|
Advanced Search Options
Case Laws
Showing 461 to 480 of 1551 Records
-
2024 (2) TMI 1091
Prayer for condonation of delay of 1197 days and admission of the claim - seeking admission of claims of appellant - HELD THAT:- The claims were filed by the Appellant in Form-CA after more than 1 and a half year of the approval of the Resolution Plan by the CoC. Even orders on Application for approval of Resolution Plan was reserved on 22.02.2023 and the claims were filed only on 29.03.2023.
The Adjudicating Authority in the impugned order has referred to the judgment of the Hon’ble Supreme Court in RPS Infrastructure Ltd. Vs. Mukul Kumar & Anr. [2023 (9) TMI 516 - SUPREME COURT]. In Mukul Kumar’s case, the claim was filed with a delay of 287 days, which was based on arbitral award. The Appeal filed by the RP was allowed and it was held that the Adjudicating Authority erred in directing the RP to consider the claim of Respondent, which was filed with a delay of 287 days, where the CoC has already approved the Resolution Plan.
In the present case, the claims were filed by the Appellant on 29.03.2023, when the Resolution Plan was already approved by the CoC on 13.08.2021. The Application for approval of Resolution Plan was also heard and order was reserved on 22.02.2023 as stated by the learned Counsel for the Respondent. In the facts of the present case, no error has been committed by the Adjudicating Authority in rejecting Applications filed by the Appellants. It is also relevant to notice that Adjudicating Authority by order dated 23.06.2023 has already approved the Resolution Plan, which Plan approval order has been challenged by the Appellants by means of Company Appeal, which Appeals are still pending for consideration.
Thus, no error has been committed by the Adjudicating Authority - appeal dismissed.
-
2024 (2) TMI 1090
Money Laundering - predicate offence - manipulation of shares of the Indiabulls Group to benefit their close associates and diverting crores of public money by funding their own entities - HELD THAT:- It is not deemed necessary to delve into the question of maintainability of these appeals. This is for the reason that the appellant-ED has got efficacious alternative remedies traceable in law, to proceed against respondent nos.1 to 3 or any other person found to be involved in the alleged offences. The appellant-ED can, for such purpose, initiate appropriate independent proceedings notwithstanding the impugned judgments rendered by the High Courts of Bombay and Delhi.
The appellant-ED, besides any other remedy as may be available in law, can resort to two independent proceedings such as: (i) approaching the Judicial Magistrate under Section 156(3) of Cr.P.C.; (ii) filing a review petition before the High Court of Bombay to seek clarification of the impugned judgment to the extent that it shall have no effect on the rights of the appellant-ED.
Appeal disposed off.
-
2024 (2) TMI 1089
Grant of anticipatory bail - money laundering - sale of fake Remdesivir injections to earn huge money from Covid patients - proceeds of crime - main submission of the applicant is that the applicant is not involved in the proceeds of crime, he was already granted bail and no custody has been sought by the respondent at the time of final report and therefore, the trial court ought to have granted anticipatory bail - HELD THAT:- As per section 45 of the Act, 2002, the offence is cognizable and non-bailable. The bail can be granted only if two conditions are fulfilled in addition to other conditions of section 438 and 439 of Cr.P.C. The bail can be granted unless the court is satisfied that there are reasonable grounds to believe that he is not guilty of the offence and he is not likely to commit such offence while on bail otherwise, he should not be released on bail.
From reading the provision of section 45 of the Act, 2002, the general rule of bail not jail would not apply in such cases. The provision is otherwise as a presumption is attached that the accused is guilty and unless there are reasonable grounds to believe that he is not guilty of such offence and he is not likely to commit such offence then bail can be granted.
The role of the applicant was that he was selling fake Remdesivir injection with the connivance of Sunil Mishra. He purchased fake Remdesivir injections from Dheeraj Sajnani at the rate of Rs. 11,000/- per injection. Dheeraj Sajnani is his childhood friend. Applicant didn't have the prescription of any doctor at that time. He purchased four fake Remdesivir injections as it was in great demand in society. He sold two fake Remdesivir injections to Gagan Bhaiya whose daughter was admitted in Synergy hospital, Indore at that time - This clearly establishes that he along with Sunil Mishra and others has earned money illegally through sale of fake Remdesivir injections at the cost of lives of the innocent people. The money so generated as stated above is nothing but the proceeds of crime accumulated after the commission of the Scheduled Offence as per the scheme of PMLA, 2002.
Considering the money trail produced by the prosecution, which clearly proves involvement of the applicant in the present case, in which proceeds of crime is Rs. 2,89,00,000/-, this court is of the view that in view of the rigor of section 45 of the Act, 2002, the applicant is not entitled for anticipatory bail. Accordingly, the application is dismissed.
-
2024 (2) TMI 1088
Money Laundering - predicate/scheduled offence - proceeds of crime - purchase of papers of Rajasthan Eligibility Examination for Teachers, 2021 (REET, 2021) and its further distribution - Section 45(1) of the PMLA - HELD THAT:- It is settled law that to establish offence under the PMLA the Enforcement Directorate must demonstrate that procurement of the property as the “proceeds of crime” are derived from criminal activity from the predicate offences prescribed under Part-A and Part-B of the scheduled offence. It is also an established preposition that though the offence of money laundering is separate standalone offence, the proceeds of crime ought to have preceded the commission of predicate offences and thereafter laundered over. Section 45 of the PMLA, which deals with the conditions for bail pending trial provides that the Court may grant bail to an accused if Court is satisfied that (i) There are reasonable grounds for believing that the accused is not guilty of such offence and (ii) That the accused is not likely to commit any offence while on bail.
Admittedly, Rajasthan Public Examination (Prevention of Unfair Means) Act, 1992 is not scheduled offence as prescribed under Section 2 (Y) of the PMLA but the offences under Sections 420 and 120-B of I.P.C. fall within the ambit of the scheduled offence as specified under Part-A of the schedule - there is ample evidence available against the accused implying that he obtained an amount of Rs. 1.06 Crores by selling the REET, 2021 papers. The recovery of aforesaid amount from above eight persons further shows that the accused siphoned the proceeds of the crime to various persons. The recovery of Rs. 1.06 Crores from the above persons exemplifies the use/concealment of the proceeds of crime by the present petitioner.
Whether, the predicate offence under Sections 420 and 120-B of I.P.C. is made out or not and whether the amount recovered from various persons is their legitimate amount or not, are the questions to be ascertained by the trial court, this Court cannot proceed into the intricacies of the case with regard to above issues, at the stage of bail. This Court has only to see whether there is prima facie evidence available against the accused-petitioner that he has committed the offence under Section 3 of Money Laundering Act.
As far as applicability of proviso appended to Section 45 (1) of the PMLA is concerned, the above facts clearly show that the amount recovered from the above persons as proceeds of crime is more than Rs. 1 Crore, therefore, the case of the present petitioner does not fall within the ambit of proviso appended to Section 45 (1) of PMLA.
The petitioner cannot be enlarged on bail - the instant bail application under Section 439 Cr.P.C. is dismissed.
-
2024 (2) TMI 1087
Attachment of property of the partnership firm - Recovery of Service post GST era - seeking direction to the 2nd respondent to provide a certified copy of the order confirming the tax demand - HELD THAT:- as regards taxes which had not been recovered, it enables initiation of action for recovery thereof under Section 142 of the CGST Act. Therefore, it was open to the first and second respondents to initiate action under the CGST Act if tax dues had not been recovered under the provisions of the Finance Act 1994. Instead, the petitioner resorted to Section 142 of the Customs Act. Section 142(1) of the Customs Act - the impugned attachment order is quashed by leaving it open to the first and second respondents to initiate appropriate proceedings in accordance with the CGST Act for the recovery of service tax dues.
The petitioner is permitted to present a statutory appeal before the appellate authority provided such appeal is presented within a maximum period of two weeks from the date of receipt of a copy of this order.
-
2024 (2) TMI 1086
Maintainability of appeal - appropriate forum - Appellant is a juridical person or not - Appellant can be treated as a “trust” or not - service provided to contributories or not - failure to recogniSe pass-through status, for the purpose of taxation statues - consideration received fro contributors or not - doctrine of mutuality.
Maintainability of appeal - appropriate forum - HELD THAT:- In this case, there is no dispute with regard to rate of duty in this case. The question is whether assessee is liable to pay the duty. Therefore appeal is maintainable before this Court.
Whether the CESTAT has erred in holding the Appellant to be a juridical person? - HELD THAT:- The definition clauses of each statute must be read with the object and purpose of that statute only as intended by the legislature. Various statutes such as SEBI, GST, IBC recognize ‘trust’ as a person whereas the Finance Act does not. The issue involved in this case is liability to pay Service tax, therefore, the relevant statute is the Finance Act. Hence, the contention urged by Revenue is untenable.
The CESTAT has recorded in the impugned order that, since the trust is treated as juridical person under SEBI, there is no reason why it should not be treated as a juridical person for taxation. This view of the CESTAT is untenable because, for the purpose of levy of tax, the entity has to be recognized under the said Act - Accordingly, the first question is answered as affirmative and in favour of the assessee.
Whether the CESTAT has erred in holding that the Appellant cannot be treated as a “trust” and failed to recognize its pass-through status, for the purpose of taxation statues? - HELD THAT:- The assessee acts as a ‘pass through’, wherein funds from contributors are consolidated and invested by the investment manager. It acts as a trustee holding the money belonging to contributors to be invested as per the advice of the investment manager - the question is answered in the affirmative and in favour of the assessee.
Whether the CESTAT has erred in ignoring that the moneys and funds contributed by the Contributors, being the property of the Appellant, the asset management service, if any rendered, is by the Appellant for its own self? - HELD THAT:- It is not in dispute that contributors are institutional investors. It is noted that doctrine of mutuality applies when commonality is established between the contributors and participators - In the instant case, the contributors and the trust cannot be dissected as two different entities because, it is an admitted fact that contributors investment is held in trust by the fund and it is invested as per the advice of investment manager. In substance, fund does nor do an act. Hence, can be no service to self. Therefore the doctrine of mutuality must apply in the instant case - the third question is answered as affirmative and in favour of the assessee.
Appeal allowed.
-
2024 (2) TMI 1085
Exempt service or not - petitioner argued that the service tax imposed is on the services, which are exempted by virtue of the notification dated 20.06.2012, issued by the Government of India - failure to furnosh document to substantiate the same - HELD THAT:- A perusal of the impugned order indicates that except stating that the services rendered are exempted from service tax, the petitioner has not produced any documents to substantiate that the services rendered by him were exempted from service tax. Therefore, respondent No. 1, on the available material on record has rightly passed the impugned order after providing several opportunities of personal hearing to the petitioner, which the petitioner did not avail without any sufficient cause.
Whether the services of the petitioner are exempted from service tax is a matter which requires consideration by the appellate authority, and since there is a dispute as to whether the services rendered by the petitioner are exempted from service tax, the same cannot be adjudicated in this petition, and it is open for the petitioner to approach the appellate authority for redressal of his grievances.
The petition stands dismissed, reserving liberty to the petitioner to file an appeal under section 85 and 86 of the Finance Act. The time spent in prosecuting this petition to be excluded for the purpose of computation of limitation period in preferring the appeal before the appellate authority.
-
2024 (2) TMI 1084
Demand of service tax alongwith interest and penalties - service tax not paid - late filing of returns - time limitation - HELD THAT:- The service rendered by the appellant was inclusive of service tax and initially, the appellant paid the service tax, but thereafter, the appellant did not pay the service tax, but they filed S.T-3 Returns. In that circumstances, the responsibility casts on the Revenue to find out why the assessee is filing nil returns and no efforts were made by the Revenue to investigate the matter against the appellant.
As per the said letter dated 20.08.2008 after verifying the records, the Revenue has observed that nothing is pending against the appellant. In that circumstances, the show-cause notice issued to the appellant on 18.02.2009, is highly time barred.
The impugned demand is set aside - appeal allowed.
-
2024 (2) TMI 1083
Invocation of extended period of limitation - wilful misstatement and suppression of facts etc. with intent to evade payment of tax - Management Consultancy service - HELD THAT:- This issue for the earlier period has been examined in detail by this Tribunal in M/S. VERVE CONSULTING PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, BHUBANESWAR-I [2023 (8) TMI 50 - CESTAT KOLKATA] where it was held that Services rendered in the nature of software development provided by the Appellant was exempted from payment of Service tax in terms of Notification No. 16/2004-ST dated September 10, 2004.
Thus, no service tax is payable by the appellant.
Further it is found that the activity of the appellant was well known to the Revenue and both the show-cause notices in question have been issued to the appellant by invoking extended period of limitation - the whole of the demand is barred by limitation.
The impugned order is set aside - appeal allowed.
-
2024 (2) TMI 1082
Classification of services - Security Services or not - Government of Tripura has entered into a memorandum of understanding with ONGC, which is a Public Sector Undertaking (PSU) owned by the Government of India, for a period of 10 years to raise a full battalion of the Tripura State Rifles mainly for dedicated deployment to ONGC for security services - providing services to the Public Sector Undertaking - HELD THAT:- The issue involved in these cases is squarely covered by the decision of this Tribunal in the case of MUMBAI POLICE VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2018 (4) TMI 418 - CESTAT MUMBAI], wherein this Tribunal has observed activity undertaken by the police is not covered by the definition of Security Agency under Section 64(94) of the Act.
In this case also, the appellant is not engaged in the business of providing security services, therefore, following the precedent decision of this Tribunal, it is held that as the appellant is not engaged in the business of providing security services, therefore, the appellant is outside the purview of security services as defined under Section 65 (94) of the Finance Act, 1994.
The appellant is not liable to pay service tax - the impugned demand against the appellant is set aside - appeal allowed.
-
2024 (2) TMI 1081
Levy of service tax - Erection, Commissioning and Installation Service - activities of fabrication of structures, erection, commissioning and installation to the plant and machineries, equipment structures etc. - period from May, 2006 to March, 2008 - service merits to be classified under Works Contract Service, regarding which SCN is silent - HELD THAT:- It is not in dispute by the Revenue that the appellant has taken the activities of erection, commissioning and installation services along with materials. Therefore, the merits classification of the above services under “Works Contract Service” and no demand is raised against the appellant under “Works Contract Service”. Therefore, following the decision of the Hon’ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], wherein the Hon’ble Apex Court has observed All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him.
The merits classification of the impugned service is under “Works Contract Service” , if it is presumed that the appellant is liable to pay service tax on “Works Contract Service”, then the appellant is required to pay service tax on 33% on the value of contract executed by them and the appellant has paid the service tax more than that.
Thus, no demand is sustainable against the appellant - appeal allowed.
-
2024 (2) TMI 1080
Levy of penalty under Rule 12(6) and Rule 27 of the Central Excise Rules, 2002 and Rule 15A of the Cenvat Credit Rules, 2004 - non-filing of returns namely ER-4, ER-5, ER-6 and ER-7 for the period from February 2012 to March 2016 - invocation of extended period of limitation as provided under Section 73, sub-section (4) of the Finance Act, 1994 - HELD THAT:- As per Section 174(2)(e) of the CGST Act, 2017 the proceedings can only be continued under the new regime if it is arising/emerging out of investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings etc. Further, it is found that violation of non-filing of the returns under the existing law has not been saved under the present regime of GST. Further, in the present case the period involved is February 2012 to March 2016, whereas the show cause notice was issued on 23.04.2018 which is beyond the period of limitation.
In fact, neither in the show cause notice nor in the impugned order, the grounds for invoking the extended period of limitation have been discussed. Nothing emerges from the impugned order that the appellant have not filed the requisite returns with intent to evade the payment of tax. Further, the decisions relied upon by the appellant as well as the respondent, are not strictly applicable in facts and circumstances of the present case.
The imposition of penalties amounting to Rs.96,000/- is not sustainable - The impugned order is set aside - appeal allowed.
-
2024 (2) TMI 1079
Recovery of CENVAT Credit alongwith interest and penalty - credit availed by the appellant on inputs during 12.02.2004 onwards - process amounting to manufacture or not - HELD THAT:- The issue involved in the present case is no more res integra and has been consistently held by various decisions of the Tribunal, upheld by the Hon’ble Supreme Court and High Court wherein it has been held that when process undertaken by the assessee does not amount to manufacture, even then the CENVAT credit is admissible if such inputs are cleared on payment of duty which would amount to reversal of credit availed.
Reliance can be placed in the case of COMMISSIONER OF CENTRAL EX. & CUS., SURAT-III VERSUS CREATIVE ENTERPRISES [2008 (7) TMI 311 - GUJARAT HIGH COURT] which was upheld by the Hon’ble Apex Court in COMMISSIONER VERSUS CREATIVE ENTERPRISES [2009 (7) TMI 1206 - SC ORDER] wherein it was held that once duty on final products has been accepted by the Department in the case, CENVAT credit cannot be denied even if the activity does not amount to manufacture.
The impugned order is not sustainable in law and therefore is set aside - appeal allowed.
-
2024 (2) TMI 1078
Valuation - inclusion of secondary packing charges recovered by the Respondent from their customers in the assessable value - Freight Cost recovered by the Respondent from their customers for the onward movement of the goods from the factory gate to Railway Station is includable in the assessable value or not - HELD THAT:- On going through the OIA, it is found that the Commissioner (Appeals) has given very detailed findings on the issue raised in the Show Cause Notice - it was held that When the appellant has sold the goods at the factory gate, then such charges which are collected for providing services beyond the factory gate cannot be added to or included in the assessable value. It is not the case of the Department, that the appellant is collecting these as part of the price of the goods and in the guise of forwarding charges. Such a proposition would be contrary to evidence as there is uniform sale price of goods at the factory gate and inclusion of such forwarding charges to be declared price would lead to differential price of goods. Hence, such forwarding charges cannot be included in the assessable value of goods.
In case of UNION OF INDIA & ORS. ETC., ETC. VERSUS BOMBAY TYRE INTERNATIONAL LTD. ETC., ETC. [1983 (10) TMI 51 - SUPREME COURT], the Hon’ble Supreme Court has held If any special secondary packing is provided by the assessee at the instance of a wholesale buyer which is not generally provided as a normal feature of the wholesale trade, the cost of such packing shall be deducted from the wholesale cash price.
These decisions are squarely applicable to the facts of the present Appeals. Therefore, there are no reason to interfere with the detailed findings and conclusion arrived at by the Commissioner (Appeals).
The Appeals filed by the Revenue is dismissed.
-
2024 (2) TMI 1077
Interest on delayed refund - period prior insertion of the Section 11BB of CEA - HELD THAT:- There is no dispute that this order was in respect of a refund application filed on 07.04.1997. If Revenue was aggrieved by the facts as recorded in this order they should have filed an application under Section 35 C (2) of the Central Excise Act, 1944 for getting the facts as recorded in the final order of tribunal or could have filed an appeal to the concerned appellate authority. Having not done so there cannot be any dispute about the fact that entire proceedings are in respect of the refund application filed on 07.04.1997. Commissioner (Appeals) findings in this regard cannot be faulted with.
As the entire issue is in sequel of the Tribunal order directing payment of due interest as due. Without challenging the direction to pay the interest at appropriate forum the same cannot be challenged in these proceedings whether for the period prior insertion of the Section 11BB before or after, there are no merits in this appeal.
In the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT], SC held that liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made.
There are no merits in this appeal filed by the revenue - appeal dismissed.
-
2024 (2) TMI 1076
Validity of grant of permission to the petitioner’s assessing authority, namely, Deputy Commissioner, Sector-7, Commercial Tax, Ghaziabad, to re-assess the petitioner for the A.Y. 2012-2013 (U.P. and Central), in the extended period of limitation provided under Section 29 (7) of the Act - petitioner’s regular assessment proceeding for A.Y. 2012-13 was reopened - Effect of Section 27 of the Act - HELD THAT:- There did not pre-exist any principle of law where under an assessee could claim a deemed assessment or a consequence in law, equivalent to that. The U.P. Trade Tax Act that was repealed by the Act, did not contain a concept of a deemed assessment. Under that law, whenever limitation to frame assessment lapsed, no assessment arose. However, Section 27 of the Act made a clear departure from that pre-existing law. In no uncertain terms it provided that the annual return of turnover and tax filed under Section 24(7) of the Act would constitute a deemed assessment. It would arise on the last day of filing of the annual return. Further, the facts disclosed, and figures mentioned in that return were deemed to be part of the assessment order.
The deeming fiction in law revived upon order dated 01.02.2016 being passed. Earlier, it may have remained in the shadow and thus dormant in face of the specific/conscious assessment order dated 04.01.2016 yet, in view of that order being recalled on 01.02.2016, it got resurrected by the force of law. It became absolute upon expiry of period of limitation to make a fresh assessment i.e. on 30.09.2016. Since, the assessing officer failed to make any specific order of assessment in terms of Section 29(6) of the Act till 30.09.2016, his powers to make the regular assessment stood exhausted. It is on the occurrence of that passive event on 30.09.2016 i.e. lapse of limitation to make a regular assessment that the deeming fiction of law created by Section 27 of the Act became absolute.
If however, as in the present case, jurisdiction to reassess had remained from being assumed within the normal period of limitation - that expired on 31.03.2016, the subsequent setting aside of the regular ex parte assessment order would have no effect as to jurisdiction to initiate such reassessment proceeding - Therefore, in the present facts the assessing authority was obligated to first obtain an approval of his higher authority namely the Additional Commissioner to proceed to reassess the petitioner in the extended period of limitation namely eight years.
There was neither any relevant material nor any reason was recorded by the assessing authority that any part of the turnover of the petitioner had escaped assessment. Consequently, the jurisdiction to reassess the petitioner never arose with the assessing authority for A.Y. 2012-13. Unfortunately, that basic aspect escaped the attention of the Additional Commissioner, who appears to have granted the permission to the petitioner- assessing authority to reassess the petitioner in the extended period of limitation, in a mechanical exercise of his power.
It is not examined whether the reassessment order dated 17.03.2021 is ante dated or not. Since the jurisdiction never arose, the entire proceedings were conducted without jurisdiction and are a nullity.
There are no hesitation to record satisfaction that the order dated 30.01.2021, as modified on 08.02.2021 passed by that authority, granting permission to the assessing authority, namely, Deputy Commissioner, Sector-7, Commercial Tax, Ghaziabad as well as the reassessment order dated 17.03.2021 for the Assessment Year 2012-2013 (U.P. and Central) are a nullity. They are quashed.
Petition allowed.
-
2024 (2) TMI 1075
Dishonour of Cheque - offence under Section 138 of N.I. Act has been proved beyond all reasonable doubt or not - Rebuttal of presumptions - Whether this Court while sitting as a Revisional Court, in the absence of perversity, would upset the concurrent findings of facts? - HELD THAT:- It is well settled that while sitting in a revisional jurisdiction, this Court cannot re-analyze or re-interpret or re-appreciate the evidence on record. It is also to be kept in mind that the Revisional Court will not interfere, even if, a wrong order is passed by the Court having jurisdiction, in the absence of jurisdictional error, as held in the case of SOUTHERN SALES & SERVICES & ORS. VERSUS SAUERMILCH DESIGN & HANDELS GMBH [2008 (10) TMI 696 - SUPREME COURT].
Since the signature on both the cheques is admittedly of the Accused, the principles laid down by the Apex Court in the case of HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE [2001 (7) TMI 1172 - SUPREME COURT] shall come into effect, wherein it is held that the Court “shall presume” the liability of the drawer of the cheques for the amounts for which the cheques are drawn. It is now well settled that Section 139 of the N.I. Act introduces an exception to the general rule as to the burden of proof and shifts the onus on to the Accused. The presumption under Section 139 of the N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the Prosecution to prove the case against the Accused beyond reasonable doubt - The burden of proof was however on the person who wanted to rebut the presumption.
The presumption arrived in favour of the Applicant under Section 139 of the N.I. Act has not been rebutted successfully by the Applicant though he entered into the witness box and thus, the findings given by both the Courts below cannot be faulted with.
The Revision must fail and hence, the same stands rejected.
-
2024 (2) TMI 1074
Seeking grant of bail - money laundering - proceeds of crime - present application is filed under Section 438 of Cr.P.C. mainly on the ground that all the documents related to the crime have already been seized and ECIR has been filed before the Competent Court which is pending for adjudication - HELD THAT:- The applicant said to have purchased the plots from Keshav Nachani who has been granted anticipatory bail by this Court vide M.Cr.C. No.51485 of 2023. So far as the role of this applicant is concerned, he only assisted Dipak Jain in the crime. Deepak Jain transferred the property in the name of this applicant. The arrest is not required for custody/ interrogation as investigation is over now.
Shri Himanshu Joshi, learned Standing Counsel for the respondent submits that at the time of filing of ECIR, the arrest of this applicant was not demanded by the prosecution agency hence, bailable warrant was issued for his appearance by the Special Judge.
It is directed that in the event of arrest, the applicant - Ashok Pipada shall be released upon his furnishing personal bond in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the arresting officer. This order shall be governed by the conditions No.1 to 3 of sub-Section (2) of section 438 Cr.P.C. The applicant shall also co- operate with the investigation - Application allowed.
-
2024 (2) TMI 1073
Penalty u/s 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 - goods detained on the ground that the goods were being transported on a vehicle different from that declared on e-way bill - onus to prove (shifting burden on petitioner) - HELD THAT:- The said goods were intercepted only two-three hours after the goods have left the SEZ Unit, and therefore, it cannot be said that this e-way bill was wrongly being used. It is a fact that the burden of proof lies on the petitioner in certain cases to show that there was no evasion of tax. However, when the the error in the documents is only that of a clerical or typographical error, the initial burden of proof lies on the department to show there was intention to evade tax. In the present case the department has failed to do so and infact has not even tried to do so. The documents produced by the petitioner at the time of the interception itself indicates that the goods have been transported from a SEZ Unit to the DTA after payment of custom duty and payment of IGST.
The department has accordingly failed to shift the burden of proof on the petitioner as the only error found by the department was that the vehicle number was incorrect. Apart from this one error in the e-way bill, nothing has been shown by the department to justify the imposition of penalty under Section 129(3) of the Act. The impugned order also failed to take into account the document produced by the petitioner of the transporter wherein the explanation was given with regard to the reason for the mistake of the vehicle number in the e-way bill.
The intention to evade tax is sine qua non before imposition of penalty. In present case the department has failed to establish any such intention whatsoever. Furthermore, the Appellate Authority has failed to look into all the documents that were produced by the petitioner to rebut the allegation of the department with regard to intention to evade tax.
The impugned orders dated June 22, 2019 and June 22, 2018 are quashed and set aside - petition allowed.
-
2024 (2) TMI 1072
Nature of the services which are provided by the Petitioner - service agreements entered into by the Petitioner with foreign clients or not - HELD THAT:- The respondents submits that Petitioner with these proceedings has annexed some sample agreements. Further, she submits that since the core issue involves the nature of the services which are provided by the Petitioner and in the absence of the documents being on record, the Appellate Authority was constrained in determining the exact nature of petitioner’s services. She submits that the matter could be remitted to the Appellate Authority with liberty to the Petitioner to place all such agreements on record and for the Appellate Authority to reconsider the issue.
The matter is remitted to the Appellate Authority - Petition disposed of by way of remand.
............
|
9911796707
