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Showing 321 to 340 of 1125 Records
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2020 (11) TMI 805
Direction to respondents to permit the petitioners to get reappointed as Directors of any Company or appointed in any other Company without any hindrance - Section 164(2)(a) of the Companies Act, 2013 - HELD THAT:- The Hon'ble Division Bench in MEETHELAVEETIL KAITHERI MURALIDHARAN, KAMAL ANEESMOHAMED, SATHISH KUMAR GOPAL, GOVINDASAMY BALASUBRAMANIAM, PAARI SENTHIL KUMAR, PAARI DHANALAKSHMI, VERSUS UNION OF INDIA, THE REGISTRAR OF COMPANIES TAMIL NADU, CHENNAI, [2020 (10) TMI 595 - MADRAS HIGH COURT] dealt with the powers of the RoC in the light of Sections 164 and 167(1) of the Companies Act, 2013 and Rule 14 of the Companies (Appointment and Qualifications of Directors) Rules, 2014 and also has elaborately considered as to whether the RoC is entitled to deactivate the Director Identification Number (DIN) by referring to the Rules 19, 10 and 11 of the said 2014 Rules and held that the publication of the list of disqualified directors by the ROC and the deactivation of the DIN of the Appellants is hereby quashed.
Petition allowed.
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2020 (11) TMI 804
Approval of Scheme of Arrangement by way of Demerger - section 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Directions issued for convening of various meetings - directions regarding issuance of various notices issued.
Application allowed.
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2020 (11) TMI 803
Approval for composite scheme of arrangement and amalgamation - Section 230-232 of Companies Act, 2013 - HELD THAT:- This Tribunal is of the considered view that the scheme as contemplated amongst the petitioner companies seems to be prima facie beneficial to the company and will not be in any way detrimental to the interest of the shareholders of the company. In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal sanctions the scheme of arrangement appended as annexure "A1" with the company petition as well as the prayer made therein.
Learned senior counsel for the petitioner-companies submitted that no investigation proceedings are pending against the transferor or transferee companies under the provisions of the Companies Act, 1956 or the Companies Act, 2013 and no proceedings against the petitioner-companies for oppression or mismanagement have been filed before this hon'ble Tribunal or erstwhile Company Law Board - Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners.
While approving the scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any, payment is due or required in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law - Application allowed.
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2020 (11) TMI 802
Maintainability of application - Assignment of Debt - It is argued that the Notice issued by SBI as Consortium Leader was already withdrawn and subsequent individual action of State Bank of India and Order passed in view of that action under SARFAESI cannot be reason for Adjudicating Authority to dismiss the Application under Section 7 as not maintainable - Argument is that action under Section 7 of IBC is not adversarial but to save the Corporate Debtor by bringing about resolution so that the debts can be fairly paid - time limitation - HELD THAT:- It is apparent that the Adjudicating Authority did not apply itself to the Orders which were being relied on by the Corporate Debtor and simply recorded that it is not empowered to pass any Order over jurisdiction of Hon’ble High Court or to clarify interim orders passed by the Hon’ble High Court. It appears to us that the Adjudicating Authority avoided to decide the issues raised and without going into the Record, it has thrown out the Application under Section 7 without justifiable reasons. Adjudicating Authority accepted individual Bank can maintain application beyond consortium and there is no bar to invoke provisions of Code but without even showing how the Orders in Writ Petition in which SIB was not even party, it should wait.
In the Writ Petition filed against State Bank of India and the I.A. referred above, the Appellant or SIB were not made parties. State Bank of India initially purported to act for the consortium but after filing of the Writ Petition, withdrew the Notice dated 17th October, 2015 which was the basis to file Writ Petition 52886 – 52887 of 2015. The prayers in the Writ Petition were in context of such Notice and that Corporate Debtor should be heard regarding declaration of N.P.A. Subsequently, State Bank of India acted on its own when it raised demand vide Annexure A-13 on 9th March, 2017 and Possession Notice (Annexure A-14) on 19th August, 2017. Directions given were to the Authorized Officer of SBI and State Bank of India which were the Respondents in Writ Petition. Present the Corporate Debtor is aware that both the Orders were against SBI as portions reproduced from its Statement of Objections (Diary No.18701) and highlighted supra show. We find it difficult to accept that there was restraint Order against SIB.
The Application under Section 7 of IBC filed is not confined to debt as arising in the arrangement due to Consortium Lending which was a term loan, but was also towards independent overdraft facility and amounts due in that context. As such, even if one was to stretch the Order of High Court dated 04.12.2015 to say that it affects SIB, still the South Indian Bank was competent to maintain Section 7 Application on the basis of overdraft facility which was provided outside the Consortium. Thus, the Order passed by the Adjudicating Authority is not at all justified and deserves to be set aside.
Time Limitation - HELD THAT:- Under the Limitation Act, 1963, as per Section 3, it is the duty of the Court/Authority to consider whether or not the matter brought before it is within limitation. It is the duty of the authority to apply its mind to the question of limitation although limitation has not been taken as the defence. The authority under law as appearing from Section 3 of Limitation Act, is bound to raise the question of limitation suo moto - Entry - 19A shows that after the Application under Section 7 of IBC was filed in the present matter, Section 238A of IBC extending provisions of the Limitation Act was inserted in IBC with effect from 6th June, 2018. When this is so, in fairness, it would be appropriate to give opportunity to the Financial Creditor to rectify defect in the Application before the Adjudicating Authority. It is necessary for us under Rule 11 of National Company Law Appellate Tribunal Rules, 2016, to exercise inherent powers to do Justice to pass such Orders.
The matter needs to be remanded back to the Adjudicating Authority so that the Appellant is given opportunity to rectify defects in the format - Appeal allowed by way of remand.
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2020 (11) TMI 801
Time Limitation - Deed of Guarantee - failure to prove default or not - legally enforceable debt or not - Whether dismissal of such reference in the given circumstances would attract Regulation 19(7) of BIFR Regulations to hold that such reference was never made for having been declined to be registered? - HELD THAT:- The answer lies in Regulation 19 itself. Regulation 19(3) provides that a reference may be filed either by delivering it at the office of the Board or by sending it by registered post. Regulation 19(4) provides that on receipt of a reference the Secretary/ Registrar shall cause to be endorsed on each reference the date on which it is filed or received in the office of the Board. Regulation 19(5) provides that if on scrutiny, the reference is found to be in order, it shall be registered, assigned a serial number and submitted to the Chairman for assigning it to a Bench. Regulation 19(6) provides that if on scrutiny, the reference is not found to be in order, the Secretary/Registrar may by order decline to register the reference. In the instant case the first reference was, after its receipt, registered and assigned case number 160/2001. It was placed before the Bench, which took up the reference on 25th June, 2002 for consideration so as to determine the status of company’s sickness. However, the reference came to be dismissed as being time barred. It is therefore manifestly clear that the reference was registered and came to be dismissed on consideration. Therefore, Regulation 19(7) would not come into play and the period from filing of reference with BIFR under Section 15(1) of SICA on 2nd March, 2001 till its dismissal on 25th June, 2002 will have to be excluded within the purview of Section 22 of SICA providing for suspension of legal proceedings including institution of suits for recovery of money or for enforcement of security against the industrial company or any guarantee in respect of any loans or advances granted to the industrial company.
Admittedly, the second reference case was filed on 21st February, 2003 before BIFR, therefore period from 25th June, 2002 till 21st February, 2003 (calculated at 241 days) has to be counted towards the limitation period. From 21st February, 2003 till 1st December, 2016 second reference case of the Corporate Debtor was pending consideration before BIFR and on 1st December, 2016, with enforcement of I&B Code, the SICA, 1985 was repealed. Thus, the period of limitation for triggering of CIRP at the instance of Assignee – SASF against the Corporate Debtor would commence from 1st December, 2016 till application under Section 7 was filed on 12th March, 2019. This is rightly calculated by Responded at 831 days - the period counting for limitation will be 241 days + 831 days = 1072 days i.e. 35 months and 12 days. It is abundantly clear that the application under Section 7 at the instance of SASF against the Corporate Debtor came to be filed well within three years from the date of invocation of corporate guarantee on 3rd December, 2001.
It is also settled law of the land that the period of limitation does not commence until the account is live i.e. not duly settled by payment of outstanding dues and/or there is no refusal from the Guarantor towards its obligations.
The liability of the Guarantor being coextensive to the liability of the Principal Borrower and the acknowledgment of liability by the Principal Borrower, in terms of letter dated 20th December, 2016 forming Annexure R-7 to the Reply affidavit (page 64), is binding on the Guarantor and he cannot wriggle out of its liability to discharge its obligations towards SASF. It goes without saying that in terms of Clause 11 of the Corporate Guarantee dated 16th July, 1997, the Corporate Guarantor is liable to be proceeded against by the lender or its assignee in the same manner as if it was the Principal Borrower/ Debtor.
The application filed by the Respondent under Section 7 of I&B Code for triggering CIRP against Respondent – Corporate Guarantor on 12th March, 2019 was not barred by limitation - Contention raised by the Appellant as regards plea of limitation and other contention in regard to discharge of obligation of Appellant – Corporate Guarantor towards SASF are accordingly repelled.
Appeal dismissed.
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2020 (11) TMI 800
Maintainability of application - initiation of CIRP - claim against Corporate Debtor second time on the same set of claims, initially made on principal borrower - Respondent stood Guarantor for the Principal Borrower - Borrower committed default in repayment of loan - when Application under Section 7 had been admitted against the Principal Borrower whether the present Application by the same Financial Creditor could be admitted against Corporate Guarantor on same set of claims and default.
HELD THAT:- It is clear that in the matter of guarantee, CIRP can proceed against Principal Borrower as well as Guarantor.
We are unable to agree with the arguments of Learned Counsel for Respondent that when for same debt claim is made in CIRP against Borrower, in the CIRP against Guarantor the amount must be said to be not due or not payable in law. Under the Contract of Guarantee, it is only when the Creditor would receive amount, the question of no more due or adjustment would arise. It would be a matter of adjustment when the Creditor receives debt due from the Borrower/Guarantor in the respective CIRP that the same should be taken note of and adjusted in the other CIRP. This can be conveniently done, more so when IRP/RP in both the CIRP is same. Insolvency and Bankruptcy Board of India may have to lay down regulations to guide IRP/RPs in this regard.
The law as laid down by the Hon’ble High Courts for the respective jurisdictions, and law as laid down by the Hon’ble Supreme Court for the whole country is binding - reliance can be placed in the case of STATE BANK OF INDIA VERSUS V. RAMAKRISHNAN AND ANR. [2018 (8) TMI 837 - SUPREME COURT] where it was held that The object of the Code is not to allow such guarantors to escape from an independent and coextensive liability to pay off the entire outstanding debt, which is why Section 14 is not applied to them.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 799
Validity of CIRP initiated - fraudulent or malicious intent or purpose other than Resolution of Insolvency and Liquidation of the Corporate Debtor or otherwise? - time limitation u/s 7 - HELD THAT:- Although the suit was filed in time the Winding up Petition was beyond three years of the default and when such Winding up Petition was transferred in view of the Rules to the NCLT to convert the same into a proceeding under Section 7 of IBC, it was found that as the Winding up Petition itself was time-barred from the date of default, the same could not be proceeded further as Application under Section 7.
When developments in the present matter are seen, if IBHL classified the Borrower Entities as NPA in November, 1997, even if the suits were filed in 1998 and 1999, that would not be relevant or helpful to extend time of Limitation for the purpose of filing of Application under Section 7 of IBC which is independent proceeding required to be filed as per Article 137 of the Limitation Act within three years of default. When time begins to run it can only be extended in the manner provided in the Limitation Act, has been held. Proceedings under the IBC are not execution proceedings either for the decree which was obtained or for execution of the Certificates of Recovery which have been issued by DRT. The Learned Counsel for the Financial Creditor has not shown under which provision of Limitation Act, time which had started running in November, 2007, could be extended. If filing of Suit or O.A. does not extend time, or give right to exclude period for a Winding up Proceeding, it can not extend period for an independent right under IBC. Consequently passing of Decree or issue of Recovery Certificate will not give fresh right to trigger IBC.
There is substance in the submissions made by the Learned Counsel for the Appellant that the Application in the present matter was hopelessly time-barred. The Adjudicating Authority failed to see that the Financial Creditor had not indicated date of default in the format. The Adjudicating Authority was duty bound under Section 3 of the Limitation Act, 1963 to suo motu consider if or not the Application under Section 7 of IBC was within Limitation by considering if or not the debt said to be in default was within Limitation.
The Impugned Order is quashed and set aside - Appeal allowed.
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2020 (11) TMI 798
Works Contract Services - business of construction of buildings and civil structures for last several decades - It is the case of the petitioner that, services rendered by the petitioner were actually in the nature of ‘Works Contract’ because petitioner entered into a contract with its client, wherein, transfer of property in goods involved in execution of such contract was leviable to tax - period from October, 2005 to March, 2006 - HELD THAT:- It emerges on record that the petitioner no.1 was rendering services classifiable as ‘works contract’. This fact has neither been disputed by the Commissioner nor by the Tribunal. That only because the petitioner no.1 registered itself for the service tax under the head of ‘commercial / industrial construction services’, the petitioner cannot be fasten its liability to pay service tax on the services rendered by it as ‘work contract’ services.
W.e.f. 01.06.2007 by entering (zzzza) in subsection 105 of Section 65 of the Act,1994 was introduced for the first time by the Finance Act, 2007 to cover the person as taxable person in relation to the execution of the works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams.
The Apex Court in GANNON DUNKERLEY & CO. VERSUS STATE OF RAJASTHAN & LARSEN & TOUBRO LTD. & UNION OF INDIA [1992 (11) TMI 254 - SUPREME COURT] was of the opinion that the service tax charging Section itself must lay down with specificity that the levy of the service tax can only be on works contracts, and the measure of tax only be on that portion of works contracts which contain a service element which is to be derived from the gross amount charged for the works contract less the value of the property in goods transferred in the execution of the works contract. In such circumstances, the Apex Court held that when the legislature has introduced the concept of service tax on indivisible works contracts then such contracts were never intended to the subject matter of the service tax, and therefore, such contracts, not being exempt under the Finance Act, 1994, cannot be said to fall within its tentacles, as which was never the intention of Parliament. The Apex Court, therefore, held that the levy of service tax on works contract was non-existent prior to 01.06.2007.
The contention raised on behalf of the respondents that as the petitioner had voluntarily registered under the head of ‘commercial /industrial construction services’, the petitioner is liable to pay service tax, is not tenable as the petitioner cannot be held to be liable to pay service tax prior to 01.06.2007, where, it is not in dispute that the petitioner was rendering ‘works contract service’.
Petition allowed.
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2020 (11) TMI 797
Rectification of Mistake - error apparent on the record - typographical error or not - the foreign exchange in respect of appeal has been realised on 27.04.2016, 27.05.2016 & 28.06.2016 but the claim was filed only on 28.07.2017 - HELD THAT:- There was indeed a typographical error in mentioning the date of receipt of foreign exchange as 27.04.2016 instead of 27.07.2016. However, since this is not a case pertaining to the transitional period where the exports were made prior to 01.03.2016 and refund claim filed after the date, the ratio of the judgment of the Hon’ble Larger Bench in the case of CCE & CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [2018 (2) TMI 946 - CESTAT BANGALORE] does not apply.
It does not come to the rescue of the appellant since the application for refund was filed after one year from the date of receipt of the foreign exchange even after rectifying the mistake. Accordingly, the application for rectification of mistake is disposed of as follows:
“The date 27.04.2016 mentioned in paragraph 10 of the final order may be read as 27.07.2016.”
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2020 (11) TMI 796
Recovery of Refund of service tax already granted - service tax paid under a mistake of law? - relevant date - Section 11B of the Central Excise Act - Business Auxiliary Service - HELD THAT:- When a payment is made erroneously, the relevant date is the date of payment. However, when an order in original is passed imposing the liability and a payment is made in consequence of that, the relevant date is the date on which an appeal or revision from the order is allowed.
In the present case, as is discernible from Annexure-B, a show cause notice was issued 06.11.2007, prior to which the assessee had made payments on 31.03.2007 and 23.05.2007. Hence the payments now sought for refund were made even prior to the show cause notice issued. The show cause notice culminated in, the order-in-original dated 02.03.2012, which obviously is with respect to the liability after 18.04.2006. This does not even indicate the assessee having paid the tax under protest earlier to the show cause notice; in which event, the second proviso to Section 11B makes inapplicable the limitation of one year from the relevant date, for filing an application for refund.
The respondent-Revenue are restrained from recovering the amounts refunded since as of now the levy of service tax on the payment in lieu of foreign agency commission will not be leviable as 'Business Auxiliary service' prior to 18.04.2006 - appeal allowed in part.
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2020 (11) TMI 795
Rectification of Mistake - Refund of CENVAT Credit - Appellant Company has submitted that they have not received the refund order in question and the Revenue sought time but no proof has been provided by the Revenue with regard to service of communication of adjustment of refund amount and the same has been recorded by this Tribunal in the order itself - HELD THAT:- The appellant has claimed that the amount of ₹ 18,28,984/- has been debited on various dates and also intimated to the department through various letters with regard to adjustment of the amount of ₹ 18,28,984/-. The said fact has not been controverted by the Revenue during the course of argument. Moreover, it has been recorded by the Tribunal that no show cause notice has not been issued to the appellant for appropriation of the said amount paid by the appellant. Further, in final order dated 29.01.2020, this Tribunal has taken on record the letter dated 10.08.2007 which is a reply to the letter dated 12.06.2007 demanding interest on the amount of ₹ 36,57,968/- for delayed/reversal or debited of the amount. The said fact clearly indicate that the appellant has reversed/deducted or adjusted a sum of ₹ 36,57,968/- which is the subject matter of the refund claim in hand.
Further, it has been recorded by this Tribunal that no proof has been produced by the Revenue that the adjustment/rejection of amount in refund claim has been communicated to the appellant. In fact, the Revenue claimed that it is rejection of refund claim in question while entertaining the refund claim in 2005. The Refund claim in question was not the subject matter of the said refund claim which was entertained by the adjudicating authority while sanctioning the refund claim for the month of February, March and September, 2005.
There is no mistake apparent on record while passing the order by this Tribunal on 29.01.2020, the Revenue seeks to review of the order passed by this Tribunal which is not permissible in law - the application for rectification of mistake deserves no merit - Application dismissed.
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2020 (11) TMI 794
Input Tax Credit - illegal transaction - reopening of assessment - reasons to believe - Section 29(1) of the VAT Act - HELD THAT:- There is no contention as to why and how the proceedings could be initiated without even recording any "reasons to believe" merely relying upon the Tax Audit report. Even otherwise the findings recorded in the Tax Audit report had to be controverted by the assessee, which the assessee did by filing the relevant affidavits and documents before the first Appellate Authority and thus no fault could be found with the said procedure. Even otherwise as the Tribunal has recorded that entire exercise was revenue neutral and there is no ground to suggest that the said finding is any way perverse or erroneous, no question of law, much less a substantial question of law arises for consideration by this Court.
Revision dismissed.
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2020 (11) TMI 793
Principles of Natural Justice - proper service of SCN - Issue was not proceeded to be decided on merits - HELD THAT:- A bare perusal of the order impugned in the present revision reveals that the revisionist has not been heard by the Tribunal while passing the order dated 3.3.2020 and in view of the fact that the service was not effected properly on the revisionist, the order dated 3.3.2020 is set aside.
The revisions are allowed in favour of the Assessee and against the Department.
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2020 (11) TMI 792
Stay of only 90% of the disputed tax, till the disposal of first appeal, instead of 100% stay - applicant has good case on the merit of the case, and financial condition is not good - HELD THAT:- Perusal of the orders impugned in the revision, make it clear that the appellate court as well as the Tribunal have neither considered prima facie case nor the financial hardship as pleaded by the revisionist before directing the deposit of 10% of the disputed tax. Thus, there are no hesitation in holding that the order passed by the Tribunal deserves to be set aside and is accordingly set aside to the extent that it directs to deposit 10% of the amount as the revisionist has placed on record the financial hardship.
Tax revision is allowed.
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2020 (11) TMI 791
Maintainability of (second) appeal - first appeal had been numbered and heard on merits - fact that as per Sec.55(4) of the TNGST Act, an appeal would lie against an order passed u/s.55 of the Act is overlooked - in respect of the very same transaction, tax under the CST Act, 1956, had been paid in the State of Andhra Pradesh and the levy under the TNGST Act, 1959 - double taxation or not.
HELD THAT:- The Original Assessment order does not merge with the Rectification Order passed by the Assessing Authority. In the present case, the Rectification as prayed by the Assessee only was allowed by the Assessing Authority himself and therefore, there are no reason for the Assessee to to file further Appeal against such Rectification Order in his own favour.
It is difficult to understand what prevented the Assessee from assailing the Original Assessment Order dated 31.3.1995 itself. The submission made by the learned counsel for the Assessee that the Original Assessment Order stood merged with the Rectification Order is misconceived and is liable to be rejected.
It is only if the Appellate Order is passed on the merits of the case, then the Original Assessment Order can merge with the Appellate Order and not in a case like this where the Rectification Order is passed at the instance of the Assessee itself and as requested by it. In the absence of any challenge to the Original Assessment Order, the Assessee cannot, obviously, be allowed to assail the original Assessment Order by laying a tangent challenge to the Rectification order.
Whether the local Sales Tax was rightly imposed by the Assessing Authority or not can be seen only if the Original Assessment Order is challenged by the Assessee before the Appellate Authority. Since the Rectification Order does not discuss anything about the legality of the imposition of the local Sales Tax or otherwise, it cannot be permitted to the Assessee to assail the Original Assessment Order in the aforesaid manner.
The present Tax Revision filed by the Assessee is without any merit and the same is liable to be dismissed - Revision dismissed.
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2020 (11) TMI 790
Refund of contract consideration/earnest money - payment of interest for the period from 08.11.1994 to 19.05.1998 - rate of interest @ 10% p.a. or 12% p.a. - HELD THAT:- In this case, conduct of the Board betrays a callous and indifferent attitude, which in effect is that if Asiatic Steel wished for its money to be returned, it had to approach the court. This was despite its knowledge that at least three other identically placed entities had asked for return of money and, upon approaching the court, were refunded the amounts given by them promptly. In view of these facts, nothing prevented the Board from deciding to refund the amount, without forcing Asiatic Steel to approach the court.
This court notes that the High Court directed payment of interest for the entire period (i.e. starting from 08.11.1994 and ending on 19.05.1998). However, it is evident that Asiatic Steel had not paid the entire amount on 08.11.1994; in fact the sum of $1,153,000 /- i.e. the principal consideration, excluding the earnest money deposit, was deposited on 24.03.1995. Therefore, the impugned judgment erred in directing payment of interest on the entire amount from 08.11.1994; instead, the direction to pay interest on ₹ 3,61,20,000/- shall operate with effect from 22.03.1995 to 19.05.1998.
The appeal allowed in part.
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2020 (11) TMI 789
Maintainability of Petition - availability of alternative remedy of appeal - challenge on order under Section 130 of U.P. Goods and Services Tax Act, 2017 passed by the Deputy Commissioner (SIB), Commercial Tax, Mirzapur Range, Mirzapur - respondents states that the writ petition is not maintainable as the impugned order is appealable under Section 107 of the Act, 2017.
HELD THAT:- Without expressing any opinion on merits of the case of the petitioner the writ petition is dismissed on the ground of statutory remedy of appeal.
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2020 (11) TMI 788
Refund of unutilized Input Tax Credit - Section 54 (3) (b) of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The Court considers it appropriate to dispose of the present petition by directing the Respondents to process the Petitioner’s application for refund and pass appropriate orders thereon not later than 31st January, 2021 and communicate the decision to the Petitioner not later than 8th February, 2021. If the Petitioner is aggrieved by the said order, it will be open to the Petitioner to seek appropriate remedies in accordance with law.
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2020 (11) TMI 787
Principles of Natural Justice - foundational SCN was never communicated to the petitioner who is an individual registered under GST Act - Rule 142 of Central Goods and Services Tax Act, 2017 - HELD THAT:- As per Rule 142 of CGST Act, the only mode prescribed for communicating the show-cause notice/order is by way of uploading the same on website of the revenue.
The State in its reply has provided no material to show that show-cause notice/order No.10 dated 10.06.2020 was uploaded on website of revenue. In fact, learned AAG, Shri Mody, fairly concedes that the show-cause notice/order was communicated to petitioner by Email and was not uploaded on website of the revenue - It is trite principle of law that when a particular procedure is prescribed to perform a particular act then all other procedures/modes except the one prescribed are excluded. This principle becomes all the more stringent when statutarily prescribed as is the case herein.
This Court has no manner of doubt that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act having not been followed by the revenue, the impugned demand dated 18.09.2020 vide Annexure P/2 pertaining to financial year 2019-2020 and tax period April, 2019 to July, 2019 deserves to be and is struck down - Petition allowed.
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2020 (11) TMI 786
Principle of natural justice - Failure to uploand the Show Cause Notice (SCN) and Order on the GSTN portal - Rule 142 of Central Goods and Services Tax Act, 2017 - HELD THAT:- It is trite principle of law that when a particular procedure is prescribed to perform a particular act then all other procedures/modes except the one prescribed are excluded. This principle becomes all the more stringent when statutarily prescribed as is the case herein.
This Court has no manner of doubt that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act having not been followed by the revenue, the impugned demand dated 18.09.2020 vide Annexure P/1 and P/2 pertaining to financial year 2018-2019 and 2019-2020 and tax period September, 2018 to March, 2019 and April, 2019 to May, 2019 respectively, deserves to be and is struck down.
Petition allowed.
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