Income Tax Settlement Commission order - rejecting the prayer for waiver of interest levied under Section 234B of the Act and further ordered that the interest u/s. 234B shall be charged up to the date of order u/s.245D(4) - HELD THAT:- The order passed on the Settlement Applications filed by the assessee is dated 07.01.2000. The second order of ITSC was passed on 19.02.2004. After those orders passed by ITSC on the issue in question, concerning the assessee, in the year 2010, the Honourable Supreme Court had an occasion to deal with the said issue in the case of Brij Lal & Others Vs. CIT, Jalandhar [2010 (10) TMI 8 - SUPREME COURT] Another Constitution Bench also dealt with the issue and rendered its decision of CIT Vs. Anjum M.H.Ghaswala [2001 (10) TMI 4 - SUPREME COURT] held that the Settlement Commission cannot re-open its conclud....... + More

Withholding of refund u/s 241A - as per petitioner refund due to the petitioner was liable to be released at the time of issuance of the intimation order under Section 143(1) - HELD THAT:- This Court is not able to appreciate the plea of lack of instructions as the counsel for the respondents had sufficient time to obtain instructions. Assessing Officer is based in Delhi and the present writ petition had been filed on 08th September, 2020 and was adjourned at the request of learned counsel for the respondents on 11th September, 2020 due to poor connectivity at his end. Despite issuance of scrutiny notice under Section 143(2) of the Act, 1961, the refund due to the petitioner is liable to be released at the time of issuance of the intimation/order under Section 143(1) of the Act, 1961 unless an order for withholding of refund has been pass....... + More

Revision u/s 263 - deductions of notional expenses like depreciation and special deductions like Section 80IA - HELD THAT:- As M/S KHIVRAJ TECH PARK LTD. VERSUS THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE II (4) , CHENNAI [2011 (2) TMI 1582 - ITAT CHENNAI] assessee was called upon to file necessary details, assessee had filed such details and the A.O. was in possession of all the relevant particulars regarding the lease income of the assessee which was a stop gap arrangement. In such a situation, we cannot say that the order of the A.O. was one without application of mind. AO thus having come to a lawful view after considering the details submitted by the assessee, we are of the opinion that the CIT was trying to substitute his view to the lawful view taken by the A.O. When two views are possible, and the A.O. has taken one v....... + More

Long term capital Gain - Transfer of assets - ITAT confirmed the deletion as per the order of CIT(A) - Power of CIT(A) in exercising power u/s 250(4) to accept remand report with regard to income as well as claim of expenditure made by assessee - HELD THAT:- Section 250(4) of the Income Tax Act provides that the Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the (Assessing) Officer to make further inquiry and report the result of the same to the Commissioner(Appeals). When the assessee produced the material before the Commissioner of Income Tax (Appeals), the Commissioner, in exercise of power under Section 250(4) of the Act, directed the Assessing Officer to submit the Remand Report. As submitted by the Assessing Officer himself, it is evident that, if the Remand Repo....... + More

Revision u/s 263 - issues mentioned in reasons recorded in writing while re-opening the original assessment - bogus purchases - HELD THAT:- AO in the instant case has taken a view of taxing only 20% of bogus purchase, which cannot, by any standard, be construed as a non-plausible view. Pune benches of the Tribunal in Vinod Bhagwan Patil vs. Pr. CIT [2020 (9) TMI 692 - ITAT PUNE] has quashed the order u/s 263 of the Act in similar circumstances. We, therefore, set-aside the impugned order on this score. We now accentuate the other point of view taken by the ld. Pr. CIT that the AO failed to examine sundry creditors shown by the assessee, details of other purchases, valuation of stock and various expenses as claimed in the Profit and loss account in the reassessment proceedings. DR has categorically submitted that the direction of the ld. P....... + More

Penalty u/s 271(1)(c) - Defective notice - non application of mind by AO - Non specification whether the penalty is initiated for concealment of income or furnishing inaccurate particulars of income since both the charges carry different connotations - assessee claimed deduction u/s 10AA @50% - HELD THAT:- AO has initiated penalty on both the counts of concealment of income as well as of furnishing of inaccurate particulars of income. In the show cause notice u/s 274 dated 31.03.2014 also none of the twin charges were stuck off. In the penalty order also penalty is levied for both the deafults. We find that issue is squarely covered in favour of the assessee by the decision of Sahara India Insurance Company Ltd [2019 (8) TMI 409 - DELHI HIGH COURT] as held that penalty is not sustainable if none of the twin charges in notice u/s 274 of th....... + More

Condonation of delay - delay of 158 days - HELD THAT:- On perusal of the discharge summary and medical prescription by doctors, there is no doubt that the settler and managing trustee was suffering from serious illness and could not pay attention to the issue of filing appeals of the assessee trust on time. On the issue as why the other trustee(s) did not file those appeals, the Ld. Counsel submitted that the impugned order was served through email address of the son of Sh. Naresh Kumar Gupta, and thus other Trustees were not aware of the Income-Tax proceedings of the trust. In our opinion, the illness of settler and managing trustee and the impugned order being not in the reach of other trustees, is a reasonable cause for delay in filing the appeals. By making the delay, the assessee trust does not get benefit in any manner. The delay is....... + More

Deduction u/s 80P(2)(a)(i) - Denial of claim as assessee was essentially doing the business of banking, and therefore, in view of insertion of section 80P(4) with effect from 01.04.2007, the assessee will not be entitled to deduction u/s 80P - HELD THAT:- AO after perusing the narration of the loan extracts in the statutory audit report for assessment years under consideration, came to the conclusion that out of the total loan disbursement, only a minuscule portion has been advanced for agricultural purposes. Narration in loan extracts in the audit reports by itself may not conclusive to prove whether loan is a agricultural loan or a non-agricultural loan. The gold loans may or may not be disbursed for the purpose of agricultural purposes. Necessarily, the A.O. had to examine the details of each loan disbursement and determine the purpose....... + More

Penalty u/s 271(1)(b) - assessee did not comply with the notice issued u/s 142(1) of the Act requiring the assessee to furnish certain information - HELD THAT:- DR could not bring out any evidence nor could establish that the facts in assessee’s own case in A.Y. 2009-10 [2020 (9) TMI 690 - ITAT PUNE]was something different as compared to these appeals of the assessee before us. Nor he could place any decision of the Higher Forum on this issue in support of the Revenue. As already taken for A.Y. 2009-10 assessee has submitted before the Assessing Officer a medical certificate from Dr. Majoj Dashpute stating that the assessee was under his treatment for depression with anxiety disorder for the last two years. AO still levied the penalty saying that this is not sufficient reason for non-compliance of notice and therefore the AO has abs....... + More

Deduction u/s. 80IB(10) on pro-rata basis in respect of shops and commercial buildings - allowability of deduction on pro-rata basis - HELD THAT:- This Tribunal in assessee‟s own case for A.Y. 2013-14 [2020 (9) TMI 691 - ITAT PUNE] observed that the respondent revenue granting the deduction consistently on pro-rata basis from A.Y. 2009-10 onwards up to 2012-13 but, however, without there being any change in the facts relating to deduction u/s. 80IB(10), the respondent revenue denied the said deduction for A.Y. 2013-14. This Tribunal on the rule of consistency by placing reliance in the case of Commissioner of Income Tax Vs. Paul Brothers [1992 (10) TMI 5 - BOMBAY HIGH COURT] held that the assessee is entitled to claim pro-rata deduction in respect of shops and commercial establishments having no change in the facts of the case. We h....... + More

Exemption u/s 54F with reference to long term capital gains on sale of land - Whether AO was not given an opportunity by the ld. CIT(Appeals) to contest the additional claim / evidence produced by the assessee? - HELD THAT:- This ground was allowed by ld. CIT(Appeals) without giving an opportunity to AO to contest this additional claim / evidence produced by the assessee which is as per the decision in the case of Humayun Suleman Merchant [2016 (9) TMI 70 - BOMBAY HIGH COURT]. That further before us, assessee fairly conceded that this ground is in favour of the Revenue. Hearing the parties and considering the facts and legal parameters on this issue, ground No.3 of the appeal of the Revenue is allowed. Capital gain computation - FMV determination - HELD THAT:- CIT(Appeals) has adjudicated the matter in a balanced way whereby the valuation....... + More

Condonation of the delay of 489 days - HELD THAT:- The assessee was diligent and has sought advice from his Counsels from time to time and was not guilty of negligence on his part and it cannot be said that the delay was due to the negligence and inaction on the part of the assessee, which could have been avoided by the assessee if he had exercised due care and attention. There is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and he does not stand to benefit by resorting to such delay. There exists sufficient and reasonable cause for condoning the delay of 489 days in filing the present appeal where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred. Therefore, in exercise of powers under section ....... + More

Exemption u/s 11 and 12 - Amount deployed towards share capital of BARC pursuant to the policy of the Central Government and TRAI recommendations treated in the nature of investment in violation of Section 11(5) read with section 13(1)(d) - HELD THAT:- BARC enables assessee to fulfil its ‘objects incidental or ancillary to the attainment of the main objects, like to affiliate, admit to membership, aid and to receive aid from any other society, association, company, corporation firm, partnership or person promoting or formed or intending to promote any of the objects of Company - BARC, being a not for profit Company under section 25 of the Companies act, 1956, is not permitted to distribute any dividends or profits to its shareholders On liquidation, its MOA provides that any surplus left shall be transferred to another Section 25 Co....... + More

Ex-parte order passed by CIT-A - Denial of natural justice - non giving opportunity of hearing to the respective assessee - addition u/s 68 - HELD THAT:- From the perusal of the order of the CIT(A) can be seen that the notice were issued to the assessee and on two occasions, the assessee sought time before the CIT(A). The respective assessee have not made out any case as regards to the non appearance before the CIT(A) despite giving proper opportunity. Therefore, we are imposing cost of ₹ 5,000/- in each case which should be paid by the respective assessee to the Prime Minister’s relief fund. The CIT(A) has not discussed the merit of the case and passed ex-parte order. It will be appropriate to remand back this issue in entirety to the file of the CIT(A).The appeal of the assessee is partly allowed for statistical purpose.

Revision u/s 263 - Estimation of additional profit at the rate of 11.27% towards bogus purchases by AO - HELD THAT:- The view taken by the AO in not taxing 100% but only profit element in such hawala purchases is fortified by the judgment in Pr.CIT Vs. Mohommad Haji Adam & Co.[2019 (2) TMI 1632 - BOMBAY HIGH COURT] wherein it has held that no ad hoc addition for bogus purchases can be made. Rather, the addition should be made to the extent of difference between the gross profit rate on genuine purchases and gross profit rate on hawala purchases. Since the AO in the instant case has made addition for the additional profit at the rate of 11.27% towards bogus purchases, we hold that the impugned order, treating such assessment order as erroneous and prejudicial to the interest of revenue, cannot be validated. The AO has taken a view, which cannot, by any standard, be categorized as a non-plausible view. We, therefore, set-aside the impugned order. - Decided in favour of assessee.

Deduction u/s. 80IB(10) - principle of consistency - Pro-rata allotment - CIT(A) held that the project is a composite project and cannot be construed that the housing project and commercial establishments are separate projects and confirmed the order of AO in denying the deduction u/s. 80IB(10) - Whether deduction u/s. 80IB(10) of the Act should be automatically granted on pro-rata basis in respect of housing project completed by the assessee? - HELD THAT:- Coming to the decision of Hon’ble High Court of Bombay in the case of Paul Brothers [1992 (10) TMI 5 - BOMBAY HIGH COURT] [as pleased to hold when there was no change in the facts which were in existence during the initial assessment year, the claim of exemption cannot be withdrawn. In the present case as discussed above, the fact remains undisputed there was no change in the fac....... + More

Levy of penalty u/s. 271(1)(b) - non-compliance of notice u/s. 142(1) - HELD THAT:- Informations were received by the Assessing Officer from Sales Tax Department, Maharashtra and after which he had issued notice u/s. 148 of the Act to the assessee for which there was no compliance. AO had issued another notice u/s. 142(1) of the Act. Again there was non-compliance and the Assessing Officer proceeded to impose penalty u/s. 271(1)(b) of the Act stating that there was no reasonable cause demonstrated by the assessee for non-attendance on the given date as per the said notice. The penalty was confirmed by the ld. CIT(A) upholding the findings of AO. When we peruse the penalty order is crystal clear that the assessee has submitted before the Assessing Officer a medical certificate from Dr. Majoj Dashpute stating that the assessee was under his....... + More

Deduction u/s 80IB - specific definition for the term 'built-up area' - Car parking inclusion calculation of built-up residential units - HELD THAT:- As decided in C. SUBBA REDDY (HUF) [2010 (12) TMI 248 - ITAT, CHENNAI] Section 80IB(10) of the Income Tax Act speaks about the residential unit having a maximum built-up area of 1500 sq.ft. to claim deduction. CIT(Appeals) has correctly held that built-up area is only the inner measurement of the residential units at the floor level plus projections and balconies plus thickness of the walls. But, the car parking area is not a living space and it is a common area which can be accessed by anyone since it has no boundary wall. No justification in including the car park in the definition of the built-up area of the residential unit for the purpose of determining the maximum built-up area....... + More

Addition u/s 14A - Recording of satisfaction - Whether Tribunal was right in not considering the fact that the assessee has incurred interest expenditure and made investment more than its reserves and surpluses? - HELD THAT:- Bombay High Court in the case of Godrej & Boyce Manufacturing Company Limited, Mumbai Vs. Deputy Commissioner of Income Tax [2010 (8) TMI 77 - BOMBAY HIGH COURT] AO must, in the first instance, determine whether the claim of the assessee in that regard is correct and the determination must be made having regard to the accounts of the assessee. The satisfaction of the AO must be arrived at on an objective basis. It is only when the AO is not satisfied with the claim of the assessee, that the legislature directs him to follow the method that may be prescribed. Sub-s. (3) of s. 14A provides for the application of su....... + More

Exemption u/s 11 - Denial of exemption u/s 11 due to the activities not in accordance with the objects - allowance of 50% of salary to the Secretary granted by the CIT(A) - Substantial question of law - HELD THAT:- We find that the CIT(A) has not assigned any reasons as to why only 50% of the addition made by the Assessing Officer should be sustained. It is not clear as to why the Revenue did not file any appeal to sustain the entire addition. If according to the CIT(A), AO committed an error in making the entire addition and the same requires to be interfered or modified, then the CIT(A) is expected to assign reasons. We find that there is no such reason assigned by the CIT(A) in its order dated 04.11.2016 and therefore, the relief granted by the CIT(A) to the assessee is based on personal opinion of the CIT(A) and not supported by any f....... + More

Reopening of assessment u/s 147 - change of opinion - whether AO had not formed any opinion in the first instance on the issue relating to transferred capital assets? - whether Tribunal was justified in quashing the re-opening of the assessment? - land fell within the limits of the Corporation of Chennai and the classification cannot be a agricultural land - HELD THAT:- We found that the assessee vide letter dated 06.01.2014 during the original assessment proceedings had brought the entire details about the sale of the land in Uthandi Village and also noted the fact that the Gazettee notification issued by the Government of Tamilnadu was very much available when the original assessment was completed and the assessing officer had no new tangible material to clarify its reopening. By relying upon the decision in the case of NKV Krishna 2013....... + More

Revision u/s 263 - AO while computing the quantum eligible for deduction u/s 80IB(10), omitted to examine the vital aspects and parameters - JDA agreement - power of PCIT to invoke revision - HELD THAT:- We find that the issue involved in the matter is wholly factual. AO formed an opinion initially and completed the assessment under Section 143(3) - PCIT thought fit to invoke his power u/s 263 and doubted the value adopted in the transaction and that the Partnership Firm was a device made to divert the excess profit to the sons of the land owners and this according to the PCIT was clearly hit by Section 80 IA(10) and the excessive deduction had to be deleted. Tribunal on its part re-examined the factual position and opined that there is nothing to indicate that the land was transferred at the guideline value so as to shift the profit to t....... + More

Claim for exemption u/s 10AA - Profit derived from a unit situated at SEZ - definition of trading and what it means import for the purpose of re-export - HELD THAT:- As decided in DCIT Vs. Boommidal Enterprises Pvt. Ltd [2017 (4) TMI 867 - ITAT VISAKHAPATNAM] Profit derived from a unit situated at SEZ that is engaged in the business of ‘trading’ in the nature of import and re-export falls within the definition of services, hence eligible for deduction u/s 10AA. Profit derived from the units situated at SEZ, engaged in the business of trading activity in the nature of import and re-export of goods falls within the definition of the term 'services' as defined in section 10AA. Consequently, the assessee is eligible for exemption u/s. 10AA of the Act, towards export profit derived from eligible unit located at SEZ. CIT (A)....... + More

Deduction u/s 80P - assessee was essentially doing the business of banking and disbursement of agricultural loans by the assessee - AO concluded that the assessee cannot be treated as co-operative society - HELD THAT:- After perusing the narration of the loan extracts in the statutory audit report for assessment years under consideration, came to the conclusion that out of the total loan disbursement, only a minuscule portion has been advanced for agricultural purposes. Narration in loan extracts in the audit reports by itself may not conclusive to prove whether loan is a agricultural loan or a non-agricultural loan. The gold loans may or may not be disbursed for the purpose of agricultural purposes. Necessarily, the A.O. had to examine the details of each loan disbursement and determine the purpose for which the loans were disbursed, i.e....... + More

Penalty u/s 271(1)(c) - disallowance of depreciation on leased asset - HELD THAT:- This issue has already been set aside by the coordinate bench to the file of Ld. AO for re-examination. Further, the penalty on identical issue has been deleted by Tribunal for AY 1995- 96,[2018 (8) TMI 1981 - ITAT MUMBAI]wherein it was held that since the addition on the basis of which the penalty was levied does not survive, the penalty would not be sustainable.Respectfully following the same, we confirm the deletion of penalty, albeit on a different ground. Penalty on disallowance of deduction u/s 80M - We find that penalty on identical issue has been deleted by the Tribunal in the case of ICICI Limited [2017 (4) TMI 1509 - ITAT MUMBAI]. Respectfully following the same, we confirm the deletion of penalty. This ground stand dismissed. Disallowance of expe....... + More

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

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

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

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

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

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

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

Profiteering - Constitutional Validity of Section 171 of the Central Goods and Services Tax Act, 2017 and Rules 122 to 137 of the Central Goods and Services Tax Rules, 2017 - "Procedure and Methodology" issued under Rule 126 by the respondent no. 3-NAPA. HELD THAT:- Issue Notice. No ground for stay of payment is made out in the present case. Respondent no.3 is directed to verify the claims made by the petitioner with respect to passing on the commensurate benefit amounting to ₹ 35,28,744/-.

Permission for withdrawal of writ petition and grant liberty to pursue the matter before advance ruling authority (AAR ) - Acceptance of a bid - award of a contract - application for advance ruling - While dismissing the writ petitions, the learned Single Judge has imposed cost of ₹ 5 Lacs - HELD THAT:- the learned Single Judge in order to draw a curtain on the litigation at that stage had already been offered an opportunity to dismiss the writ petition as withdrawn. In our view, once such a request has been made, and unless there are any unrepresented third party rights that may be affected, or any of the contingencies mentioned in the judgments referred to herein above exist, it is always ordinarily an acceptable position that the Court should not proceed to adjudicate the matter and permit withdrawal on such conditions that may b....... + More

Detention of goods - goods detained for the reason that goods have been unloaded at a place other than the recorded destination - HELD THAT:- The petitioner has not been served with a detention order so far, though the goods were detained from 09.09.2020. In the facts of the case, this Court is of the firm opinion that to meet the ends of justice, the petitioner get release of all goods and conveyance, on providing bank guarantee for the amount involved. The learned Government Pleader submits that the amount of tax and penalty together will come to ₹ 2,34,500/-. The writ petition is therefore disposed of directing the respondent to release the goods and conveyance on the petitioner, providing bank guarantee for an amount of ₹ 2,34,500/-.

Validity of assessment orders - Section 62 of the GST Act - HELD THAT:- Inasmuch as, admittedly, the said returns were filed more than 30 days after the receipt of the orders by the petitioner, the petitioner cannot be heard to contend that Ext.P2 series of orders ought to be set aside in terms of Section 62 of the GST Act. Accordingly, without prejudice to the right of the petitioner to impugn Ext.P2 series of assessment orders before the appellate authority under the GST Act, the writ petition in its challenge against the said orders is dismissed. Recovery steps for recovery of the amounts confirmed against the petitioner by EXt.P2 Series of assessment orders shall, however, be kept in abeyance for a period of three weeks from the date of receipt of a copy of this judgment, so as to enable the petitioner to avail his appellate remedy in the meanwhile.

Validity of assessment orders - Section 62 of the GST Act - HELD THAT:- Inasmuch as, admittedly, the said returns were filed more than 30 days after the receipt of the orders by the petitioner, the petitioner cannot be heard to contend that Ext.P2 series of orders ought to be set aside in terms of Section 62 of the GST Act. Accordingly, without prejudice to the right of the petitioner to impugn Ext.P2 series of assessment orders before the appellate authority under the GST Act, the writ petition in its challenge against the said orders is dismissed. Recovery steps for recovery of the amounts confirmed against the petitioner by EXt.P2 Series of assessment orders shall, however, be kept in abeyance for a period of three weeks from the date of receipt of a copy of this judgment, so as to enable the petitioner to avail his appellate remedy in the meanwhile.

Maintainability of petition - availability of statutory appeal under Section 107 of the Act - Provisional release of the goods and conveyance under Section 67(6) of the Act - perishable goods - HELD THAT:- The client of Mr. Vora should prefer statutory appeal under Section 107 of the Act against the order passed under Section 130 of the Act. Mr. Vora would submit that his client would be filing an appeal in near future. Such application could have been preferred only after filing of the appeal under Section 107 of the Act. Be that as it may, if an appeal is filed, the authority concerned shall immediately take up the application filed by the writ applicant for provisional release of goods and conveyance under Section 67(6) of the Act and pass appropriate order in accordance with law, within a period of 8 days thereafter.

Vires of Rule 86A of Central Goods and Services Tax Rules, 2017 - power to block the Input Tax Credit - HELD THAT:- Having gone through the material on record, for the present, we are inclined to issue notice to the respondents with respect to the reliefs prayed in the draft amendment and paras-8(B) and 8(C) of the main petition. Let notice be issued to the respondents returnable on 14th September 2020.

Refund of ITC - zero-rated supply - Section 54 of the CGST Act, 2017 - periods of July, August, September, October and November 2017 - HELD THAT:- The respondent had, in a cryptic manner, rejected some of the proposals by stating that, as per Section 54 (8)(a), the ineligible goods or services are not directly used for making zero-rated supply. Apart from this, there is absolutely no other reasons adduced in the order. It is a settled proposition of law that whenever an application of this nature is made, the statutory authority are bound to consider the claim made and pass a reasoned order. In the present case, the petitioner had made an application for refund under Section 54 of the Act and when the respondent had issued notice to them for rejection of the ineligible goods and services of SGST, CGST and IGST, they have given a detailed ....... + More

Provisional attachment of Bank Accounts of petitioner - It is the case of the petitioners that the bank accounts of the petitioners have been provisionally attached under section 83 of the Gujarat GST Act, without considering the provisions of section 83 of the GGST Act, as in the case of the petitioners no proceedings are pending under any of the sections mentioned therein - HELD THAT:- The petitioners have issued very large number of E-Way bills within a short period of time between their associate concern without movement of goods like cement, iron, tiles, brass etc. From the report, submitted to the Enforcement department of the respondent authorities, it is also revealed that the petitioners were involved in carrying out the transactions on paper without actual physical movement of goods. It is also pertinent to note that petitioner ....... + More

Classification of supply - Composite Supply or Mixed Supply - Benefit of entry No.74 of exemption Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 - Applicability of Clinical Establishment Act, 2010 - wellness facilities are provided with the help of highly qualified professionals’ doctors in the field of naturopathy, researchers, and support staff - Pre and Post GST regime - registration under Service Tax - HELD THAT:- The entire package consists of the above 3 components and the packages would not be possible without any one of the 3 components. In other words, the packages offered by the applicant are naturally bundled and would be aptly covered under the definition of Composite Supply. Further, the principal supply would be the accommodation services since the therapy can in no way be administered without accommodatio....... + More

Exemption form GST - educational assessment examination (ASSET) with its variants) provided by the applicant to school/educational organization - exemption under Sr. No. 66(b)(iv) of the Not. No. 12/2017-CT (rate) dated 28.06.2017 and entry No. 69(b)(iv) of Not. No. 9/2017-Integrated Tax (Rate) dated 28.06.2017 as well as equivalent SGST Notification - HELD THAT:- The applicant has to satisfy following two conditions in order to be eligible for exemption under Sr. No. 66(b)(iv): (i) The recipient of the services should be ‘Educational Institution’ as defined under the clause (y) of Paragraph 2 of the said Notification No. 12/2017-Central Tax (Rate). (ii) the supply of service should be in relation to the examination conducted by the educational institution. The applicant has stated that they are supplying “ASSET” m....... + More

Exemption from GST - selling of residential flats after date of completion certificate of commercial shops or after first occupancy in building - reversal of ITC on expenses incurred up to date of completion certificate shops - ITC on expenses incurred after date of completion certificate of commercial shops. Whether selling of residential flats after date of completion certificate of commercial shops or after first occupancy in building is exempt supply? - HELD THAT:- during the personal hearing, the applicant himself stated that they didn’t receive Completion Certificate in respect of their residential building (units). They have received only partial Building Use permission in respect of commercial units but not for residential units The applicant has received part Building Used Permission for the commercial Shops of Ground and F....... + More

Maintainability of petition - availability of alternative remedy - appealable order or not - Section 107 of the Goods and Services Act, 2017 - refund claim - HELD THAT:- The aforesaid order is appealable under Section 107 of the Goods and Services Act, 2017, and no writ petition ought to be entertained in respect thereof - As there is an alternative remedy available to this petitioner, we are not inclined to entertain the prayer qua order dated 17th June, 2020. The petitioner is at liberty to prefer an appeal in accordance with law before the appropriate forum. Refund claim - HELD THAT:- So far as the second claim of refund of ₹7,68,938/- is concerned, which was made on 23rd January, 2020 (Annexure P-3 to the memo of this petition), the same is yet to be decided by the respondents. The concerned respondent-authorities are directed t....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Refund of Customs Duty - Liquefied Petroleum Gases for supply to household domestic consumers - Effect of Notification, prospective or retrospective? - N/N. 37/05-Cus dated 2.5.2005 was issued exempting Liquefied Petroleum Gases for supply to household domestic consumers at subsidized prices from whole of customs duty - period September, 2004 to April, 2005. HELD THAT:- The undisputed facts are that the appellants had imported commercial butane (Liquefied Petroleum Gases) classifying it under Chapter heading 2711.1300 of Customs Tariff Act, 1975 on payment of applicable Basic Customs Duty (BCD) of 10%. Two amended notifications of the basic notification No. 21/02-Cus dated 1.3.2002 were in force during the period namely, Notification No. 82/04-Cus dated 18.8.2004 and 11/05- Cus dated 1.3.2005. Under Notification No. 82/04-Cus dated 18.8.2....... + More

Served Form India Scheme (SFIS) - Exemption of Customs duty under N/N. 92/2004-Cus. dated 10.09.2004 - Import of two golf carts with accessories - restricted goods or not - HELD THAT:- The department did not file any appeal against the order dated 26.12.2008 passed by the Commissioner (Appeals) in the first round of litigation. Since the department had not challenged the said order, the original authority as well as the appellate authority cannot go beyond the direction issued by the Commissioner (Appeals). In the present case, DGFT has clarified by issuing various clarifications to the effect that golf carts do not come under the restricted category of vehicles, which is stated in para 3.6.4.5 of the Foreign Trade Policy - Further, the licensing authority, i.e. DGFT, has not taken any action against the appellant for wrongly availing the....... + More

Duty Drawback - non-realisation of sale proceeds - Failure to approach the Reserve Bank of India for obtaining the necessary extension - Rule 16A of the Drawback Rules - HELD THAT:- The issue as to whether the extension is granted by the Reserve Bank of India or whether the petitioner is entitled for the relief otherwise, being factual issues, could be determined by the Revisional Authority himself, in line with the decision relied upon by the learned Standing Counsel for the respondents in ZAZ AND ZAZ PVT. LTD. VERSUS UNION OF INDIA AND 2 OTHERS [2014 (3) TMI 840 - ALLAHABAD HIGH COURT], wherein the Hon'ble Division Bench of the Allahabad High Court was also of the view that factual aspects requires to be verified by the Authorities and accordingly remanded back the matter. The matter is remanded back to the third respondent herein. ....... + More

Valuation of imported goods - various kind of polyester knitted fabric of different weight and colour - rejection of declared value - enhancement of declared value - Commissioner (Appeals) allowed the appeal accepting the declared value - period 8 June, 2018 to 9 February, 2019 - HELD THAT:- The assessing officer have been making enhancement in a routine manner and the respondent who are regular importers are left with no choice but to sign on the dotted line for taking delivery of their goods to carry on their business, and also save the demurrage charges if the consignment is delayed in the port for want of clearance. Appeal dismissed - decided against Revenue.

Condonation of delay of 27 days from the date of limitation before commissioner (Appeals) - Delay was within condonable period of thirty days - sufficient cause which prevented the appellant from filing the appeal within limitation period - Benefit of exemption - certificate of origin - HELD THAT:- Commissioner (Appeals) have erred in dismissing the appeal on limitation, vide the impugned order dated 28.07.2020, which is in violation of the direction of the Hon’ble Supreme court in IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER]. Accordingly, the present appeal is admitted for hearing on merits. The rejection of certificate of origin is bad as it was a case of minor discrepancy and was fit to be ignored in terms of Rule 18 of the said rules. Further, the appellant had produced the rectified certificate o....... + More

Smuggling - Provisional release of seized goods - Betel Nuts and Black Pepper - prohibited goods or not - evidence with revenue to establish that the same were smuggled into the country or not - HELD THAT:- There are no evidence to establish that the goods which were moved within the country, were smuggled in the country and therefore, it was high handedness on the part of revenue to have detained the said goods not released the same inspite of the order of learned Commissioner (Appeals). The appeal filed by Revenue is dismissed - Further, Revenue is directed to release Black Pepper and Betel Nuts to the respondents by 15 March, 2020.

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

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

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

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

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

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

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

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

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

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

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

Winding up proceedings - Section 481 and Section 555 of the Companies Act, 1956 - HELD THAT:- This Company Court is of the opinion that it is just and reasonable in the circumstances of this case to order dissolution of said company. To be noted, there is one limb of prayer for deposit of this meagre amount also in the appropriate account in Reserve Bank of India under Section 555 of said Act. Before this Court does that, it is to be noticed that one limb of the prayer in captioned application, namely limb (b) talks about C.A.No.390 of 2013, which has been filed against ex-directors inter alia under Section 454(5)(A) of said Act. This captioned application and captioned CP are disposed of.

Sanction of Scheme of Arrangement - sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and does not violate of any provisions of law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, the CP(CAA) No.965/MB-I/2020 is made absolute in terms of prayer made in the Company Scheme Petition. Hence ordered. The Scheme with an appointed date fixed as 1st April 2020, is hereby sanctioned. It shall be binding on the Petitioners Companies involved in the Scheme and all concerned including their respective Shareholders, Secured Creditors, Unsecured Creditors/Trade Creditors and Employees.

Sanction of Scheme of Amalgamation (Merger by Absorption) - Section 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy. None of the parties concerned have come forwarded to oppose the Scheme of Merger - Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No C.P.(CAA) 3217/MB/2019 filed by the Petitioner Companies has been made absolute in terms of prayer clause (a) to (c) of the Company Scheme Petition. Petitioner Companies are directed to lodge a copy of this order and the Scheme duly certified by the Deputy/ Assistant Registrar, National Company Law Tribunal, Mumbai Bench, Mumbai with the concerned Superintendent of Stamps for the purpose of a....... + More

Sanction of Scheme of Amalgamation (by way of Merger by Absorption) - convening and holding of various meetings - HELD THAT:- The Applicant Companies to serve the notice upon the Regional Director, Western Region, Ministry of Corporate Affairs, Mumbai Maharashtra, pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - The Applicant Companies to serve the notice upon the Registrar of Companies, Mumbai, pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - The Applicant Companies to serve the notice on the concerned Income Tax Authority within whose jurisdiction, the Applicant Company No. 1 PAN:- AABCN1024D having his address at The Income Tax Officer, Range Code....... + More

Sanction of Amalgamation Scheme of Merger by Absorption - Sections 230 to 232 of Companies Act - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, CSP NO. 2987 OF 2019 is made absolute in terms of prayers clause (a) to (d). Petitioners are directed to lodge a copy of this Order along with a copy of the Scheme of Merger by Absorption with the concerned Registrar of Companies, electronically along with E-Form INC-28, in addition to physical copy, as per the relevant provisions of the Companies Act , 2013 - The Petitioner Companies to lodge a copy of this Order and the Scheme duly certified by the Deputy Registrar or Assistant Registrar, National Company Law Tribunal, Mumbai Bench, with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty payable within 60 days from the date of receipt of the order, if any.

Sanction of Scheme of Merger by Absorption - convening and holding of various meetings - section 230 to 232 of Companies Act - HELD THAT:- It shall be the duty of the Applicant Company concerned to ensure that every creditor of the company is put on notice as regards the Scheme. Objections, if any, will be considered at the time of final hearing for sanction of the Scheme. The Applicant Companies to serve the notice upon - (i) the Central Government through the Regional Director (Western Region), Ministry of Corporate Affairs, Mumbai; (ii) Registrar of Companies, Maharashtra, Mumbai; (iii) the concerned Income Tax Authority within whose jurisdiction each of the Applicant Companies' assessments are made, pursuant to section 230(5) of the Companies Act, 2013 and as per rule 8 of the Companies (Compromises, Arrangements & Amalgamatio....... + More

Restoration of the name of the struck off company - Section 252(3) of the Companies Act, 2013 - HELD THAT:- It is noted that company has failed to file returns since 2011-12 which prompted ROC, Ahmedabad to strike off the name of such company from its Register of Companies. No plausible explanation has been given for such failure. Although, it has been claimed that notice u/s 248(1) was not served but it is noted that notice in Form STK-5 containing name of this company was published. The Company is no doubt having liabilities as well as assets in its balance sheet. Its also owing land which has got substantial value and disposal of the same cannot be done unless the company is revived. Thus, the name of the company can be restored in the Register of Companies maintained by ROC, Ahmedabad from the date of its striking off. However, for no....... + More

Sanction of Composite Scheme of Merger and Amalgamation - section 230-232 of the Companies Act, 2013 - HELD THAT:- This Tribunal directs that, in view of the fact that there are no Secured Creditors in the Transferor Company No. 1 and 2 and the certificate of the CA in respect of the same there is no need of convening a meeting of the secured creditors in the Transferor Company No. 1 and 2. In compliance of sub-section (5) of Section 230 and Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, the Applicant Companies shall send a notice in Form No. CAA.3 along with disclosures mentioned under Rule 6, to, (i) the Central Government through the Regional Director, North-western Region, (ii) the Registrar of Companies, Gujarat, (iii) the Income Tax Authorities concerned and (iv) the Official Liquidator, stating t....... + More

Amalgamation of Scheme of Merger by Absorption - Sections 230 to 232 of Companies Act - HELD THAT:- The observations made by the Regional Director have been explained by the Petitioner Companies in Para 11 to 16 above. Moreover, the Petitioner Companies undertake to comply with all the statutory requirements, as may be required under the Companies Act, 2013 and the Rules made thereunder. The clarifications and undertakings given by the Petitioner Companies are accepted by the Tribunal - The Official Liquidator has filed his report dated 17th August, 2020 in the consolidated Company Scheme Petition bearing CP (CAA) NO. 966/MB.V/2020, inter alia, stating therein that the affairs of the Transferor Company has been conducted in a proper manner not prejudicial to the interest of the Shareholders of the Transferor Company and that the Transfero....... + More

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

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

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

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

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

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Hon’ble National Company Law Appellate Tribunal in the case of Dr. Vishnu Kumar Agarwal Vs. Piramal Enterprises Limited [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] has held that There is no bar in the ‘I&B Code’ for filing simultaneously two applications under Section 7 against the ‘Principal Borrower’ as well as the Corporate Guarantor(s) or against both the ‘Guarantors’. However, once for same set of claim application under Section 7 filed by the Financial Creditor is admitted against one of the ‘Corporate Debtor’ (Principal Borrower or Corporate Guarantor(s)), second application by the same Fi....... + More

Liquidation of the Corporate Debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- J&K Bank with 20.71% vote share voted for the extension of period of CIRP. The Yes Bank however could not vote on the agenda on account of their internal issues of the appointment of an Administrator for the Bank. They could not decide on the said agenda as they did not have a mandate to take any decision due to the restructuring that was underway. Therefore, Yes Bank requested for deferring the issue. Thus, the view of the majority vote share holder was not available. Hence, the scheduled meeting was, after consultation with CoC members, adjourned to 13.06.2020 - The adjourned meeting was convened on 13.06.2020 through a conference call and the Resolution for liquidation of Corporate Debtor was adopted with 100% vote share an....... + More

Removal of original Petitioner No.4 from the directorship of 1st Respondent - HELD THAT:- It was decided to convene the said Meeting on 29.6.2020 and the same was duly served upon original petitioner No.4. The intimation for the same was given to original petitioner No.4 vide dated 26th May, 2020 (Page 1799 of appeal). The meeting was ultimately held on 7.7.2020 and the original petitioner No.4 was removed. We observe that proper notice was issued to convene EGM and the same was received by the appellants including the nominee director but they did not make any representation and the EGM voted for removal of nominee director with majority - also, 8th Respondent is also nominee director of 1st appellant in 1st respondent company. We find no illegality in this process. There are no merits to interfere in the impugned order - appeal dismissed.

Maintainability of application - initiation of CIRP - Corporate Debtor - Operational creditor - inability to pay debt - existence of default or not - HELD THAT:- It is clear from reading of clauses 4 and 5 of the SDA, the sub distributor purchases products from the distributor according to the price list applicable and terms of sale. The distributor has to bear the cost of price drop for stocks lying with sub distributor and its trade partners as per a mutually accepted process and the payment and credit terms have been specified in Annexure ‘C’ attached with sub distributor agreement. Thus, it is clear that the transaction for mobile handsets and accessories is between the distributor (M/s. PP Telecell Marketing Pvt. Ltd.) and the Operational Creditor (M/s. Park Network Pvt. Ltd.) and not with any other entity. No where in th....... + More

Valuation of assets of the Corporate Debtor - Section 31(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The appeal does not raise any question for determination with reference to grounds of appeal qua approval of a Resolution Plan as contemplated under Section 61(3) (i) to (v) of the I&B Code. It is not the Appellants’ case that the Resolution Plan is in conflict with any extant law or that there has been any material irregularity at the hands of Resolution Professional during the conduct of Corporate Insolvency Resolution Process. The record, on the contrary, portrays a very dismal and distressing picture of the Appellants, being in ex-management of the Corporate Debtor, who have been playing truant and holding back while their cooperation was sought by the Resolution Professional in carrying forward the Corporate....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Debtor unable to liquidate its financial debt - Financial Debt or not - record of default - information utility or other evidence produced by the financial creditor? - Time Limitation. HELD THAT:- This Adjudicating Authority after hearing both the parties and considering the application and documents annexed there to, observes that the contention challenging the maintainability of the petition that the petition is being filed in UP Electricity commission finds no ground for rejecting the application as the petition filed at UP Electricity Commission is between the Respondent (i.e. SEUPPTCL) and UPPTCL and this application cannot be rejected on this ground. Further with regard to the RBI circular dated 09th June, 2019, th....... + More

Stay on the process of CIRP until outcome of this Application - liquidity of Corporate Debtor to pay the claim - status of CoC on cancellation of claim of R-2 as Financial Creditor - HELD THAT:- Respondent No. 2 is only entitled for 25% of the net profit of the project. That apart, as per MOU, both sides agreed that in case of any dispute, the matter shall be resolved by the arbitration. It is also a matter of record that as per Annexure-E, page No. 59 of the Application i.e. reply of public notice given for title clearance, wherein, Mr. Mukeshbhai Nanubhai Desai has been shown as having ownership of 25% share in the "Coconut" project and to that effect MOU has been executed. Further, on perusal of the record, it is found that the RP has declared Respondent No. 2 as a sole Financial Creditor as reflected from Minutes of Meeting ....... + More

Restoration of company petition seeking initiation of CIRP - In view of another petition, the fist petitioner was asked to approach IRP for further action - effect of Withdrawal of another Company Petition - allegation of default in payment of a Financial Debt - Regulation 8 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016 - HELD THAT:- This Authority by order dated 12.02.2020 admitted the other Company Petition against the same Respondent/Corporate Debtor. The order dated 13.02.2019 was made suo motu after the order of admission was passed. The said order of admission was set at naught by withdrawal of the Company Petition under Section 12A of the Code. Therefore, necessary corollary would have been that the order dated 13.02.2020 passed in this case was accordingly su....... + More

Approval of Resolution Plan - the plan was approved by CoC - Section 31 (1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The COC approved the Resolution Plan submitted by M/S. NCJ Infrastructure Private Limited in which the total amount offered was revised and recorded their reasons for approval as required under Regulation 39 (3) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. It is specifically noted that the Resolution Applicant will infuse capital of ₹ 1, 00, 00,000/- in the Company by way of equity/equity linked instruments. Further depending on the requirements of the Company, the Resolution Applicant proposes to infuse the additional funds up to ₹ 9,00,00,000/by way of equity/ equity linked instruments or loan which will be utilised fo....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of dues - time limitation - Appellant submits that the application filed by the 1st Respondent / Bank (Financial Creditor) is time barred - the said application was filed on 01.04.2019 but the date of default mentioned in Section 7 application before the Adjudicating Authority was on 01.01.2016 - it is the stand of the Appellant that the application filed by the 1st Respondent / Bank after the expiry of three years is hit by the plea of ‘Limitation’. HELD THAT:- The requirement of Section 18 and 19 of the Limitation Act are independent and not cumulative. Further, the actual payment of money is not an essential one under Section 18 of the Limitation Act, 1963, but it is an essential one under Section 19 of the Act. An acknowledgment....... + More

CIRP process - employee- employer dispute - employees who resigned after the Resolution Plan is approved - stakeholders of the Corporate Debtor or not - Jurisdiction of Tribunal - HELD THAT:- The primary object of the I&B Code is to balance the interests of all the stakeholders including the workers, who need to be paid. Any Resolution Plan not adhering to the I&B Code, 2016 is against the interest of all the stakeholders and would defeat the spirit of the I&B Code. Thus, taking into consideration the primary objectives of the I&B Code, 2016, we are not inclined to accept the contention of the new management of the Corporate Debtor that the issue pertains employee-employer dispute and that this Tribunal does not have jurisdiction. The applicants, who resigned on 28.02.2019 from the Corporate Debtor-company with one month n....... + More

Maintainability of CIRP application - Corporate Debtor failed to make repayment of dues - NCLT allowed the application - NCLAT set aside the order of NCLT on the ground that applicant failed to prove that there was an outstanding amount - HELD THAT:- A bare reading of the NCLT order shows that it is only after a perusal of the documents, pleadings, and the supplementary affidavit of 03.08.2018, including the counter affidavit in the earlier section 7 application, that the NCLT came to the conclusion that a loan amount remained outstanding. The NCLAT, when it dealt with the NCLT order, wrongly recorded that documents which were already rejected by the adjudicating authority could not have been the basis of the order of admission. The NCLAT also wrongly recorded that there was no further evidence in support of the fact that any amount was o....... + More

Validity of order passed by NCLT - by the order it was mandated that no new petition would be entertained in the National Company Law Tribunal without record of default under Section 7 of IBC, 2016 - respondents submit that order dated 12.05.2020 was modified by a notification dated 13.08.2020 - HELD THAT:- The notification of 12.05.2020 has been struck down by the Calcutta High Court - The notification dated 13.08.2020 reiterated the notification of 12.05.2020 issued by NCLT, however modified it to the limited extent that the default record would be filed wherever available with the Information Utility. 9. Learned counsel for the respondent informed that by a subsequent Notification dated 07.09.2020, Notification dated 13.08.2020 modifying the earlier Notification dated 12.05.2020, which had been struck down by the Kolkata High Court, ha....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is settled position of law that once debt and default is proved to the satisfaction of the Adjudicating Authority, the case has to be admitted to initiate CIRP, and appoint IRP, etc. - We are satisfied with the reasons cited by the Petitioner to initiate CIRP. The instant Company Petition is filed in accordance with law. Petition admitted - moratorium declared.

Approval for replacement of the present IRP - appointment of RP in the place of IRP and CIRP proceedings - HELD THAT:- It is evident that if a class of creditors represented by Authorized Representative voted for more than 50% on a resolution, such voting is to be considered as 100% by the respective class of creditors in the resolution passed by the CoC. In this case, for the class of creditors were present in the meeting voted for more than 50% for replacement of IRP with the RP, such approval with more than 50% shall be treated as 100% on behalf of the Homebuyers to the resolution passed by the CoC as contemplated under Section 25A(3A) of the Code. No further enquiry is required, therefore we arrive to a conclusion that the resolution passed by the CoC is with more than 66% for approval of the replacement of IRP with RP, hence this app....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Levy of Service Tax - Scientific or Technical Consultancy service or not - export of services - amounts which they received in foreign currency for rendering services to their parent company, M/s. Aventis Cropscience GmbH, Germany - amounts which they charge from the farmers for providing guidance in multiplying the seeds? HELD THAT:- The issue decided in the case of BAYER BIO SCIENCE PVT LTD VERSUS CCCE & ST, HYDERABAD - II [2019 (2) TMI 1567 - CESTAT HYDERABAD] in favour of the assessee and it was held that while the nature of service is ‘scientific or technical consultancy service’, the service which when rendered qualifies to be called as export of services and therefore, no service tax is chargeable on such service. In these three appeals, there is no demand on this head at all. The second source of income for the app....... + More

Classification of services - Dredging Services - Penalty - HELD THAT:- Mr. Yashraj Singh Bundela, learned counsel appearing for Commissioner Of Customs Central Excise And Service Tax (appellant) submits that the Ad-volarm court fee will be deposited by the appellant, within four weeks from today. Registry to verify and proceed accordingly.

Levy of Service tax - Rent-a-cab Service - deemed sale or not - empowerment vested in the adjudicating authority to expand the scope of the taxable service by encroaching on taxing power vested in the several states by parliamentary enactment. HELD THAT:- Impliedly, neither did the taxing powers vested in the Union extend either to ‘sale’ or ‘deemed sale’ nor did all of the several ‘deemed sales’ incorporated in the constitutional amendment include some component that was not ‘deemed sale’ outside the pale of taxation in List II in the Constitution of India. The impugned order has erred in presuming so. In ‘works contracts’, there is an aspect that is beyond the taxing powers of the states which could, under Parliamentary sanction, be taxed by the Union. In both ‘sales&rsqu....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jurisdiction - appropriate forum - Striking down of Rule 96 ZQ of the Central Excise Rules - applicability if same in the facts of present case - HELD THAT:- We are not inclined to entertain these submissions unless such submissions have been first raised before the learned Tribunal and the same have been dealt with by the Tribunal in appropriate manner by reasoned order thereon. Though the learned counsel for the respondent Assessee also raised a plea before us that the Revenue stakes involved in the present case are below the prescribed monetary limit as per the latest litigation policy of Revenue Department, we are not inclined to consider the same at this stage. Appeal dismissed - decided against Revenue.

Valuation - ball or roller bearing - related party transaction - rejection of declared value - value is sought to be determined on the basis of price at which M/s. SKF India Ltd. has sold the product - benefit of N/N. 6/2006-CE. - HELD THAT:- So far as loan granted by M/S SKFIL to M/s SKFTIL is concerned interest at the rate of 9% has been fixed. It has also been specified that the rate of interest would be revised regularly at half yearly basis and shall not be less than the prevailing bank rate under section 49 of RBI Act, 1934. In view of above, it is apparent that this a purely business transaction and not a transaction creating interest in the business of each other. It is seen that M/s SKFIL and M/s SKFTIL are sharing some staff cost. It is seen that M/s SKFIL has factories located in Bangalore, Haridwar, Pune, Manesar and Jamshedpu....... + More

100% EOU - Exemption from payment of Customs Duty and Excise Duty - sale to DTA - production and export of cut flowers and flower buds of all kinds, suitable for bouquets and for ornamental purposes - benefit of N/N. 126/94Cus dated 3.6.1994 - thrust of the argument of the appellant is that according to Paragraph 3 of the exemption notification, sales made in DTA would attract excise duty and since the cut flowers sold by the appellant are non-excisable goods, no excise duty can be levied upon it - it is also contended that since the cut flowers are home grown, customs duty cannot be levied upon them and therefore, the demand of customs duty cannot be sustained. Whether customs duty can be charged on the non-excisable goods produced in India and sold in DTA by an EOU? - HELD THAT:- In the present case, the notification provides for exempt....... + More

Exemption of education cess & secondary and higher education cess - Area Based Exemption availed - whether in view of the exemption granted to the excise duty the petitioner would also be entitled to an exemption to the payment of education cess & secondary and higher education cess? HELD THAT:- By the order dated 13.02.2019 of the Assistant Commissioner, Excise, GST and Central Excise, certain amounts were sanctioned for being refunded to the petitioner and accordingly the refunds were given effect. Subsequent thereto, the Supreme Court in its pronouncement in Unicorn Industries vs. Union of India and others reports [2019 (12) TMI 286 - SUPREME COURT ] has held that In view of the subsequent judgment of the Supreme Court in Unicorn Industries (supra) the respondent authorities had issued the demand cum show cause notice dated 09........ + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Best Judgement Assessment - Reassessment of turnover - denial of input credit already allowed for the VAT collected by Southern Railway for the sale effected by the petitioner - Section 25(1) read with Section 25AA of the KVAT Act, 2003 - HELD THAT:- Ext.P2 is only a show cause notice and it is not necessary for this Court to interfere in the assessment proceedings at this stage. However taking into consideration the difficulties faced by the petitioner, it is necessary that the petitioner should be given time to get necessary documents to produce before the first respondent. The writ petition is disposed of permitting the petitioner to submit a reply to show cause with supporting documents within a period of three months from today. If the petitioner submits reply to Ext.P2 within the said period of three months, the first respondent shall consider the contentions of the petitioner and decide the matter after giving an opportunity of personal hearing to the petitioner.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Maintainability of complaint - Dishonor of cheque - complaint preferred by the appellant under Section 138 of the Negotiable Instruments Act has been dismissed in default for want of prosecution - HELD THAT:- In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 Cr.P.C. deals with a situation of non-appearance or death of complainant. Section 256 Cr.P.C. provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainan....... + More

Maintainability of Revision - jurisdiction to take cognizance of offence - Dishonor of Cheque - summon trial - Section 142(2)(a) of the N.I. Act - petitioner would submit that both the Courts below are absolutely unjustified in rejecting the objection raised by the petitioner as Ms. Neha Usendi, J.M.F.C. Raipur had no jurisdiction to take cognizance of offence under Section 138 of the N.I. Act against the petitioner - HELD THAT:- Both the Courts below have partly agreed with the petitioner/accused that cognizance of offence under Section 138 of N.I. Act could not have been taken by Ms. Neha Usendi, J.M.F.C. Raipur as she was conferred with the jurisdiction to try the cases based on N.I. Act arising from Khamtarai, Abhanpur, D.D. Nagar and Aamanaka Police Stations and the cognizance of offence ought to have been taken by Ms. Namrata Norge,....... + More