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Showing 121 to 140 of 1456 Records
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2024 (1) TMI 1336
Maintainability of appeal in High Court - substantial question of law or not? - income tax officer disallowed expenses and determining income at a higher amount - additional ground was incorporated in the appeal in respect of disallowance of payment as it was stated that there never existed any relationship between the appellant and the payee as contractor and sub-contractor
HELD THAT:- The appellant had undertaken civil contract from two companies and the work was widening and strengthening of existing road, repairing widening of road side shoulders etc. and in that connection the purchases were shown at Rs. 15,49,684/-. Then it was stated that there was sub contract of Rs. 2,24,63,228/- and the TDS liability was Rs. 2,41,846/-. The list of subcontractors went upto 25 persons and it appears that he had deliberately avoided to furnish the details of subcontractors. Each and every entry appears to have been considered by the AO.
Being dissatisfied with the assessment order, when the petition was preferred, the first appellate authority had partly allowed the appeal and genuine expenses were considered. Reasoned orders have been given as to why they have been considered and why they have not been considered.
Again the appeal was preferred by the appellant before Income Tax Appellate Tribunal, Pune. After giving hearing to the appellant, that appeal has also been partly allowed. Few more expenses were allowed to be shown as expenses, but what has been disallowed is that the parties in whose names the cheques were alleged to be issued by the appellant have deposed on oath that the signature on the back side of the cheques and the rubber stamps were not of their business establishments and they have neither encashed the cheques from the bank, nor received the amount from third parties i.e. to the extent of Rs. 13,10,000/- as it was claimed by the appellant that he has spent that amount on purchase of marble. It was found that the expenses incurred were bogus expenses.
We have made inquiry with the learned Advocate for the appellant as to why the marble was purchased for construction of roads. He made a submission that the appellant has made the construction/repairing work of the office of the highway authority, where the marble has been put. In fact, we could not find any such document on record, which showed that contract of construction of such office was also given to the appellant. Certainly, the said expenses appear to be not connected to the work undertaken and, therefore, it has been said to be the bogus expenses.
Further, as regards the additional ground that was raised, by a reasoned order, Tribunal has considered it to the extent of Rs. 1,45,00,000/- (rounded off only) and it is rightly to be so as it covered the partly allowed claim of the appellant by learned CIT(A) and taking into consideration the TDS deposited by the assessee on 15.10.2010 but the amount was debited from the bank account of assessee on 20.10.2010, it came to be partly allowed and, therefore, it is said that it is the part claim, but that part which has been granted is in favour of the appellant. A reasoned order has been passed for allowing or disallowing the claim of the appellant. There is no question of substantial question of law when all the facts have been considered.
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2024 (1) TMI 1335
Denial of benefit of duty exemption No. 21/2002–CUS dated 01.03.2002 - imported coke breeze - validity of the show cause notice, having invoked the extended period of limitation u/s Section 28(4) of the Customs Act - penalty - HELD THAT:- Metallurgical coke and coke breeze are two distinct and different products having their own separate characteristics and uses. The two in no way can be considered as one and the same and thus at par. Coke Breeze being a byproduct of the process of coke manufacture and not utilizable as such in a blast furnace, where met coke alone fits the bill. As the two products are clearly distinct with wide variation in their sales price, it is opined that the question of interpretation of an exemption notification and the case law analysis on this aspect of the matter does not actually arise.
Language employed in statute is the determination of legislative intent. Nonetheless, it may be apt for sake of records to state what the Hon’ble Courts have held on this aspect of the subject matter. Thus in the foremost, it is settled law that an exemption notification calls for a strict interpretation and no liberal constriction can be placed to extend the scope of the notification.
In view of clear and appreciable differences as noted detailing the difference in technical parameters and usage considerations, the goods imported by the appellant viz. coke breeze is not entitled to the benefit of the exemption notification, 21/2002-Cus dt. 1.3.2002 and/or 12/20112-Cus dt. 17.03.2012 prescribing Nil “rate of duty for import of metallurgical coke. The impugned orders therefore call for no interference as regards merits of the case.
Extended period of limitation - penalty - HELD THAT:- As the importer had clearly declared the imported goods as coke breeze in the Bills of Entry filed at the time of import, the charge of suppression willful misstatement as levelled against the importer does not hold good and cannot be sustained. It is for the department to have allowed or dis-allowed the exemption benefit depending upon their understanding and interpretation of the subject notification, however to impute it as a case of misstatement on part of the importer is certainly uncalled for and is not established from the facts of the case. The larger period of limitation under Section 28(4) of Customs Act is thus not invokable. The imported goods are therefore not liable to confiscation nor is any penalty leviable on the appellant.
Appeal allowed.
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2024 (1) TMI 1334
Seeking to allow Petitioners the claim of RoDTEP scheme - to allow modification in the online system to enable the Petitioners to correct the technical error by allowing selection table “RODTEPY” for shipping bills to be under reward scheme and process the application to grant export incentives under RoDTEP to the Petitioner - seeking to improve the software/system so as to enable the Petitioners or similarly placed assessed to upload the manually amended shipping bill on the portal either themselves or through the officers of the Respondents to avail the export incentives admissible in law.
HELD THAT:- It is not in dispute that the petitioner is eligible for the export benefit under the RoDTEP scheme in law and as per the notification of the scheme - For export of goods around India to customer situated outside India, the exports have to file shipping bills in two ways (a) filing of shipping bills manually (non-EDI) and (b) filing of shipping bills online (through EDI based e-filing services).
The petitioner accordingly filed four shipping bills as stated hereinabove, however, due to oversight, the CHA of the petitioner did not select ‘YES’ option and the shipping bills were filed on EDI system with default ‘NO’ option for availing the benefit of RoDTEP scheme. The petitioner thereafter has filed letters for amendment of shipping bills with declaration of accepting the option of availing the benefits of RoDTEP scheme, which was granted manually under Section 149 of the Customs Act, 1962. However, the petitioner is not permitted to amend the shipping bills, which are already uploaded in the EDI system. In such circumstances, the respondent authorities cannot deny the benefit of RoDTEP scheme to the petitioner as the petitioner is otherwise eligible for the same.
This Court in the case of Gokul Overseas [2020 (3) TMI 167 - GUJARAT HIGH COURT] the facts before the court, where the petitioner omitted to file declaration of intent within three months from the date of the late export order as stipulated in the CBEC circular no. 36/10 dated 29.03.2010 for availing the benefits under the Merchandise Exports From India Scheme (MEIS) was permitted as all other relevant material available as the petitioner before the Court was eligible for the benefit of MEIS. It was observed by the Court as 'The respondents are, therefore, not justified in turning down the request to convert the shipping bills of the petitioner from free to MEIS and thereby depriving the petitioner of the benefits under the MEIS in respect of exports made under such shipping bills.'
The respondent authorities were directed to permit the petitioner to allow the filing of declaration in form GST TRAN-1 so as to enable them to claim transitional credit of the eligible duties in respect of the inputs held in stock on the appointed day in terms of Section 140 (3) of the CGST Act.
The petitioner shall be entitled to RoDTEP scheme benefit in respect of the exports of the goods by the respondent authorities in view of the amendment of the shipping bills under Section 149 of the Customs Act, 1962 - The respondent authorities are directed to process the claim of the petitioner for RoDTEP scheme benefit irrespective of the amendment of the shipping bills on the custom automated system or in alternative the respondents are directed to permit the petitioner to amend the shipping bills online on custom automated system by suitably making technical deviation in the system and thereafter, process the claim of the petitioner for benefit under the RoDTEP scheme if otherwise available to the petitioner.
Petition disposed off.
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2024 (1) TMI 1333
Interpretation of Section 47 of The Registration Act, 1908 in a property dispute case - HELD THAT:- The consideration was entirely paid on the date of the execution of the sale deed. The sale deed was registered with the interpolation made about the description/area of the property sold. The first defendant admittedly made the said interpolation after it was executed but before it was registered. In terms of Section 47 of the Registration Act, a registered sale deed where entire consideration is paid would operate from the date of its execution. Thus, the sale deed as originally executed will operate - It is not even the first defendant's case that the subsequent correction or interpolation was made before its registration with the consent of the original plaintiff. Therefore, in this case, what will operate is the sale deed as it existed when it was executed.
There are no error in the view taken by the High Court - The decision of the first Appellate Court was contrary to Section 47 of the Registration Act. The High Court was justified in interfering with the decision of the first Appellate Court in a second appeal under Section 41 of the Punjab Courts Act.
Appeal dismissed.
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2024 (1) TMI 1332
Estimation of income - bogus purchases - HELD THAT:- Respectfully following the decision of the Tribunal in the case of the Appellant for the Assessment Year 2010-11 and 2011-12 [2023 (3) TMI 1500 - ITAT MUMBAI] we restrict the disallowance on account of bogus purchases to 7.5% of such bogus purchases - Assessee appeal partly allowed.
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2024 (1) TMI 1331
Revision u/s 263 - as per CIT AO has not examined the exemption u/s 54B/54F and deduction of transfer expenses claimed by assessee against ‘long-term capital gain’ - HELD THAT:- Revision in this case had been conducted on the bedrock of AO’s proposal. That means, the conditions prescribed in section 263 are not fulfilled.
We have gone through the decision of Alfa Laval Lund AB [2021 (11) TMI 327 - ITAT PUNE] and find that the said decision quashing the revision has been rendered on exactly same set of facts as involved in present appeal of assessee. Although Ld. DR for the revenue has dutifully made certain arguments as noted in foregoing paragraph but neither been able to rebut the arguments made by Ld. AR nor the applicability of the decision of ITAT, Pune on facts or in law.
Therefore, we are inclined to hold that the present case is having a jurisdictional deficit resulting into vitiating the impugned order. Therefore, we quash the impugned order on legality aspect itself and restore the original assessment-order passed by AO. Assessee appeal allowed.
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2024 (1) TMI 1330
Late payment of PF & ESI - assessee has deposited the Employee’s Contribution after the due date prescribed under the Act - HELD THAT:- From the perusal of the judgment in the case of Checkmate Services (P) Ltd. [2022 (10) TMI 617 - SUPREME COURT] it is abundantly clear that the deduction u/s 43B is only admissible if the assessee had deposited before the due date provided by the parent act i.e. PF & ESI. In the present case, the assessee has not deposited the amount as is clear from the above noted tables. Therefore, the issue is required to be decided against the assessee.
The argument of the learned AR for applying the decision of the Tribunal in assesses own case for the A.Y 2019-20 [2022 (2) TMI 1477 - ITAT HYDERABAD] is completely fallacious and is rejected by the Hon'ble Supreme Court in the case of Checkmate Services (P) Ltd (Supra), the issue had been conclusively settled.
We may fruitfully refer that the judgment of the Apex Court is binding on all the Courts below and the Tribunals. In the present case, the Hon'ble Supreme Court once has categorically held that the assessee is only entitled to the rebate/deduction u/s 43B of the Act, if the amount had been paid on or before the due date as provided by the parent Act of ESI/PF. Once the issue has been decided by the Apex Court, then the decision given by the Tribunal in assessee’s own case loses its significance and is no more biding on the Tribunal being contrary to the law laid down by the Hon'ble Supreme Court. Decided against assessee.
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2024 (1) TMI 1329
Unexplained credit u/s 68 - Bogus LTCG accommodation entry of stock company - addition of commission payment u/s 69C - HELD THAT:- In the present case, the appellant entered into the transactions of purchase and sales duly supported by the documents which have not disproved by the authorities below.
The conditions provided u/s 10(38) of the Act have been fulfilled by the assessee (s) as they have sold the equity shares held in Demat account and transactions performed on a recognised stock exchange through registered broker at the price appearing on the exchange portal and at the point of time of sale of equity shares, companies were not marked as shell companies by SEBI nor the trading of these scrips were suspended.
In the present case, the appellant has entered into the transactions of purchase and sales of shares, duly supported by the documents which have not been rebutted either by the AO or by the LD. DR and therefore, in our considered view, since the conditions provided u/s 10(38) have been fulfilled by the assessee (s) and hence, the issues raised in the instant appeal by department regarding the bogus claim of Long Term Capital Gain would be liable to be rejected.
Denial of natural justice - Assessee deserves to succeed on the legal ground as no opportunity was awarded to cross examination the third person which were allegedly found to be providing accommodation entries and therefore no addition was called for in the hands of the assessee without providing opportunity of cross examination in view of the ratio laid down in the case of Andaman Timber Industries [2015 (10) TMI 442 - SUPREME COURT] that “not allowing the assessee to cross examine the witnesses by the adjudicating authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected”.
Thus, the order of the ld. CIT(A) in deleting the addition on account of disallowance of claim of exemption on long term capital gains on sale of shares u/s 68 and commission payment u/s 69C of the Act is held to be justified, and as such, the same is upheld. Decided against revenue.
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2024 (1) TMI 1328
Addition u/s 143(1) simply on the basis of interest income reflected in 26AS - addition on the basis of interest income reflected in 26AS - difference between the amount of interest income in Form 26AS and net taxable income shown in the return of income
HELD THAT:- We find that where the AO in the remand report has verified the matter and has also stated that in the subsequent year, same transaction has been accepted during the course of assessment proceedings, there is no merit in sustaining the addition so made in the impugned assessment year.
CIT(A) has merely gone by the quantum of addition in the two assessment years and has not commented anything adverse regarding the nexus between the income and the expenditure incurred or for that matter, the remand report submitted by the AO where the claim of the assessee has been accepted. In the result, the addition so made and adjustment so done by the CPC is hereby directed to be deleted. Appeal of the assessee is allowed.
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2024 (1) TMI 1327
Reopening notice sent on wrong address - whether the Revenue can proceed with the reopening sought to be initiated u/s 147 of the Act, in absence of any notice u/s 148 of the Act actually served upon the assessee? - HELD THAT:- The notice u/s 148 of the Act was served on the wrong address by stating incorrect name of village. The said fact could not be disputed by learned advocate Mr.Nikunt Raval for the Revenue as the very fact has been recorded by the authorities while rejecting the objections.
In our considered opinion, there is no scope available for any debate or doubt towards the factum of non-service of notice under Section 148 of the Act within limitation period as prescribed u/s 149 of the Act. Resultantly, the impugned order passed by the respondent authority as well as initiation of reassessment proceedings cannot be allowed to stand in absence of actual service of notice u/s 148.
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2024 (1) TMI 1326
Levy of service tax - declared service or not - compensation received by the appellant on the failure to procure the power at contractual quantity - HELD THAT:- The decision of the Tribunal in M/S SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR [2020 (12) TMI 912 - CESTAT NEW DELHI] dealt with the issue, which had arisen in similar situation whether the amount collected towards compensation/penalty from the buyers of coal on the short lifted/un-lifted quantity of coal, collected amount towards compensation/penalty from the contractors engaged for breach of terms and conditions and collected amount in the name of damages from the suppliers of material for breach of the terms and conditions of the contract can be treated as “declared service” under section 66E(e) of the Act.
Relying on the decision of the Larger Bench in M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI-LB], which was affirmed by the Apex Court in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] dismissing the department’s appeal, the principle enunciated was any amount charged which has no nexus with the taxable service and is not a consideration for the service provided does not become part of the value which is taxable under Section 67.
The underline object of the contract is to provide the services of electricity on requisite consideration and the compensation under clause 3.3.4 is distinct as the purpose thereof is to ensure that the minimum quantity of power is procured and there is no default. Therefore, the amount received as compensation has no nexus to the taxable service and cannot be treated as value of the services that are provided. In this regard, the provisions of Section 67 of the Act needs to be considered which provides that service tax is chargeable on any taxable service with reference to its value and the various clauses provides for determination of such value in following words, “where the provision of service is for a consideration”. The Explanation specifically provides by way of inclusive definition that only an amount that is payable for the taxable service would be the “consideration”.
The Adjudicating Authority was not right in levying the service tax on the amount received by the appellant as compensation for short lifting of electricity was not on account of any obligation to tolerate an act. The impugned order deserves to be set aside - Appeal allowed.
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2024 (1) TMI 1325
Delayed payment of PF & ESI - disallowance made u/s. 36(1)(va)/43B - adjustments u/s 143(1) - HELD THAT:- Issue relating to grounds taken by the assessee have come to rest by the recent verdict of the Hon’ble Supreme Court in Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] wherein it has been held that “deduction u/s 36(1)(va) in respect of delayed deposit of amount collected towards employees’ contribution to PF cannot be claimed when deposited within the due date of filing of return even when read with Section 43B of the Income-tax Act, 1961.
Contention raised by assessee that disallowance made towards delayed deposit of PF & ESI is a debatable issue and hence, not a permissible adjustment which can be made under the provisions of sec. 143(1) while processing the return of the assessee by CPC, Bengaluru has been dealt exhaustively by the Coordinate Bench of ITAT, Kolkata in the case of Siddhi Vinayaka Graphics Pvt. Ltd. [2023 (5) TMI 1322 - ITAT KOLKATA] wherein it is held against the assessee on the contention so raised. Decided against assessee.
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2024 (1) TMI 1324
Denial of Tax Deducted at Source (TDS) credit - TDS credit available as per Form 26AS - restricting the TDS credit to a proportion of the royalty income offered to tax
HELD THAT:- Assessee has received contractual royalty payment from the Indian entity. Assessee would raise invoices on the payer entity who would deduct TDS and remit the remaining amount to the assessee. At year-end, payment of royalty would be re-computed as per the terms of the agreement.
Pursuant to the same, the assessee has issued credit notes to the payer entity. The income thus accrued to the assessee is gross invoices less the credit notes issued by the assessee. The same amount, on net basis, would be reflected by the assessee in the financial statements.
This figure tallies with the financial statement of the payer entity. Assessee has duly reconciled the amounts reflected in financial statement vis-à-vis amount reflected in Form 26AS.
Though income to the extent of credit notes issued by the assessee would never accrue to the assessee, nevertheless, TDS as been deducted against these payments and the same has been deducted against the assessee. Therefore, the assessee would be entitled for the credit of the same.
The amount of credit notes could not be held to be the income of the assessee. Therefore, lower authorities are not justified in denying the credit of the same.
The provisions of Sec. 155(14) would not apply since these provisions would apply only in cases where the TDS certificate is furnished later and where the income has not been disclosed in the return of income. In the present case, the income to the extent of credit notes would never accrue to the assessee and hence, there is no question of offering the same to tax.
CIT-DR has submitted that the assessee could have insisted deductor to file revise TDS return and claim the excess TDS amount from the deductor. Once TDS is deducted and deposited with the Central government, the only mechanism with the assessee to claim the refund of the same would be through filing of Income Tax Return which is the correct way of claiming the TDS credit.
Therefore, we direct AO to allow full TDS credit to the assessee which is otherwise available as per Form 26AS. Appeal of allowed.
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2024 (1) TMI 1323
Leasehold rights of Corporate Debtor - whether it is unregistered Framework Agreement dated 29th March, 2007, or the Original Registered Lease Deed dated 31st March, 2007 that will determine the lease hold rights of the Corporate Debtor (SHPL), in regard to the inclusion of the 3.5 acres of land in question to be (subject property) in the Information Memorandum (IM)? - HELD THAT:- It is already noted that the said unregistered Framework Agreement has not been referred to in any of the subsequent registered instruments pertaining to the lease in question. Meaning there by that even if there existed an Agreement between the parties to enter into a lease Agreement subsequently, with a termination Clause which speaks of right to terminate upon lessee’s insolvency, the parties may have resiled from their stand later and entered into a Lease Agreement without such termination Clause, and further got it modified to include a termination Clause totally different from that of purported previous informal Agreement.
The original unregistered Framework Agreement with signatures of parties is perused. It is not required to be impounded for the sole reason that it is an unregistered document expressing an interest to execute a lease deed, which neither creates nor extinguishes any right, title or interest in the subject property.
The Framework Agreement cannot be looked into for the purpose of determining the lease or to ascertain whether the subject property can be made a part of CIRP Process of the Corporate Debtor, or to conclude that in terms thereof the lease stood terminated due to initiation of the CIRP against the Corporate Debtor - Applicaton dismissed.
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2024 (1) TMI 1322
Preferential Transactions or not - Fraudulent Transactions or not - Recovery of amounts illegally paid to related parties - recovery of amounts payable towards the electronic appliances - recovery of amounts payable towards the two wheelers - recovery of amounts of motor vehicles - whether the respondents can be directed to contribute to the assets of the Corporate Debtor for the amount involved in such transactions?
HELD THAT:- The applicant has given details of some transactions claiming that the respondents have siphoned off the total amount of Rs.3.87 crores. Therefore, these transactions of siphoning off the money and performing these transactions are not submitted in the application. This application was listed for orders on 11.12.2023, but orders could not be pronounced on that day as the applicant has not unequivocally clarified the plea of fraudulent transactions. At the request of the learned counsel for the applicant, 10 days’ time was granted till 20.12.2023 to file brief synopsis/ submissions, as last chance. The applicant as well as the respondents have filed Synopsis in compliance of our directions vide order dated 11.12.2023. However, no new facts were added. In view of the same we are unable to decide the transactions of Rs.3.87 crores as tabulated at page 40, whether the same are Preferential Transactions or otherwise. As far as the vehicles are concerned, according to the respondents the same were sold by the husband of R/1 as he was looking after the affairs of the Company even before initiation of CIRP. It is found that the value of these assets is also not verified and even the applicant has not made any plea to treat them as fraudulent transactions, except one vehicle, the ownership of which has been transferred after initiation of CIRP.
Thus, in absence of the requisite information, the transaction of Rs.3.87 crores cannot be classified at a preferential transaction - As regards Innova Crysta Car, its ownership has been transferred to a third person post imitation of CIRP. Hence we treat it a fraudulent transaction intended to defraud the creditors.
As regards section 66(2) (b) of the IBC, 2016 it clearly states that On an application made by a resolution professional during the corporate insolvency resolution process, the Adjudicating Authority may by an order direct that a director or partner of the corporate debtor, as the case may be, shall be liable to make such contribution to the assets of the corporate debtor as it may deem fit, if such director or partner did not exercise due diligence in minimizing the potential loss to the creditors of the corporate debtor. Therefore, relying on the said section of the IBC, 2016, respondents no.1 and 2 are directed to contribute of Rs.13,74,585/- to the assts of the Corporate Debtor.
Application allowed in part.
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2024 (1) TMI 1321
Seeking grant of bail - smuggling of foreign origin gold from Bangladesh - offence punishable under sections 135 (i)(a) and 135 (1)(b) of the Customs Act - HELD THAT:- Having heard the learned counsel for the parties and considering the fact that both the petitioners were caught red handed by the team of DRI and they were indulged in smuggling of foreign origin gold, this court is not inclined to enlarge the petitioners on bail and, as such, their prayer for bail stands rejected.
The trial court is directed to expedite and conclude the trial - bail application dismissed.
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2024 (1) TMI 1320
Conviction and sentencing of the appellant under Sections 302 and 201 of the IPC - HELD THAT:- Acquittal of the co-accused, as noticed in paragraph 4 above, again is for want of evidence against them. At best, they were found in possession of the articles connected with the crime on the basis of the disclosure statement (Exhibit P-37) dated 25.04.2008 made by the appellant – Perumal Raja @ Perumal. Section 27 of the Evidence Act could not have been applied to the other co-accused for the simple reason that the provision pertains to information that distinctly relates to the discovery of a 'fact' that was previously unknown, as opposed to fact already disclosed or known. Once information is given by an accused, the same information cannot be used, even if voluntarily made by a co-accused who is in custody. Section 27 of the Evidence Act does apply to joint disclosures, but this is not one such case.
Even if Section 8 of the Evidence Act is to apply, it would not have been possible to convict the co-accused. The trial court rightly held other co-accused not guilty. For the same reason, acquittal of co-accused Chella @ Mukundhan, who was earlier absconding, is also of no avail.
As far as acquittal of the juvenile is concerned, reference can be made to the provisions of Sections 40 to 43 of the Evidence Act.
There are no difficulty in upholding the conviction of the appellant – Perumal Raja @ Perumal. The appeal is dismissed.
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2024 (1) TMI 1319
Initiation of criminal proceedings before a forum which had no territorial jurisdiction by submitting incorrect facts - cheating the complainant for crores of rupees by making false promise of higher returns - HELD THAT:- It would be relevant to note that in the application filed for recall of the merger order by the complainant, it was nowhere mentioned that initially the complainant had advanced loan, which was later on converted into debt equity. It only mentioned that the complainant was a shareholder of the transferor company and as a result of merger their percentage of shareholding and value of shares decreased. It was also nowhere pleaded in the application that the shares held by the company were mortgaged to Sushil Gupta by forging the documents. The new story of forging documents was built up in the complaint filed with the police only to give a criminal colour which actually was commercial in nature.
Most importantly, it needs to be noticed that it was a plain and simple transaction between the corporates. Even as per the complainant’s case, the short-term loan was advanced in the year 2010 for a period of one year. However, when the same was not returned, no steps were taken by the complainant to recover the same until the FIR in question was registered on 29.07.2018 i.e. 8 years & 7 months later.
The entire factual matrix and the time lines clearly reflects that the complainant deliberately and unnecessarily has caused substantial delay and had been waiting for opportune moment for initiating false and frivolous litigation.
The FIR in question, if proceeded further, will result in absolute abuse of process of court. It is a clear case of malicious prosecution. Hence, the same is required to be quashed - the impugned order passed by the High Court is set aside - appeal allowed.
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2024 (1) TMI 1318
Maintainability of petition filed by one of the victims under Article 32 of the Constitution - Grant of remission and early release of respondent Nos.3 to 13 - guilty of committing heinous crimes during the large-scale riots in Gujarat.
Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable? - HELD THAT:- The contention regarding the State of Gujarat not being the competent State to consider the validity of the orders of remission in a petition filed under Article 226 of the Constitution, particularly, when the question of competency was raised, could not have been dealt with by the Gujarat High Court on the principle of judicial propriety. Therefore, for this reason also the petitioner in Writ Petition has, rightly approached this Court challenging the orders of remission. The contentions of learned Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh are hence, rejected. Thus, Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution is clearly maintainable.
Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable? - HELD THAT:- It is not necessary to answer the point regarding maintainability of the PILs in this case inasmuch as one of the victims, namely, Bilkis Bano has also filed a writ petition invoking Article 32 of the Constitution assailing the orders of remission which is held to be maintainable. The consideration of that petition on its merits would suffice in the instant case. Hence, the question of maintainability of the PILs challenging the orders of remission in the instant case would not call for an answer owing to the aforesaid reason. As a result, we hold that consideration of the point on the maintainability of the PILs has been rendered wholly academic and not requiring an answer in this case. Therefore, the question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any other appropriate case.
Whether the Government of State of Gujarat was competent to pass the impugned orders of remission? - HELD THAT:- The Government of State of Gujarat (Respondent No. 1 herein) had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10.08.2022 in favour of Respondent No. 3 to 13 herein as it was not the appropriate Government within the meaning of Sub-section (7) of Section 432 of the Code of Criminal Procedure - this Court's order dated 13.05.2022 being vitiated and obtained by fraud is therefore a nullity and non est in law. All proceedings taken pursuant to the said order also stand vitiated and are non est in the eye of law.
Whether the impugned order of remission passed by the Respondent - State of Gujarat in favour of Respondent Nos. 3 to 13 are in accordance with law? - HELD THAT:- It is difficult understand as to, why, the State of Gujarat, first Respondent herein, did not file a review petition seeking correction of the order dated 13.05.2022 passed by this Court in Writ Petition No. 135 of 2022 in the case of Respondent No. 3 herein. Had the State of Gujarat filed an application seeking review of the said order and impressed upon this Court that it was not the "appropriate Government" but the State of Maharashtra was the "appropriate Government", ensuing litigation would not have arisen at all. On the other hand, in the absence of filing any review petition seeking a correction of the order passed by this Court dated 13.05.2022, the first Respondent-State of Gujarat herein has usurped the power of the State of Maharashtra and has passed the impugned orders of remission on the basis of an order of this Court dated 13.05.2022 which is a nullity in law.
The first Respondent State of Gujarat was not at all the appropriate Government, therefore, the proceedings of the Jail Advisory Committee of Dahod Jail, which had recommended remission is itself vitiated and further, there is no compliance of Sub-section (2) of Section 432 of the Code of Criminal Procedure in the instant case in as much as the said opinion was not considered by the appropriate Government. On that score also, the orders of remission dated 10.08.2022 are vitiated.
Petition allowed.
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2024 (1) TMI 1317
Seeking restrain orders against the defendants from, and/or in any way, infringing the plaintiff’s copyright and the acts of passing off - HELD THAT:- The Plaintiff is the registered owner of the domain name https://www.utiitsl.com in India, which specifically caters to Indian citizens. The marks and the Label prominently features on it’s website, which sets out all the details of the Plaintiff, as also the services offered by it. The website is interactive in nature and can be accessed by people from all over India and across the globe. Apart from the said website, the Plaintiff is the owner of several other domain names worldwide and it also provide services from its mobile application, social media (including Facebook, Twitter, etc.), email, video conferencing, chat, etc.
On being convinced that the conduct of the defendants in indulging such an act is illegal, in the wake of the statutory rights under Common Law earned by the plaintiff, and they being infringed/violated and compromised by such dubious websites, as there are unknown persons/entities engaged in fraudulent activity of imitating the applicant and it’s marks, such defendants and all parties known or unknown, deserve to be restrained from infringing the plaintiff’s/applicant’s copyright in the label and passing off the marks, as the rights vests in the plaintiff in rem, being the copyright holder thereof. Without a proper licence issued either by the applicant or the ITD, no person is entitled to benefit from it’s rights, which exclusively belong to the plaintiff/applicant.
On consideration of the necessary information provided in the Interim Application, the plaintiff/applicant deserves an ad-interim ex-parte order even without service, as it is impossible to track all the defendants and effect service upon them, and with the fake websites being continued to be active, it would cause irreparable damage and severe compromise of valuable confidential data of the plaintiff and also pose a threat at a national level.
List the Application for further consideration on 20/2/2024.
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9911796707
