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Showing 1 to 20 of 1310 Records
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2023 (2) TMI 1310 - JHARKHAND HIGH COURT
Condonation of inordinate delay of 534 days in filing appeal - sufficient cause for delay or not - HELD THAT:- The Hon’ble Apex Court in Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd. [1961 (5) TMI 54 - SUPREME COURT], has held that merely because sufficient cause has been made out in the facts of the given case, there is no right to the appellant to have delay condoned.
Thus, it is evident that while considering the delay condonation application, the Court of Law is required to consider the sufficient cause for condonation of delay as also the approach of the litigant as to whether it is bona fide or not as because after expiry of the period of limitation, a right is accrued in favour of the other side and as such, it is necessary to look into the bona fide motive of the litigant and at the same time, due to inaction and laches on its part.
Thus, it is evident that the sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted deliberately” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously - the explanation furnished in the delay condonation application to condone the inordinate delay of 534 days, is proceeding to examine as to whether the explanation furnished can be said to be sufficient explanation for condoning the delay.
This Court, therefore, is of the considered view that the reason assigned for condoning the 534 days delay in filing the appeal, cannot be said to be sufficient explanation to condone the delay.
The delay condonation application is hereby dismissed.
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2023 (2) TMI 1309 - KARNATAKA HIGH COURT
Grant of sanction in a corruption case involving a government official - Amasse of assets disproportionate to his known sources of income - offence punishable under Sections 109, 177, 468, 465 & 471 of IPC - HELD THAT:- The case for granting sanction to prosecute the petitioner is to be placed before the Minister-in-charge, who in turn, has to place the same before the Cabinet and the Cabinet after taking a decision shall recommend to the Governor, who in turn, will direct the Secretary of the Department to pass an appropriate order.
Similar issue involved in this petition came up for consideration before the Co-ordinate of this Court in the case of B. Shivashankar -vs- State by Karnataka Lokayuktha Police, Bengaluru [………………………..] where it was held that ‘the ground for want of sanction by the Competent Authority as urged by the petitioner deserves to be accepted.’
In the instant case, sanction to prosecute the petitioner, who is the head of the department has been granted by the Minister-in-charge, who is not the competent authority as specified under KCSR and also the Transaction Rules, 1977.
The petitioner is due for retirement on attaining the age of superannuation in the month of April, 2023. Hence, permitting the respondent to launch criminal prosecution afresh would be an abuse of process of law, since the petitioner will be deprived of speedy trial guaranteed under Article 21 of the Constitution of India for no fault of him.
The impugned proceedings are quashed - petition allowed.
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2023 (2) TMI 1308 - DELHI HIGH COURT
Dismissal of appeal by CIT(A) for non-prosecution - AO made additions for loans & advances, unconfirmed sundry creditors and TDS deducted from payment of commission and expenditure not vouched - HELD THAT:- CIT (A) has not decided the case on merits but dismissed the same for non-prosecution. As per section 251 of the Income-tax Act, 1961, ld. CIT(A) is duty bound to decide the case on merits and not dismissed the appeal for non-prosecution. In these circumstances, we remit the appeal to ld. CIT (A). Ld. CIT (A) is directed to pass proper speaking order on merits of the case. Needless to add, assessee should be given adequate opportunity of being heard. Appeal filed by the assessee stands allowed for statistical purposes.
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2023 (2) TMI 1307 - SECURITIES APPELLATE TRIBUNAL MUMBAI
Violation of SEBI Act and PIT Regulations - wrongful gain by making insider trading in the shares of ‘NDTV’ - show cause notice was issued after a period of 4-5 years - allegations are that the appellant Sanjay Dutt being advisor / team member of the NDTV group having complete responsibility and accountability for the Corporate Finance and Strategic Planning Function of NDTV during the relevant period had reasonable access to all the Price Sensitive Information (hereinafter referred to as ‘PSI’), etc. of the company - HELD THAT:- This Tribunal has in number of cases while dealing with this issue had concluded that to penalize an entity for insider trading, it is necessary to find that the trading should be motivated by the PSI in possession of the said entity. In the case of Abhijit Rajan vs. SEBI, [2019 (11) TMI 1598 - SECURITIES APPELLATE TRIBUNAL MUMBAI] this Tribunal has dealt with the said issue and the Hon’ble Supreme Court in the same case of Abhijit Rajan [2022 (9) TMI 1072 - SUPREME COURT] had also confirmed the said decision. The principle is based on a logic that there must be some relation between the trading and the motivation to encash the PSI. The learned WTM however refused to go into this issue.
Since we have no benefit of consideration of issue of delay and the consideration on the issue as to whether the trade was carried by appellant SREPL on the basis of PSI 1, 2, 3 and 4, it would be necessary to remand the matter to the learned WTM to decide all the issues afresh as regards the SREPL, appellant TCPPL and appellant Sanjay Dutt.
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2023 (2) TMI 1306 - ITAT BENGALURU
TP adjustment - assessee has benchmarked the payment of Royalty - TPO rejected the method adopted by the assessee - HELD THAT:- As decided in own case by Tribunal in AY 2013-2014 [2022 (8) TMI 1272 - ITAT BANGALORE] we hold that the payment of Royalty at 4% is to treated at ALP. It is ordered accordingly.
Addition being notional interest while computing the total income - HELD THAT:- Since the AO has not examined the issue due to paucity of time, in the interest of justice and equity we restore the matter to the file of the AO to decide the matter afresh. AO is directed to examine whether the interest income is real or notional and if it is notional in nature the same ought not to be brought to tax during the relevant assessment year.
Credit of Tax Collected at Source - HELD THAT:- After hearing the rival submission, we direct the AO to examine the claim of the assessee and take decision in accordance with law
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2023 (2) TMI 1305 - GAUHATI HIGH COURT
Cancellation of GST registration of the petitioner - time limitation - period of limitation as prescribed under the Act had already elapsed for filing an application for revocation of the cancellation of GST registration under Section 30 as well as for an Appeal under Section 107 of the CGST Act, 2017 - non-service of personal notice - HELD THAT:- The order for cancellation of GST registration of the petitioner was issued on 07.09.2021 It is apparent that the order for cancellation of GST registration was passed on 07.09.2021 and the application for revocation of cancellation was required to be filed within 30 (thirty) days therefrom as per the provisions of the CGST Act, 2017 - It is apparent that the authorities did not take into account the orders passed by the Apex Court regarding cognizance for extension of limitation and had accordingly failed to pass appropriate orders revoking the cancellation of GST registration. There is another aspect required to be noticed. If the petitioner is not included within the GST regime, then any statutory dues that may be required to be deposited by the petitioner may not be deposited and which will not be in the interest of the revenue.
The reasons for default on the part of the petitioner to submit its periodical returns as required under GST Act and the Rules, as pleaded in the present proceedings, are attributed to the financial losses suffered by the petitioner because of the COVID-19 Pandemic situation.
The purpose of limitation being prescribed in a statute is two fold, namely, to ensure compliance of the statutory provisions by the persons on whom the provisions of the statute are applicable and further to ensure that no third party rights which may have been created in the meantime are permitted to be nonsuited/ unsettled. Under the scheme of GST Act and Rules, the non-revocation of cancellation of GST registration is likely to prejudice the assessee alone. In cancellation of such GST registration for the reasons mentioned under the Section, it cannot be said that any third party rights are created against the assessee.
The matter is remanded back to the departmental authority to reconsider his prayer for revocation of cancellation of GST registration - impugned order is set aside - petition disposed off by way of remand.
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2023 (2) TMI 1304 - MADHYA PRADESH HIGH COURT
Dishonour of Cheque - service of notice - whether no proceeding under Section 138 of the Negotiable Instrument Act can be initiated against a person to whom notice under section 138(b) of the N.I. Act has not been given? - HELD THAT:- On a perusal of the impugned order passed by the learned JMFC and on a perusal of the evidence of Shri Kundan Kumar Singh (D.W.1)- Manager, Union Bank of India, it is revealed that the cheque (Ex.P/5) was issued against the current account No.5273010100503096 of Pushpshree Medical Store and its proprietor is Jitendra Kumar Verma. The cheque was drawn by him but the applicant instead of issuing any notice to Jitendra Kumar Verma, initiated all the proceedings including issuance of notice against Devendra Kumar Verma. As cheque in question was not issued by Jitendra Kumar Verma and it is not of his account.
The learned JMFC has not committed any error in dismissing the application under Section 319 of the Cr.P.C. as giving of notice under Section 138(b) of N.I Act is the first and foremost requirement of initiating the complaint under section 138 of the Negotiable Instruments Act. Therefore, no fault is visible in the impugned order passed by the learned JMFC.
This petition being devoid of merit, is hereby dismissed.
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2023 (2) TMI 1303 - DELHI HIGH COURT
Taxability of income India - Royalty receipts - income earned from licensing/sale of software - subscription receipts against cloud services offered by the respondent/assessee - Tribunal has ruled that neither income earned from licensing/sale of software products nor subscription fee earned for providing cloud services, could be construed as royalty - revenue, says that the proposed questions are covered by the judgment of Engineering Analysis Centre of Excellence (P.) Ltd. [2021 (3) TMI 138 - SUPREME COURT]
HELD THAT:- We are as informed by Appellant that a review petition has been filed which is pending consideration.
Accordingly, the appeal is closed as no substantial question of law arises for our consideration albeit, with the caveat that in case the appellant/revenue were to succeed in the review petition, parties will abide by the decision rendered therein.
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2023 (2) TMI 1302 - ANDHRA PRADESH HIGH COURT
Validity of remand order - Revenue states that the Tribunal went wrong in setting aside the order passed by the Tribunal to the extent of remanding the matter - HELD THAT:- A perusal of the order passed by the Sales Tax Appellate Tribunal, in clear and unequivocal terms, reveals that the Tribunal after extensively discussing various issues and taking into consideration the relevant provisions of the Act passed the order under challenge, by setting aside the portion to the extent of remand by assigning cogent and convincing reasons. As per Section 22(1) of the Act, the Tax Revision case lies to this Court only on question of law.
In the considered opinion of this Court, no question of law could be pointed out by the petitioner in the present Revision - this Court is not inclined to meddle with the well-articulated order passed by the Tribunal, which is impugned in the present Revision.
This Tax Revision Case is dismissed.
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2023 (2) TMI 1301 - SC ORDER
Fraudulent trading - Preferential transactions - Undervalued transactions - Extortionate transactions - it was held by NCLAT that 'It is very much clear that it is the intention to defraud creditors at that stage Section 66 is applicable. This section empowers the Adjudicating Authority to pass an order for recovery from such fraudulent parties as contribution to the assets of the CD' - HELD THAT:- There are no merit in this appeal. Admission is refused and the civil appeal is, accordingly, dismissed.
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2023 (2) TMI 1300 - SC ORDER
Seeking post-arrest bail which was declined by the High Court - charges has not been framed so far - HELD THAT:- No interference is required at this stage - However, the petitioner is at liberty to renew his application for bail after framing of charge/discharge, as the case may be, before the Trial Court. If such an application is filed, the same may be decided on its own merits without being influenced by the observations made by the High Court under the order impugned.
SLP dimissed.
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2023 (2) TMI 1299 - DELHI HIGH COURT
Challenge to issuance of the LOC against petitioner - siphoning of funds - Petitioner submits that the Petitioner is not a beneficiary of any of the amounts the allegations of which have been raised against Shilpi Cable and its promoters - whether the Look Out Circular (LOC) issued against the Petitioner is liable to be quashed? - HELD THAT:- The modus operandi as per the SFIO, was that Shilpi Cables would supply goods to foreign entities who would then default in making payments, as a result of the same, a large number of dues are outstanding in the books of accounts of Shilpi Cables. The funds for trading by Shilpi Cables were provided by secured financial creditors of Shilpi Cables. It is further stated that this trading exercise was carried out by Shilpi Cables for more than five years from the years 2013-2014.
Further, as per the latest report dated 28th December, 2021 filed before the NCLT by the liquidator, the claims of financial creditors of Shilpi Cables is to the tune of Rs. 1,770 crores and only around Rs. 6 crores were released by the sale of assets. The aforementioned facts reveal that the SFIO is still investigating into the conduct of Shilpi Cables, its various group companies both in India and abroad. The role of promoters/management/employees of Shilpi Cables relating to the said is also being investigated.
The Petitioner has been called by the SFIO on several occasions in the course of the investigation. Some of the statements made by the Petitioner have also been placed on record. The Petitioner has been confronted with several documents. A perusal of these statements and documents shows that the maze of companies, the transactions and the substantial amount of money which is owed to public financial institutions and banks, would require deeper and further investigation. The investigation by the SFIO is recent as compared with the substantial volume of documents, global network of entities involved and amount of funds that are involved. The investigation has commenced only in September, 2020 and a substantial period was also during the pandemic. In a case of this nature where several foreign entities are involved, the collection of information and investigation could take some time.
In the present case, there is no challenge to the OM of 2010 or the OM of 2021. The entire immediate family of the Petitioner lives outside India. As per the Petitioner, apart from one flat in Sarita Vihar, he does not have any assets. His wife is also accompanying him on his foreign travel. Thus, the question as to whether the Petitioner would pose a flight risk and adversely affect the investigation would have to be considered. From the submissions made by the ld. Counsel for the SFIO, it is clear that the Petitioner would still be required for the purposes of investigation. Until the conclusion of the investigation it cannot be presumed that the Petitioner would not be charged with a cognizable offence.
The Petitioner did not merely play a role in the management and administration of Shilpi Cables but, being an auditor also owed a duty to report any shortcomings or misconduct within the company. Thus, the Petitioner cannot be completely absolved of responsibility merely on the ground that he was a mute spectator. Persons like the Petitioners who hold positions of responsibility in such companies do not merely owe a duty to their employer but also owe a duty to the role that they play, especially, if they are involved in crucial role such as auditing. There is a clear possibility, in the facts of this case that the Petitioner may not return to India as his entire immediate family resides abroad. He has not shown any assets in India and thus his travel is likely to impede the investigation.
As the funds amounting to approximately Rs. 1,400-Rs. 1,700 crores belonging to public sector banks and financial institutions are at stake, it would be in the larger public interest as also in the economic interest of India to not exercise discretion in favour of the Petitioner. Thus the LOC against the Petitioner is not liable to be quashed, at this stage.
The Court is not persuaded to exercise its extraordinary writ jurisdiction under Art. 226 of the Constitution of India - Petition dismissed.
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2023 (2) TMI 1298 - PUNJAB AND HARAYANA HIGH COURT
Rejection of Registration application u/s 12AA and u/s 80G(5)(vi) - application u/s 12AA rejected on the ground that the assesee trust has been formed by the settler for the purpose of carrying out its CSR activities and also rejected application u/s 80G (v) holding that, the application is void ab initio in terms of provisions of Rule 11AA - HELD THAT:- Application for grant of registration was dismissed by the Commissioner and the Tribunal has recorded its satisfaction as the trust fulfills following two basic conditions for grant of registration under Section 12AA of the Act, 1961:-
1. The object of the trust
2. the genuineness of the activities of the trust/institution.
The Commissioner was not to examine with respect to genuineness of the activities of the trust and whether the trust, if transfers fund to another charitable society, can be given exemption under Section 11 of the Act, 1961. This power is restricted only to the Assessing Officer.
Hence, in the present case, no useful purpose would be served to remand the matter back to the Commissioner to pass appropriate orders of registration of the trust under Section 12AA of the Act, 1961. The Tribunal, thus, has rightly directed CIT to grant registration under Section 12AA of the Act, 1961 and also approval under Section 80 G(5)(vi) of the Act, 1961 to the assessee. Decided against revenue.
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2023 (2) TMI 1297 - CESTAT MUMBAI
Refund in cash - refund claim in respect of the CVD and SAD paid for regularization of imports subsequent to introduction of GST regime - Shortfall in the fulfillment of export obligation - absence of specific legal provision under Section 142(3) of the CGST Act, 2017 read with Section 11B of the Central Excise Act, 1944 to grant refund - HELD THAT:- Admittedly the CVD and SAD against which the appellant have filed these refund claims were paid during the months of April and May 2018. On the date of payment of duty there was no scheme of CENVAT Credit in vogue. Neither the amount for which the appellants are seeking the refund claim was in dispute before any authority, tribunal or court of law. The amounts sought as refund was paid by the appellant as directed by the DGFT for the redemption of the Advance Authorizations issued to the appellant. Admittedly appellant failed to fulfill the export obligations as per the advance authorizations issued to them within the stipulated time of eighteen months from the date of advance authorization.
It is well evident that on the date of challan evidencing the payment of duty against which the appellants claim the CENVAT Credit, is after 1st July 2017, the date when the CENVAT Credit Scheme was rescinded. In absence of any scheme of CENVAT Credit Scheme on the date of payment of duty as above the claim to CENVAT Credit cannot be there. Indirectly by claiming that the they are not in position to claim CENVAT Credit, appellant has sought for the refund of the duties paid by them for nor non fulfillment of the obligation under advance authorization issued to them.
Reliance can be placed in the case of DEVENDRA KUMAR VERSUS STATE OF UTTARANCHAL & ORS. [2013 (7) TMI 1115 - SUPREME COURT] where it was held that 'A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus Commodum Capere Potest De Injuria Sua Propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation.'
By the application of the principles as above well known in law and reiterated by the Hon’ble Apex Court, the argument of the appellant cannot be accepted that the refund claim made by them shall be permissible in terms of Section 142 (3) of the CGST Act, 2017 read with Section 11 B of the Central Excise Act, 1944.
The decision of Hon’ble Punjab and Haryana High Court in case of 2020 (32) GSTL 726 [2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT] as affirmed by Hon’ble Supreme Court in UNION OF INDIA & ORS. VERSUS ADFERT TECHNOLOGIES PVT. LTD. [2020 (3) TMI 188 - SC ORDER], is distinguishable as the said decisions is in case of non filing or incorrect filing of prescribed statutory form i.e. Tran-1 by the stipulated last date 27.12.2017, to carry forward the credit available in the book of accounts of the of the persons registered under Central Excise Act, 1944 or VAT Act. Hon’ble High Court has directed that such person may be permitted to file or correct the Tran-1 already filed by them on or before 30th November 2019. The issue in the present appeal is not in respect of any such credit which was available in the book of accounts of the appellant on the appointed date i.e. 01.07.2017. Hence the said decision cannot be applied to the facts of present case.
There are no merits in the submissions or the alternate submissions made by the appellant in support of their refund claim - appeal dismissed.
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2023 (2) TMI 1296 - DELHI HIGH COURT
Validity of re-assessment - notice issued u/s 148 [i.e., the old regime] - order passed u/s 148A(d) - two consequetive proceedings - HELD THAT:- Both Appellant and respondent say that both proceedings cannot go on, as indicated in our order [2023 (1) TMI 1372 - DELHI HIGH COURT]
Accordingly, the impugned notices and order are quashed. In view of the aforesaid, counsel for the parties agree that the order passed u/s 270A of the Income Tax Act 1961 and the order titled “Closure of duplicate assessment/re-assessment e-Proceedings-Reg” shall dissolve.
As is obvious, the fate of the petitioner will be determined as per the original assessment order dated 28.03.2022.
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2023 (2) TMI 1295 - SC ORDER
Seeking the rectification of the order - classification of goods - Populated Printed Circuit Boards (PPCB) for DWDM Equipment – Photonic Service Switch - Small Factor Pluggable (SFP) - exemption under Notification No. 24/2005-Cus dated 1.3.2005 - Revenue submitted that the classification as has been done in the impugned order, has been accepted by the Department-Revenue - HELD THAT:- The civil appeals are dismissed.
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2023 (2) TMI 1294 - ITAT MUMBAI
Validity of assessment order u/s 144C (1) without passing the draft assessment order - HELD THAT:- The Hon’ble Bombay High Court in the case of Exxon Mobil Company (P.) Ltd. [2022 (4) TMI 1556 - BOMBAY HIGH COURT] in a recent decision reiterated the legal requirement of passing draft assessment order in proceeding u/s 144C of the Act arising out of remand from the Tribunal. The Hon’ble High Court held that where Tribunal remanded the matter to give effect to transfer pricing issue, assessee’s case would be eligible u/s 144C of the Act and the AO was required to pass draft assessment order before issuance of final assessment order.
Similar view was taken in the case of Turner International India (P.) Ltd. [2017 (5) TMI 991 - DELHI HIGH COURT] held that failure of AO to adhere to mandatory requirement of section 144C (1) of the Act, where the final assessment order has been passed without draft assessment order, such final assessment order shall be invalid.
AO was required to adjudicate the issue of amount received under International Sales and Marketing Agreement afresh in line with the directions of the Tribunal. It was incumbent upon the AO to follow the procedure laid down u/s 144C of the Act, i.e. to first pass the draft assessment order. In the facts of the case and the decisions referred above, we hold that assessment order passed by AO without passing draft assessment order is invalid and unsustainable, ergo, the same is liable to be quashed. We hold and direct accordingly.
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2023 (2) TMI 1293 - DELHI HIGH COURT
Accrual of income in India - Royalty receipts - subscription received towards Cloud Services - income earned from licensing/sale of software and subscription received against cloud services offered by assessee - scope of Indo-USA DTAA - Whether the Ld. ITAT erred in holding that licensing of computer is copyrighted article and not copyright and accordingly the sale of software is in nature of business income and not taxable as royalty under Section 9(1)(vi) of Income Tax Act, 1961 and absence of PE in India, it is not taxable under Article 7 of India-USA DTAA?
- HELD THAT:- Tribunal has ruled that neither income earned from licensing/sale of software products nor subscription fee earned for providing cloud services, could be construed as royalty.
As revenue, says that the proposed questions are covered by the judgment of the Supreme Court rendered in Engineering Analysis Centre of Excellence (P.) Ltd. [2021 (3) TMI 138 - SUPREME COURT] - We are also informed that a review petition has been filed which is pending consideration.
Accordingly, the appeal is closed as no substantial question of law arises for our consideration, albeit, with the caveat that in case the appellant/revenue were to succeed in the review petition, the parties will abide by the decision rendered therein.
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2023 (2) TMI 1292 - ITAT KOLKATA
Bogus share capital - unexplained cash credit u/s. 68 - burden to prove - assessee submitted that all the relevant details and evidence to explain the identity, creditworthiness and genuineness of the transactions were placed on record and the assessee had fully discharged its initial burden casted u/s. 68 - HELD THAT:- We note that Ld. AO without even going through and discussing the details submitted by the subscriber companies, insisted for personal appearance to prove the identity, creditworthiness of the subscribers and the genuineness of the transactions. Admittedly, it is a fact on record that director representing four share subscriber companies attended before the ld. AO and furnished the required details. To our mind, Ld. AO could have taken an adverse view only if he could point out the discrepancies or insufficiency in the evidence and details furnished in his office and also as to get further investigation was needed by him by way of recording of statement of the directors of the assessee and the subscriber companies.
We draw our force from the decision of Paradise Inland Shipping Pvt. Ltd. [2017 (11) TMI 1554 - BOMBAY HIGH COURT] wherein it was held that once the assessee has produced documentary evidence to establish the existence of the subscriber companies, the burden would shift on the revenue to establish their case.
From the perusal of the paper book and the documents placed therein, it is vivid that all the share applicants are (i) income tax assessees, (ii) they are filing their income tax returns, (iii) share application form and allotment letter is available on record which were filed in response to notice u/s 133(6), (iv) share application money was made by account payee cheques, (v) details of the bank accounts belonging to share applicants and their bank statements, (vi) all the share applicants are having substantial creditworthiness represented by their capital and reserves.
We find that assessee has discharged its onus to prove the identity and creditworthiness of the share subscribing companies and the genuineness of the transactions towards sum received during the impugned year. Accordingly we set aside the order of the ld. CIT(A) and direct the ld. AO to delete the addition made towards share capital and share premium u/s. 68 - Assessee appeal allowed.
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2023 (2) TMI 1291 - BOMBAY HIGH COURT
Recovery of SARFAESI dues - priority of claim over the claim of Respondent – Custom Authorities - Property under attachment of the Custom Authorities - HELD THAT:- The overriding effect of section 142A as regards the duty, penalty and interest under the Customs Act, 1962 is subject to the Central Act, State Acts provided in this section itself, which includes the SARFAESI Act. Therefore, the claim of Respondent–Custom Authorities for the overriding charge under section 142A of the Customs Act, 1962 itself makes an exception in respect of the SARFAESI Act. Therefore, learned counsel for the Petitioner is right in contending that the Petitioner would have the overriding priority over the charge of Respondent– Custom Authorities.
Petitioner states that the Petitioner bank would proceed to take measures under the SARFAESI Act and if any amount remains balance after satisfying the claim of Petitioner, the Petitioner is under a duty to distribute the balance amount as per the claims received. The statement made by learned counsel for the Petitioner on instructions is accepted - the Petitioner is permitted to proceed to take measures under the SARFAESI Act in respect of the property in question. The Petitioner–Bank will, if such a request is received from the Respondent–Custom Authorities to inform them about the action taken by the Petitioner and the quantum of sale proceeds, will give necessary information to the Respondent–Custom Authorities.
The writ petition is disposed off.
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