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2020 (9) TMI 1228 - AUTHORITY OF ADVANCE RULING, MADHYA PRADESH
Determination of time of supply - upfront payment made by the applicant to the State Government is in the nature of Deposit in terms of Section 2(31) of the MP GST Act, 2017 or is in the nature of advance paid? - section 13(3) of the MP GST - HELD THAT:- Section 2(31) of MP GST Act is in respect of definition of “consideration” and Section 13(3) of MP GST Act is in respect of time of supply of service. The definition of consideration is speaks about the value of service and proviso to section 2(31) of CGST Act, is about the deposit not about advance. The liability to pay GST on services shall arise on the basis of time of supply of service not from the definition of consideration given in Section 2(31) of MP GST Act. In this case, the applicant is liable to pay GST on the amount of revenue share under reverse charge mechanism as applicable in terms Si.No.5 of of Notification No.13/ 20017-CT(rate) DATED 28.06.2017 and there is specific section 13(3) of MP GST Act in respect of time of supply of service for the person who are paying GST under the reverse charge mechanism. Hence, as per Section 13(3) of MP GST, the time of supply is date of payment as entered in the books of account of the recipient i.e. Government or the date on which the payment is debited in his(Applicant) bank account whichever is earlier.
There is a difference between advance money and deposit amount. The advance is received toward goods or services to be supplied in future. On the other hand deposit money is received only as a security. It is generally not used by the supplier in the course of supply of goods or services. The upfront payment made by the applicant is adjusted toward the services to be supplied in future after commencement of excavating minerals which clearly shows that the said payment is and advances against the future payment, hence the section 2(31) of MP GST Act which speaks about the deposit is not applicable in the case of applicant.
In this case the upfront payment is payable in three installments and after payment of third installment, the State Government shall grant the mining lease to the successful bidder - there is no clause of refund of that amount after allotment of mines on lease, hence the payment made to the state government is no more deposit after allotment of mines but is advance which will be adjusted against the future payment of revenue share amount. In this case, the mining lease is granted after the payment of third installment. The upfront payment made to the state government is treated as advance against the revenue share from the date of allotment of mines and the GST is payable on this advance from the date of allotment of mines to the applicant.
As per the proviso to 2(31), a deposit would be consideration if the supplier applies the deposit as consideration. This is not same as application of the deposit towards consideration. Thus, an amount would attain the character of “Deposit not attracting tax” where the amount is not to be adjusted against the consideration unless an event occurs or does not occur. In this case, the upfront payment is to be adjusted against consideration at the first available opportunity. Thus the supplier, i.e. GoMP is applying the deposit as consideration - dominion over an amount of payment or liability to refund back a sum received in case of cancellation of a contract does not alter the nature of the money given. As per the terms of a contract, both the security deposit and advance may have to be paid back. Therefore, dominion over moneys advanced does not change the character of the amount paid upfront.
There is clear provision in law for liability of GST in case of supplies in respect of which tax is paid or liable to be paid on reverse charge basis in case of applicant under the provision of Section 13(3) of MP GST Act, 2017 - the applicant is liable to pay service tax from the date of allotment of mines on lease by the government as the payment made by the Applicant to state Government is an advance.
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2020 (9) TMI 1227 - AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH
Levy of Entry Tax - Tran-I provision of MPGST - proviso to Section 98 (2) of the GST Act 2017 - HELD THAT:- A plain reading of Section 97(2) of GST Act clearly implies that the any question relating to Input Tax in TRAN-1. which falls under transitional provision, shall be out of purview of Advance Ruling. Admissibility of input tax credit, as given in section 97(2) of GST Act relates to ‘input tax credit’ as defined in Section 2(63) of GST Act 2017 read with Section 2(62) ibid and not the Input Tax in TRAN-1 carried forward in TRAN-1. which categorically pertains to pre-GST regime. Thus, the question placed does not fall within four corners of issues defined for seeking advance ruling under Section 97(2) ibid. Hence the application does not hold ground to be admitted on this count.
It is important to mention here that Deputy Commissioner, Commercial Tax, Sagar Division Madhya Pradesh had already decided the issue of getting credit of Entry Tax in TRAN-1 in his order dated 24.02.2020 in the applicant’s case of Entry Tax Act pertaining to period 01.04.2017-30.06.2017.
Proviso to Section 98 (2) of the GST Act 2017 - HELD THAT:- The applicant had not only raised this particular issue, in respect of which Advance Ruling is sought vide application under consideration, before the jurisdictional officers but also the issue has been already decided in the applicant’s Entry Tax Act case for the period 01.04.2017-30.06.2017.
Application rejected.
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2020 (9) TMI 1226 - AUTHORITY FOR ADVANCE RULLING, UTTAR PRADESH
Input Tax Credit - recovery of expenses from DISCOMs as well as UPPTCL and other power companies by way of book entries - inclusion of incidental expenses in value of supply - recovery against certain expenses such as interest cost, salary, depreciation etc. - transfer of miscellaneous incomes of applicant Corporation to DISCOMs, UPPTCL and other power companies will attract GST - HELD THAT:- The relationship between Applicant Corporation and its subsidiaries is undoubtedly commercial. The fact that subsidiaries i.e. DISCOMs are providing exempt supply is immaterial for the purpose of determination of nature of activity between Corporation and its subsidiaries. The activities which are listed in para 5 of the Application and for which “Operational & Management Expenses” are being incurred and passed on are apparently carrying a 'Consideration.' There is also no denying in the fact that it is for the furtherance of business. Thus, the activities squarely meet the twin test laid down under Section 7(1) of the CGST Act for the purpose of being identified as 'Supply'. The activities for which O & M Expenses are being passed on and collected are 'Supplies' for the purpose of Section 7(1) of CGST Act, the same would be liable to be charged to GST as per the applicable rate laid down under the law and in accordance with the provisions of Section 15 of CGST Act.
Quantum of O & M Expenses chargeable to GST - HELD THAT:- Most of the expenses on individual basis are taxable e.g. expenses passed on for the employees benefit or salary or for re-imbursement purpose are not relatable to normal employer-employee relationship, thereby covered under Schedule III under Section 7 of the CGST Act. The employees recruited by the one office and working in another office does not have any employer-employee relationship with the office where they are actually working. The expenses incurred on such employees claimed from the actual employer would constitute supply and accordingly liable to pay GST. Same is the case with 'Medical Expenses' or 'Recruitment Expenses'. Accordingly, the expenses incurred on account of heads claimed to be exempted are also liable to be charged to GST.
Transfer of miscellaneous income of the Applicant Corporation to DISCOMs - HELD THAT:- The recovery of expenses are classifiable as 'Supply', so would be the 'Income'. The same is also classifiable as 'Supply' and would be chargeable to GST.
Availability and admissibility of Input Tax Credit of GST paid on the supplies - HELD THAT:- The provisions governing Input Tax Credit are separately mentioned under CGST Act. Whether ITC is admissible on any Input Supply of Goods and Services has to be examined with reference to provisions of Section 16 & 17 of the CGST Act read with Rule 36 of CGST Rules. Therefore, at this stage it can only be said that the admissibility of Input Tax Credit of GST paid on supplies mentioned would depend upon meeting on the criteria / conditions specified under Section 16 & 17 read with Rule 36.
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2020 (9) TMI 1225 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Classification of goods - solar power generating system - classified under chapter 85 or not - What constitutes solar power generating system under chapter 85, what are the various components and technical requirements that together constitutes solar power generating system under chapter 85? - HELD THAT:- As per Rule 2b of General Rules for interpretation of the first schedule (Import Tariff), any reference in a heading to a material / substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. As per Rule 3a of the said Rules of interpretation, the heading which provides the most specific description shall be preferred to heading having more general description. According to Rule 3b of the Rules of interpretation, in case Rule 3a is not applicable, the goods shall be classified as if they consisted of the material/ raw material which give their essential character. In the applicant's case, the essential character to Solar Power Generating System is Solar Panel consisting of multiple solar cells - Chapter Note 9 of Chapter 85 states that for the classification of the articles defined in this Note, headings 8541 and 8542 shall take precedence over any other heading in this Schedule, except in the case of heading 8523. As such, the four digit HSN of Solar Power Generating System is 8541.
What constitutes solar power generating system under chapter 85, what are the various components and technical requirements that together constitutes solar power generating system under chapter 85? - HELD THAT:- The Ministry of New and Renewable Energy (MNRE) in various instances has also approved entire BOQ consisting of various parts e.g. cables, module, monitoring structures, spares etc. as essentials of “Solar Power Generating System” - Solar Panel, Inverter, Controller and Battery are essential components of 'Solar Power Generating System'. But, we also hold that cable & monitoring structures are supplementary components of 'Solar Power Generating System'.
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2020 (9) TMI 1224 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD BENCH
Seeking extension of time for implementation of plan which was granted by Committee of Creditors (CoC) for 180 days - HELD THAT:- The Resolution provides for appointment of RP as the person incharge to look after the implementation of Resolution Plan. The Resolution Plan has also addressed the issues which resulted into Insolvency of the Corporate Debtor and future business plan so as to such situation does not arise.
The revised ‘Resolution Plan’ filed with the Application meets the requirements of Section 30(2) of 1&B Code, 2016 and Regulations 37, 38, 38(1A) and 39 (4) of IBBI (CIRP) Regulations, 2016. The Resolution Plan’ is also not in contravention of any of the provisions of Section 29A. The Resolution Professional has also certified that the Resolution Plan’ approved by the CoC does not contravene any of the provisions of the law for the time being in force. The Compliance Certificate is placed on record. The ‘Resolution Plan’ has been approved by the CoC with 100% voting share.
The revised ‘Resolution Plan’ is hereby approved, which shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders involved in the Resolution Plan including Resolution Applicant - Application disposed off.
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2020 (9) TMI 1223 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Validity of entire action of the Resolution Professional - seeking direction to Resolution Professional to call the Suspended Management in the CoC meeting after giving the Agenda and to supply/provide the copy of Resolution Plan received by the RP before taking any decision of the Resolution Plan whether being accepted or not - HELD THAT:- On perusal of the records, it is found that the Hon’ble Gujarat High Court has passed the order on 18.06.2019 on the application so made by the Applicant, wherein certain conditions were imposed by the Hon’ble High Court - That itself shows that the Applicant cannot meet the Bank officials since they are the consortium of Bank and CBI is still investigating further.
In view of such order passed by the Hon’ble High Court, Applicant again moved a modification application for modification of the conditions. The said application was disposed of by the Hon’ble High Court on 13.11.2019. However, by that time all the meetings of the CoC was/were concluded.
Application dismissed as being not maintainable.
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2020 (9) TMI 1222 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Dishonor of Cheque - intent to clear the debt of the Operational Creditor or not - default and noncompliance of the order of this Tribunal - HELD THAT:- Admittedly, the cheques which were issued under the MoU have bounced and there is default on the part of the Corporate Debtor which breached the MoU/Agreement filed before this Tribunal. Submissions of both the sides show that in spite of the MoU, the Operational Creditor did give time to the Corporate Debtor to make payments and did not immediately rush to deposit the cheques. The cheques when ultimately deposited got dis-honoured.
There are no reason why the Application as filed by the Operational Creditor should not be allowed. On the face of the record, the Corporate Debtor is unable to clear its dues. Now, when the unlock periods are going on, still the Corporate Debtor is not in a position to say that the debt will be paid by a particular date. Though learned Counsel for Original Appellant for Corporate Debtor seeks one more opportunity to pay and claiming that Annexure-R3 of Reply shows it had moved Mentioning Application to extend time to pay, no sincerity to pay ₹ 1.46 Crores is demonstrated. Again, in a settlement between parties, this Tribunal will not on its own extend periods, not agreed.
Application allowed.
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2020 (9) TMI 1221 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI PRINCIPAL BENCH
Contempt application for invoking Section 425 of the Companies Act 2013 for contempt jurisdiction against the Respondents - seeking direction to Respondents to pay advocate fees for the services rendered by the applicant during CIRP period to the respondent - HELD THAT:- Contempt jurisdiction is an extraordinary jurisdiction, not exercisable by ordinary courts/ Tribunals, unless it is specifically conferred upon. NCLT, when it deals with IBC matters, it is Adjudicating Authority created by IBC, no way connected with Companies Act, and the jurisdiction is not interchangeable between Adjudicating Authority under IBC and the Tribunal under Companies Act 2013, except to the extent law permits.
Contempt jurisdiction is in fact a jurisdiction conferred upon Constitutional Courts, which is hardly percolated down. It is given in a few enactments, it cannot be stretchable in the way we perceive, therefore it is made clear that IBC is devoid of contempt jurisdiction, accordingly this Application is dismissed leaving it open to the Applicant to seek remedy through recourses available.
Contempt application dismissed.
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2020 (9) TMI 1220 - NATIONAL COMPANY LAW TRIBUNAL:, NEW DELHI
Seeking approval of Resolution Plan - HELD THAT:- The applicant is seeking relief which was not considered by the Bench at the time of approval of Resolution Plan by this Bench as well as denied any relief by the Income Tax Authority and hence, they approach this Bench by filing present application.
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2020 (9) TMI 1219 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - pendency of the claim filed by the applicant in other CIRP proceeding - time limitation - HELD THAT:- Mere plain reading of the provision shows that Section 18(1) of Limitation Act says that Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
Whether the acknowledgement of debt can change the date of default in view of Section 18 of the Limitation Act or not? - HELD THAT:- Specially Sub Section 18(1) of the Limitation Act, which says that the Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
Article 137 of the Limitation Act says that if there is no period is prescribed then an application or suit shall be filed within 3 years when the right to apply accrues, it means a person may file an application within 3 years from the date when the right to apply accrues and here in this case, the right to apply accrues, when the default has occur and the NPA was declared on 31.12.2015, therefore, right to file an application under Section 7 accrues within 3 years from the date of NPA i.e. on 31.12.2015 but when we shall consider the Section 18 in which it is clearly mentioned the word property or right, which means the acknowledgement in respect of property or right, if it is made in writing then the period of limitation shall be computed from the date when the acknowledgement in writing was made.
As per the NPA the period of limitation comes to an end on 30.12.2018 but prior to that an acknowledgement of debt was made in writing by the Corporate Debtor on 18.07.2017.
Under Section 18 of the Limitation Act, if the acknowledgement of debt in writing and signed by the person before the expiration of prescribed period of limitation then the limitation shall be computed from the time when the acknowledgment was so signed and in this case, the acknowledgement was signed by the Corporate Debtor on 18.07.2017, therefore, the limitation runs from that day and the present application was filed by the corporate Debtor on 04.03.2020 hence, the application is within time.
Whether during the pendency of the claim filed by the applicant in other CIRP proceeding, this application is maintainable or not? - HELD THAT:- Section 12A is not applicable, so far the claim filed by the person before the IRP is concerned. The decisions upon which, the petitioner has placed reliance, in our considered view the facts of that decision is different from the facts of the case in hand, therefore, none of the decision will help the respondent to substantiate its submission that a person can withdraw its claim only under Section 12A of the IBC with the approval of the 90% of the member of the CoC - there are no option but to hold that there is no force raised on behalf of Ld. Counsel for respondent that the petition filed by this applicant is not maintainable because he had already filed its claim before the RP in the CIRP initiated against the parent company of the respondent i.e. EIEL.
The applicant has succeeded to establish that there is a financial debt and Corporate Debtor is in default in making the payment of that financial debt, the application is complete - Application admitted - moratorium declared.
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2020 (9) TMI 1218 - DELHI HIGH COURT
Retrenchment of 297 employees by Press Trust of India - Seeking reinstatement with back wages and consequential benefits - retrenchment on the ground that there was no work for three categories of employees namely Attender, Transmission and Engineering - Section 25-F of the Industrial Disputes Act - HELD THAT:- It is well settled that the parties have to amend their pleadings to incorporate new facts and documents. This Court depreciates the manner in which the new averments and documents beyond pleadings are sought to be filed without permission of this Court, at such a belated stage, for which no explanation has been given. The new pleadings and documents filed by the petitioners on 25th August, 2020 are not even supported by an affidavit. There is merit in the respondent's submission that the documents now filed do not appear to be genuine on various grounds inter alia that 141 letters of retrenched employees in W.P.(C) 10596/2018 are all undated; the signatures of many retrenched employees do not tally with their signatures in their service record; the signatures of 35 employees in their letters in W.P.(C) 10596/2018 do not match with their letters in W.P.(C) 10605/2018; the petitioners have not filed any requisition for calling the general body meeting, notice of meeting, agenda notes of meeting.
The petitioners have to lead evidence before the Industrial Tribunal to prove these disputed documents in accordance with law. The new averments and documents filed by the petitioners along with the written submissions dated 25th August, 2020 are beyond pleadings and therefore, the same are not taken on record - this Court is of the view that both the petitioners have failed to show the authority to file the writ petition on behalf of 297 retrenched employees either in the writ petition or the documents filed along with the writ petition as on the date of filing of these writ petitions.
Both the writ petitions are dismissed on the ground that the retrenched employees have statutory remedy under the Industrial Disputes Act and no 'Exceptional circumstances' have been made out by the petitioners. The retrenched employees are at liberty to avail appropriate remedies available to them under the Industrial Disputes Act - petition dismissed.
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2020 (9) TMI 1217 - SC ORDER
Declaration of account as NPA or not - it is submitted that no account shall become NPA atleast for a period of two months - HELD THAT:- At the request of the Mr. Tushar Mehta, learned Solicitor General, the matter is adjourned for 10.09.2020.
The accounts which were not declared NPA till 31.08.2020 shall not be declared NPA till further orders.
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2020 (9) TMI 1216 - DELHI HIGH COURT
Seeking grant of regular/interim bail - petitioner is suffering from multi-system ailments - HELD THAT:- Keeping in view the medical condition of the petitioner, the petitioner is admitted to interim bail for a period of 10 weeks, on his furnishing a personal bond in the sum of ₹ 1,00,000/- with one surety of the like amount to the satisfaction of the concerned Jail Superintendent/Duty MM and subject to the conditions imposed.
Petition allowed.
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2020 (9) TMI 1215 - MADRAS HIGH COURT
Dishonor of Cheque - prosecution of Directors and others for vicarious liability - Section 141 of the Negotiable Instruments Act - HELD THAT:- In this case, the statutory notice was not served on the petitioner, since the petitioner was resigned from A1 company on 01.08.1998 and the same was accepted in the board meeting, which was held on 08.09.1998. To prove the resignation, the petitioner submitted Form 32, dated 11.09.1998 issued by the Registrar of Companies, Chennai. Admittedly, the cheque was presented for encashment on 03.09.1998 and the statutory notice was issued on 11.09.1998. In the sworn statement, it is stated by the respondent that the notice was received by A1 company on 14.09.1998 and as regards, notice sent to other accused, it was returned for the reason that no such person available in the noticee address, which fortifies and confirms that the petitioner was resigned from A1 company on 01.08.1998.
It is not in dispute that the petitioner is a Director of A1 company and in the complaint lodged by the respondent except paragraph No.7, nothing is averred against the petitioner. It is seen from the paragraph No.7 of the complaint that except mentioning the magical word that the accused are incharge of the management and affairs of the company, there is nothing more - this Court finds that there is no factual averments to show how the petitioner is responsible for the business and conduct of A1 company to invoke provision under Section 141 of the Negotiable Instruments Act.
Petition allowed.
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2020 (9) TMI 1214 - DELHI HIGH COURT
Authorizing Serious Frauds Investigation Office (SFIO) to institute proceedings - Section 241 of the Companies Act, 2013 - HELD THAT:- Since the affairs of operation of NSEL have been suspended for almost over six years, prima facie, it would be difficult to accept that a petition under Section 241 (2) of the Companies Act, 2013 would be maintainable. Mr Ahluwalia states that he requires instructions to respond to this contention. He states that he would require some time for the said purpose as the concerned officers are currently not available because two of them have been diagnosed positive for Covid-19.
At the request of Mr Alhuwalia, list on 15.10.2020.
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2020 (9) TMI 1213 - NATIONAL COMPANY LAW TRIBUNAL CHANDIGARH
Seeking issuance of directions against the respondent not to threaten the applicant or the security personnel at the site of the corporate debtor and not to enter into the premises of the land belonging to the corporate debtor - Section 19(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The respondent and their men or anybody claiming through them shall not create any hindrance or obstacle to the applicant or any personnel working under his control in any manner. The respondents cannot claim any right on the common road. If the respondent or its employees or anybody claiming through them create any disturbance or hindrance to the Resolution Professional or to any of his staff or security personnel in any manner, he may approach this Authority by filing an appropriate application for appropriate directions.
Application disposed off.
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2020 (9) TMI 1212 - ITAT JAIPUR
Reopening of assessment u/s 147 - No notice issued u/s 148 - HELD THAT:- As the assessee while filing of its return has made a note therein it was mentioned that no notice u/s 148 was served upon the assessee and moreover, the assessee have also served a letter to the revenue thereby categorically mentioning that no service of notice was effected upon the assessee and even the revenue in his reply dated 07/11/2017 has no where mentioned that notice u/s 148 was ever served upon the assessee - merely participation of the assessee in the proceedings is not a waiver to the service of notice u/s 148 upon the assessee. As per record, prior to completion of reassessment, the assessee has raised a categorical objection that he has not been duly served in accordance with Section 148 of the Act. Therefore, the ‘proviso’ to Section 292BB is attracted and Revenue cannot take advantage of the main portion of Section 292BB.
We found that the revenue has failed to bring on record any positive evidence to prove that the notice u/s 148 of the Act was served upon the assessee whereas the assessee has successfully placed on record letter dated 07/11/2017 issued by the department wherein it has no where been mentioned that the notice u/s 148 was ever served upon the assessee - we can safely conclude that there was no ‘proper service’ of notice u/s 148 of the Act was effected in the present case before completion of reassessment u/s 147 r.w.s 143(3). Therefore, we set aside the orders of the lower authorities and quash the proceeding u/s 148 - This ground of appeal is allowed.
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2020 (9) TMI 1211 - SC ORDER
Benami Transactions - stay proceedings - third party interest created in regard to the properties in question - HELD THAT:- In view of the fact that the appeal is still pending, the interim order that has been passed by the Division Bench [2021 (6) TMI 1065 - GUJARAT HIGH COURT] will continue to operate. There shall be stay of the impugned order to this extent.
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2020 (9) TMI 1210 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - default in payment of conducting fees, water bills, electricity bills and property tax - Operational creditors or not - Operational debt or not - existence of debt and dispute or not - HELD THAT:- When the enhanced rent payable under a tenancy agreement by the Corporate Debtor itself does not amounts to an Operational Debt, the municipal taxes and the Electricity Bills payable by Corporate Debtor under a business conducting agreement/lease agreement stands on lesser footing and cannot be considered as Operational Debt. Therefore, there are no hesitation in holding that the above amounts claimed by the Operational Creditor does not fall within the definition of Operational Debt and the petitioner cannot be termed as “Operational Creditor”.
Time Limitation - HELD THAT:- The company petition is filed on 12.03.2018. All the claims prior to 12.03.2015 are barred by limitation, since we are dismissing the above Company Petition on the very nature of the claim and the locus of the applicant, we are not dealing with each and every contention raised by the respondents.
The Company Petition is not maintainable before this Tribunal and is liable to be dismissed - petition dismissed.
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2020 (9) TMI 1209 - MADHYA PRADESH HIGH COURT
Seeking quashment of FIR at the investigation process - activities promising return of profits upon soliciting deposits in the form adviser fee / royalty - cognizable offence under the provisions of PID Act - HELD THAT:- The police in the present case has registered FIR not on the basis of complaint of a victim and now seeks to find whether there are any victims or not, which is absolutely against the ethos of investigative processes.
The provisions of IPC and PID Act are not attracted prima facie in this case, that there is an statutory bar against taking cognizance by Court for any such offence, which is in the domain of SEBI Act, 1992, which requires complaint to be filed by SEBI Board. This case is squarely relates to breach of provisions of SEBI Act, 1992 and SEBI Regulations, 2013 and only Special Court is empowered to take cognizance on the basis of complaint filed by SEBI Board. The police was not authorized to register an FIR in such case because there is a specific statutory bar in such matters.
What the police could have done was that bring to the notice of SEBI Board the alleged violation being committed by the applicant Company. After providing vital information and inputs to the SEBI Court, the matter would have been looked into by SEBI Board only and appropriate complaint could have been filed by SEBI Board before the competent Special Court - instead of doing so, the police has embarked upon registration of FIR in such a case and by doing so, has travelled beyond the scope of its competence and jurisdiction.
Application allowed.
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