporate Debtor' brings it to the fore that the financial debt is payable and the acknowledgment in writing before e....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Debt, as defined under the Code in section 3(11) means a liability or obligation in respect of a claim which is due from any person, and includes a financial debt or an operational debt. Such a debt would arise from a claim, as defined in section 3(6), i.e. from a right to payment in the hands of the Creditor. Such a right could arise from the terms and conditions agreed to by the concerned opposite parties, in the shape of a Contract or an Agreement or Board Resolution, if any, so that the same could be enforced in the case of default. Section 3(12) of the Code defines as non-payment of a debt when the whole or part or instalment of the amount of debt has become due and payable 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:- There is a violation of the consent terms which have been entered into between the financial creditor and the Corporate Debtor - The application made by the Financial 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.

Liquidation of Corporate Debtor - sections 33 & 34 of the Insolvency and Bankruptcy Code, 2016 - grievance of the Appellant is that he is against the appointment of the Liquidator - HELD THAT:- We are not inclined to interfere with the impugned order as after the liquidation the 'Committee of Creditors' has no role to play and they are simply a claimant whose matters are to be determined by the Liquidator and cannot move an application for removal of Liquidator in absence of any provisions under the law. Appeal dismissed.

CIRP Proceedings - Raising fresh demand of interest after approval of Resolution Plan - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Though the Applicants have mentioned in their respective applications that CD/RP assured them, payments of past invoices and protection of supplies made during CIRP as per IRP Cost, this Adjudicating Authority do not find any evidence, in the form of any communication, in black and white to prove their contentions. We have also observed that RP vide his e-mail dated 25-10-2018 informed the Applicant that all payments made on or after 18th July, 2017 until today have been against the supplies made by the Applicant since 18th July 2017 and the Applicant would be free to set off their bills against supplies made by the Applicant from 18th July 2017 o....... + More

Maintainability of application - Restoration of currency of CIRP without the knowledge and/or consent of the Applicant - HELD THAT:- The contention that this application is not maintainable is found devoid of any merit. As per section 66(1) of the Code, if the AA is satisfied that during the corporate insolvency process the directors of the CD withdrawn money from the bank account of the CD with an intent to defraud creditors or for any fraudulent purposes, pass an order against the person liable to make such contributions to the assets of the CD. As per section 74 (1) if the AA is satisfied that the CD or any of its officer violates the provisions of section 14, any such officer who knowingly or willfully committed such contravention shall be punishable with fine not exceeding 3 lack or with imprisonment not exceeding 3 years or with bot....... + More

Restoration of application - application was dismissed for non-prosecution - Government dues - Operational Creditor - HELD THAT:- It is clear that Government dues fall under the category of "Operational Creditor" inasmuch as '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, and State Government or any local authority are considered as 'Operational creditor' - To be more precise, these debts occur during the course of operation of the Corporate Debtor. Application disposed off.

Approval of Resolution Plan - relevant time for submission of resolution plan - HELD THAT:- Admittedly, the A-1 filed its resolution plan before the Adjudicating Authority on 13-2-2019 whereas, the last date for submission of Resolution Plan before RP was 15-10-2018. Resolution plan of successful Resolution Applicant i.e. Dera Finvest (P.) Ltd. (R-2) was approved by 98.72 % of the Committee of Creditor in e-voting conducted on 1-11-2018 and 2-11-2018. When the Resolution Plan is filed before the Adjudicating Authority then the Authority has to satisfy that the Resolution Plan approved by the Committee of Creditor fulfills the requirements as specified in Sub-Section 2 of Section 30. However the Adjudicating Authority cannot direct the CoC to consider the second Resolution plan submitted before the Authority although the second Resolution ....... + More

Voluntary Liquidation - applicability of provisions of Section 59 of the Insolvency and Bankruptcy Code, 2016 - whether the appeal under Section 42 of the 'I&B Code' is maintainable before the Adjudicating Authority (National Company Law Tribunal)? HELD THAT:- It is beyond controversy that 'M/s. TEIL Projects Limited' is undergoing Voluntary Liquidation Process contemplated under Chapter V of Part II of the 'I&B Code'. It is indisputable that Section 59 of the 'I&B Code' incorporated in Chapter V of Part II of the 'I&B Code' providing for 'Voluntary Liquidation of Corporate Persons' stands duly notified vide S.O. 1005 (E) dated 30thMarch, 2017 and has been enforced w.e.f. 1st April, 2017 - The conditions necessary for initiating a Voluntary Liquidation Process, as enumerated ....... + More

Jurisdiction - Infringement of the Copyright of successful bidder - defendant is a State owned company - plea of the defendant of fair dealing protected under Section 52(1)(a) of the Copyright Act is misconceived for the reason fair dealing is only applicable to private or personal use including research and does not apply to commercial activity - HELD THAT:- Sub-clause (b) of Clause 16 of the resolution plan thus clarifies that all consents, licenses, approvals, rights and entitlements, benefits, privileges whether under law, contract, lease or license granted in favour of the corporate debtor or to which the corporate debtor is entitled or accustomed to shall notwithstanding any provision to the contrary in their terms be deemed to continue without disruption for the benefit of the corporate debtor. Thus, the use of terms 'entitled ....... + More

Oppression and Mismanagement - Sale of entire assets of the Respondent No. 1 Company sold illegally for the purpose other than the object of the Company - misuse of power of attorney granted unilaterally by Respondent No. 2 without notice - HELD THAT:- The Appellant is free to exercise her remedy under the Companies Act, 2013 when the Company law provides for "Oppression and Mismanagement" and hence imposition of costs needs review. It is also evident that the Appellant came to know about the Board Resolution dated 4-9-2014 for the first time when Respondent No. 3 has submitted its reply affidavit dated 8-3-2019 and at that juncture the Appellant wish to file a rejoinder affidavit but the NCLT refuse to allow her to do so and subsequently reserved the judgment. Since the Companies Act, 2013 provides for restrictions on powers of....... + More

CIRP Process - bank account of the Corporate Debtor was being used without prior approval of the IRP - HELD THAT:- The Directors acted wholly illegally once moratorium had been applied, in going ahead and withdrawing monies from the accounts at the back of IRP by even issuing cheques "Self". Such acts cannot be justified in any manner. The Appellant and Deepak Daga kept telling this Tribunal that they would return the money and in spite of undertaking given and time fixed, the money has not been returned and the CIRP process is seriously hampered. Consuming whole month stated in the Undertaking and without returning any money, we find no substance in the hollow statements in I.A. No. 1075 of 2020 - Application seeking time to comply with Undertakings. The I.A. wrongly states that undertakings given were without prejudice. They w....... + More

Jurisdiction to pass order for re-bidding - Approval of Resolution Plan - section 31 of the I&B Code, 2016 - Whether the Adjudicating Authority has exceeded its jurisdiction in passing order for re-bidding, despite the approval of the Resolution Plan by CoC, with a vote share of 84.70% of votes? HELD THAT:- In the instant case, the Adjudicating Authority has overturned the decision of the CoC regarding approval of the Resolution Plan despite being approved by 84.70 percent of the vote share of the CoC, on the pretext of maximisation of value of the corporate debtor. The provisions investing jurisdiction and authority in the NCLT has not made the commercial decision exercised by the CoC of not approving the resolution plan or rejecting the same, justiciable. In the circumstances, it is clear that the Adjudicating Authority cannot inter....... + More

Admissibility of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Existence of debt and dispute or not - HELD THAT:- The pendency of actions under the SARFAESI Act or actions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 does not create obstruction for filling an Application under section 7 of Insolvency and Bankruptcy Code 2016, specially in view of Section 238 of IBC. The Application is more to bring about a Resolution of Corporate Debtor than any penal action or any recovery proceedings. Appeal dismissed.

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

Prayer for deposit of amounts deposited in the accounts opened in HDFC and DCB - HELD THAT:- I take on record the submission made by Mr. Jain, on instructions from Mr. Mahajan that the order passed by this Court on May 13, 2020 with regard to the payment of salary to the employees, has been complied with - The statement made by Mr. Luthra for not withdrawing the amounts deposited in the accounts opened in HDFC and DCB shall continue till the next date of hearing. List on 26th May, 2020.

Freezing of petitioner's Bank Accounts - permission to petitioner to pay the salaries to the employees for the month of April, 2020 by encashing FDRs of equivalent amounts - HELD THAT:- The petitioner is permitted to furnish to the respondents within 24 Hrs., list of the employees to whom the salaries have to be paid for the month of April, 2020. Respondents shall verify the list and convey their approval and objection, if any, with regard to any name, within 24 Hrs. of the receipt of the list from the petitioner. They shall send a communication to the Banks forthwith to enable the petitioner pay salary to its employees for the month of April, 2020, by operating / encashing the FDRs of the equivalent amount, (equivalent to the salaries to be paid to the employees). The petitioner is permitted to deposit the TDS and connected statutory....... + More

Grant of Anticipatory bail - case of petitioner is that the Accused petitioner was not even made an accused in the original case emanating from FIR No. 251/2015 registered with the Anti Corruption Bureau against other co-accused persons - HELD THAT:- Perusal of material on record and looking to the facts and circumstances of the case, specially to the fact that revision petition challenging the order dated 21.01.2019 passed by the trial court, has already been dismissed by a coordinate bench of this court as well as by the Hon’ble Supreme Court, similarly situated co-accused have already surrendered before the trial court and looking to the fact that accused petitioner is involved in serious economic offence involving huge sum of money and keeping in mind the principle of law enunciated by Hon’ble apex court in P. CHIDAMBARAM ....... + More

Grant of Bail - Money Laundering - Scheduled offences - allegation against the petitioner is that the petitioner amazed huge amount of movable and immovable property from his criminal activity in connection with twenty-six criminal cases against the petitioner - HELD THAT:- There is no material to substantiate that the petitioner would tamper with the evidence or be non-co-operative in the trial. In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], the Constitution Bench of the Hon’ble Supreme Court said that the bail is not to be withheld as a punishment. The main object is to secure the attendance of the accused at the trial. The proviso to Section 45 of the Prevention of Money-Laundering Act, 2002 is applicable in this matter. Considering the entire facts aforesaid, the petitioner deserves to be enl....... + More

Vires of Clause (ii) of sub-Section (1) of Section 45 of the Prevention of Money Laundering Act, 2002 - amendment in section 45 - applicability of decision in the case of NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] where the Supreme Court has declared Clause (ii) of sub-Section (1) of Section 45 of the Prevention of Money Laundering Act, 2002, ultra vires Articles 14 and 21 of the Constitution of India - amendment in section 45, subsequent to the Supreme Court’s decision, in case of Nikesh Tarachand Shah. Whether the amendment introduced in Section 45 of the Act, by Act No. 13 of 2018, shall amount to re-framing the entire Section 45 and thereby reviving and resurrecting the requirement of twin conditions under sub-Section (1) of Section 45 of the Act for grant of bail? HELD THAT:- In vi....... + More

Money Laundering - Freezing of petitioner's Bank Account - proceeds of crime - Permission to pay the salaries to the employees for the month of April, 2020 by encashing FDRs of equivalent amounts - HELD THAT:- The petitioners are permitted: (a) to discharge their liabilities towards salaries, bonus and reimbursements payable to their employees; (b) to make payments towards provident fund, professional tax, TDS on salaries and TDS on non-salary payouts from the bank accounts (including fixed deposits) that are subject matter of action by respondents Nos. 2 and 3, subject to verification by the concerned respondents of the list of employees and the amounts due (towards all heads of permitted payouts), for which purpose the petitioners shall furnish to respondent No. 3 a list of employees to whom salaries/bonus/reimbursements are require....... + More

Money Laundering - Release of petitioner on bail - loans to shell companies and related known entities - siphoning of funds - HELD THAT:- It is essential to observe that during the course the hearing of the present proceedings, it was suo moto by this Court brought to the notice of both the learned Senior counsel for the petitioner Mr. Mukul Rohatgi and learned Senior Standing Counsel for the State Mr. Rahul Mehra that in Writ Petition Civil Diary No.10829/2020 vide order dated 07.04.2020, the Hon’ble Supreme Court permitted the petitioner thereof who had challenged the criterion of the Hon’ble High Powered Committee of this Court dated 28.03.2020 putting an embargo to the release on interim bail/ parole of under trials in cases of alleged commission of economic offences and whereby vide order dated 07.04.2020, the Hon’b....... + More

Revocation of pardon - Section 308 of Cr.P.C - HELD THAT:- The application contains detailed allegations, on facts, to highlight that the respondent has misused the pardon, extended to him, and has not made a full and true disclosure of the information known to him, or the documents, over which he has control. Prima facie, it is not necessary to enter into the said details, as the learned trial court has dismissed the application of the petitioner on a preliminary ground, without examining it on merits. Resultantly, a pure question of law, relating to the circumstances in which revocation of pardon, under Section 308 Cr.P.C can be granted, and the conditions precedent therefor, arises for consideration. Issue Notice - List this matter for final disposal on 3rd June, 2020.

Provisional attachment of properties - physical possession of properties - COVID-19 pandemic situation - HELD THAT:- In view of the present circumstances, including the restricted functioning of the judicial authorities and the consequent impediment which may be faced in having the matter heard expeditiously by the Appellate Tribunal, the respondents are directed not to give any further effect to the impugned notices dated 01.04.2020 for a period of fifteen days from today or until the matter is taken up by the Appellate Tribunal, whichever is earlier. In view of the present situation, if it is not possible for the petitioners herein to sign the appeal paper book or the affidavits before the Appellate Tribunal, the same may be considered by the Tribunal on the signatures of learned counsel for the appellants, subject to the appellants making good the defects as soon as practicable, and not later than one week after the lifting of the national lockdown. Petition disposed off.

Bail application - Money Laundering - Scheduled Offences - an amount of ₹ 2.55 Crores was seized/recovered from possession of the co-accused Dhirendra Singh and Sanjay Sethi - HELD THAT:- It is not in dispute that the petitioners have been granted bail by the Coordinate Bench of this Court at Principal Seat, Jodhpur under section 439 Cr.P.C. under the scheduled offences. It is also not in dispute that the petitioners are in custody since 19.02.2020/ 17.03.2020. While dealing with the present bail applications, this court has to see three facts, 1. running away of the accused 2. tempering with the evidence 3. influencing witnesses - the petitioners are entitled to be released on bail for the reasons; firstly the argument of Mr. R.D. Rastogi, ASG that the petitioners failed to appear before the trial court from 21.01.2020 till 17.02.2....... + More

Commitment of scheduled offences - Uttar Pradesh State Industrial Development Corporation (UPSIDC), Varanasi - It is the contention of the present appellant that it is a State Authority and has been erroneously shown to have committed the scheduled offences - HELD THAT:- On perusal of the impugned order & PAO, it is seen that nowhere there is any allegations made by the ED that the present appellant has committed the scheduled offences or has generated proceeds of crime or laundered any proceeds of crime. In fact, it is admitted in the written reply to the appeal filed by ED that this appellant has been made as a party as it was the lessor of the property over which the defendants no(s) 1 to 3 has rights as lessee and the ED has got no objection if the order of the Adjudicating Authority is modified in relation to the contention of th....... + More

Money Laundering - investment of proceeds of crime - Acquiring of Liquor shops - allegation that the investment represent the process of integration of the proceeds of the crime with the main stream economy - Section 5(1) of the PMLA - It has been submitted on behalf of appellant that there is no material whatsoever on the basis of which the competent authority/adjudicating authority could have reasons to believe that movable and immovable properties purchased by the appellants were derived or obtained from proceeds of crime generated from criminal activity relating to schedule offence - right to appeal. HELD THAT:- The predicate offence and the offence of money-laundering are two distinct and separate set of offences. The offence of money laundering is independent of schedule offences. As per section 24 of PML Act, the burden of proof th....... + More

Bail Application - PMLA act - substance of the charge against the petitioner is that he was the person in control and management of one Rose Valley Group of Companies - price of debenture charged as per wishes of petitioner and without permission from statutory authorities - HELD THAT:- This Court is of the view that Section 436A in its application cannot be read de hors its provisos. The object and purpose of the section is to ensure that the person is not detained pending trial for a period that may exceed half of the total punishment prescribed under the Section under which he is charged. Upon exceeding such period, the petitioner is in fact entitled to be granted bail. The right to bail under Section 436A is not absolute. This Court notes that Rose Valley Group of Companies is being prosecuted various other proceedings both civil and criminal - Application dismissed.

Restoration of possession of property - legal question raised by Respondent that this Tribunal is not empowered to restore the possession is not agreed to on the ground that the power of this Tribunal to issue stay order as well as order consequential thereto is inherent - HELD THAT:- The section 35(2)(h) of the PMLA, 2002 has empowered this Tribunal to set aside any order of dismissal of any representation for default or any order passed ex-parte. The restoration of possession in the present case is consequential to the order of restoration of appeal which was dismissed for default. The restoration of possession is an order during the pendency of the appeal and the status of the order of restoration of possession is same as in the case of passing of stay order. The main allegation against the appellant with respect to this property is th....... + 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

Private placement of securities - Allotment of Unsecured Fully Convertible Debentures (FCDs) in excess of 500 members - increase in the subscribed capital of the Company - section 71(5) - issuance of FCDs by the Company was public issue OR not? - WTM directed to cancel the FCDs and forthwith refund the money collected till date through the issuance of FCDs including the application money collected from investors,restriction to the number of shareholders to whom the debentures would be issued - appointment of trustees - HELD THAT:- Shareholders in their 68th Annual General Meeting held on 28th September, 2015 passed a special resolution to allot and issue 1,92,900 Fully Convertible Debentures of ₹ 250/- with the condition that the shareholders will have no right to renounce the offer in favour of any person and that these debentures ....... + More

Money mobilization - money collected by the Company for teak plantation scheme was in the nature of Collective Investment Scheme (CIS) as defined in section 11AA of the Securities and Exchange Board of India Act - scheme was being carried on without requisite registration under the SEBI Act - HELD THAT:- In Appeal No. 378 of 2017 were appointed as directors for a limited period between 2008 and 2009. During this period, no amount was collected under the CIS. There is no finding that the amount collected had matured during the period when these appellants were the directors. Consequently, in our opinion, these directors could not be fastened the liability to refund the amount as they had neither collected the money nor were responsible for disbursement of the money to the investors at that stage. Admittedly the said appellants after their ....... + More

Failure to make the necessary disclosures regarding creation/invocation/release of certain pledge transactions and off-market transactions/purchase of shares in the company - contention of the appellants is that Regulation 29 of the SAST Regulations is not applicable and is only applicable to the pledgee - penalty has been imposed for violation of Regulation 29(2) and 29(3) which provides that an acquirer who holds shares or voting rights entitling them to 5% or more of the shares or voting rights in the target company shall disclose every acquisition or disposal of shares representing 2% or more within two working days - HELD THAT:- Whenever a share which is pledge is invoked meaning thereby the shares are sold, the necessary consequence which follows is the reduction in the shareholding of that particular entity. In the instant case, wh....... + More

Violation of Section 6A(4)(b)(iii) of the Insurance Act, 1938 - transfer of shares made without previous approval of the authority and, therefore, such transfer of shares are null and void ab initio - HELD THAT:- Referring to communication of IRDAI vide their letter dated February 4, 2020 and their reply filed before this Tribunal, it is apparently clear that damage control measures have been adopted by Respondent No. 1 subsequent to the impugned orders dated December 4, 2019 and December 27, 2019. The communication/order of IRDAI dated February 4, 2020 has largely diluted its own order dated December 4, 2019 and December 27, 2019. The stand of the Respondent No. 1 as depicted in paragraph No. 21 of their reply makes is apparently clear that prior to any transfer of the shares in question, the authority is required to be in a position to ....... + More

Unregistered Collective Investment Scheme (hereinafter referred to as "CIS") - violation of Section 12 (1B) of the SEBI Act, 1992 and Regulation 3 of the SEBI (Collective Investment Schemes) Regulations, 1999 - fund mobilizing activity of VBDP through the scheme of allotment of land post September 2013 - fraudulent practice in terms of Regulation 4(2)(t) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 (hereinafter referred to as "PFUTP Regulations, 2003") - Interim order also called upon the Noticees to show cause as to why suitable directions/prohibitions under Sections 11, 11(4), 11B and 11AA of the SEBI Act read with Regulation 65 of the CIS Regulations, 1999 and Regulation 11 of the PFUTP Regulations, 2003, should not be issued/imposed? - HELD THAT:....... + More

Fraudulent and Unfair Trade Practices Relating to Securities Market - Creating artifice/scheme - appellant restrained from dealing in the securities market, directly or indirectly, for a period of five years from the date of the ad-interim ex-parte order - HELD THAT:- An unknown company suspended from trading for long; off-market buying of 1,050 shares of the said company which constitutes more than 2% of its share capital and which is in the name of an unknown person (Kushal Jain) on the recommendation of a person from the native place of the appellant with no prior connection etc. can be treated as only a fiction rather than normal business. Coupled with the finding that the appellant had other transactions off-market with Gromo as given in Table 2 page 13-14 of the impugned order is sufficient evidence to prove the connection between G....... + 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

Compounding of contravention of [Regulation 7] of FEMA - Procedure for compounding - HELD THAT:- When the information is brought to the notice of the RBI, before remitting the case to the appropriate adjudicating authority under the amended proviso, exercise of taking decision under sub-rule (2), does not get diluted in any manner. It is open for the compounding authority, after considering the objections received from the Enforcement Directorate and affording an opportunity of hearing, to take a decision to remit the case to the appropriate adjudicating authority so that requirement of sub-rule (2) of Rule 8 is complied with fully. In the instant case, merely coming into existence of the proviso will not render requirement of sub-rule (2) of Rule 8 nugatory. The proviso is in addition to sub-rule (2) and has to be read through sub-rule (....... + 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

Offence under FERA - fraud on the banking system - mens rea is an essential ingredient as the FERA proceedings - As alleged officers responsible for conduct of the company were ‘negligent' - non specified SCN - HELD THAT:- Show Cause Notice must necessarily establish that the concerned officer was incharge of, and responsible for conduct of the company and further, spell out the offence committed by such officer. Only certain junior officers have been namedin the SCNs who can under no circumstances be said to be incharge and responsible for the bank or for conduct of its business. Further, onus to prove that a person was responsible for conduct of business of company is on the Department, which it has failed to discharge. In the impugned Orders Mr. Rajgopalan Ramkumar, Mr. Sunil G. Sawant, Mr. R.B. Dhage, Mr. Allwyn Roche, Mr. P....... + More

Violation of provisions under FCRA, 1976 - foreign contribution received by the respondent-petitioner - HC quashed the FIR - HELD THAT:- The impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegtions made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. The assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Cou....... + More

Sh. P. Chidambaram seeks bail - proposal for downstream investment - Petitioner, the then Finance Minister, Sh. P. Chidambaram approved the downstream proposal of INX News on 30.10.2008 - FIR alleging commission against Sh. Karti P. Chidambaram [arraigned as accused No. 3 in the said FIR under Section 120-B read with Section 420 of Indian Penal Code, 1860, Section 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to ‘PC Act’) and Section 13(2) read with Section 13(1)(d) of the PC Act.] HELD THAT:- As petitioner instead of joining the investigation approached this Court seeking anticipatory bail and this Court was pleased to pass an interim order protecting the petitioner from arrest. Pursuant thereto, when the petitioner was called for interrogation under the protective umbrella of a pre-arrest bail reducing th....... + More

Canara Bank abetted in the illegal and unauthorized dealing of foreign exchange - penalties against the appellants for the contravention of Sections 6(4), 6(5) r/w Sections 49, 8(1), 9(1)(a) and 9(1)(e) along with Para 10.3 (ii) - HELD THAT:- It is stated that from a conjoint reading of the facts and the definitions that there was neither any commission nor any omission on the part of the Appellant. Cheques issued by BFEA on an account maintained with Canara Bank were presented in the normal course of clearing and these cheques were honoured by Canara Bank. Canara Bank did not know at that point of time that the proceeds of those cheques would be remitted abroad after being credited to a convertible rupee account maintained at the ANZ Grindlays Bank. In any event the Canara Bank had nothing whatsoever to do with the crediting of money to ....... + More

Sum acquired/possessed/held/owned outside India with LGT Bank without any General or Special permission of RBI - contravention alleged by invoking presumption under section 39 of FEMA, 99 - presumption of documents. - Penalty enhanced - Power of special director in the absence of appeal from Revenue side - HELD THAT:- It is stated on behalf of appellants that before the Special Director, the Appellants reiterated their contentions, in addition to submitting that the conclusion of guilt against the appellant is based on no material and that the order passed is perfunctory without application of mind and even contrary to show cause notice where the theory of 1/4th of amount was not even alleged, but the Special Director affirmed the order of the Adjudication Authority on his self-innovated and imaginary reasoning, neither based on any evide....... + More

Contravention of Regulation 7 of Foreign Exchange Management (Acquisition and Transfer of Immovable property in India) Regulations, 2000 - Confiscation of 8 flats and five car parking - penalty under section 13(2) of the FEMA Act - HELD THAT:- National of the countries specified under Regulation 7 of the Regulations can acquire or transfer immovable properties in India, provided that such a person obtains the requisite permission from the Reserve Bank of India. If the national so fails to apply for such a permission, the Reserve Bank of India has the power to accord an ex post facto permission with regards to the said transaction. The transaction in question is not a commercial transaction; as a matter of fact the Appellant still resides in the Flats. The Flats were purchased by Indian Rupees, out of monies earned in India on which Income....... + More

Purchase of property in India - Individual arrived in India on Business Visa - “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 - THAT:- Appellants residing in India for more than 182 days in the previous financial year at the time of setting up of business and purchase of property in India. Thus, they satisfied the definition of the term “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 and therefore there was no impediment to purchase and hold property in India nor did they require any permission from the Reserve Bank of India to purchase immovable property or to set up any business in India. The property was purchased on 01.09.2009 more than a year after they entered India under a valid Visa. It is ....... + More

Classification of services - Works Contract Service or not - Construction / Building of Multi-Level Car Parking (MLCP) built by the appellant at New Delhi Airport (Terminal-III) - whether the same forms part of the Airport and hence exempt or is separate from the airport and taxable as works contract service? - HELD THAT:- Multi- Level Car Parking constructed by the appellant at IGI Airport, New Delhi, is part of the Airport, as is evident from the definition of Airport in clause (b) of Section 2 of the Airport Authority of India Act, 1994, read with clause (2) of Section 2 of Aircraft Act, 1934. We further find that “Aerodrome” has been defined in clause (2) of Section 2 of Aircraft Act, means any definite limited ground or water area intended to be used, either wholly or in part for the landing and departure of aircraft and ....... + More

Principles of Natural Justice - rejection of declaration filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - petitioner had not placed the entire correspondence exchanged between the parties - HELD THAT:- This Court had directed the petitioner to place on record the entire correspondence exchanged between the parties. Petitioner has filed a supplementary affidavit dated 01st July, 2020 in which it is stated that the present case is of delayed payment of service tax for which the petitioner had filed the application under the Scheme 2019. It has also been stated in the affidavit that the respondents’ reference to communication dated 26th September, 2019 is incorrect as no such communication was sent to the petitioner.

Waiver of Interest - Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - scheme rejected without affording any opportunity of hearing by stating “the date of communication declared is 05.09.2019 which is beyond the cut-off date (i.e. 30.06.2019) - HELD THAT:- This Court finds that the impugned communication dated 05th March, 2020 has been issued by the respondents without giving an opportunity of hearing to the petitioner and without considering the case put forward by the petitioner. The present writ petition and pending application are disposed of by setting aside the order/communication dated 05th March, 2020 and by directing the respondent No.2 to give a hearing to the petitioner on 09th July, 2020 at 11.30 a.m.

Works Contract Service - Nature of activity - service or manufacture - levy of VAT or service tax - Construction Service - period from 10.9.2004 to 31.12.2005 - HELD THAT:- The appellant was paying VAT on the amount during the impugned period of the activity undertaken by the appellant. Therefore, in terms of decision of Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], wherein Hon’ble Supreme Court has held that any activity pertains to construction of service where material has also been supplied alongwith the service, the merit classification of the service is under works contract service and no service tax is payable prior 1.6.2007. Admittedly, in the case in hand, the appellant is engaged in the activity wherei....... + More

CENVAT Credit - duty paying invoices - photocopies of invoices, audited Trial Balance, Advice of Transfer/Transfer Advice Note - valid documents as specified in Rule 9 of Cenvat Credit Rules, 2004 or not - HELD THAT:- The existence of original invoice and its genuineness is not disputed by Revenue. In fact such documents were produced before the lower authorities. Therefore, the duty involved has been paid and there is no dispute that the equipment in question has been used at the sites where credits were taken. In such circumstances, considering the commercial practice which was necessary for efficient procurement of the equipments in question, this procedural lapse cannot be considered a reason to deny Cenvat credit involved. Appeal dismissed - decided against Revenue.

Industrial Construction Service - Works Contract Services - benefit of abatement - N/N. 15/2004-ST dt. 10/09/2004, No.18/2005-ST dt. 07/06/2005 and No.1/2006-ST dt. 01/03/2006 - Commercial or Industrial Construction Service - Works Contract Services - benefit of abatement was sought to be denied on the ground that the appellant had not included the value of material supplied free of cost by the service recipient - HELD THAT:- This issue is no longer res integra in the light of the Larger Bench decision of the Tribunal in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] wherein it has been held that while claiming abatement of 67% under these services, the value of material supplied by the customers need not be included. This decision of the Larger Bench has been up....... + More

Legality of issuance of recovery notices - petitioner had applied under the SVLDRS Scheme - HELD THAT:- In the present petition, the petitioner has claimed that in fact its application could not have been rejected because the respondents wrote a letter dated 24.09.2019 (Annexure P-10) to one of the supplier of the petitioner calling upon it to stop payment to the petitioner and the amount due may be paid directly to the credit of the Central Goods and Service Tax Department - the said letter does not show final quantification determination and is at best a preliminary figure. No fault can be found with the action of the respondents in refusing to accept the application of the petitioner to be covered under the aforementioned scheme - Petition dismissed.

Classification of services - works contract services or not - appellants are concessionaire, who have been granted on ‘Build, Operate and Transfer(BOT)’ basis, construction, maintenance on cost recovery basis - whether the construction of associated facilities like toll plaza, cattle and pedestrian crossing facilities, parking bays for buses/trucks and rest room for staff, etc. and common people, are part of the road (exempt) or are liable to service tax under the head ‘works contract service’? HELD THAT:- The construction like toll plaza, cattle/pedestrian crossing facilities, parking bay for buses/trucks, rest room for staff and common public at large, etc. are also part of the road, as these are meant for exclusive use by the highway staff and the people using these roads. Further we take notice of several judgm....... + More

Reversal of Cenvat Credit - Input Services - Providing taxable and exempted services - Double credit - Receipt of credit for the benefit of subsidiaries - activity of construction services of roads, power plant, airport, etc. being commercial or industrial buildings or civil works - BAS - consulting engineering services - management or business consulting services - commercial training or coaching Centre services - Activity of construction of toll plaza, administrative building etc. - Rule 6(3) of Cenvat Credit Rules - allegation of double credit taken by the appellant - CENVAT Credit - absence of valid documents - Board’s Circular No. 80/10/2004-ST dated 17.9.2004 - Extended period of limitation - penalty. HELD THAT:- All the services have been used by the appellant in providing output service and thus eligible under the definition....... + More

Levy of Service Tax - Club or Association Service - business of time share -principles of mutuality - HELD THAT:- This Court is of the view that there is no requirement for the respondents to levy service tax on the petitioner, with respect to the services provided to its members - Petition allowed.

Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - Waiver of interest and penalty for the period October 2013 to September 2016 - Rejection of waiver without affording any opportunity of hearing - HELD THAT:- Issue notice. Mr. Harpreet Singh, learned counsel accepts notice on behalf of the respondents. He states that he has no objection if the present writ petition is directed to be treated as representation to the respondent No.2 - Consequently, the present writ petition is directed to be treated as a representation by the respondent No.2, who is directed, to dispose of the same on or before 30th June, 2020 after giving an opportunity of hearing to an authorised representative of the petitioner on 29th June, 2020 at 11.30 A.M. Petition disposed off.

Transfer of right to use goods - Hiring of Charter Vessel for dredging activity - Reverse Charge Mechanism - consideration paid to foreign company for hiring the vessel - declared service or not - period November 2015 to January 2016 - HELD THAT:- As per sub-clause (f) transfer of goods by way of hiring, leasing or licensing or in any similar manner would be a taxable service. However, if the transfer involves right to use the goods, it would be outside the purview of taxability - In the present case, the question is whether the transfer of goods is by way of hiring of the vessel simplicitor or whether it involves transfer of right to use the vessel. For a transaction to be transfer of right to use the goods, there should be transfer of possession as well as transfer of effective control. In the present case, the department has mainly rel....... + More

Demand of Service Tax - Photography services - Scientific and technical consultancy services - scope of SCN - Time Limitation - penalties - HELD THAT:- Although the appellant obtained registration under three categories of services the demand in this SCN is only under the heads of ‘Photography services’ and ‘Scientific and technical consultancy services’. Photography Services - the assessee’s contention is that the nature of the services does not fall in the definition of ‘Photography services’ at all - HELD THAT:- The scope of this service has been enlarged to cover the service rendered by any person instead of services rendered only by a commercial concern only. The nature of the services rendered by the appellant are photo processing of aerial films, general photography, photography by low leve....... + More

Validity of SCN - Intellectual property service - appellant had incurred various expenses which were recorded in their accounts as “Foreign Expenses (Miscellaneous Foreign Expenses)” - period 2006-07 to 2007-08 - Case of appellant is that the SCN is so vague that it does not even specify the taxable service for which these demands were made - HELD THAT:- The appellant has not been put to notice alleging that they have either rendered a taxable service which made them liable to pay service tax or have received any taxable service from overseas service provider, which rendered them liable to service tax under the reverse charge mechanism. As the show cause notice is very vague and wants to charge service tax only on the ground that the appellant had made some payments to their overseas counterparts, the impugned order needs to b....... + More

CENVAT Credit - input/capital goods - tower and shelter - input service used for providing telecommunication services/passive infrastructure - HELD THAT:- The issue has been settled by this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX-GURGAON VERSUS BHARTI INFRATEL LIMITED [2019 (2) TMI 1736 - CESTAT CHANDIGARH] where it was held that assessee-appellant are entitled to avail cenvat credit on items, towers, shelter parts thereof being input used for providing output service. Credit allowed - appeal allowed - decided in favor of appellant.

Permission for withdrawal of appeal - Manpower recruitment or supply agency - HELD THAT:- The permission is granted for withdrawal of appeal - appeal dismissed as withdrawn.

Commercial or industrial construction service - service tax liability of the sub-contractor - mis-statement of facts or not - extended period of limitation - HELD THAT:- The matter stands decided on merit in favour of the Department vide the decision of this Tribunal’s Larger Bench in the case of COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI] herein it has been held that in the scheme of service tax the every individual service provider need to discharge his service tax liability and since the scheme of Cenvat credit is very much available to all the service provider as per the chain of events, the credit of the service tax paid by the sub-contractor can be availed by the principal service provider. Extended period of limitation - HELD THAT:- Since the issue has been under dispu....... + More

Demand of service tax - amount earned for executing corporate guarantee in favour of their sister - non imposition of penalty for the preferential location charges recovered from the flat owners - Revenue alleges that the such activity is taxable under Banking and Finance Institution Services whereas the appellant is contesting that they are not liable to pay service tax on the said activity as they have not received any consideration for providing corporate guarantee to various banks on behalf of their associates - HELD THAT:- It is an admitted fact that the appellant has not received any consideration from either from the financial institutions or from their associates for providing corporate guarantee, in that circumstances, no service tax is payable by the appellant. Moreover, the demand raised in the show cause notices are on the bas....... + More

Intellectual Property Service - Import of services - reverse charge mechanism (RCM) - inclusion of know how in any other similar intangible property under any law for the time being in force - contention of the Appellant is that there is no law in India for the time being in force which protects ‘know how’ as an intangible property right and, therefore, the grant of exclusive right to use the ‘know how’ would not include such a right in the definition of ‘intellectual property right’ - HELD THAT:- This issue was also examined at length by a Bench of the Tribunal Bangalore in ABB LTD VERSUS C.C.E. & S.T. -BANGALORE-LTU [2019 (1) TMI 1037 - CESTAT BANGALORE] and it was observed that since ‘know how’ is not recognized as ‘intellectual property right’ under Indian law, no ‘....... + More

Demand of Service Tax - reverse charge mechanism - Manpower Recruitment and Supply Services - Intellectual Property Right Service - Management and Business Consultant Services - Programme Producer Services - Sponsorship Services - Time Limitation - Principles of Natural Justice - Jurisdiction. Manpower Recruitment and Supply Services - HELD THAT:- If the agreement between Appellant and FSE are examined in terms of the definitions of Manpower Supply & Recruitment Agency Services as per Section 65 (105)(k) read with Section 65 (68) of Finance Act, 1994 and the clarification issued by the Board and above decision of Tribunal, we conclude that services provided by M/s FSE are squarely covered under this category. Vijay Amritraj is a separate and distinct legal person from FSE, in which he may be one of the Directors. FSE has entered into ....... + More

Sabka Vishwas (Legaly Dispute Resolution) Scheme, 2019 - validity and legality of the rejection of the petitioner's scheme - Last date for making payment arrived - HELD THAT:- It would not be appropriate for us to confirm the quantification of balance final estimated amount payable under the scheme at ₹ 55,56,045.00, especially when it is the petitioner's case that respondent No. 3 Committee has failed to consider the petitioner's case in the light of the interpretation and application of the above provisions and has not heard the petitioner before confirming the balance final demand. Learned counsel for the petitioner submitted that the petitioner is ready and willing to deposit the amount of ₹ 55,56,045.00 with the revenue within a period of one week from today. The order dated 23.6.2020 records the last date for....... + More

Refund of CENVAT Credit - export of goods - input services or not - Outward Freight Charges i.e. Indian Customs Ports to foreign destination for transportation of export goods - HELD THAT:- The appellant have been exporting their goods and in context of export of goods they had claimed refund in respect of Input Services used in relation to the export of goods under Rule 5 of Cenvat Credit Rules, 2004 - It is obvious that the refund claim under Rule 5 is sanctioned only after ascertaining the admissibility of Cenvat Credit in respect of Input Service for which the refund is sought for. Therefore, the issue of admissibility of Input Service has been clearly examined by the refund sanctioning authority and the issue attained finality therefore, subsequently issue the Show Cause Notice on the same Input Service Credit is not proper and legal....... + More

CENVAT Credit - inputs/capital goods - immovable goods or not - goods permanently embedded to earth - M.S. angles, channels, plates, defective plates, M.S. Rounds/Rods, Chequered coil, Liquid Oxygen/Oxygen Gas, Paints, pipes & tubes of steel, spare for control valve Aluminium sheet, Casting materials, Coupling, HR coil/plate, joist, cement etc. - HELD THAT:- Reliance can be placed in the case of COMMR. OF C. EX., VISAKHAPATNAM-II VERSUS SAI SAHMITA STORAGES (P) LTD. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] where it was held that credit is allowed on such items - appellant is entitled to CENVAT Credit. The second contention in the show cause notice is that the appellant could have taken only 50% of the CENVAT Credit during that year and another 50% has to be taken in the following year - HELD THAT:- This issue is no longer releva....... + More

Maintainability of appeal - requirement to make pre-deposit - Section 35F of Central Excise Act - HELD THAT:- Section 35F requires cash deposit of 7.5% of the dues and there is no provision for adjustment of any other security. Tribunal being a creature of the Act is bound by the provisions of the Act and has no powers or jurisdiction to convert the mandate of Section 35F into any other act. As such, for entertaining the appeals appellants are required to deposit the amounts in terms of Section 35F. At this stage, learned advocate submits that his clients have no finance to deposit the amount in question even if some more time is given to them. He accordingly prays that the appeals may be disposed of as not maintainable for non-compliance of Section 35F. Appeal dismissed as not maintainable.

Condonation of delay in filing appeal - sufficient cause for delay present or not - HELD THAT:- The order in appeal as has been proposed to be challenged was earlier accepted by the Committee of Commissioners and the Commissioner Jaipur gave the acceptance on 19 December, 2018. The extract of office note-sheet annexed with the time chart reveals that the order in appeal was directed to be reviewed on 15 May, 2019 without stating any reason for proceeding against the acceptance, which was made five months prior to the directions of the review. The limitation statute when specifically provides a time period for filing the appeals, the purpose requires adherence of time line for the same. Irrespective of the fact that Tribunal is empowered to condone the delay in filing the appeal but the sufficient cause has to be shown by the appellant see....... + More

Condonation of delay in filing appeal - time limitation - as against the order dated 10.06.2014, the appeal has been filed on 15.09.2016 - Section 35 of Central Excise Act, 1944 - HELD THAT:- In this case the adjudication order dated 10.06.2014 is not received by the appellant. In reply to the RTI filed by the appellant it has been answered that mode of dispatch of Order-In-Original could not ascertained. In these circumstances, the benefit of doubt goes in favour of the appellant that they have received the adjudication order on 04.08.2016 and they have filed appeal on 15.09.2016 which is well within time limit prescribed under Section 35 of the Central Excise Act, 1944, therefore, there are no force in the impugned order, the same is set aside. The appeal is allowed by way of remand with the direction to the Ld. Commissioner (Appeal) to decide the issue on merits after affording the reasonable opportunity to the appellant to present their case.

Clandestine removal - sponge iron - shortage in stock of coal and sponge iron - no corroborative evidences - HELD THAT:- From the show cause notice, it is observed that existence of weighbridge is admittedly within the factory premises. The weighbridge slips are considered as one of the important documents by the adjudicating authorities below providing the alleged clandestine removal. Once the weighbridge exists within the factory premises, the factum of clearance of goods from said weighbridge does not at all arise. This observation is sufficient to hold that weighbridge slips cannot be the evidence for proving that the goods were cleared from the appellant’s factory clandestinely. The weighbridge being within the factory premises, the weighment of any commodity or any entry in outgoing register from the said weighbridge cannot re....... + More

100% EOU - Refund of unutilised cenvat credit - Revenue’s arguments in their appeals that the respondent is not manufacturing any excisable goods is devoid of any merit and is contrary to the facts on record - HELD THAT:- From the impugned order and the orders of the original authority as well as the documents submitted by the Counsel for the Respondent, we find that the respondent is indeed registered for manufacture of excisable goods by the department themselves. Central excise tariff heads of the goods which are manufactured are also indicated. We are sure, if the department had gone through these documents, they would have had no doubt that the respondent is manufacturing excisable goods. It is also not in dispute that the respondent has been filing ER-1 returns and also been clearing some manufactured goods on payment of excis....... + More

Clandestine manufacture and removal - finished goods, Iron & Steel Ingot - period from March, 2007 to March, 2008 - demand based on documents recovered and statements recorded - HELD THAT:- The entries in the loose sheet might have created doubt in the minds of the Revenue, but it could not have been taken as a piece of evidence by itself. It would, at best, only create suspicion to further investigate the matter. Other evidence regarding procurement of raw material, manufacture of goods by engaging labour, usage of electricity, dispatch and transport of final goods, destination of final goods and receipt of sale proceeds etc, could have probably substantiated the allegation even if not proved with arithmetical accuracy. No such evidence has been produced by the revenue - In such circumstances, it cannot be held that the clandestine r....... + More

De-freezing of petitioner's Bank Savings Account - after waiting for over three months, the petitioner has approached this Court with a grievance that the respondent has failed to take appropriate action of defreezing its Saving Bank Account and releasing its lien on the LIC policy in question - HELD THAT:- Mr. Harpreet Singh, learned counsel for the respondent accepts notice and informs this Court that the file of the petitioner has been put up to the Competent Authority and the same is under process. However, he is unable to inform this Court as to when was the file put up before the Competent Authority and how much more time would it take to defreeze the petitioner's Saving Bank account and release the lien on its LIC policy particularly when more than three months have already expired after issuance of the Discharge Certificat....... + More

Redemption of confiscated goods - Process amounting to manufacture or not - activity of affixing holograms on the CFLs (revalidation process) carried out by the appellant in its warehouse - Section 2(f)(iii) of the Central Excise Act, 1944 - HELD THAT:- All the proceedings initiated against the appellant pertaining to all the warehouses including Kolkata warehouse, have been dropped on merits. All the proceedings against the appellants have been dropped by the Commissioner by passing a common order holding that the said activity cannot be constituted as amounting to manufacture in terms of Section 2 (f)(iii) of the Central Excise Act, 1944. Since the main appeal has been allowed on merits in favour of the appellant, the present proceedings are only in respect of confiscation of the goods valued at ₹ 87,17,157/- with an option to red....... + More

Time Limitation - removal of capital goods during the period September 2011 in contravention of Notification no. 22/2003- CE dated 31.03.2003, as amended, read with para 6.13(c) of the FTP 2009-14 and Para 25 of the Customs Law Manual, 2013 - HELD THAT:- The impugned order cannot sustain on limitation in as much as the Show Cause Notice was issued in September 2016 for the period in dispute of September 2011. Appeal allowed - decided in favor of appellant.

Pending appeal or not - HELD THAT:- Since, it is submitted by the learned Advocate for the petitioner that service has already been effected upon the respondents, the respondents are at liberty to file affidavit-in-opposition within a period of three weeks from date, affidavit-in-reply thereto, if any, be filed within two weeks thereafter. Matter to appear in the monthly list for the month of August, 2020 under the heading ‘for hearing’. In the meantime without prejudice to the rights and contentions of both parties, the petitioner shall deposit a sum of ₹ 15 lakhs with the learned Registrar General of this Court by a bank draft within 15 (fifteen) days from date.

Demand of Central Excise Duty - demand against the appellant on the ground of denial of self-credit by denying the benefit of exemption Notification No.01/2010-CE dt.6.2.2010 to the appellant - HELD THAT:- In this matter, the demand has been raised consequent to denial of exemption Notification No.01/2010-CE dt. 6.2.2010 by the Commissioner (Appeals). As the said order of the Commissioner (Appeals) has already been set aside by this Tribunal vide order dt.20.5.2019, in that circumstance, the benefit of exemption Notification No.01/2010-CE dt.6.2.2010 is available to the appellant. Therefore, the proceedings were not warranted against the appellant. Appeal allowed - decided in favor of appellant.

Classification of goods - Light Diesel Oil (LDO) - it was held by Tribunal that While it is wrong to test the product LDO against the parameters prescribed in IS 1460:2000 which applies solely to HDO after 2008, it is seen that the test reports of the appellant do not cover a large number of parameters prescribed in IS 1460:2000. The same also applies to the parameters available in IS 15770:2008. HELD THAT:- The appeal is without any merits - appeal dismissed.

CENVAT Credit - manufacture of taxable as well as exempt goods - iron ore fines - period April 2015 to June 2016 - Rule 6 (3) of the Cenvat Credit Rules, 2004 - HELD THAT:- The issue is no longer res-integra as it has already been decided in several decisions of this Tribunal that iron ore fines which emerges during the course of manufacture of sponge iron ore are in unavoidable and inevitable by-product and therefore same does not fall under the category of manufacture goods and accordingly same are not excisable. Thus, such goods cannot be considered as exempted goods and provisions of Rule 6 of the Cenvat Credit Rules, 2004 are not applicable - reliance can be placed in the case of CCE, RAIPUR (CG.) VERSUS M/S. SARDA ENERGY AND MINERALS LTD. [2013 (12) TMI 859 - CESTAT NEW DELHI]. Appeal allowed - decided in favor of appellant.

Refund of the MODVAT/CENVAT in cash - factory is closed - Rule 5 of Cenvat Credit Rules, 2004 - HELD THAT:- This issue was examined by the Larger Bench of the Hon’ble High Court of Bombay in M/S. GAURI PLASTICULTURE P. LTD., BOMBAY DYEING & MANUFACTURING CO. LTD., M/S. SIMPLEX MILLS CO. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, INDORE, THE COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV, THE UNION OF INDIA THROUGH THE COMMISSIONER OF CENTRAL EXCISE MUMBAI I [2019 (6) TMI 820 - BOMBAY HIGH COURT] which also examined whether unutilised cenvat credit can be refunded on account of the closure of manufacture activities of the factory. The Hon’ble Larger Bench has found that the law has not been laid down by the Hon’ble Apex Court and the SLP was merely dismissed on account of the concession made by the ASG. Further, the L....... + More

Extended period of Limitation - suppression of facts or not - SCN based on change of opinion of Department - As the appellant was required to manufacture finished goods for supply to Railways out of scrap supplied by Railways, it appeared to Revenue that the inputs (copper rod) were never used in the manufacture of final product and the credit have been taken on the basis of documents only without receipt of inputs - HELD THAT:- The appellant have maintained proper books of accounts and records of their transactions. Admittedly, the whole demand is for the extended period of limitation. The Revenue has only made a bald allegation of suppression of facts, alleging the non disclosure of actual sale value of the scrap received from the Railways. There is no obligation cast on the appellant to intimate the Department on each and every transac....... + More

CENVAT Credit - outward transportation of goods - Cement sold by the assessee to their customers on FOR destination basis - place of removal - HELD THAT:- This issue is no longer Res integra. It has been settled by the Hon’ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] and the issues were identical. The Hon’ble Apex Court has laid down that where the goods are sold on FOR destination basis i.e., where the ownership of the goods gets transferred only at the buyer’s premises also no CENVAT credit is admissible for transportation of goods to the buyer’s premises. Credit cannot be allowed - appeal dismissed - decided against appellant.

CENVAT Credit - denial of credit on the ground that as per N/N. 02/14-CE (N.T.) dt.20.1.2014, the appellant was not entitled to credit prior to the N/N. 01/10-CE dt.6.2.2010 - period i.e. 01.06.2012 to 19.01.2014 - HELD THAT:- Similarly placed assessee was allowed the credit although against those orders, the appeals have been filed by the Revenue before the Commissioner (Appeals), in that circumstance, when the Revenue is having divergent views on the issue, the extended period of limitation is not applicable - Admittedly, in this case, the show cause notice has been issued by invoking the extended period of limitation, therefore, the denial of credit is barred by limitation. Appeal allowed - decided in favor of appellant.

Concessional rate of tax - difficulty in obtaining C-Forms - HELD THAT:- The State has, after the date of the above order, filed a Writ appeal in W.A.No.3403 of 2019 challenging the decision in the case of THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] that has been considered and dismissed by a Division Bench of this Court on 09.03.2020. Mr.Shaffiq agrees that there is complete identity on facts and in law in the matter before me as well as in the matter considered earlier. Petition allowed.

Reopening of assessement - compounding of tax - reversal of tax under Section 25(1) of the 2003 Act - HELD THAT:- It is a matter of record that the second appeal is pending adjudication before the Tribunal. On going through Ext.P4, the demand was stayed subject to deposit of 20% way back in February 2020 and the amount ordered to be deposited in one month expired on 19.03.2020. The petitioner prima facie do not require any concession but, the Tribunal ought to have imposed the condition of 20% as envisaged under Section 55(4) of the 2003 Act, though strictly not applicable to the second appeal, particularly owing to the fact that there was complete lock down and hardy any business carried out during this period and it was very difficult to generate money and pay the amount. The percentage of amount reduced from 30% to 20% which would come....... + More

Bidding of attached Property - priority of charge over the secured assets - Section 26E of the SARFAESI Act - HELD THAT:- The writ application bringing it to the notice of the respondent No.1 i.e. the Commercial Tax Officer (4) - Ahmedabad that the subject property was a secured asset of the respondent No.2 - Bank of India under the SARFAESI Act. Being a secured asset under the provisions of the SARFAESI Act, the respondent No.2 cannot claim preference over the subject property for the purpose of recovery of the dues towards tax. It is not in dispute that the first charge was created in favour of the bank and the bank, in exercise of its powers under the SARFAESI Act, put the subject property to auction. All these developments took place way back in the year 2015. The disputed entry No.16521 came to be mutated on 24th January 2017 for sho....... + More

Interpretation of Statute - Section 7-A of the Tamil Nadu General Sales Tax Act, 1959 - Levy of Purchase Tax - purchase turnover, with respect to the purchase of empty bottles from unregistered dealers under bought note - Clarifications dated 09.11.1989 and 27.12.2000 - HELD THAT:- For applicability of Section 7-A (1) of the Act, all the six ingredients need to be cumulatively satisfied. The ingredient (6) has three alternatives viz., the dealer has either (a) consumed or used the goods in question in the manufacture of other goods for sale or otherwise, or (b) has disposed of such goods in any manner other than by way of sale in the State, or (c) has despatched or carried them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce. It is not in dispute that clauses (b) or....... + More

Principles of Natural Justice - non-service of notice but assessment order served - suppression of sales turnover on the basis of electricity consumed during the assessment year in question - case of petitioner is that the respondent before making revised assessment, has not provided reasonable opportunity to the petitioner to furnish the books of accounts maintained for the relevant year - HELD THAT:- It is also an undisputed fact that the respondent, while passing the revised assessment order, has not verified the books of accounts maintained by the petitioner for the relevant year - It is well settled that the electricity consumption cannot be adopted as the sole basis for rejecting the accounts of the assessee and for making an estimate of the taxable turnover of the assessee. The matter is remanded back to the respondent for fresh co....... + More

Levy of VAT - certain defects and estimated visible loss and invisible loss - reversal of ITC for exempted sales - HELD THAT:- Since the refund order is relating to the assessment year 2011-12, the second respondent shall decide the issue afresh, after issuing show cause notice to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objection. Such notice be issued by the second respondent within a period of four weeks from the date of receipt of a copy of this order. On receipt of such notice, the petitioner shall submit their objections along with the required documents, if any, within a period of two weeks thereafter. The second respondent shall consider the same and pass appropriate orders, on merits and in accordance ....... + More

Reversal of ITC - alleged invisible loss - validity of circular dated 20.10.2011 - HELD THAT:- Since the notice issued is relating to the assessment year 2012-13, the second respondent / Assessing Officer shall decide the issue afresh, after issuing show cause notice to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections. Such notice be issued by the second respondent within a period of four weeks from the date of receipt of a copy of this order. The second respondent shall consider the same and pass appropriate orders, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of four weeks therefrom.

Levy of VAT - 4% on the invisible loss at 5% of yarn purchase and on the sales of cutting waste and rejected export garments at 0.5% - HELD THAT:- Since the assessment orders are relating to the years 2006-07 and 2007-08, the respondent / Assessing Officer shall decide the issue afresh, after issuing show cause notices to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections. Such notices be issued by the respondent within a period of four weeks from the date of receipt of a copy of this order. On receipt of such notices, the petitioner shall submit their objections along with the required documents, if any, within a period of two weeks thereafter. Petition allowed.

Levy of VAT - Inter-state Branch Transfer - petitioner contends that there is no element of sale involved in this transaction and the petitioner was not liable to pay any tax on it and did not report it in its CST-VI returns - HELD THAT:- The petitioner had raised substantial contentions both on law and on facts and the 1st respondent ought to have provided a personal hearing after the COVID-19 pandemic situation resolves to enable the petitioner to submit the documentary evidence regarding its defence that the turnover of ₹ 40,68,01,526/- relates to inter-State purchase of goods under inter-State branch transfer and there is no element of sale involved in it - there has been denial of opportunity to the petitioner by the 1st respondent in view of the COVID-19 pandemic and the consequent lockdown and therefore, the impugned order of....... + More

Violation of Principles of Natural Justice - petitioner was denied a fair opportunity of being heard even on merits - baseless presumption that petitioner had effected sale of its assets to ‘MHPL’ at Book Value and that there is no sale as a ‘going concern’ - HELD THAT:- It is not in dispute that the 1st respondent issued show-cause notice dt.12.02.2020 proposing to levy additional VAT of ₹ 82,04,233/- for the periods 2014-15 to 2017-18 (up to June, 2017) and gave a mere seven (07) days’ time to the petitioner to file a reply - In such a short time, it is not possible for the petitioner to file all the documentary evidence and also file a detailed reply covering a period of more than five (05) years. It is not in dispute that petitioner filed a letter dt.20.02.2020 seeking additional time of two (02) mo....... + More

Maintainability of appeal - failure to make pre-deposit as per Section 62(5) of the Punjab Value Added Tax Act, 2005 - request for waiver of pre-deposit - HELD THAT:- The petitioner had exercised the right of appeal which is subject to the condition. The mere fact that its account has been declared as Non- Performing Asset would not empower the Appellate Authority to waive off pre-deposit - The petitioner has failed to make out any case for interference under Article 226 of the Constitution of India. Petition dismissed.

Maintainability of Review Petition - time limitation - no sufficient ground has been given in the Application for condonation of delay - HELD THAT:- There is limitation prescribed for six months for filing the review application. Even thereafter, for more than 500 days, the review application was not filed. The issuance of notice in the remand proceedings by the Assessing Authority itself cannot be a ground for condoning the delay. The issue that the assessment was not finalised within the reasonable time is not a pure question of law but would depend upon the factual aspect of each case. In the present case, apart from six months prescribed limitation, there is delay of 505 days, the explanation put forth is not worth acceptance. Appeal dismissed.

Classification of goods - Black Disinfectant Fluid (BDF) - whether covered by Entry 25 of Schedule C of HVAT Act and is therefore leviable to tax at concessional rate as Schedule C item, whereas the Entry 25 of the HVAT Act deals with specific items and BDF does not found mentioned therein - HELD THAT:- The conclusion arrived at by the Tribunal is in consonance with common parlance test. The assessee produced letter dated 7.1.2016 received from the Assistant State Drug Controller, Haryana under the Right to Information Act,2005. The letter stated that BDF is manufactured under Schedule O of the 1940 Act and falls in the category of 'drugs' defined in Section 3(b) of the said Act. The information is provided by the official of the office dealing with the said product and issuing licence under the 1940 Act for manufacture of BDF - T....... + More

Rate of tax - classification of goods - sales of ‘sports shoes’ and ‘sports apparel’ - whether taxable under Entry 46 and Entry 52 of IV Schedule respectively, or they fall under the residuary entry falling under V Schedule? - HELD THAT:- The term ‘Footwear’ in Entry 46 of IV Schedule includes ‘sports shoes’ and the D.C.T.O.- II (Enforcement Wing) could not have held that they fall under residuary entry under V Schedule, and he ought to have held that they fall under Entry 46 of IV Schedule; and the Tribunal was right in not only relying on the certificates of the suppliers that the shoes were made of plastic but also on the Government Memo dt.17.10.2008 holding that ‘moulded plastic footwear’ described in Entry 46 also includes not only the ‘footwear’ of one moulded ....... + More

Rate of Tax - Instrument Cooling Fan - whether taxed under the heading Schedule-II(B)-3 taking it to be a part of larger equipment for communication, or under the residuary clause, taking it to be an electrical equipment - justification of the reassessment proceedings by the Revenue Authorities and the orders passed therein. HELD THAT:- The powers which have been given to the Commissioner for opening a reassessment even beyond a period of “three years” under sub-section 4 of Section 29 of the Act, where the Commissioner can initiate reassessment proceedings on his own or when he is satisfied with the reasons recorded by the Assessing Authority. In the present case the reassessment proceeding has been initiated on the basis of the reasons recorded by the Assessing Authority. The Assessing Authority had to assign reasons under s....... + More

VAT on sale of Duty Entitlement Pass Book (DEPB) - Transaction took place in Tamil Nadu or Maharashtra - Ascertained goods or not - It is the petitioners' case that the asset in question constitutes specific and ascertained goods. Mr.Haribabu however, points out that the DEPB is categorised in Entry 70/Part B/ First Schedule to the Act as intangible goods along with copyright, patent and REP licence and is thus, according to him, unascertained - HELD THAT:- Explanation (V)(a)(i) provides that the sale or purchase of specified/ascertained goods shall be deemed to have taken place in the State if the goods are within the State at the time when the contract of sale or purchase is entered into. There being no dispute on the position that the goods in question, the DEPB, and additionally, the seller as well as the buyer were all located in....... + More

Adjustment of amount to be refunded with the dues under CST for arrears of tax for the assessment years - HELD THAT:- The present writ petition is pending for last 7 years before this court. During the interregnum the petitioner has fallen in arrears of tax for the above mentioned assessment years under the Central Sales Tax Act, 1956. Therefore, there are no reasons to grant relief to the petitioner at the stage as these appeals itself can be directed to be disposed by the Sales Tax Appellae Tribunal, Coimbatore within a period of 6 months from date of this order. The respondent shall refund the amount forthwith after due adjustments of any tax if any that may be due from the petitioner - Petition disposed off.

Whether the Tribunal was right in upholding the alleged stock variation merely for reason that departmental delivery notes were not issued? HELD THAT:- The Tribunal erroneously deleted such additions made on the ground that addition would be taken care of in that made with respect to suppression. The addition made on the basis of the stock variation, to cover probable omissions and suppression is only that up to September of the assessment year; till which date the assessee had not been using departmental delivery notes. The under-valuation is insofar as the months from October to March of the assessment year. Computing the figures from the table available in the assessment order, the total products sent on departmental delivery note had a value of ₹ 3,50,01,765/- between October and March. The sale conceded as disclosed in the list....... + More

Works Contract - validity of pre-assessment notice - disallowance of exemption claimed by the petitioner under Rule 10 - disallowance of minor portion of input tax credit - petitioner has made a specific case that the pre-assessment notice does not disclose grounds which has actually been now relied on in the impugned Ext.P-5 assessment order - HELD THAT:- Going by the data and facts and figures now projected in Ext.P-6 application for rectification would indicate that the petitioner has made out a very strong case that even parametres like land cost, corpus fund, electrical and water charges, etc. has already been reckoned by the 1st respondent, while determining the issue of value added tax, as per the impugned Ext.P-5 assessment order. Such an aspect would certainly termed as “wednesbury unreasonableness” in the decision ma....... + More

Refund of Excess payment made towards excess IPT - grant of interest on refund - Section 89(4) of the KVAT Act - HELD THAT:- It is ordered that the respondents will immediately take up the plea for refund made by the petitioner in Ext.P4 and after affording reasonable opportunity of being heard to the petitioner, will take considerable decision thereon, passing orders in the matter of grant of refund due to the petitioner, within a period of 4 weeks from the date of production of the certified copy of this judgment and depending on the orders so passed, the consequential steps for disbursing the new refund amounts should also be duly completed by the respondents or the competent official concerned within 4 weeks thereafter. Grant of interest on the refund - HELD THAT:- The said claim for interest should also be duly considered and orders ....... + More

Bail Application - commercial quantity of contraband - overcrowding in jails - corona positive cases present - HELD THAT:- No ground is made out for entertaining these (interim) bail applications. Bail application dismissed.

Wilful Defaulters or not - petitioners contend that the Show Cause Notice was issued by an Assistant General Manager of the Bank, who did not qualify even for being a member of the WDIC - Oppression and Mismanagement - siphoning of funds - HELD THAT:- The writ petitioners in the instant case had avoided submitting their reply to the show cause notice of the bank, despite getting several opportunities, even within the extended time afforded by the bank. In spite of the delay, although the bank was under no obligation to do so, it dealt with the salient objections raised by the petitioners in their reply, in the impugned order declaring the petitioners to be wilful defaulters. Sufficient reasons were provided for the decision, the factual and legal merits of which are for the review committee, and not this court, under Article 226 of the Co....... + More

Violation of Fundamental Rights - delay of 43 days by the Detaining Authority in deciding the representation of the petitioner - petitioner is in custody since 11th October, 2019 - detenues challenged the Detention Order on the ground that the Detaining Authority ought to have considered the representation without waiting for the report of the Central Advisory Board and delay in consideration of the representation violated the rights of the detenues guaranteed by the Constitution - COFEPOSA Act. HELD THAT:- There is no valid explanation for non-consideration of the petitioner’s representation from 06th November, 2019 to 18th December, 2019. There is no merit in the respondents’ explanation that they were waiting for the report of the Central Advisory Board - The delay on the part of the Detaining Authority to consider the peti....... + More

Dishonor of Cheque - discharge of legally enforceable debt or liability - Section 138 of the Negotiable Instruments Act - HELD THAT:- It appears that the learned Additional Sessions Judge, while making observations in respect of enhancement of the compensation, forgot to see that there was no order of compensation at all by the learned Magistrate which could be enhanced. The enhancement presupposes awarding of some amount as compensation. In fact, there ought to have been, in such circumstance, a discussion as to whether awarding of compensation is necessary or not, as compensation can be awarded under Section 357(1) or 357(3) of Cr.P.C. If the compensation is to be should be from the fine amount and if it is to be in view of Section 357(3) of Cr.P.C., then fine should not be part of sentence. Further, the entire provision of Section 357 ....... + More

Dishonor of Cheque - Framing of Charges - Vicarious Liability against the company or not - HELD THAT:- Section 141 of N.I. Act deals with the offences committed by the companies and say that if an offence is committed by a company under Section 138 of the Act, every person, at the time, the offence was committed, was in-charge and responsible to the company in the conduct of the business of the company, is liable along with the company to be proceeded against and punished accordingly. Further, it is provided that no person shall liable to be punished if he proved that an offence was not committed under his knowledge or he has exercised all due diligence to prevent the commission of such offence. In the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] it has been held that when the compan....... + More

Dishonor of Cheque - dispute is with regard to the actual amount borrowed and the period during which it was borrowed - legally enforceable debt or not - HELD THAT:- The trial court and also the appellate court has appreciated the facts and circumstances in a correct perspective and there is no illegality or irregularity in the finding of guilt under Sec.138 of the N.I.Act. Sentence - HELD THAT:- The sentence passed by the V Additional Sessions Judge, Ernakulam is to undergo simple imprisonment for three months and to pay compensation for ₹ 1,00,000/- in default to undergo simple imprisonment for two months - the sentence passed is modified to fine of ₹ 1,00,000/- in default to undergo simple imprisonment for three months. Fine amount, if realized, shall be paid to PW1 complainant as compensation under Sec.357(1)(b) Cr.P.C. Revision allowed in part.

Prescription of lower percentage of eligibility marks - prospective or retrospective - it was held by the High Court that the applicant is deemed to have been succeeded in the Examination for Income-Tax Officers held in 2003 and eligible to be promoted as Income-Tax Officer in the available vacancy in preference to his juniors, with consequential fixation of pay - HELD THAT:- There are no ground warranting interference with the impugned order in exercise of our jurisdiction under Article 136 of the Constitution of India. SLP dismissed.

Arbitration agreement - Applicability on the party who is not the signatory of the agreement - Scope of Section 9 of the Arbitration and Conciliation Act, 1996 - Securing of money received from the sale proceeds of the auction of the hotel in Goa - Bidding Process - whether the relief claimed by the Petitioner for directing Respondent No. 2 to deposit the amount of ₹ 85 crores along with accrued interest, lying in the banks in the form of FDRs, in the custody of Respondent No.2, in this Court and a further direction not to disburse the same to Respondent No.1, can be granted? HELD THAT:- the scope of power of a Court under Section 9 of the Act is not limited to parties to an Arbitration Agreement and the Court can issue interim directions even against a third party. The distinction between the powers under Section 9 of the Act and S....... + More

Compensation on account of death caused by accident - HELD THAT:- On a perusal of the documentary evidence on record i.e. the ITRs for the assessment years 2005-06 and 2006-07, filed prior to the death of the deceased, which reflect the income of approximately ₹ 1,00,000 p.a. (as assessed by the MACT in its Award dated 22.12.2009), we make this the basis for computing the compensation payable to the Claimants - We award future prospects @40% of the income of the deceased. Given the fact that the deceased left behind five dependents, the deduction towards his personal expenses would be 1/4th. Even though the Claimants/Appellants herein did not file an Appeal against the Award dated 22.12.2009 passed by the MACT before the High Court, we deem it appropriate to enhance the compensation by exercising our jurisdiction under Article 142 o....... + More

Dishonor of Cheque - Section 138 of the NI Act - trial of summon case - seeking that complainants be directed to produce documents and accounts - HELD THAT:- From the provisions contained in Sections 251 to 259 of the Code, it is quite clear that in a summons case what the Court does on the appearance of the accused is to state the particulars of the offence, and to ask him whether he pleads guilty or has any defence to make. If the accused does not plead guilty the Court will proceed to record the evidence on the side of the prosecution, hear the accused and take the evidence that the defence may produce. The Court will then either hold the accused not guilty or convict him. Section 255(3) of the Code empowers the Court to convict the accused of any offence which from the facts admitted or proved he appears to have committed, if the Magi....... + More

Grant of mandatory injunction - Raising finances to meet the requirement of deposit of ₹4 crores in terms of the decision of the Hon’ble Supreme Court by creating an appropriate security in respect of such number of unsold units - raising of funds by way of issuance of non-convertible debentures (NCD’s) on a private placement basis in two tranches - HELD THAT:- Applicants in the present application are defendant No.1 and 3 in the suit who are acting in representative capacity of defendant No.4. As noted above, the present suit has been filed by the plaintiffs for recovery of a sum of ₹448,75,58,347/- from defendant Nos. 1 to 4 jointly and severally and for permanent and mandatory injunction. The dispute between the parties is investment of the plaintiff No.2 in defendant No.4 of which defendant No.3 is 99% sharehol....... + More

Custodian appointed under the Special Court (Trial of Offences Relating to Transactions in Securities) Act 1992 - diversion of large amounts from banks and financial institutions - Whether respondent no.1 proves that the claim in this petition is barred by law of limitation? - HELD THAT:- No submissions have been made on behalf of respondent no.1 on this aspect. Although Mr.Mehta did support the Respondent no.1’s plea of the claim being barred, the issues have not been recast but considering the defence in Respondent no.4’s written statement, although the claim against Respondent no.4 may appear to be barred, the issue as framed will have to be answered in the negative. Save and except for the 4th Respondents contention in the written statement no submissions with reference to facts have been made on this aspect on behalf of R....... + More

Direction for refund of unused FAR - directions in respect of the sale of balance FAR available within the sanctioned plan, unused FAR up to the permissible limit of 2.75 or more and FAR beyond 2.75 up to 3.5 under the purchasable scheme and other FAR which may be available due to metro projects, etc. - HELD THAT:- The rates of SBI MCLR is reduced to 7.45 % in the year 2020 from 8.95% in the year 2016. It is clear that the Noida and Greater Noida Authorities, on the outstanding dues, are realizing the dues from all such projects, interest at exorbitant rate such as 15% per annum with half-yearly compounding and in addition are also realizing penal interest on the amount as fixed from time to time. The Noida and Greater Noida Authorities are not issuing completion certificates to such projects and they are not able to realize their outstan....... + More

Seeking Donations for the trust illegally - offence under Sections 13(2) r/w 13(1)(b) of the Prevention of Corruption Act, 1988 - acquittal of the accused - rebuttal of presumption - contention of the learned Special Public Prosecutor appearing for the appellant/state is that the trial Court failed to consider the oral evidence and also the documentary evidence let-in by the prosecution to substantiate the case - HELD THAT:- The respondent, is not connected with UPUS trust. Only for the reason that the Managing trustees was residing in village, the respondent’s father who is Auditor of the CCCB Limited (Bank) was authorized to operate the trust account to facilitate the transaction. The amounts which have been properly accounted for the functioning of the trust is not in dispute. The house of the respondent was searched and no incri....... + More

Recovery of Death-cum-Retirement Gratuity of the petitioner - HELD THAT:- The petitioner while serving as a Commercial Tax Officer has failed to verify the effect of corresponding taxable sales / transit sales of the dealers Tvl Uco Agency, merely because under Charge No.3, there was no loss for the Government, it is paramount duty of the petitioner, while he was serving as a Commercial Tax Officer, who ought to have verified by holding detailed enquiry about the turnover of a particular company, but the act of the petitioner who failed to verify such effects and corresponding sales / transit sales was only to aid and help the particular agency which is not warranted from the petitioner, who was working as a Commercial Tax Officer.' Our Country is run only by the tax paid by the assesses made by the individual or from the companies. T....... + More

Grant of Bail - Smuggling - whether prayer for grant of bail under Section 167(2) of Cr.P.C. can be considered after the learned Trial Judge takes cognizance of offences alleged in the complaint filed under Section 36A of Narcotic Drugs and Psychotropic Substances Act, 1985? - HELD THAT:- It is settled that once a challan is filed, an application under Section 167(2) of Cr.P.C. for grant of bail does not survive for consideration or remain enforceable. Though Mr.Hashmath Pasha, strenuously contended that NCB’s complaint having been filed without completing investigation, is a defective one, it cannot be gainsaid that the learned Special Judge has already taken cognizance of the offence and trial is in progress. There is no challenge to the validity of compliant nor the order of taking cognizance. Mr.Hashmath Pasha has relied only on....... + More

Execution of foreign arbitration award - two-tier arbitration process - Quantity of dry weight of copper concentrate delivered - Difference of opinion between the Judges of Division Bench - HELD THAT:- Despite the fact that the legal submissions running into 75 pages were submitted beyond time, that is only on 13.9.2001, in view of the 11.09.2001 attack in New York, the learned arbitrator received the same and took the same into account despite being beyond time. It was only on 29.09.2001 that the learned arbitrator then passed his award. Given the aforesaid timeline, it is clear that the learned arbitrator was extremely fair to the respondent. Having noticed that the respondent wanted to stall the arbitral proceedings by approaching the Courts in Rajasthan and having succeeded partially, at least till February 2001, the conduct of the re....... + More

Maintainability of petition - Jurisdiction of Court - Time Limitation - exclusion of time period of lockdown for calculating the limitation for presentation of cheque/demand draft as directed by the Reserve Bank of India vide Notification dated 04.11.2011 - HELD THAT:- This is the policy decisions to be taken up by the Reserve Bank of India regarding which the Court cannot issue any direction. The writ petition filed under Article 32 of the Constitution of India is dismissed as not maintainable.

Liability of last owner - statutory dues under the Electricity Act, 2003 read with the General Terms & Conditions of Supply - whether the liability towards previous electricity dues of the last owner could be mulled on to the respondent? - HELD THAT:- The electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on &ldq....... + More

Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - failure of the drawer to make the requisite payment within fifteen days from the date of receipt of the notice - section 138 of NI Act - HELD THAT:- Although the violation of the provisions of Section 269SS of the Income tax Act is an offence under Section 271-D of the Act, but it is not an offence under the Negotiable Instruments Act, 1881, which is silent about the cash limit. Thus, these violations alone may not be sufficient to throw away the complaint in entirety; still, it remains as one of the factors which would weigh in favor of the accused, while appreciating the evidence led in the course of discharging the statutory presumptions of Ss. 118 and 139 of the Negotiable Instruments Act, 1881 - Another factor that creates a serious doubt in the credibility of th....... + More