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Showing 321 to 340 of 1740 Records
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2024 (9) TMI 1422
Approval of the Resolution Plan - rejection of the application to allow submission of a revised Resolution Plan - violation of the Principle of Natural Justice - HELD THAT:- From the Minutes of the 9th CoC Meeting held on 15.12.2023, as quoted above, it is clear that CoC on 15.12.2023, considered both the Resolution Plan i.e., Resolution Plans submitted by M/s. Saverni Neutech Pvt. Ltd. as well as the SRA M/s. Trinity India Forgetech Pvt. Limited. Resolution Plan of M/s. Trinity India Forgetech Pvt. Ltd. was approved with 92.87% vote shares and Resolution Plan of M/s. Saverni Neutech Pvt. Ltd. was disapproved by 92.87%, vote shares and the Plan which was earlier submitted by M/s. Saverni Neutech Pvt. Ltd. has considered and rejected. There is no occasion for M/s. Saverni Neutech Pvt. Ltd. to pray for further revised Resolution Plan when it failed to file Resolution Plan, according to its own case within the time allowed as it reflected from the email dated 18.12.2023 sent by the Appellant themselves.
Adjudicating Authority did not commit any error in rejecting the Application I.A. No.124/2024 filed by Sandeep Jayantilal Vadodria. Insofar as the Appeal filed by the Prem Trading Company, one of the contentions raised is that Prem Trading Company who was Financial Creditor having 2.48%, vote shares was not permitted to vote. Suffice it to say that Authorised Representative of the Appellant Prem Trading Company, Rakesh Patel was present in the CoC Meeting, which is recorded in the Minutes - It has been noted that Rakesh Patel has voted only on the agenda 1, 6, 7 & 8, and thereafter he exited, he having participated in the EOI process as co- Resolution Applicant in M/s. Saverni Neutech Pvt. Ltd. and Rakesh Patel who was Authorised Representative of Financial Creditor was participating in EOI. He was rightly not permitted to vote. He rightly exited from the voting which was held on Item No. 2.
In any view of the matter, vote share of the Prem Trading Company is only 2.48% and vote share for Prem Trading Company was not considered in favour of the approval of the Plan and the Plan was approved by 92.87% vote shares of HDFC Bank Ltd. the largest Financial Creditor.
There are no merit in the Appeal filed by Prem Trading Company. In the CoC Meeting held on 15.12.2023, Prem Trading Company was represented by its Authorised Representative and the grounds which are sought to be raised in the Appeal are without any substance.
Appeal dismissed.
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2024 (9) TMI 1421
Admission of Section 7 Application - financial debt or not - Notices were never served on the Corporate Debtor and the Adjudicating Authority on second date of hearing proceeded Ex-Parte against the Corporate Debtor - HELD THAT:- In the facts of the present case, the Adjudicating Authority in the Impugned Order has relied on record of default by NeSL and held that Report is sufficient evidence to arrive at the conclusion to an amount of debt. There can be no dispute that report of NeSL is an important piece of evidence, but in the facts of the present case where the Corporate Debtor has no opportunity to place its defence, it cannot be said that reliance on NeSL Certificate was conclusive evidence to come to the conclusion that there was a Financial Debt.
Adjudicating Authority in Paragraph 3 of the Order has noticed the Balance Sheets maintained by the Corporate Debtor. Although the Balance Sheets have been noticed, but the Adjudicating Authority failed to notice that long-term borrowing and long-term liabilities have been mentioned under two different heads. Hence, non-mention of the amount of ₹1,00,00,000/- under the heading long-term borrowing has to be given some meaning and purpose. Long-term liabilities can be different kind of liabilities which may be an Operational Debt, Financial Debt or any other nature of debt. However, the real nature of transaction between the parties needs to be examined and adjudicated by the Adjudicating Authority before admitting Section 7 Application.
In the present case, the Corporate Debtor unfortunately could not appear before the Adjudicating Authority to raise his defence, hence in the facts of the present case, the ends of justice be served in remitting the matter before the Adjudicating Authority for fresh consideration with liberty to the Appellant to file its Reply within three weeks. There is no appropriate consideration of the real nature of transaction on basis of which Section 7 Application was filed by the Adjudicating Authority.
The ends of justice be served in remitting the matter for fresh consideration before the Adjudicating Authority, with liberty to the Appellant to file a Reply within 3 weeks from today - Appellant is allowed three weeks time to file a Reply to Section 7 Application before the Adjudicating Authority - appeal allowed.
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2024 (9) TMI 1420
Challenge to arrest order - violation of Section 19 (3) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- Section 65 of PMLA stipulates that “the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act”. PMLA being a special enactment will prevail over the general law and therefore, there are no hesitation in forming an opinion that the respondents have made arrest and thereafter, followed the procedures as contemplated under the provisions of PMLA and there are no infirmity as such.
In view of the settled legal position of law, if a person is already in judicial custody in connection with another case, can be formally arrested in respect of investigation of the subsequent case. Therefore, the requirements of Section 19(3) of the provisions of PMLA is complied with and thus, there is no violation.
The criminal original petition is devoid of merits and stands dismissed.
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2024 (9) TMI 1419
Seeking grant of regular bail - fake, forged and fictitious documents were used to obtain the holding numbers - offence under Sections 420, 467, and 471 of the Indian Penal Code - Section 45 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- When a serious offence of such a magnitude mere fact that accused was in jail for long time inconsequential besides such casual approach would undermine trust of public in integrity of Investigating Agency. Further, bail is the rule and jail is an exception but competing forces need to be carefully measured before enlarging the accused on bail. Socio economic offences constituted a class apart and need to be visited with different approach in the matter of bail since socio economic offences have deep-rooted conspiracies affecting moral fibre of society and causing irreparable harm. Moreover, investigating agency was in process of expediting the trial.
So far as the bail of Dilip kumar Ghosh is concerned, he was allowed bail as he was the purchaser and protected under Section 54 of the Transfer of Property Act as such the allowing the bail of Dilip kumar Ghosh @ Dilip Ghosh is on different footing.
There is no hard and fast rule regarding grant or refusal of bail, each case has to be considered on the facts and circumstances of each case and on its own merit. The discretion of court has to be exercised judiciously and not in an arbitrary manner.
This Court is unable to accept the argument of the learned counsel appearing for the petitioner that bail is the rule and the jail is an exception. In view of the above facts reasons and analysis, this Court finds that no case of regular bail is made out as such the prayer for the regular bail of the petitioner is, hereby, rejected.
Bail application dismissed.
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2024 (9) TMI 1418
Seeking for issuance of appropriate writ to quash the SCN issued by the 1st respondent - Seeking to restrain the said Authority from adjudicating the same - HELD THAT:- The nature of contentions raised by the petitioner require not only interpretation of the work order which would be factual but also a detailed consideration of the exemption sought for by placing reliance on the N/N. 25/2012-ST.
The contention whether supply of man power involved in garbage collection as well as auto tipper with condition imposed in the supply order fall within the activity of solid waste management, is a matter that requires factual appreciation after taking note of the terms of the supply order. Such exercise cannot be made by this Court in exercise of writ jurisdiction.
Accordingly, the matter is remanded to the stage post show cause notice. Petitioner is also at liberty to make out reply to the show cause notice within a period of 30 days from the date of receipt of certified copy of this order. All contentions of the petitioner are kept open including as referred to by this Court in the discussion made above as well as grounds made out in the writ petition - Petition disposed off by way of remand.
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2024 (9) TMI 1417
Classification of activity of appellant - falls under the category of mining service as claimed by the department or transport service as submitted by the appellant? - period 2009-2010 to 2013-2014 - HELD THAT:- On the basis of 26-AS record it does not show the actual detail of the activity carried out by the appellant. Therefore, in the entire case there is no concrete evidence to establish that the appellant have provided the mining service. The invoices produced by the appellant also do not suggest that the appellant have provided any mining service. The appellant is admittedly a transport contractor providing transportation service. The 3 CD report under Income Tax also shows that the appellant is a transport contractor. As per the 26-AS, the deduction of TDS made by the service recipient is under Section 197 C of the Income Tax which is applicable in case of transportation service. Therefore, in one hand, the revenue could not produce any evidence to establish that the appellant have provided the mining service whereas all the books of account and other documents produced by the appellant shows that they being a transport contractor provided the transportation service of mined goods. Therefore, the appellant’s activity cannot be classified under mining service.
The appellant have also relied upon the board circular F.No. 232/2/2006-CX.4 dated 12.11.2007 wherein at paragraph 5 the board has clarified that transportation of mineral from pithead to a specified location even within the mine or for transportation outside the mine are chargeable to service tax under relevant taxable service i.e. goods transport by road - In the present case since the appellant have transported the mineral in their own vehicle and have not issued any consignment note in this regard, their service is that of transportation of goods by road. Therefore, the demand under mining service is not maintainable.
This issue has been considered by the Hon’ble Supreme Court in the case of Singh transporters [2017 (7) TMI 494 - SUPREME COURT] wherein it was held that transport of coal from pithead to railway siding within the mining area is classifiable under GTA service and not under mining service. Similar view was taken in the case of Rasleela Enterprises Pvt Ltd [2024 (1) TMI 888 - CESTAT NEW DELHI] wherein the tribunal held that transportation charges received are not covered under mining service, therefore, the demand under mining service in the present case will not sustain as the appellant have provided transportation service.
The impugned order is not sustainable and the same is set aside - Appeal allowed.
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2024 (9) TMI 1416
Liability to pay Service Tax under reverse charge mechanism - Directors remuneration paid to the whole time Director who are employed with the company and also non employed Directors to whom the sitting fees is paid.
Salary paid to the whole time director whether liable to service tax or otherwise - HELD THAT:- This issue has been considered time and again by this Tribunal and came to the conclusion that when any remuneration is paid to the Director which is in the form of the salary the same is not liable to service tax. The issue is covered by the decision of RATNAMANI METALS AND TUBES LTD VERSUS C.C.E. & S.T. -AHMEDABAD-III [2024 (3) TMI 10 - CESTAT AHMEDABAD] wherein relying on various judgments, this Tribunal has held that 'In the light of the records submitted by the Appellants, in terms of Board Resolution and Income tax returns submitted under Form – 16, we are of the considered view that the Directors have been appointed as employees of the Appellant’s Company.' - In view of the above decision, in case of whole time Director Mrs. T R Amin remuneration paid to her is not liable to service tax. Hence the service tax related to the remuneration paid to Mrs. T R Amin is set aside.
Levy of service tax on director fees - payment made to non-employed director as a director sitting fees since the same is not in the nature of salary - HELD THAT:- As per the reconciliation chart, it prima facie appears that the appellant have discharged the Service Tax. However the same need to be verified by the Adjudicating authority. Therefore, the matter related to the service tax demand on the remuneration paid to the non-employed directors, the matter needs to be remanded to check the correctness of reconciliation given in the Annexure-C.
The impugned order is modified - Appeal allowed.
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2024 (9) TMI 1415
Short payment of service tax - manpower recruitment or supply agency service - suppression of value of taxable service - it was noticed by the department that noticee have shown less income in their ST-3 returns as compared to the income shown in their profit and loss account for the period covering 2006-2007 to 2009-2010 - HELD THAT:- The appellant have been discharging their service tax liability on the gross amount received by them for manpower recruitment or supply agency service. However, the appellants have also received reimbursement of the certain expenditures made by him on account of the service recipient on the manpower supplied by him to them on account of supply of shoes and uniform, making provision for the provident fund, providing bonus, insurance etc. - It can be seen from the statement of profit and loss account that other than the income on account of the supply of the manpower under head ‘Labour Charges’ the appellant has got reimbursement on account of PF, shoes, insurance, uniform etc. on actual basis which have been made by him.
The issue involved in the present appeal is no longer res- integra. As this Tribunal in case of STAR FREIGHT PVT. LTD. VERSUS C.S.T. -SERVICE TAX - AHMEDABAD [2023 (9) TMI 71 - CESTAT AHMEDABAD] has held that 'there is no suppuration of fact or malafied intention to evade payment of service tax, demand for the extended period shall not be sustainable also on the ground of limitation.'
The impugned Order-In-Appeal is without any merit and is set aside - appeal allowed.
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2024 (9) TMI 1414
Liability of sub-contractor to pay service tax when the main contractor has already discharged the service tax - whether the appellant who is a sub- contractor of the main contractor of L & T is liable to pay service tax on the service on which the main contractor had paid the service tax? - HELD THAT:- The appellant being sub-contractor is liable to pay service tax in view of the Larger Bench’s decision in Commissioner Vs. Melange Developers (P.) Ltd. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB] but extended period cannot be invoked to demand service tax from the appellant. Hence, the demand of service tax confirmed against the appellant for the normal period and for this purpose, the matter remanded back to the adjudicating authority for computing the demand of service tax for the normal period along with interest.
Matter remanded to the adjudicating authority with the direction to do the needful within a period of three months after receiving the certified copy of this order.
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2024 (9) TMI 1413
Interpretation of the Notification Nos.41 of 1998 and 42 of 1998 - entitlement to the benefits of the Compounded Levy Scheme under Section 3A of the Central Excise Act, 1944 - respondent had installed the Hot Air Stenter and was an independent processor falling within the purview of Section 3A of the Central Excise Act, 1944 - HELD THAT:- On perusal of the Notifications, it is clear that the Tax Appeal would be maintainable only if there is a question of constitutional validity of the provision of the Act or the Rules is under challenge or the cases where the Notification / Instruction / Order / Circular is held to be illegal or ultra vires.
In the facts of the present case, none of the above conditions are fulfilled and, therefore, in view of the Instructions, the Appeals would not be maintainable in spite of the instructions of the respondent authorities to the learned advocate for the appellant to proceed with the matter on merits.
The appeals are dismissed.
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2024 (9) TMI 1412
Application for rectification of mistake - pending appeals before the Supreme Court - HELD THAT:- The subject-matter of the appeals are not challenged as abundant items of the appellant. Therefore the respondent can independently proceed with the same and the respondent/Department challenge the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, in Nos.E/510,E.208/2011, E.365/2011, E/40915 – 40918/2015 and now the same is pending with the Honourable Supreme Court. Further pending appeals, the appellant has filed application for rectification of the mistake and for which, the Tribunal has passed the above said order. Though the learned counsel for the appellant would submit that the appellant is not enttled to get an order in favour of them in the Rectification Application, but however, on a perusal of the order passed by the Tribunal, it is seen that they have nothing to with the merit or entitlement or any mistake that has been committed.
The orders impugned herein are set aside and the matter is remitted back to file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai and the Appellate Tribunal is directed to consider the said application for rectification filed by the appellant and pass orders in accordance with law after giving an opportunity of hearing to both the parties and the parties are at liberty to raise their objections, grounds or points, as the case may be, before the Appellate Tribunal.
Appeal disposed off.
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2024 (9) TMI 1411
Confirmation of demand of incorrectly availed input cenvat credit, along with interest and penalty - time limitation - HELD THAT:- There is no doubt that the market was not encouraging insofar as the new products claimed to have been launched by the appellant for which, its overseas partner provided financial assistance, which is termed by the Indian entity as reimbursement towards shortfall/compensation, etc. We are afraid the said claims of the Indian entity cannot decide the taxability or otherwise. Understandably, payment as in the case in hand, which may be in the nature of compensation, but is clearly towards keeping the Indian entity alive and kicking and to meet various expenditure including overheads. That therefore, is certainly not per se towards the clearance of a manufactured product and hence, there was no question of CENVAT credit being availed, just because the Indian entity chose to pay service tax. CENVAT credit, as governed by Rule 3 ibid is available to a manufacturer or the provider of taxable service of the input tax paid, which is used in the manufacture or provision of a taxable service, which is not the case here - the department is justified in holding that the credit has been wrongly availed, which therefore was required to be recovered as the same was not in accordance with law.
Extended period of limitation - HELD THAT:- The issue is required to be considered from a larger perspective, in the sense that they said claim was part of the statutory returns/periodical returns filed by the appellant which were picked up by the revenue and hence, there was no scope to invoke the larger period of limitation. Other than an assertion that during audit of the returns, the team picked up this issue itself suggests that there is nothing hidden/suppressed; and other than this, the revenue has not placed anything on record to support its above ground to justify its claim about suppression and the consequential invoking of the larger period of limitation.
The Revenue has not at all established the fact of suppression for invoking the extended period of limitation for recovery of wrongly availed CENVAT credit. Hence, the impugned order does not sustain - the impugned order is set aside - appeal allowed.
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2024 (9) TMI 1410
Challenge to direction that the liability on each and every individual should be fixed separately - HELD THAT:- From the operating potion of the order, it can be seen that the liability and recovery of rebate amount Rs. 65,54,595/- was once again confirmed against the Shri Mahesh M Harlalka and Shri Pradip Sharma jointly. It is clearly against the direction of the Tribunal whereby it was directed that the liabilities against each person should be fixed separately. However, the liability of Rs. 65,54,595/- was confirmed jointly on both the aforesaid person. Therefore, the order impugned was passed without following the order of the Tribunal, hence, the same is not sustainable. Accordingly, the impugned order is set aside and matter remanded to the Adjudicating Authority to pass a fresh order fixing liability separately against each person.
The appeals are allowed by way of remand to the Adjudicating Authority.
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2024 (9) TMI 1409
Interest on differential duty on the escalated value - suppression, mis-statement and willful default payment of appropriate leviable duty in the matter by choosing not to opt for provisional assessment in terms of Rule 7 of the Central Excise Rules, 2002 - extended period of limitation - HELD THAT:- It is evident that the Show Cause Notice for interest on differential duty on the escalated value was raised on 09/09/2013 i.e. well beyond normal period of limitation of one year from (31 March 2012) the date of payment of differential duty under the last of the aforesaid invoices. It is also noted that the contention of the department with regard to mis-declaration, suppression etc. is clearly not attracted in the present matter as complete facts of the case and the scheme of assesse’s transactions, work methodology and clearance of finished goods was well within the knowledge of the Department. Any fraud or collusion or suppression for that matter cannot be read under the aforesaid scheme of operation to suggest any intention to evade payment of duty, more so since it has been a regular practice of the assessee’s working.
For a SCN invoking the larger period of time in terms of the provisions of Section 11A(1) ingredients thereto like fraud, collusion, willful misstatement, suppression of fact etc. are required to be evidently established. However, it is found that no such ingredient actually exists in the matter and merely holding non-availment of provisional assessment procedure as a valid ground to invoke longer limitation to understating belies reasonability and logic. For a show cause notice invoking normal period of limitation, it is required to be served on the noticee within one year of the relevant date and the period of one year would be required to be counted from the date of the return for the month concerned with short payment of duty. In the present case the notice is issued on 19.09.2013, which is well beyond normal period of limitation - the extended period of limitation is not invokable in the facts and circumstances of the case. The demand for payment of interest being beyond normal period of limitation is therefore unsustainable and liable to be set aside.
Whether the appellant is liable to pay the interest on supplementary invoices by invoking extended period of limitation or not? - HELD THAT:- The said issue has been dealt by this Tribunal in the case of COLLECTOR OF CUSTOMS, MADRAS VERSUS TVS. WHIRLPOOL LTD. [1996 (4) TMI 232 - CEGAT, MADRAS] and as maintained by the Hon’ble Apex Court in CCE VERSUS TVS WHIRLPOOL LTD. [1999 (10) TMI 701 - SC ORDER] wherein it has been held by the Apex Court that “it is only a reasonable time that the period of limitation that applies to a claim for the principal amount should also apply to the claim for interest thereon.”
Thus, the extended period of limitation is not invokable for the facts and circumstances of the case as the appellant has paid the duty on the supplementary invoices for the material period prior to issuance of Show Cause Notice and the same appropriated vide the impugned order. In that circumstances, the extended period of limitation for demand of interest, is not invokable. Consequently, the demand of interest on supplementary invoices is barred by limitation.
The impugned order qua demanding interest on the duty paid on supplementary invoices is set aside. Under the circumstances, no penalty is imposable on the appellant and the same is also set aside.
Appeal disposed off.
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2024 (9) TMI 1408
Refund of accumulated Cenvat Credit under Rule 5 of Cenvat Credit Rules, 2004 - supply to Mega Power Project and to SEZ - HELD THAT:- The facts are not in dispute that the appellant is a manufacturer of excisable goods which has been cleared to Mega Power Projects and SEZ units. Therefore, the appellant filed refund claim for accumulated Cenvat Credit under Rule 5 of Cenvat Credit, 2004. The said credit can be refunded in terms of CBEC circular no. 1001/8/2015 CE 8 dated 28.04.2015.
Further, the issue has been examined by this Tribunal in the case of CCE, FARIDABAD VERSUS M/S DELTON CABLES LTD. [2017 (5) TMI 557 - CESTAT CHANDIGARH] with regard to clearance to Mega Power Project and observed 'As the issue on account of clearances 100% EOU mega projects has already been attained finality, therefore we hold that the Ld Commissioner (A) has rightly allowed the refund claims to the respondents.'
As the appellant has cleared goods to Mega Power Projects and the SEZ units, therefore, the appellant is entitled for refund of accumulated Cenvat Credit lying in their cenvat credit account in terms of Rule 5 of Cenvat Credit Rules, 2004 - there are no merit in the impugned order.
The adjudication order sanctioning the refund claimed to the appellant is restored - appeal allowed.
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2024 (9) TMI 1407
Waiver of tax under CST Act - difficulties in obtaining C-Forms - HELD THAT:- A decision has been taken in regard to these issues by this Division Bench in SRI SRINIVASA RICE MILL VERSUS COMMERCIAL TAX OFFICER AND OTHERS [2024 (9) TMI 1316 - ANDHRA PRADESH HIGH COURT], where it was held that 'It would be inequitable, to grant relief to those dealers who approached in the year 2019 while denying such relief to the dealers who approached later. In any event, the applications are only for the purposes of ascertaining the eligibility of the dealers/petitioners for grant of waiver'.
Following the above said Judgment, these Writ Petitions are disposed of with the following directions:-
1. The Endorsements issued by the respective tax authorities are set aside.
2. The respective tax authorities, shall consider the applications of the petitioners afresh and grant waiver to those petitioners who are able to comply with the requirements of the documents set out in the memos.
Petition disposed off.
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2024 (9) TMI 1406
Liability to pay stamp duty and penalty on the agreements to sell executed prior to the sale deed executed in favour, in respect of two properties - determination of real and true meaning of the instrument by ascertaining the intention of the parties from the contents and the language employed in the whole instrument - HELD THAT:- Section 4(1), makes it clear that where several instruments are executed for completing a transaction, the principal instrument alone shall be chargeable with duty prescribed in Schedule I. The proviso makes it clear that the duty chargeable on the instrument so determined shall be the highest duty which could be chargeable in respect of any of the said instruments forming part of the same transaction. Each of the other instruments is chargeable with a fixed duty. That apart, sub-section (2) also gives an opportunity to the parties to determine for themselves, which of the instruments shall be deemed to be the principal instrument.
In the instant case, in the documents, though there was a clause for conveyance between the vendors and purchasers in relation to the respective properties, the value of the properties were above Rs.100/- and there was also a clause by which possession was admittedly handed over on the date of the agreement, implying acquisition of possessory rights protected under Section 53A of the Transfer of Property Act, which requires payment of proper stamp duty and registration as mandated under Section 17 of the Registration Act - Even considering the contention of the appellant, that the sale agreements ultimately concluded in the sale deed on which stamp duty was paid, would not by ipso facto absolve the primary liability of paying the appropriate stamp duty at the time of execution of the sale agreement as it was the principal document. Therefore, Section 4 of the Act cannot come to the aid of the appellants. Therefore, all these six documents ought to have been necessarily stamped and registered.
The trial Court rightly observed that the subsequent sale deed cannot be construed as a principal transaction and the agreements to sell would be treated as the principal conveyance as per Explanation I of Article 25 of Schedule-I of the Act and impounded all these documents and directed to send the same to the Collector for adjudication of stamp duty and penalty. After, a detailed analysis, the High Court held that no case for interference was made out by the appellants, which, we affirm, to be correct.
There are no reason to interfere with the orders passed by the Courts below. Accordingly, this appeal fails and is dismissed.
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2024 (9) TMI 1405
Denial of promotional benefits - Adoption of sealed cover procedure - Whether by the mere grant of prosecution sanction, it could be said that the prosecution for a criminal charge is pending against the respondent Government Servant and whether grant of sanction for prosecution could be a valid ground for putting the DPC recommendations in a sealed cover?
HELD THAT:- The disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge-sheet is issued. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure.
It is not in dispute that the sanction to prosecute the respondent was granted on 2nd June, 2006 and the charge sheet was filed by CBI, after completion of investigation on 25th October, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on 22nd February, 2007, wherein the sealed cover procedure was adopted qua the respondent. It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened. Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened. Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law.
There are no hesitation in holding that the impugned judgment of the High Court dated 26th April, 2013 is based on apropos consideration of facts and law and hence the same does not warrant interference.
The ‘Sealed Cover’ wherein the assessment of the respondent was considered by the DPC was presented to the Court by learned counsel for the appellant and was opened. The letter shows that the DPC assessed the respondent to be ‘FIT’ for promotion. Consequential steps in light of the above recommendations shall follow - appeal dismissed.
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2024 (9) TMI 1404
Dishonour of Cheque - legally enforceable debt or not - quashing of summons issued based on factual defences - whether the security cheques given by the petitioner were towards any future consideration or legally enforceable debt? - HELD THAT:- It is relevant to note that this Court can quash the summoning orders issued in NI Act cases in the exercise of its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) if such unimpeachable material is brought forth by the accused persons which indicates that they were not concerned with the issuance of the cheques or that no offence is made out from the admitted facts.
The Hon’ble Apex Court in the case of Rathish Babu Unnikrishnan v. State (NCT of Delhi) [2022 (4) TMI 1434 - SUPREME COURT] had discussed the scope of interference by the High Court against the issuance of process under the NI Act held that 'to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited.'
In the case of Sunil Todi and Others v. State of Gujarat and Another [2021 (12) TMI 175 - SUPREME COURT], the cheques were issued by the accused as a security deposit under a power supply agreement, and on non-payment of the amount, the cheques were dishonoured on its presentation. It was contended on behalf of the accused that the cheques were intended at all material times to be security towards debt and were not intended to be deposited and would not attract the provisions of Section 138 of the NI Act on its dishonour.
Section 138 of the NI Act specifically mentions that the cheque must have been issued for discharge of not only any debt but can also be for “other liability”. It is, therefore, not necessary that when the cheques are issued, the drawer had any debt to discharge on the date of issuance - the allegations made in the complaint, at the stage when the complaint is sought to be quashed at the initial stage, are to be taken as correct unless evidence of unimpeachable character has been produced.
When there is a legal presumption and where facts are contested, it would not be judicious for the Court to separate the wheat from the chaff under the garb of inherent powers. It has been held time and again that the power of quashing criminal proceedings while exercising power under Section 482 of the CrPC should be exercised sparingly and with circumspection.
This Court finds that the petitioner, at best, has raised question of fact mixed with question of law which cannot be examined in the limited jurisdiction under Section 482 of the CrPC, for it is desirable that the same be left to be adjudicated upon based on the evidence led by both sides at the trial - Petition dismissed.
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2024 (9) TMI 1403
Auction purchaser of secured asset - Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- The Judgment of the Apex Court in GOVIND KUMAR SHARMA & ANR. VERSUS BANK OF BARODA & ORS. [2024 (5) TMI 364 - SUPREME COURT] was rendered in the circumstances where the entire money has been refunded and there has been no issue of delivery of possession of property. In the instant case respondent-bank as already noted above has undertaken the endeavour to deliver possession of the subject property to the petitioner. In that view of the matter this Court do see any justification in petitioner claiming compound interest on the amount deposited. However, this Court is of the considered view that petitioner is entitled for simple interest at the rate of 12% p.a. for the period claimed in the writ petition.
Petition disposed of.
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9911796707
