Reopening of assessment u/s 147 - No notice issued u/s 148 - alternate remedy - as per revenue that the notice was dispatched to the appellant - writ petitioner from Teynampet Post Office through speed post and also produced the proof before the learned Single Judge - HELD THAT:- Learned Single Judge was fully justified in dismissing the said writ petition, as the appellant has got an effective alternate remedy by way of an appeal before the Commissioner of Income Tax (Appeals) concerned. The Income Tax Act, 1961, being a physical Statute, has provided for hierarchy of remedies under that and there is no justification for the assessee to bypass such an appellate remedy. The point canvassed before us as well as before the learned Single Judge is not a pure question of law, but a pure question of fact with the limits of law involved in it. ....... + More

Withholding of the refund u/s 241A - HELD THAT:- Having heard learned counsel appearing on behalf of the parties and in view of the guidelines in Mapel Logistics [2019 (11) TMI 340 - DELHI HIGH COURT] as well as, the directions contained in the said order dated 03.03.2020 rendered by the Coordinate Bench [2020 (3) TMI 1243 - DELHI HIGH COURT] we allow the present petition and remit the matter back to the Assessing Officer to pass a fresh speaking order, after affording an opportunity of being heard to the petitioner and further permitting them to place on record the additional affidavit dated 01.06.2020, filed before this Court, in accordance with law, within a period of six weeks from today.

Disallowance u/s 14A r.w.r. 8D - Whether no exempt income received by assessee? - non recording of satisfaction - HELD THAT:- To apply the provisions of Section 14A AO should have recorded a finding as to how Sub-Section (1) of Section 14A would stand attracted. In the absence of any such finding, the disallowance made was not justifiable. AO straightaway proceeded to the second limb of Section 14(2) which is impermissible. The Tribunal rightly took note of the decision in the case of Redington India Ltd. [2017 (1) TMI 318 - MADRAS HIGH COURT] wherein it was held that the provisions of Section 14A r.w.r 8D cannot be made applicable in vacuum i.e in the absence of exempt income. Therefore, we find that the Tribunal was right in deciding the issue against the Revenue and in favour of the assessee. Disallowance of foreign exchange fluctuatio....... + More

Income from other sources u/s 56(2)(viib) - determining the share value of the premium - Method of valuation of shares - variation in value of shares to the extent of ten times between value adopted by the assessee company as against its actual value of underlying assets - assessee has adopted a method prescribed by the Income Tax Act, without considering the fact that the value of shares adopted by the assessee (under discounted case flow method) does not reflect the true market value of the shares on that date - assessee adopted the DCF method as available under Rule 11UA of the Rules for arriving at the value of the shares allotted and the share premium received - ao adopted the NAV method and re-valued the land owned by the assessee company for the purpose of determining the share value of the premium thereof - HELD THAT:- Noting that....... + More

Maintainability of appeal - low tax effect - whether case is covered by exceptions provided under clause (10)(c) of Circular No.3 of 2018 wherein it has been clearly stated that the cases involving revenue audit objection which had been accepted by the department are to be disposed off on merits? - deduction u/s 10A - HELD THAT:- The reason being that the assessee had omitted to adjust the business loss and unobserved depreciation of the assessment years 2007-08 & 2008-09 and he had failed to comply with the provisions of Section 10A(2)(ii) and (iii) - assessee vide letter dated 04.11.2015 stated that the return originally filed under Section 139 of the Act may be treated as a return filed pursuant to the notice issued under Section 148. The assessee after obtaining reasons for reopening had objected to the same, which was rejected by....... + More

Entitlement for deduction u/s.10A - when the new STP unit was not in existence and no activities are carried out from the STP unit - assessee is a Design Engineering Company - question of law involving in the case - HELD THAT:- Newly established undertaking is an undertaking of the assessee independent of all the undertakings that he is already possessing. In the instant case, the assessee was engaged on site development of software program. The programs were delivered at the premises of the client at the work site in South Korea. The activities of the assessee finally culminated at the work site of the clients at South Korea and there was no need for full fledged infrastructure facilities in India. Thus, the industrial undertaking of the assessee was independent of all the undertakings which it was already possessing. Therefore, the asse....... + More

Allowing set off of losses of amalgamating company against the profits of assessee amalgamated company - HELD THAT:- In order to claim benefit of set off, of accumulated loss, the amalgamated company has to satisfy the conditions laid down in 71A(2)(a)(b) and (c). It is pertinent to note that Sub-Section (2) starts with a non obstante clause. In other words, it shall have effect notwithstanding other provisions of the Act. Thus, the compliance with the conditions prescribed in Section 71A(2) of the Act is mandatory. Tribunal has not adverted to the aforesaid aspect of the issue and has not satisfied itself whether the assessee has complied with the conditions laid down in Section 71A(2) of the Act is sine qua non, to enable the assessee to claim the benefit of the set off under Section 71A of the Act. Since, the aforesaid aspect requires ....... + More

Reopening of assessment u/s 147 - reopening beyond the period of four years - differences between charges received as per TDS Certificate and charges offered in the P&L A/c - whether mere production of records and account books before the Assessing Officer would not necessarily amount to disclosure within the meaning of 'Disclosure' as mentioned under 1st proviso to Section 147 ? - HELD THAT:- We find none to be available on record as is evident from the AO dated 30.11.2016, wherein the AO himself states that after the assessment was completed u/s 143(3) on perusal of the records, it was seen from the P&L A/c that there is differences between charges received as per TDS Certificate and charges offered in the P&L A/c. When the assessment was completed under Section 143(3) of the Act, this aspect, was noted by the Assess....... + More

Reopening of assessment u/s 147 - notice beyond the period of four years from the end of the relevant assessment year - whether the business loss claimed by the assessee can be treated as a Speculative Loss - HELD THAT:- The decision in the case of Kelvinator of India Private Limited [2010 (1) TMI 11 - SUPREME COURT] fully supports the case of the assessee, wherein the Hon'ble Supreme Court held that after 01.04.1989, the Assessing Officer has power to reopen, provided there is tangible material to come to a conclusion that there is escapement of income from assessment, reasons must have a live link with formation of belief. As already pointed out the finding rendered by the AO stating that the expression 'or' occurring in between Clause (a) to (d) of Section 43(5) should be read as 'and' as no such interpretation coul....... + More

Penalty levied u/s. 271(1) ( c) r.w.s. 274 - non-validity of penalty notice - Defective notice - HELD THAT:- Reading of the penalty notice, we note that the AO has not stricken out the irrelevant portion of the fault/charge which would have spelt out the specific fault/charge against the assessee as per section 271(1) (c) of the Act. Since the proposed notice itself is defective, all subsequent proceedings are bad in law and the penalty imposed by the AO u/s. 271(1)(c) of the Act and confirmed by the Ld. CIT(A) should be cancelled. SEE M/S SSA’S EMERALD MEADOWS [2015 (11) TMI 1620 - KARNATAKA HIGH COURT] AND M/S MANJUNATHA COTTON AND GINNING FACTORY & OTHS., M/S. V.S. LAD & SONS, [2013 (7) TMI 620 - KARNATAKA HIGH COURT] - Decided in favour of assessee.

Exemption u/s 54F - Denial of exemption as appellant received multiple number of flats - transfer of 60% of land for builders against cost of construction of flats for 40% share - assessee and co-owners of the property had entered into a joint development agreement - Assessee submitted capital gains is not assessable in the year of entering into joint development agreement but only when the flats are received by the assessee as per the joint development agreement - HELD THAT:- All the flats were situated in a residential building and the four residential flats constitute “a residential house”. Accordingly, view confirmed by the Hon’ble High Court in SMT. KG. RUKMINIAMMA [2010 (8) TMI 482 - KARNATAKA HIGH COURT]. As decided in SHRI. B.J. BADRINATH [2018 (11) TMI 1168 - ITAT BANGALORE] ratio of the judgement of the Hon&rsq....... + More

Revision u/s 263 - treating the original assessment made u/s. 143(3) as erroneous and prejudicial to the interest of revenue - assessee not eligible for deduction u/s. 80P2(d) - assessee has made certain investment in various banks and earned interest income on fixed deposit and dividend income and has not offered the said amount for taxation under the head “Income from other sources” and he held interest and dividend income earned is other income not eligible for deduction u/s. 80P2(d) - As per assessee every detail regarding the claim under Chapter VI has been provided to the AO and after examination of which the AO allowed the claim of assessee - HELD THAT:- Record furnished before us regarding the assessment proceedings clearly shows the assessee made no specific claim u/s. 80P2(d) of the Act before the AO nor in the retur....... + More

Losses eligible to be carried forwarded and consequently for set off in subsequent years - Business or speculation loss - claimed on commodity and derivatives and share derivatives as speculation loss - HELD THAT:- Assessee’s activity/loss is covered in currency and futures and options, which have been carried out/claimed as per proviso/clause (d) to section 43(5) of the Act read with Explanation 1 thereto and the said Notification No. 2/2006 [ so 89( E ), dated 25-1-2006. AO erred in assessing/adding all the losses, which the assessee claimed on commodity and derivatives and share derivatives as speculation loss. Since the assessee’s case is covered in Explanation 1 to section 43(5)(d) of the Act and assessee’s transaction was an eligible transaction, it cannot be termed as ‘speculative transaction’. Since t....... + More

Addition u/s 43CA - differential amount over and above the declared sale consideration - determination of Fair market value of commercial plot - determination of Fair market value of commercial plot - HELD THAT:- Assessee didn’t raise any objections before the DVO where he shared the preliminary estimate with the assessee for reasons best known to it and has raised its objections for the first time before the AO on receipt of the DVO report and the secondly, the AO has proceeded to follow the report the DVO. We therefore donot find any infirmity in the action of the DVO as the assessee failed to raise any objections before him. We also donot find any infirmity in the action of the AO in following the report of the DVO. Once the AO has referred the matter to the DVO for his expert opinion and the latter has submitted his report, the ....... + More

Validity of the assessment order itself - Order barred by limitation and liable to be quashed - HELD THAT:- We find that an identical challenge was dismissed by the co-ordinate bench in the case of Religare Capital Markets Ltd [2019 (10) TMI 992 - ITAT DELHI] wherein it has been held that final assessment order passed u/s 143(3) r.w.s. 144C(13) of the Act would not be covered under the provisions of section 153 of the Act. Respectfully following the findings of the coordinate bench, this ground is dismissed. TP Adjustments - international transactions relating to receipt of Management and consultancy services received towards Recovery of costs for SAP maintenance - HELD THAT:- Revenue authorities cannot judge the rendition of services by applying benefit test as laid down in the case of EKL Appliances [2012 (4) TMI 346 - DELHI HIGH COURT]....... + More

Addition on the basis of Central Bureau of Investigation (CBI) report - criminal conspiracy - Assessee being govt officer (treasury officer) - allegation of dishonestly caused withdrawal from the public exchequer against a Letter of Credit (LOC) - AO considering the charge sheet filed by CBI, was of the opinion that assessee was involved in the LOC scam and the assessee might have received pecuniary benefit i.e. a share of the scam - HELD THAT:- Assessee was not even made an accused by the CBI while submitting the offence/charge under sec. 173 of the Cr. P. C. and was not convicted also by the Special Judge, CBI and also taking note of the corroborative evidence which is the certificate issued by the Special Judge, CBI (supra) dated 07.07.2015 showing the assessee was not proceeded against by CBI or Special Court in the case, therefore, t....... + More

Best judgment u/s 144 - withdrawal of additional grounds of appeal - proof of service of notice issued u/s 143(2) - non-production of assessment records - HELD THAT:- There is no doubt that the AO has passed the assessment order u/s. 144 and the Ld. CIT(A) has also passed the impugned order exparte. As per record, the present appeal came up for hearing before the Bench on 07.12.2018 and adjourned many-times. On 27.11.2019 the Bench has directed the Departmental Representative to produce the records of assessment, but the Department did not produce the same. On 15.06.2020, Ld. DR also sought time to file the proof of service of notice issued u/s. 143(2) of the Act and case was adjourned for 30.07.2020. But again on 30.07.2020 DR did not produce the assessment records to prove the service of notice issued u/s. 143(2) of the Act and the case....... + More

Assessment u/s 153A - addition of cash found during the course of search - unexplained advances - as contented Addition was made simply on the basis of disclosure of such income before the settlement commission which was done to meet the compliance of the provisions of Section 245C(1) - HELD THAT:- From the record we found that during the course of search, the assessee has surrendered ₹ 15,89,65,200/-. Yearwise breakup of the income surrendered as given at para 3 of this order hereinabove, we found that in the A.Y. 2008-09 and 2009-10, the A.O. had made addition of ₹ 1.50 lacs and ₹ 2.00 lacs respectively on account of advances surrendered by the assessee. We also found that the detailed finding has been given by the A.O. and the ld. CIT(A) with regard to amount found to have been advanced by the assessee, accordingly, w....... + More

Deemed dividend u/s 2(22) (e) - to be assessed in the hands of the share holder or in the hands of the firm - share holder of the company had substantial interest in the firm - HELD THAT:- Section 2(22)(e) provision would stand attracted when a payment is made by a company, in which public are not substantial interested by way of advance or loan to a share holder, being a person who is the beneficial owner of the shares. On facts, it is clear that the payment has been made to the assessee, a partnership firm. The partnership firm is not a share holder in the company. If such is the factual position, the decision in the case of National Travel Services relied on by the revenue cannot be applied, nor the case of Gopal and Sons, as they are factually distinguishable. The records placed before the assessing officer clearly shows the nature of....... + More

Disallowance u/s 40(a)(ia) - Whether provision of section u/s.40(a)(ia) cover only amounts which are payable as on 31st March of a previous year relevant to the assessment year under consideration and not amounts which are payable at any time during the relevant previous year? - HELD THAT:- Tax effect is said to be less than the monetary limit imposed and therefore, the Appeal filed by the Revenue is dismissed, as withdrawn, keeping open the substantial questions of law for determination in appropriate cases.

Expenditure as “Scientific Research Expenditure” u/s 35 - neither the project was approved by the Competent Authority, as required u/s 35 nor the payment in question was made to any approved organization for research purposes - whether Assessee was entitled to claim the said expenditure in the “Residuary Provisions” of Section 37? - HELD THAT:- The conditions required for claiming the same under Section 35 was not satisfied by the Assessee. Nonetheless, the Assessee was entitled to claim the said expenditure in the “Residuary Provisions” of Section 37. Section 37 permits such allowance of “Business Expenditure” incurred in the ordinary course of business, if they are not allowable otherwise by Section 30 to 36. Unless the expenditure is of the capital in nature, resulting in creation of asse....... + More

Deduction u/s 10B - Whether expenditure incurred in foreign exchange for providing technical services outside India could not be excluded from the export turnover for the purpose of computing deduction? - HELD THAT:- As decided in own case [2020 (3) TMI 181 - MADRAS HIGH COURT] when the statute prescribes a formula and in the said formula, 'export turnover' is defined, and when the 'total turnover' includes export turnover, the very same meaning given to the export turnover by the legislature is to be adopted while understanding the meaning of the total turnover, when the total turnover includes export turnover. If what is excluded in computing the export turnover is included while arriving at the total turnover, when the export turnover is a component of total turnover, such an interpretation would run counter to the legi....... + More

Business income receipt of On Money received out of books of account - Addition on the basis of the extrapolation of the clinching evidences seized/impounded which has the part of cash and cheque payments receipts in respect of Anupam Square project of the Assessee Group - statement on oath u/s.132(4 ) - HELD THAT:- Question are no longer res integra in view of the order passed in PANNA CORPORATION [2014 (11) TMI 797 - GUJARAT HIGH COURT] held Tribunal was justified in considering that the respondent- assessee ought to have spent reasonable amount for the purpose of receiving such gross receipt. As seen consistently, this Court and some other Courts have been following the principle that even upon detection of on money receipt or unaccounted cash receipt, what can be brought to tax is the profit embedded in such receipts and not the entir....... + More

Eligibility of deduction u/s 10A - Whether the services of the assessee were limited to drafting of patent application and their submission to the US patent office and as such the assessee was not entitled to claim deduction? - HELD THAT:- Notification No.890 dated 26.09.2008 specifies that information and technology enabled products or services mentioned in the Notification shall be treated as Information Technology enabled products or services for the purposes of Explanation 2(i)(b) of Section 10A of the Act, which includes Back Office Operations and Data processing as well. The activities of the assessee can be classified as Data Processing, Legal Databases and remote maintenance under the Notification issued by the CBDT. The assessee is transmitting the patent application and related data, which is stored in electronic form and theref....... + More

Penalty u/s. 271(1)(c) - advances shown as purchases - furnishing inaccurate particulars of income - gross negligence in not making necessary adjustments, additions and disallowance in the accounts which resulted in incorrect income being shown - CIT(A) and the Tribunal held in favour of the assessee by examining his conduct - HELD THAT: -Assessment was completed and the case on hand is not the case where the assessment was re-opened under Section 147 - On taking note of the factual position, the CIT(A) exercised its discretion and granted relief to the assessee. The factual situation was examined by the Tribunal and it came to a conclusion that the CIT(A) was right in deleting the penalty. With regard to the non-inclusion of ₹ 22 lakhs in the closing stock, the Tribunal remanded the matter to the Assessing Officer for proper verifi....... + More

Input Tax Credit - mismatch in the Input Tax Credit claimed in GSTR-3B and that appearing in GSTR-2A during the period April, 2018 - March, 2019 - It is the petitioner’s case that the conditions mentioned in Rule 86A of the CGST Rules, 2017 are not satisfied in the present case - HELD THAT:- The present writ petition is directed to be treated as a representation to respondent no.1, who is directed to decide the same by way of a reasoned order within four weeks, in accordance with law, after giving an opportunity of hearing to the petitioner and/or its authorized representative. The present writ petition and application stand disposed of.

Maintainability of appeal - requirement of pre-deposit - he petitioner is ready and willing to deposit an additional 20% of the remaining amount of tax in dispute in compliance of the requirements under Section 112 (8) of the Act - HELD THAT:- The petitioner shall deposit 20% of the remaining amount of tax in dispute in accordance with Section 112 (8) of the Act within three weeks from today and in which event, the recovery proceedings for the balance amount shall remain stayed till disposal of the instant petition. List for hearing in the second week of February, 2020 before the appropriate Court.

Grant of Bail - power to re-arrest if the amount of tax evaded goes up during the investigation - Accused is already on bail in the same case - availment of ineligible ITC to the tune of ₹ 24 Crore - pre-trial detention - custodial interrogation - HELD THAT:- It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidences. If there is no prima facie case there s no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not ....... + More

Search and Seizure - the petitioner is aggrieved by the action of the respondent which is without any legal basis - HELD THAT:- This order is in continuation of order dated 14.08.2020. No coercive steps be taken against the petitioners till the next date of hearing, i.e., 30.09.2020. The learned senior counsel for the petitioners ensure the compliance of order dated 14.08.2020 shall be done within the time frame fixed.

Detention of goods - there exists valid tax invoice and e-way bill - Contention is that merely because certain loose invoices were also found, the liability cannot be converted into one under Section 129(1)(b) of the Act - HELD THAT:- Matter requires consideration. In the event, petitioner deposits the disputed amount of tax and penalty in terms of Section 129(1)(a) and also furnishes security in respect of the remaining amount found due and payable under the order of Appellate Authority, the detained goods shall be released to the petitioner subject to final outcome of this petition.

Grant of Anticipatory Bail - Allegation of Bribery - Excise and Taxation (GST) officer - evasion of GST - The evasion of tax is by connivance of transporters, officers/officials of Excise and Taxation Department and the passers - It is alleged that the tax was being evaded by ensuring that there was no checking or verification of the documents or goods, while being transported to & from State of Punjab - HELD THAT:- The nature of allegation in present case of evasion of GST requires a deeper probe. There are far reaching ramifications which may vary from allowing of input credit/ MODVAT of tax not paid to the Government to an eventuality that the credit of tax paid on some other product is used for something else. Not only this, someone later in chain in spite of being a bona fide purchaser not aware of the earlier misdeed in the chai....... + More

Profiteering - service of notice - grievance of the petitioner is that the notice dated 7th February, 2020 issued by the respondent No.2 DG to the petitioner is not in compliance with Rule 129(3)(a) & (b) of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- The counsel for the respondents appearing on advance notice though has sought to contend by reading of Rule 129(2) that the proceedings still are at the stage thereof and the stage of issuance of notice under Rule 129(3) has not reached but prima facie it does not appear to be correct inasmuch as Rule 129(1) as well as Rule 129(2) use the word 'investigation' and Rule 129(3) provides that, before initiation of investigation, notice containing the aforesaid particulars will be issued. It thus appears that before the investigation under Rule 129(2) is initiated, no....... + More

Levy of CGST and IGST - Duty Free Shops (DFS) at Airport - Refund of the Input Tax Credit - supply of goods and services effected by the petitioner in the arrival and departure Duty Free Shops (DFS) at Calicut International Airport in terms of the Concession Agreement - applicability of Central Goods and Service Tax Act, 2017, the Integrated Goods and Service Tax Act, 2017 and the Kerala State Goods and Service Tax Act, 2017 and the rules thereunder - levy of CGST and IGST on the revenue sharing in terms of the Concession Agreement dated 22.04.2016. HELD THAT:- The question posed qua entitlement of refund of taxes in respect of goods and services provided at international airport would be applicable to outgoing international tourist i.e. departure area in view of the Circular dated 29.06.2020 as has been argued by the Revenue, would also ....... + More

Maintainability of petition - alternative remedy is available for the petitioner against the impugned orders - appealable order or not - HELD THAT:- he present writ petition is disposed of with the direction that the petitioner shall file an appeal against the impugned assessment orders under Annexures-2, 3 and 4 within a period of 15 days from today before the appellate authority under Section 107 of the CGST Act, 2017. In the event the appeal is filed, the appellate authority shall dispose of the same on merits and in accordance with law, as expeditiously as possible, preferably within a period of eight weeks. Simultaneously, if the petitioner files an application before the competent authority within the period as stated above for revocation of cancellation of registration as per the procedure prescribed under Section 30 of the CGST Act, 2017 read with Rule 23 of the CGST Rules, 2017, the competent authority shall decide the same on merits. The writ petition stands disposed of.

Revocation of cancellation of registration - filing of return with part payment of tax or with outstanding tax liability - manual filing of GSTR 3B till August 2020 and from September 2020 onwards electronically - permission of payment of GST liabilities in accordance with the undertaking attached - HELD THAT:- It appears from the materials on record that the GST registration of the writ applicant has been cancelled for failure to file appropriate returns. We take notice of the fact that entire issue has been brought to the notice of the Commissioner of SGST by way of representation dated 26th August 2020 addressed to the Commissioner, SGST, Ahmedabad. In the said representation, the request is two-fold; first to revoke the cancellation of registration as according to the writ applicant, it is causing unnecessary hardship in the current s....... + More

Maintainability of petition - availability of alternative remedy - Refund of unutilized ITC - inverted duty structure - Circular No.59/33/2018-GST dated 04.09.2018 (Annexure-4) issued by the Central Board of Indirect Taxes and Customs - HELD THAT:- Since an efficacious statutory remedy is available to the petitioner to assail the legality and validity of the order passed under Annexure-5, this Court should be slow in entertaining the writ petition at this stage. The petitioner has also not made out any ground for interference with the order under Annexure-5 in a writ petition which he cannot raise before the Appellate Authority. The grounds raised by the petitioner can be considered by the Appellate Authority in exercise of power under Section 107 of the Act. This Court without interfering with the impugned order under Annexure-5, dispose....... + More

Refund of unutilised Input Tax Credit - accumulation on account of being subjected to an inverted duty structure - constitutional validity of Section 54(3)(ii) of the Central Goods and Services Tax Act, 2017 - constitutional validity of amended Rule 89(5) of the Central Goods and Services Tax Rules, 2017 - ultra vires of Section 54 of the CGST Act and the Constitution of India - Whether it is necessary to read the word “inputs” in Section 54(3)(ii) as encompassing both goods and services so as to ensure that the said provision is not struck down? - Whether the words input services may be read into Section 54(3)(ii) as an exception to the general rule of casus omissus? - Whether the proviso to Section 54(3) qualifies and curtails the scope of the principal clause to the limited extent of specifying the two cases in which regist....... + More

Demand of GST alongwith interest and penalty as well as encashment of 8 Bank Guarantee - detention of goods on the ground that e-way bills were faulty and undervalued and detention order passed - HELD THAT:- Admittedly, there is IGST demand of ₹ 2,36,63,256.00 with equal amount of penalty imposed, together the total dues comes to ₹ 4,73,26,512.00 - As against this, petitioner had paid IGST of ₹ 2,36,63,256.00. At the stage of preferring the first appeals petitioner had deposited 10% of the IGST dues amounting to ₹ 23,66,326.00. Thereafter while filing the second appeals under section 112 of the CGST Act petitioner deposited ₹ 47,32,651.00 being 20% of the IGST dues. Thus, petitioner had deposited an amount of ₹ 70,98,977.00 in addition to IGST dues already deposited. In all petitioner has deposited S....... + More

Validity of Notifications - N/N. 1/2017-Central Tax (Rate) dated 28.06.2017 issued by Respondent No. 1 under Section 9(1) of the CGST Act, 2017 - N/N.1/2017Integrated Tax (Rate) dated 28.06.2017 also issued by Respondent No. 1 under Section 5(1) of the IGST Act, 2017 - N/N. 1/2017-State Tax (Rate) dated 30.06.2017 issued by Respondent No.2 under Section 9(1) of the DGST Act, 2017 -conflict with the recommendations made by Respondent No. 3 in its 15th Meeting held on 03.06.2017 - HELD THAT:- This Court referred the matter to Respondent No. 3 in view of the seeming ambiguity in the minutes of the 15th GST Council Meeting, as portrayed by the learned counsel for the Petitioner. The Court prima facie comprehended that the affidavit filed on behalf of Respondent No. 3 was only a proposal of the Joint Secretary (TRU-1), CBEC that was not agreed....... + More

Validity of Circular dated 15.03.2018 issued by the Government of India, Ministry of Finance - recovery of CGST short paid - HELD THAT:- A strong prima facie case has been made out for grant of an interim relief in terms of paragraph 25(D) of the petition. We accordingly grant such relief. The respondents shall be served by way of email.

Clearance of detained goods alongwith vehicle - section 129 of CGST Act - requirement of furnishing of Bank Guarantee for the clearance of goods - HELD THAT:- On a consideration of the facts and circumstances of the case and the submissions made across the Bar, and finding that a final order under Section 129(3) in Form GST Mov 09 has already been passed, the writ petition is disposed off with a direction to the First Appellate Authority, before whom Ext.P12 appeal has been preferred by the petitioner, to consider and pass orders on Ext.P12 appeal within three weeks from the date of receipt of a copy of this judgment, after hearing the petitioner either through a physical hearing or through video conferencing. Petition disposed off.

Grant of anticipatory bail - arrest of Superintendent working in the office of Commissioner of CGST, Rohtak - Demanding bribe - Evasion of GST - Section 120-B IPC and Section 7 of the Prevention of Corruption Act, 1988 - HELD THAT:- The argument raised by the counsel for the petitioner that the petitioner has been falsely implicated on account of a raid conducted by him for checking the difference of 6% GST to be paid by the complainant is a matter of evidence - It is undisputed fact that co-accused Kuldeep Hooda was arrested on the next day, i.e. 15.8.2020 and a huge unaccounted amount of ₹ 64 lacs was recovered from his house. Therefore looking into the serious allegations against the petitioner, which suggest his active involvement in the case, custodial investigation of the petitioner is required - Petition dismissed.

Detention of Consignment of watches - detention on the ground that the consignment not accompanied by a valid e-way bill - HELD THAT:- There are force in the contention of the learned counsel for the petitioner that inasmuch as the effective value of the goods that was transported was only ₹ 8.99 as evident from Ext.P4 invoice, and the provisions of the Act and Rules mandate that an e-way bill is required only for consignments whose value exceeds ₹ 50,000/-, the detention at the instance of the respondent cannot be said to be justified. The respondent is directed to forthwith release the goods and the vehicle to the petitioner on the petitioner producing a copy of this judgment before the said authorities - petition allowed.

Grant of Anticipatory Bail - It is submitted by the learned counsel for the petitioner not only the bail application is allowed without issuing any notice to the Department but the Court which granted anticipatory bail had no jurisdiction to grant the same as such application could have been listed either before the learned CMM or before the learned ASJ, Patiala House Courts, New Delhi. HELD THAT:- Issue notice to the respondents through all modes including email returnable on 20.10.2020.

Bail application - input tax credit - only difference between the case of the petitioner and co-accused is of the quantum involved - HELD THAT:- Taking note of the fact that maximum sentence involved is five years and petitioner has remained in custody for a period of 19 months and also taking note of the fact that matter is still at the stage of pre-charge evidence and co-accused has been enlarged on bail by this Court, it is deemed proper to allow the fourth bail application. This fourth bail application is accordingly allowed and it is directed that accused petitioner shall be released on bail provided he furnishes a personal bond in the sum of ₹ 10,00,000/- together with two sureties in the sum of ₹ 5,00,000/- each to the satisfaction of the learned trial court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.

Interpretation of the Exemption Circular - Circular No.128/95-Cus dated 14.12.1995 - Demand for Cost Recovery Charges [CRC] towards cost of the Customs staff posted at the station - respondents contend that the petitioner has not met the performance benchmark stipulated in the exemption Circular - whether Petitioner fulfils the eligibility criteria for availing the benefit of exemption or waiver of CRC in terms of the Circulars issued by the Revenue? HELD THAT:- The evaluation of the performance of the Petitioner is based primarily upon two criteria: firstly, on the number of containers/TEUs handled by CFS as given in Clause 1 (ii), and secondly, on the number of BoE/SB processed by CFS as given in Clause 1 (iii).The simple question that hinges before us is whether these criteria at Clauses 1 (ii) and 1 (iii) were to be satisfied simultan....... + More

Grant of Bail - smuggling of Gold - breach of Section 135(1)(b) of the Customs Act, 1962 - HELD THAT:- In the present case as well, learned counsel for the nonapplicant has infact admitted that investigation as against the applicant has already been completed and only sanction to prosecute the applicant is remained to be obtained and it is only then the charge-sheet would be filed - It is true that no gold has been seized from the possession of the applicant, as per own admissions made by the counsel for the non-applicant, as investigation in respect of applicant has already been completed hence, in view of such situation, the bail application is liable to be allowed. Without commenting upon the merits of the case, this bail application is allowed and it is directed that applicant - Rajesh Neema shall be released on bail subject to his fu....... + More

Classification of imported goods - heavy melting scrap - benefit of concessional rate of duty - serial no. 368 in N/N. 50/2017-Cus dated 30th June 2017 - applicability of note no. 7 in Section XV of the First Schedule to Customs Tariff Act, 1975 - Difference of Opinion - matter placed before Hon’ble President for reference. HELD THAT:- In view of difference of opinion as to allowing of appeal, as held by Member (Technical), and remanding the matter for re-test, as held by Member (Judicial) in appeal no C/88315/2019, Registry is directed to place the records before Hon’ble President for reference, under section 129C (5) of Customs Act, 1962, to Third Member for answering the following points: i. In the light of concurrence of finding that the impugned goods are not ‘copper alloy’ in paragraph no.13, and the show cau....... + More

Classification of imported goods - split air-conditioners - classified at sub-heading no. 841510 of First Schedule Customs Tariff Act, 1975 at serial no. 49 or not - benefit of N/N. 85/2004-Cus dated 31st August 2004 denied - HELD THAT:- From heading no. 8415 of First Schedule to the Customs Tariff Act, 1975, it is seen that air conditioning machines comprise of a motor driven fan and elements for controlling humidity and temperature. Generally, and more particularly in the retail segment, such machines are either of ‘window or self-contained’ or ‘split system’ types. There are several other equipment which are designed for larger spaces and for applications that go beyond residential or commercial. In the structuring of the sub-headings, emphasis is placed on the ‘split system’ and, by default, the &ls....... + More

Conversion of shipping Bills - conversion of free shipping bills into drawback shipping bills - duty drawback - rejection on the ground of non-fulfillment of conditions of Notification No. 158/95 dated 14.11.1995 - HELD THAT:- The appellant initially exported Phycocyanin and a part quantity of the same was rejected for quality reasons which was re-imported by him without payment of duty in terms of Notification No. 158/95-Cus dated 14.11.1995 on executing Bond with Bank Guarantee. Also the appellant have re-exported the said goods after rectifying the defect and the identification of the re-exported goods is not disputed by the Department. Further, we find that the appellant also paid an amount of ₹ 13,81,543/- as demanded by the Department. Further, it is found that after payment of the duty along with interest, the appellant sough....... + More

Legality of import of ‘wheat gluten amygluten 160’ - production of ‘duty-free import authorization (DFIA)’ licenses, permitting import of ‘flour’ for the manufacture of ‘biscuits’ - N/N. 40/2006-Cus dated 1st May 2006 or of notification no. 98/2009-Cus dated 11th September 2009 - period between November 2011 and September 2012 - HELD THAT:- With the removal of starch from dough made of ‘flour’, the resultant product is wheat gluten. Hard ‘wheat flour’ is hydrated to activate the gluten within it, processed for removal of the inherent starch by washing which, after dehydrating, is then powdered. Thus the composition of wheat, in a depleted form, in the flour does not appear, to us, to be an alteration of the essence of the product. With the threshold eligibility thus s....... + More

AS PER JUSTICE DR DHANANJAYA Y CHANDRACHUD Enhancement of Customs Duty - post-Pulwama Attack - Time and date from which enhanced duty comes into effect - issuance of notification under Section 8A of the Customs Tariff Act 1975 introducing a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200% - the contention of the Union government before the High Court was that under Section 15 of the Customs Act, 1962 the relevant date for determining the rate of duty is the date of the presentation of the bill of entry - submission was that the amended rate of duty under notification 5/2019 came into force on 16 February 2019; hence, the importers were liable to pay duty on the basis of the amended rate. The submission was that the customs authorities were e....... + More

Valuation of imported goods -steel nuts - misdeclaration of value - enhancement of value with the consolation of reducing the fine - primary contention of the appellant is that there has been no misdeclaration, that specific authority for adoption of London Metal Exchange (LME) prices is not on record and that the fine and penalty are not proportionate to the extent of alleged undervaluation - HELD THAT:- On perusal of note 1 in chapter 72 of the First Schedule to Customs Tariff Act, 1975, it is observed that several forms of ‘iron and steel’ have been described and while all of them are intended for determining the rate of duty in relation to goods enumerated in the said chapter, those of ‘steel’, ‘stainless steel’ and ‘other alloy steel’ in (d), (e) and (f) in the note are intended to appl....... + More

Permission for withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution) (SVLDR) Scheme, 2019 - HELD THAT:- The respondent cannot object to the appellant withdrawing any portion of the appeal, provided the appellant is not seeking any benefit from Court on account of the withdrawal. The appeal shall be treated as withdrawn only in respect of the dispute arising out of the excise component - Application allowed.

Flexi Tank Containers - durable goods or not - Benefit of exemption N/N. 104/94-Cus dated 16/03/1994 - entire emphasis of the Revenue is that the subject Flexi Tank Containers are not repeatedly used - scope of SCN - Time Limitation. HELD THAT:- Tribunal in various cases has categorically held that merely because the container does not have repeated use, the nature of durability cannot be rejected. The only criterion to be seen is that whether the container in itself is durable in nature. As per the nature of container and use thereof, it is clear that the container imported by the assessee is durable. Moreover, even taking reference from the above judgments, we find that on comparison basis also, all the packing containers which were subject matter in the above cases, the Flexi Tank Container is much durable. Therefore, applying the rati....... + More

Levy of penalty under Sections 112(a), 112(b) and 114AA of the Customs Act, 1962 - Valuation of Export goods - High Seas Sale - rejection of declared value based on contemporaneous imports - the case of the Appellant is that they had been denied an opportunity of personal hearing by the Adjudicating Authority - principles of natural justice - HELD THAT:- Since the statement of Mr. Kuntal Mitra (CHA) has contributed substantially to the case made out by the Department against the Appellant, the Department ought to have granted an opportunity of cross-examination to the Appellant. The process of cross-examination is not a mere empty formality but a part of an assessee’s right to put forth a proper defence. The reasoning given by the Department for denying the cross-examination to the appellant, that they failed to appear on the appoin....... + More

DFIA Scheme - Actual user condition - Benefit of exemption in notification no. 40/2006-Cus dated 1st May 2006 - - the impugned order finds that ‘float glass’ was not amenable to use in the manufacture of ‘finished leather from hide of cow/buffalo’, that the intent of the policy had been violated as the flexibility of importing alternative inputs, allowed in circular dated 24th March 2009, did not extend to goods that were not capable of being used in the industry, and that clarification dated 14th February 2002 on use of ‘float glass’ as ‘glazing glass’ stood withdrawn by the advisory of 15th January 2013. HELD THAT:- It is clear from the narration in the impugned order that the item permissible for import in the norms relating to ‘finished leather from hide of cow/buffalo’, as w....... + More

Levy of penalty - Valuation of imported goods - Laminated Sheets and Plywoods - rejection of declared value - Rule 12 of Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 - HELD THAT:- The order of confiscation of goods and imposition of redemption fine is not under challenge. We also find that importer M/s Shri Saibaba Impex is not in appeal before us. As per the scheme of Section 111 and Section 112 of the Customs Act, 1962, penalties under Section 112 of the Customs Act, 1962 flow as natural consequence of goods being liable for confiscation under Section 111 of Customs Act, 1962. Apparently penalties under Section 112 are imposable both on the person who has imported the goods held liable for confiscation and on all those who had aided and abetted in the act of illegal importation. From the order of the Commissi....... + More

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

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

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

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

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

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

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

Auction Sale - Disbursement of the amount lying with the Official Liquidator pursuant to the auction sale - HELD THAT:- This Court has perused the report submitted by the Talati & Talati, Chartered Accountant dated 24th January 2020 together with Re-verification report dated 18th February 2020 for the claim of IDBI and State Bank of India - In view of the above fact situation, the Official Liquidator is directed to disburse the following amount from the balance lying in the account of the company in liquidation. The official liquidator is directed to verify the details of each of the worker and shall deposit the claim amount of each of the workers in their respective bank accounts directly by IMPS/RTGS/NEFT - The Official Liquidator is further directed that the amount payable to the secured creditors and unsecured creditors shall be d....... + More

Sanction of Amalgamation Scheme - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Upon perusal of the petitioner companies’ reply, we feel that the ends of justice will be met if we direct that the provisions of section 232(6) of the Companies Act, 2013, shall be applicable to the Scheme. In other words, the Scheme shall be effective from the Appointed Date indicated in the Scheme - The RD, after perusing the reply of the petitioner companies, has submitted a satisfactory report in so far as his observations at paragraph IV(a), and IV(c) to IV(g) are concerned. The clarifications given by the Petitioner Companies are hereby accepted by the Tribunal. The Petitioner Companies undertake to comply with all statutory requirements, if any, as required under the Companies Act, 2013 and the Rules made thereunder whichever is ap....... + More

Approval of scheme of compromise or arrangement - section 230(2)(a) and (c) of Companies Act - the proposed Scheme has not been consented to by 75% of the Secured Creditors - Creditors Responsibility Statement is not attached to the CA - no statement made in the CA with regard to safeguards for protection of other secured and unsecured creditors - report by the auditor of Liquidity test not attached - Valuation report in respect of the shares and the property by a registered valuer is not attached - terms of the Scheme contemplate a debt restructuring of the financial creditors in addition to Operational Creditors. HELD THAT:- This Bench has considered the affidavit filed by the Respondent Company as well as its authorised representative. Suffice it to say that we do not find the explanations altogether convincing. This is especially due ....... + More

Approval of Composite Scheme of Amalgamation and Plan of Merger - sections 230 to 232 read with section 234 and other applicable provisions of Companies Act, 2013 - HELD THAT:- The observations of the Regional Director (Western Region), Ministry of Corporate Affairs, Mumbai, mentioned in para 10 above, have been clarified by the Petitioner Companies in para 11 above. The clarifications are accepted. Moreover, the Petitioner Companies, through their Counsel, undertake to comply with all statutory requirementsrequired under the Companies Act, 2013 and the rules made thereunder, whichever is applicable. The undertakings given by the Petitioner Companies are accepted - The Official Liquidator, High Court, Bombay, has filed his report dated 14th July 2020 with the Tribunal, inter alia submitting that the affairs of the First Petitioner Company....... + More

Sanction of Scheme of Merger by Absorption - 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 in violation with any provision of law and is not contrary to public policy - Since all requisite statutory compliances have been fulfilled, petition is made absolute in terms of prayer clause (a) to (c) thereof. The Scheme of Merger by Absorption is sanctioned hereby, and the Appointed Date of the Scheme of Merger by Absorption is 1stApril 2019. The Transferor Companies be dissolved without winding up - application allowed.

Sanction of Amalgamation Scheme - dispensation of meeting of equity shareholders and creditors - sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- This Bench hereby dispenses with the meetings of the Unsecured Creditors of each of the Applicant Companies. However, this Bench hereby directs that notices be issued to each Unsecured Creditor of each of the Applicant Companies with a direction that they may submit their objection, if any, to the Tribunal within thirty days of receipt of notice. Copies of such objections shall simultaneously be served upon the respective Applicant Company at its Registered Office. It shall be the duty of the Applicant Company concerned to ensure that every creditor of such company is put on notice as regards the Scheme. Further, any objection raised by any person shal....... + More

Striking off the name of the company from the ROC - Section 252 of the Companies Act, 2013 - grounds contemplated under section 252 of Companies Act, 2013, are that the company was carrying on business or was in operation at the time of striking off its name, and where it appears “just” to the Adjudicating Authority that the name of the company is to be restored to the Register of Companies and the Section 252(1) of the Act - HELD THAT:- The Appellant has submitted sufficient evidence that it has been in operation during the period preceding strike off, therefore it could not be termed as a defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) of the Companies Act,2013, which vests this Tribunal with a discretion where the Company, whose name has been struck off, and su....... + More

Striking off the name of the Company passed by the RoC/Respondent - Section 248 of the Companies Act, 2013 - HELD THAT:- From the contention raised by the Counsel for the Applicant it can be seen that the Applicant is relying on the "just ground" as envisaged under Section 252(3) of the Companies Act, 2013 to restore the name of the Company in the Register of Companies maintained by the RoC/Respondent - Apart from the said "just ground" relied on by the Applicant from the typed set of documents filed in the Application, it may be seen as rightly pointed out in the Report of the RoC/Respondent that the Company has not filed any Income Tax Returns for the period from 2003-2019 nor any GST Returns in order to show that the Company is a going concern. However, as already stated that the Applicant relies only upon the "....... + More

Referral of case to arbitrator - declare the notice of EGM dated 16th December 2019, invalid - cancellation of the proposed EGM and during the pendency - direction to Respondent to maintain the status quo in the shareholding of the Respondent-1 - HELD THAT:- Merely, plain reading of the provisions of Section 45 of the Arbitration and Conciliation Act, 1996 shows that the word unless it is prima facie find is added by amendment dated 30.08.2019 in Section 45 of the Arbitration and Conciliation Act, 1996, which shows that if prima facie it is find that the agreement is null and void or inoperative or incapable of being performed then Section 45 of the Arbitration and Conciliation Act, 1996 is not applicable. Admittedly, the main application is pending for consideration and during the pendency of the main application, the present two interlo....... + More

Issuance of summons to the petitioner - petitioner is one of the 287 persons/entities that are accused in the said complaint and against whom summons have been directed to be issued in terms of the impugned summoning order - offences under Sections 128, 129, 448 read with Section 447 of the Companies Act, 2013. HELD THAT:- It is clear from the plain language of Section 16A(2)(b) of the Banking Companies (Acquisition and Transfer of Undertakings) Act that a Nominee Director would not incur any obligation or any liability by reason only of his being a director or for anything done or omitted to be done in good faith in discharge of his duties as a director or anything in relation thereto - It is also well settled that a Director cannot be vicariously held responsible for any offence committed by the company unless the relevant statute itsel....... + More

Jurisdiction - elections to the Board of Directors (APEX Council) of a company - allegations of oppression and mismanagement - wrongful appointment of an Ombudsman in violation of Articles of Association - Whether adjudication can be done by a civil court or whether jurisdiction vests exclusively with the National Company Law Tribunal (NCLT)? - Section 430 of the Companies Act, 2013. HELD THAT:- What emanates from the preceding arguments and on consideration of the comparative chart presented, is that sections 241, 242 and 244 of the Companies Act deal with all the issues which have been raised in the suit. The NCLT has been specifically conferred powers to address grievances relating to the affairs of the company, which may be prejudicial or oppressive to any member of the company, or for issues of appointment of directors. The appointme....... + More

Reduction of Share Capital - HELD THAT:- The Petitioner Company has complied with the requirements as per the directions of the Tribunal vide Order pronounced on 3rd August, 2020. In pursuance of the said Order, a Brand Valuation Report for the Petitioner Company along with a Covering Affidavit, annexed with a Legal Submission was filed with the Tribunal on 14th August, 2020. A copy of the same was furnished to the Regional Director on the 14th August, 2020 - the Petitioner Company further submits that the Petitioner Company has complied with all statutory requirements as per the directions of the Tribunal. Moreover, the Petitioner Company also undertakes to comply with statutory requirements, if any under the Companies Act, 2013 and the Rules made thereunder, as may be applicable. Since the requisite statutory procedure has been fulfille....... + More

Restoration of the name of the company to the Register of Companies maintained by the Registrar of Companies, Maharashtra, Mumbai - section 252(3) of the Companies Act, 2013 - HELD THAT:- The Bench has observed that the company has assets and liabilities in its Books of Accounts during the immediately preceding two years from the date of striking off of its name by the Registrar of Companies. Besides, the petitioner company is in the business of real estate, and has taken advances from customers for its projects. Therefore, it would be just, equitable and in the interest of justice to provide an opportunity to the company to rectify its defaults and continue the business, so that the interests of its customers are not adversely affected. The prayer sought by the Petitioner company deserves to be allowed - Petition seeking restoration of the Company’s name in the register of companies maintained by the Registrar of Companies, Maharashtra, Mumbai is allowed.

Sanction of scheme of merger by absorption - sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- Various meetings have been dispensed with - In compliance of sub-section (5) of section 230 of the Act and rule 8 of the Companies (CAA) Rules, the applicant-companies shall send a notice of meeting in Form No. CAA-3 with a copy of the scheme of arrangement, the explanatory statement and the disclosures mentioned under rule 6. Application disposed off.

Oppression and mismanagement - sections 213 and 241 of the Companies Act, 2013 - petitioners contended that the second respondent and his family members are in the helm of affairs of the company and they mismanage the affairs of the company and also oppressed the other stake holders since incorporation - HELD THAT:- It is a fact admitted that the respondent-company was incorporated under the provisions of section 25 of the Companies Act, 1956 and it is carrying on with several religious and charitable operations - It could be seen from the pleadings that the petitioners have made allegations such as oppression and mismanagement and fraudulent conduct of company business, misappropriation of ₹ 80 lakhs, embezzlement of ₹ 4 to 5 crores in Tsunami Relief Fund embezzlement of ₹ 4 crores by sale of property at Jubilee Hills d....... + More

Rectification of register of members by deleting the transfer entry - transfer of shares - direction to respondent to return to the appellant the share certificate pertaining to the said 1,66,550 equity shares - time limitation - HELD THAT:- This appeal is barred by limitation - The company has recorded the transfer of shares on the basis of the share transfer deed lodged with them in the year 2006. The validity of such transfer is being questioned at a belated stage after the lapse of ten years. Any action which ought to have been brought about to enforce the rights or revoke the transfer of shares by a deed of transfer within three years as per the Limitation Act, in the instance case, the action of challenging the validity of transfer deed dated December 22, 2006 was chosen to be filed on February 10, 2016 after a lapse of ten years fr....... + More

Allotment of Shares to Subsidiary Company - membership of Holding Company - violation of provisions of section 42(1) of the Companies Act, 1956 - HELD THAT:- The Bench has gone through the pleadings on record and the submissions made by learned counsel for the petitioner herein and accordingly came to the conclusion that the petitioners/defaulters herein had violated the provisions of section 42(1) of the Act. For such violation the punishment is provided under section 629A of the Companies Act, 1956. The allotment of 1,00,000 equity shares made to its subsidiary company DBFS Derivatives and Commodities Ltd., on April 21, 2007 is hit by section 42(1) of the Companies Act, 1956. Therefore, by each officer in default as members of the board of directors is subjected to a fine of ₹ 5,000 (rupees five thousand only), that too as a deter....... + More

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

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

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

Direction for payment of outstanding amount of CIRP expenses and the contribution towards the liquidation cost - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- According to the Ld. Counsel for R4 it is the CoC members objected to the inclusion of R4 in the CoC even if it is an unsecured creditor. However, dispute as to whether the R4 is a financial creditor or not has not been settled by the CoC and the said dispute is now referred to the AA and two IAs in that regard are pending. According to her without settling the said dispute, R4 may not be compelled to pay its part of share towards the Cost of CIRP and liquidation. I found some merit in her submission upon a reference to the copy of minutes she brought to my notice. IFCI has already been included as one of the Financial Creditors at the instances of IRP afte....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- This Bench noted a very queer aspect in the demand notice in respect of the outstanding loan which was served on 21.08.2017 by the Petitioner to Mr. Sunil Kewalramani (son and POA holder of the Petitioner) among themselves. The Petitioner sends the Demand Notice which is replied by Mr. Sunil Kewalramani (son and POA holder of the Petitioner) on behalf of the Corporate Debtor Company. Here, the Bench notes that both of them are Directors on the board of the Corporate Debtor Company - this bench clearly finds unlawful collusion and misuse of the position by the Petitioner. This also brings out the fact that there is no difference between the Petitioners and t....... + More

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its debt - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- It is evident that Petitioner had granted Financial assistance to the Corporate Debtor, the same was disbursed to the Corporate Debtor and there was a default in repayment of the said dues - The nature of debt is a “Financial Debt” as defined under section 5 (8) of the Code. It has also been established that admittedly there is a “Default” as defined under section 3 (12) of the Code on the part of the Corporate Debtor. This Bench having been satisfied with the petition filed by the Petitioner which is in compliance of provisions of Section 7 of the Code, admits this Petition declaring moratorium - petition admitted.

Maintainability of application - initiation of CIRP - alleged default on the part of the corporate debtor in settling an amount towards the assured returns as promised by the corporate debtor - existence of debt becoming due or not - major point raised by the corporate debtor is that the debt has not yet become due as per the conditions of MOU executed between the parties - HELD THAT:- A perusal of the clause of MOU signed between the parties on 1st February, 2014 reveals that the assured return shall be payable only upon execution of the Unit Buyer's Agreement on the Company's standard format. The financial creditors have not shown any proof to establish the fact that they have got the Unit Buyer's Agreement duly executed by both the parties. As a result of failure to produce the duly signed Unit Buyer's Agreement, it is considered that the debt has not yet become due. Petition dismissed.

Liquidation of the Corporate Debtor - Section 33(1)(a) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the factual background and in the absence of any approved resolution plan and for want of time beyond statutory CIRP period; there is no other alternative left but to order in conformity with the decision of the Committee of Creditors, for liquidation of the corporate debtor under Section 33 of the Code. The application is allowed by ordering liquidation of the corporate debtor, namely M/s. Beta Infratech Private Limited in the manner laid down in the Chapter III of Part II of the Insolvency and Bankruptcy Code, 2016.

Approval of resolution passed by the Committee of Creditors for initiation of Liquidation process - appointment of Liquidator for initiation of liquidation process for the Corporate Debtor - section 33(2) of the IBC, 2016 - HELD THAT:- This Tribunal is of the view that, since the Corporate Debtor is an MSME, even if the promoters- directors have been declared as 'wilful defaulters', they can apply under the provisions of Section 230 of the Companies Act, 2013 as they are exempted from Section 29A of IBC, 2016. Even after the declaration of initiation of liquidation proceedings, the promoters- directors still have a chance to tender definite plan for taking over the company as a going concern or under the provisions of Section 230 of the Companies Act, 2013. The Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016 cont....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - also allegation that application filed without proper authorization - debt as well as quality of service under dispute. Time Limitation - HELD THAT:- It is observed that the Operational Creditor has approached this Adjudicating Authority pursuant to orders of the then Hon'ble High Court of Andhra Pradesh wherein it was directed to transfer the winding up proceedings vide I.A. No. 5/2018 in C.P. No. 34/2011 dated 18.07.2018 to the NCLT Hyderabad Bench and that pursuant to the said order, the Operational Creditor has approached this Adjudicating Authority by issuing Demand Notice U/s. 8 of IBC. The series of events being continuous in nature and approach of the Applicant b....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - Existence of debt and dispute or not - HELD THAT:- Debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt which means debt includes the financial debt and operational debt and definition of financial debt shows that a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes either of clause (a) to (i) and if the amount paid comes under the definition of Section 5(8) of the IBC only in that case a person who gave the money comes under the definition of Financial Creditor. In the case in hand, there is no dispute that certain amount has been advanced by the Petition....... + More

Direction to First and Second Respondents to supply the Electricity to the Corporate Debtor in the present circumstances without insisting on the payment of past dues or any other preconditions so as to make the company as going concern - HELD THAT:- The Respondent has filed the Counter wherein it is contended that since the electricity connection was disconnected on 23.10.2018 much prior to the commencement of the CIRP due to non-payment of the arrears and if aggrieved by the action of the Respondent a remedy is also open for the company namely, M/s. Supreme Coated Board Mills Private Limited to take recourse in approaching the concerned authority seeking for re-connection if aggrieved by the Applicant and not by approaching this Tribunal with the instant Application. It is to be noticed that the Hon'ble Supreme Court has repeatedly ....... + More

Validity of e-auction - submission of cunter-bid - declaration of earlier auction as illegal and bad - HELD THAT:- The liquidator under Regulation 33(3) can deal with the aspect of collusion between various parties which ultimately effects the maximization of value of all assets of the corporate debtor adversely. No doubt, the sanctity of auction process has to be maintained i.e., once it is closed, normally it should not be reopened as generally understood. As stated earlier, generally the same can be done only on two grounds i.e., fraud or material irregularity occurred in the process of auction. However, another ground is added by IBC, 2016 i.e., maximization of value of assets of corporate debtor. Thus, when a situation of challenge to auction process arises on the ground of assets are not being sold at the maximum possible value, the....... + More

Liquidation of Corporate Debtor - Section 33(1) of the Insolvency & Bankruptcy Code, 2016 - Resolution Professional has filed the present application for resolution as statutory period has elapsed from the date of initiation of CIRP and no Resolution Plan has been approved by the CoC - HELD THAT:- It is pertinent to refer Section 33(1)(a) of the IBC, which mandates that "where the Adjudicating Authority before the expiry of maximum period permitted for completion of the corporate insolvency resolution process under Section 12 or the fast track corporate insolvency resolution process under Section 56, as the case may be, does not receive a resolution plan under sub-section (6) of Section 30, it shall pass an order requiring the Corporate Debtor to be liquidated in the manner as laid down in the manner." Therefore, the Tribuna....... + 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:- All problems have started from June 2017 from the time the quality of material supplied in few lots were of inferior quality leading to production disruption to the Corporate Debtor. It is also clear that the dispute has been raised also against the reply to the demand notice and the demand notice was replied within due time as per the provisions of the Code. The Hon’ble Apex Court has observed in Mobilox Innovative Private Limited Vs. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT] that “It is clear, therefore that once the Operational Creditor has filed an application, which is otherwise complete, the Adjudicating Authority must reject the applica....... + More

Prosecution proceedings against sleeping directors for failure to assist RP - Non supply of Documents / Account Books - Principles of Natural Justice - SCN not properly appreciated - Appellants submits that the Adjudicating Authority (NCLT, Chandigarh) while passing the impugned order dated 23.03.2020 had not considered the circular dated 02.03.2020 issued by the Government of India whereby a clarification was given in regard to the prosecution filed or internal adjudication proceedings initiated against the ‘Independent Directors’, ‘Non-Promoters’ and ‘Non-KMP’, ‘Non-Executive Directors’ and this had resulted in miscarriage of Justice. HELD THAT:- It comes to be known that the 1st Respondent / Resolution Professional filed application under Section 19 of the ‘I&B’ Code r/w r....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- There was no pre-existing dispute between the parties with regards the debt which has become due and remained unpaid for more than 1 Lakh as the corporate debtor has failed to present any document to support its averment - The corporate debtor has not placed on record any communication or document which exhibits the plausible dispute between the parties. There is no merit in the so-called dispute raised by the corporate debtor as mere reply filed by the corporate debtor to the present application, is unable to establish any pre-existing dispute of genuine nature. On the contrary the decree for recovery of dues passed by the Ld. ADJ Rohini Court, New Delhi dated 0....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- The corporate debtor has not placed on record any document which exhibits the plausible dispute with respect to the quality of the materials supplied by the applicant nor with respect to the existence of the amount of alleged debt. Moreover, the notice under section 8 of code has not been disputed by the corporate debtor. It is only when application under section 9 is filed, the corporate debtor has come foreword with lame defence and without any evidence. It can be thus inferred that there is no merit in the so-called dispute raised by the corporate debtor in reply to the application. Therefore, it goes beyond doubt that the Applicant is entitled to claim its du....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - HELD THAT:- It is pertinent to note that the corporate debtor has failed to appear and present his defense hence has been proceeded ex-parte vide order dated 12.02.2020 - The date of default is 22.12.2016 and the present application is filed on 17.12.2019. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. The present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule....... + More

Directions to the Resolution professional to provide or furnish the details of fair value/liquidation value of the assets of the corporate debtor - Direction to Respondent to provide the information pertaining to claims submitted by the secured and unsecured creditors to the Resolution professional/Interim Resolution Professional - section 60(5) of Insolvency and Bankruptcy Code, 2016 Read with Rule 11 of NCLT Rules, 2016 - HELD THAT:- Regarding claims admitted by the RP the applicant wanted directions to RP to furnish the information with regard to those claims. In fact applicant has participated in the COC meetings and the issue of claims were placed for consideration. The RP has filed minutes of the COC meetings. The applicant participated in all the COC meetings and applicant should have been informed of all the claims admitted having....... + More

Liquidation of Corporate Debtor - requisite documents not submitted - HELD THAT:- In order to consider any claim of a Party, concerned Party has to submit the requisite document(s) to the Concerned Authority to consider its claim. An Authority, which is required to consider a claim of a party, is entitled to ask the Party to substantiate its claim by producing relevant document(s) in addition to document(s) already furnished along with Claim. The contention of Applicant that documents already furnished along with its claim would suffice to accept its claim is not at all tenable, and it is liable to be rejected. The Liquidator is having every right to ask the Applicant to submit requisite documents as he thought it relevant to the issue in question. Moreover, the documents in question, asked for by the Liquidator, are prima facie, found to....... + More

Maintainability of application - Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial debt or not - Aggrieved Person or not - HELD THAT:- It is to be borne in mind that in a subsisting application, liability to pay a sum of money is condition precedent of a 'Financial Debt'. The 'Financial Debt' represents the money payable in respect of loan borrowing made by a Corporate Debtor. In short, the sum of money is certainly and in all events payable is a 'Debt', disregard to the fact whether it is payable now or at a later point of time, in the considered opinion of this Tribunal. Indeed, in Part II of the IBC, Section 63 expressly oust the 'Jurisdiction' of a 'Civil Court' or an 'Authority' and specifies that such Civil Court or an 'Authority' cannot ent....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt or not - existence of debt and dispute or not - HELD THAT:- The debt arising out of non-payment of lease rent does not fall under the definition of 'operational debt' as defined under Section 5(21) of the Code (even though it may otherwise be a debt), and the Petitioner cannot be termed as an 'Operational Creditor' within the meaning of Section 5(20) and for the purpose of the Code. It is also seen from the Petition that there existed a substantial dispute over the debt in question, prior to the filing of this Petition. It had filed a suit before the Court of City Civil Judge at Bengaluru under the Code of Civil Procedure on 1st October, 2018. The matter went to the Lok Adalat. Some payments were m....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Maintainability of appeal - requirement of mandatory pre-deposit - prayer for revival of appeal accepting 7.5% pre-deposit and dispose of the appeal on merits - banking and other financial services - HELD THAT:- The petitioner is a Co-operative Society. The legal argument advanced by the petitioner is that their activities are arrangements between the members of the Society and it would not amount to 'banking and other financial services' as defined in the Finance Act, 1994. This is a question of law. By Ext.P4 order by which the appeal was rejected for non compliance of pre-deposit requirements, the petitioner has lost opportunity to urge the aforesaid legal contention. In the circumstances, this Court is of the opinion that the petitioner shall be permitted to argue the appeal on merits. The writ petition is disposed of permitti....... + More

Recovery of tax dues - rendering of ‘erection, commissioning or installation service’ - wrongly availled CENVAT Credit - services provided from outside India to the appellant - reverse charge mechanism - period April 2009 and March 2012. Demand of ₹ 17,55,58,713 has been confirmed to be due from the appellant company as tax on services procured from outside India for execution of the contract with M/s Oil and Natural Gas Corporation Ltd. - HELD THAT:- The appellant is not provider of service from outside India but an assessee within the meaning of Finance Act, 1994, the correctness of taxability, under challenge by the appellant company, must be decided in terms of section 66A of Finance Act, 1994 read with Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 - It is contended on behalf of....... + More

Refund of Service Tax - Information Technology Software Services - Department contends that the Information Technology Software Services was not taxable for the relevant period and it became taxable only w.e.f. 16.05.2008 hence refund under Rule 5 of CCR, 2004 is not available - unregistered premises - nexus between the output services provided and input services availed - HELD THAT:- Notification No. 5/2006 has been amended by the Finance Act, 2010 substituting the words “used for” in place of “used in”. It is also found that it has been clarified that the retrospective changes are made to ensure that the provisions of refund Notification and the CCR are aligned - also, most of the services utilized by the appellants are held to be input services for providing output services in the field Information Technology Se....... + More

CENVAT Credit - input services - Short term hotel accommodation service - rent-a-cab service - outdoor catering and housekeeping services - period from April 2016 to June 2017. Short term accommodation in hotels - HELD THAT:- The Appellant’s personnel necessarily had to undergo the required training to obtain the necessary permissions and approvals for the service recipient to avail the services of the Appellant. Had such training not been completed before such personnel were deployed at the rig, the service recipient would have deducted a certain amount at the time of payment to the Appellant. In any case, the Appellant could not afford to deploy people without the required police clearance certificate and Safety training. Therefore, the Appellant had no choice but to accommodate its personnel for the time impending the said approv....... + More

Reverse Charge mechanism - Business Auxiliary Service - Foreign Commission Agent Service - allegation that appellant neither obtained service tax registration nor paid the service tax on the services received by them from their foreign commission agent to whom commission of 11%-12.5% was passed on - whether there is any commission paid by the appellant to Commission Agent in relation to export of their goods exists and whether that commission is liable to service tax under the head Business Auxiliary Service? - time limitation. HELD THAT:- It is seen that against the C&F value shown is sales value in the invoice, the amount equivalent to 11%-12.5% was shown as deduction under the head commission and therefore, the net invoice value is the value after deduction of said 11%-12.5%. As per the invoice, 11%-12.5% commission was extended to....... + More

Works Contract Services - service provided to organisations like Andhra Pradesh Power Generation Corporation (AP GENCO), Andhra Pradesh Tourism Development Corporation (APTDC), etc. - Government/ local authority/ Government authority or not - benefit of N/N. 25/2012-ST - whether the appellant has provided service to Government/ local authority/ Government authority as per the exemption Notification No. 25/2012-ST.? - HELD THAT:- All the companies / Corporations have been established by the Government of Andhra Pradesh under the various Acts and /or ‘Government order’, as aforementioned and thus we hold that the appellant has provided service to Governmental authority. Evidently all the service recipients have been set up by the State Government, and are directly under the control of the various Ministries of the State Governme....... + More

Non-payment of service tax - museum fee/admission charges and camera ticket - appellant is a public charitable trust with the object of setting up a world class museum for the benefit of public, at large - exempt service or not - CBEC Notification No. 9/2017-ST dated 28.02.2017 - HELD THAT:- In view of the Notification No. 9/2017-ST, extending the benefit of exemption on services by way of admission fee to museum etc., with effect from 01.07.2012, the demand vide the impugned order against the appellant, does not survive. Appeal allowed - decided in favor of appellant.

Reverse Charge mechanism - Liability of Service Tax - GTA Service - no consignment note issued - it appeared to Revenue that the appellants being corporate body ‘private limited company’, are liable to pay service tax on reverse charge basis - HELD THAT:- The learned Commissioner (Appeals) have misconceived the provisions of law as he has considered the provision for payment of tax under reverse charge mechanism as the charging section - Admittedly, charging section does not provide for levy of service tax in case of GTA service, where no consignment note is issued. Appeal allowed - decided in favor of appellant.

Quantum of penalty - Both the assessee and Revenue preferred appeal before the Commissioner (Appeals). Assessee had challenged 15% of penalty whereas Revenue has prayed for enhancement of penalty to 50% - HELD THAT:- Learned Counsel for the appellant confirms that they have filed declaration form SVLDRS-1 on 22.10.2019 and accordingly they have been issued final settlement certificate in Form-SVLDRS-4 dated 05.12.2019. Thus, the dispute in these appeals stand settled as regards the tax, interest and penalty matter. Accordingly, these appeals are disposed of in terms of the settlement between the parties.

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

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

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

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

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

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

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

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

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

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

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

CENVAT Credit - Reverse charge Mechanism - service provider or not - manufacturer of goods having ‘nil’ tariff rate of duty - HELD THAT:- The issues involved in the present appeal were considered by the Tribunal and the appeals filed by the appellant were allowed by way of remand to the Commissioner (Appeals). Pursuant to the remand direction of the Tribunal, the Commissioner (Appeals) took-up de novo proceedings and passed the order dated 17.10.2018 in favour of the appellant, by granting the refund benefit. Since, the appellant submits that the issue arising out of the present dispute is identical to the facts and the issues decided in the orders referred above, the present appeal should also be allowed by way of remand to the Commissioner (Appeals) for fresh decision on merits - Appeal allowed by way of remand.

Clandestine Removal - illicit production of plywood on the basis of consumption of resin - demand based only on presumption only without any corroborative evidences - case of appellant is that while issuing the demand, the consumption of resin has been calculated on average basis and not on the basis of thickness viz. resin consumption which was declared at the time of search proceedings - HELD THAT:- It is observed that no investigation has been undertaken by the Revenue towards procurement of additional raw materials clandestinely. No other corroborative documents have been produced. Investigations against the consignees have also not been done before raising demand on the allegation of clandestine clearance. The onus is definitely on the department to establish manufacture and clearance of such goods and also regarding the receipt of p....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Benefit of concessional rate of tax - difficulty in obtaining 'C' forms - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate. The issue involved in the Writ Petition is squarely covered by a decision of this Court in M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites....... + More

Benefit of concessional rate of tax - difficulty in obtaining 'C' forms - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate. The issue involved in the Writ Petition is squarely covered by a decision of this Court in M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites....... + More

Benefit of concessional rate of tax - difficulty in obtaining 'C' forms - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate. The issue involved in the Writ Petition is squarely covered by a decision of this Court in M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites....... + More

Validity of assessment proceedings - time limitation - non- consideration of F-Forms - period April, 2015 to February, 2016 - HELD THAT:- The impugned Assessment Order dt.11.03.2020 passed by the 1st respondent is set aside; the matter is remitted back to the 1st respondent for fresh consideration; the 1st respondent shall consider the F-Forms which have also been filed by the petitioner before him; the petitioner is entitled to make submissions on the aspect of bar of limitation of the assessment proceedings for the period April, 2015 to February, 2016 invoking Sub- Rule (5A) of Rule 14A of the Central Sales Tax (Telangana) Rules, 1957; the 1st respondent shall also provide a personal hearing to the petitioner; and then pass a reasoned order in accordance with law and communicate it to the petitioner. Petition allowed by way of remand.

Principles of Natural Justice - Validity of Assessment Order - order of the Tribunal is assailed on the ground that opportunity of hearing is denied to revisionist - HELD THAT:- Admittedly the order of the Tribunal is ex-parte inasmuch as it is recorded that none has appeared on behalf of the revisionist. This observation is assailed by contending in para 14 to 16 that in fact the Tribunal observed in open Court that matter was complicated and, therefore, the appeal would be adjourned to the some other date. Letter of the counsel date 25.6.2020 has also been annexed as annexure no.5 which contains the communication of lawyer to the revisionist in that regard. The order of the Tribunal otherwise appears to have been passed essentially relying upon the remand report 6.3.2020 which has also been quoted in the order itself - The contention ad....... + More

Concessional benefit of tax - purchase of High Speed Diesel - difficulty in obtaining C Forms - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate. Let this exercise be carried out within a period of four (4) weeks from date of uploading of this order. The request of the petitioner for issuance of ‘C’ Forms is allowed as a consequence thereof. Petition allowed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dishonor of Cheque - issuance of summons - primary ground of challenge as contended by the learned counsel for the petitioner is that the petitioner was not the Director when the underlying contract was executed between the respondent No.1 and respondent No.2, nor when the cheques were issued and when they were presented, inasmuch as the petitioner had resigned from the respondent No.2 much before, on October 27, 2010. HELD THAT:- This Court is conscious of the settled position of law that the High Court while entertaining a petition of this nature shall not consider the defence of the accused or conduct a roving inquiry in respect to the merits of the accusation/s but if the documents filed by the accused / petitioner are beyond suspicion or doubt and upon consideration, demolish the very foundation of the the accusation/s levelled again....... + More

Dishonor of Cheque - uncontroverted document i.e. Form-32 to prove resignation of Director - case of petitioner is that that despite the petitioner having resigned as a Director (independent and non-executive) from the accused Company on 22nd September, 2010, the petitioner has been arrayed as an accused on the basis of a dishonoured cheque dated 1st June, 2014 - alleged offences punishable under Sections 138 r/w 141 and 142 of the Negotiable Instruments Act - HELD THAT:- A perusal of Form - 32 shows that the petitioner had resigned from the accused Company on 22nd September, 2010. It is pertinent to note, that the said document, Form - 32 has not been controverted by the learned counsel for the respondent No.2. Learned Counsel states that he has no document or any material to show that the petitioner, post his resignation, was in any way....... + More

Release of Passport - order of declaration of proclaimed person not present - Section 10(3) (h) of the Passports Act, 1967 - opportunity of hearing not provided to petitioner - HELD THAT:- In the writ petition Respondent No.1 had impugned the seizure memo dated 23.04.2019 (Annexure P.11) and letter dated 17.05.2019 (Annexure P.14) conveying the reason for the action. Ld. Single Judge has rightly concluded that not only was the impugned action void and illegal being violative of the principles of natural justice even the reason furnished for impounding that she had been declared a proclaimed person was non- existent. The passport had not been impounded under Section 10(3) (e) on the ground of proceedings in respect of a criminal offence pending against respondent No.1 which is the ground pressed by the appellant to justify its impounding -....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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