|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1346 Records
-
2021 (1) TMI 1354
Maintainability of petition - availability of alternative remedy - Forfeiture of amount of performance guarantee (security) submitted by the petitioner - period of two years would start from the date of completion of the work or not.
Maintainability of petition - availability of alternative remedy - HELD THAT:- The word ‘efficacious’ means able to produce the intended effect or result. The Gauhati High Court in Abdul Sammad vs. Executive Committee of the Marigaon Mahkuma Parishad, [1980 (1) TMI 217 - GAUHATI HIGH COURT], held that it is well-known that the meaning of the term "efficacious" is "able to produce the intended result". The High Court negatived the preliminary objection raised by the respondents with regard to maintainability of the writ petition, as its view was that the alternative remedy provided in that case was not likely to produce the intended result.
In Raja Anand v. State of Uttar Pradesh, [1966 (9) TMI 135 - SUPREME COURT], the Supreme Court held that where the jurisdiction of an administrative authority depends upon a preliminary findings of facts, the High Court is entitled in a writ proceeding to determine upon its independent judgment whether or not the finding of facts is correct.
In Joshi Technologies International Inc. v. Union of India and Others, [2015 (5) TMI 521 - SUPREME COURT], the Supreme Court held that the State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discrimination. If the facts of such case are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution.
The question is no longer res integra that if instrumentality of the State acts contrary to the public good, public interest unfairly, unjustly, unreasonably, discriminatory and violative of Article 14 of the Constitution of India in its contractual or statutory obligation, the writ petition would be maintainable.
Forfeiture of amount of performance guarantee (security) submitted by the petitioner - HELD THAT:- In the facts of the case, action of the respondents in withholding the amount of the performance guarantee (security) of the petitioner is held to be arbitrary and unreasonable, being violative of Article 14 of the Constitution of India. The respondents are therefore not justified in withholding the amount of performance guarantee (security) deposited by the petitioner and then insisting upon the petitioner to invoke arbitration clause rather than invoking writ jurisdiction of this Court under Article 226 of the Constitution of India - In the facts of the present case, requiring the petitioner to go through the process of dispute resolution system provided for under Clause 12 of the agreement, would amount to subjecting him to lengthy proceedings without there being any remedy of interim relief, inasmuch as the question raised in the present writ petition is purely legal one, based on interpretation of Clause 29 of the Contract Data and the impugned action of the respondent is totally against the public good, being highly unjust, unfair, unreasonable and arbitrary. Clauses v, vi & vii of the exceptions to the rule of alternative remedy, as enumerated in Para-16 above, are therefore clearly attracted in the present case.
Conclusion - The respondents are directed to refund the entire amount of performance guarantee (security), after adjusting the amount already paid to the petitioner, together with interest @ 6% per annum from the date petitioner first demanded the refund i.e. from 03.05.2018, till the date of actual refund, both on the amount already paid and now due to be paid, for the period such amount was unduly withheld by the respondents.
Petition allowed.
-
2021 (1) TMI 1353
Appointment of the Principal Secretary to the Government of Haryana as the nominee arbitrator of HARSAC, a nodal agency of the Government - mandate of the arbitral tribunal stood terminated due to the failure to pronounce the award within the prescribed statutory time period under the Arbitration and Conciliation Act, 1996 or not - HELD THAT:- The appointment of the Principal Secretary, Government of Haryana as the nominee arbitrator of HARSAC which is a Nodal Agency of the Government of Haryana, would be invalid under Section 12(5) of the Arbitration and Conciliation Act, 1996 read with the Seventh Schedule. Section 12(5) of the Arbitration Act, 1996 (as amended by the 2015 Amendment Act) provides that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties, or counsel, falls within any of the categories specified in the Seventh Schedule, shall be ineligible to be appointed as an arbitrator.
In exercise of power under Section 29A(6) of the Arbitration and Conciliation Act, 1996 (as amended), Justice Kurian Joseph (Retd.), former judge of this Court is appointed, as the substitute arbitrator, who will conduct the proceedings in continuation from the stage arrived at, and pass the Award within a period of 6 months from the date of receipt of this Order. The Arbitrator may direct the parties to address final arguments and take him through the entire record of the case.
The appointment of the Sole Arbitrator is subject to the declarations being made under Section 12 of the Arbitration and Conciliation Act, 1996 with respect to independence and impartiality, and the ability to devote sufficient time to complete the arbitration within the period of 6 months.
Matter disposed off.
-
2021 (1) TMI 1352
Reopening of assessment u/s 147 - eligibility of reasons to believe - validity of additions made pursuant to jurisdiction assumed u/s 147 on a ground altogether different from the ground for which reasons towards escapement was recorded u/s 148(2) - HELD THAT:- The legitimacy of addition made in the re-assessment proceedings de hors the reasons recorded is in question. In the circumstances, where the ground on which the jurisdiction u/s 147 of the Act was exercised have not been reckoned and acted upon in the re-assessment proceedings and no additions were carried out for any of such grounds recorded, the AO could not make additions on an altogether different ground which did not form part of the reasons recorded by him as held in Mohmed Juned Dadani [2013 (2) TMI 292 - GUJARAT HIGH COURT] and other judicial precedents recorded by the CIT(A).
Revenue could not controvert on facts that the additions or part thereof made derives its genesis from the ground taken in the reasons recorded. In the light of settled position of law, we see no error in the findings given by the CIT (A) in favour of the assessee. CIT (A) has rightly approached the issue and correctly applied the law. We thus decline to interfere. Appeal of the Revenue is dismissed.
-
2021 (1) TMI 1351
Assessment of trust - accumulation of 15% on the gross receipts OR 15% of the net receipt - HELD THAT:- This issue is no more res-integra. This Bench of the Tribunal in the assessee's own case [2020 (7) TMI 846 - ITAT KOLKATA] as held the assessee is entitled to the accumulation of 15% on the gross receipt as per provisions of Section 11 of the Act.
Disallowance of claim u/s. 11(2) - assessee submitted that the accumulation u/s. 11(2) of the Act should have been granted to the assessee as it filed Form No. 10B, as required under the Act - HELD THAT:- We find that the Hon'ble Karnataka High Court in the case of Gokula Education Foundation [2016 (11) TMI 1313 - KARNATAKA HIGH COURT] as held appeal is a continuous proceeding, it cannot be said that the CIT(A) had no authority to accept Revised Form No. 10 nor can it be said that Revised Form No. 10 could not at all be considered for allowing the claim made under section 11(2) of the Act.We find that the Tribunal was right in allowing the claim of the assessee under section 11 (2) of the Act.
Whether depreciation could be considered as application of funds? - This issue is no more res-integra. The Hon'ble Supreme Court in the case of Rajasthan and Gujarati Charitable Foundation [2017 (12) TMI 1067 - SUPREME COURT] adjudicated the issue in favour of the assessee. Respectfully following the same, we allow this ground of the assessee.
-
2021 (1) TMI 1350
Refund claim under Amnesty Scheme - assessee prays for adjusting the amount payable by the Revenue to assessee towards refund and grant Amnesty benefit - argument of appellant is that the online submission does not provide for a contingency canvassed by the assessee - HELD THAT:- The contention is merely noted to be rejected in limine. The reason now stated for not according the benefit of adjustment is unaccepted. In other words, to its advantage only. The grounds of appeal challenging intra-court appeal are completely untenable. Hence, appeal fails and dismissed.
-
2021 (1) TMI 1349
Nature of receipt - Membership fee received by the appellant society from members - revenue receipt or capital receipt - HELD THAT:- We find that a subscription or admission fee normally constitutes a capital receipt and not liable to tax and also transfer of income to reserve fund in compliance with the statutory provisions constitute a charge against the profits of the income.
From the very nature of Membership fee collected from members, it is clear that fees was not charged from the members for rendering any specific evidence by society. Further, there is no expressed provision in the Income Tax Act providing that such fees is taxable as revenue receipt.
Subscription or admission fee received from the class B members does not constitute a revenue receipt in the hands of the appellant society.
We will be failing in our duty, if we do not refer to the decision of Citizen Co-operative Society Limited[2017 (8) TMI 536 - SUPREME COURT] wherein held that a particular class of members having no voting rights cannot be treated as members of the society and consequently the principle of mutuality cannot be made applicable. The dictum laid down in this decision had not application to issue on hand, inasmuch as, the issue in the present appeal does not involve the exemption of income on mutuality principle.
The income received by the appellant society in the form of subscription or admission fee does not constitute revenue receipt in the hands of the appellant society. Accordingly, the grounds of appeal no.1 and 2 are allowed.
-
2021 (1) TMI 1348
Addition u/s. 56 (2) (vii) - receipt of one time reward from BCCI - whether the onetime payment received from BCCI is exempt from tax or not? - appellant is a well known former Indian cricketer - HELD THAT:- The answer lies in the provisions of section 56 (2) (vii) second proviso which states that “clause (vii) was not apply to any some of money or any property received from (g) any trust or institution registered u/s.12 AA”.
We find that BCCI is a registered trust u/s.12 AA and the said evidence is available in the public domain. No merit in the impugned addition and accordingly direct the AO to delete the addition. Appeal filed by the assessee is allowed.
-
2021 (1) TMI 1347
Admission of appeal - HELD THAT:- The present appeal is admitted for consideration on the following substantial questions of law :-
(i) Whether setting aside of the order in original by the Learned Tribunal is justified when the respondent has not followed any of the condition mentioned under Regulation 11(a), 11(d), (k) and 11(n) of the CBLR 2013?
(ii) Whether the Learned Tribunal’s order is correct when it is admitted and apparent on the face of the record that the respondent has not obtained any job clearance from the exporter and the authorization has been obtained through intermediaries after filing of the shipping bill?
The present appeal be listed for hearing on February 10, 2021.
-
2021 (1) TMI 1346
Seeking declaration that the section 24(a) of the U.P. Real Estate Regulatory Authority (General) Regulation, 2019 as ultra vires and contrary to the section 21 and 85 of the RERA Act - HELD THAT:- In the instant case, the consumer had deposited a sum of Rs.28 lacs and odd, in instalments but despite an agreement for giving possession of the flat in the year 2015, it was not handed over to the consumer. The direction for return of the amount with interest has been given in those circumstances. If a consumer is to seek execution of the part of the order through the civil court then the very purpose of the enactment of Act of 2016 to provide speedy dispute redressal mechanism would frustrate. If the argument of the petitioner is accepted then for recovery of a sum of Rs. 28 lacs and odd, the non-petitioner consumer is to be send to civil court while recovery of amount of interest of Rs.19 lacs and odd can be made as arrears of land revenue, as admitted by the counsel for the petitioner himself. If recovery of amount is to be sought by dividing it in two parts and by different method, it would be against the object of the Act of 2016. The object of speedy redressal would frustrate if recovery of the amount is also sought through the civil court.
The purpose and object of Section 40(1) is to allow recovery of the amount as arrears of land revenue so as to expeditiously give the relief to the consumer having suffered in the hands of the Promoter. Section 40(1) has to be given interpretation by reading down the provision to make it purposeful and akin to the object of the Act of 2016. Section 40(2) is for any other direction either to act in a particular manner or to restrain a party to do certain act and execution of it can be made by the Adjudicating Authority and in case of failure, by the civil court. Section 40(2) covers basically the case of an order of injunction or mandatory injunction.
So far as challenge to Rule 24 (a) of U.P. Real Estate Regulatory Authority (General) Regulation, 2019 is concerned, the issue is kept open. It has not been debated for the reason that an order of the nature provided under Regulation 24 (a) has not been passed in the case in hand. Thus, there is no occasion for the petitioner to challenge the vires of the said Regulation in these proceedings However, as and when the Authority invokes Regulation 24 (a) of Regulation, 2019, the liberty is given to challenge the validity.
Conclusion - If a consumer is to seek execution of the part of the order through the civil court then the very purpose of the enactment of Act of 2016 to provide speedy dispute redressal mechanism would frustrate. If the argument of the petitioner is accepted then for recovery of a sum of Rs. 28 lacs and odd, the non-petitioner consumer is to be send to civil court while recovery of amount of interest of Rs.19 lacs and odd can be made as arrears of land revenue, as admitted by the counsel for the petitioner himself.
Petition dismissed.
-
2021 (1) TMI 1345
Refund of Service tax - time limitation - case of Revenue is that the appellant has filed refund claim on 09,08,2016 for the period June, 2012 which is highly time barred, the appellant again filed refund application on 13.2.2018 consequent to the order dated 21.3.2016 and the relevant date of filing the refund was 21.03.2016 - Revenue claims that the refund claim is highly time barred - HELD THAT:- It is fact on record that initially the refund claim was filed on 29.6.2012, the same was allowed by the Commissioner (Appeals) on 21.3.2016. Instead of sanctioning the refund claim, the revenue preferred to file appeal before this Tribunal and this Tribunal dismissed the appeal of the Revenue. Therefore, it is the duty of the Revenue that after the order of this Tribunal, they are required to refund sou moto within 3 months from 1.3.2017. Instead of doing so, the appellant was forced to file refund claim again which was filed on 13.2.2018. The departmental officer did not stop here, they reviewed the order of the adjudicating authority sanctioning the refund and held that the refund claim is barred by limitation without any basis to drag the appellant in unnecessary litigation. The said act of the department cannot be appreciated. As the appellant has filed refund claim on 29.6.2012, the said refund application is still pending for disposal, than how can Revenue officer ask to file refund claim again. The Review order is gross violation of legal principle.
Appeal allowed - decided in favor of appellant.
-
2021 (1) TMI 1344
Levy of penalties under Rule 25 or 26 of the Central Excise Rules, 2002 - allegation of creation of fictitious firms in the name of co appellants to issue cenvatable invoices without accompanying the goods - HELD THAT:- It has been alleged that the invoices in question have been issued by M/s. Moral Alloys and M/s. Unnati Alloys but, no investigation has been conducted with the Directors/authorised persons of these appellants to ascertain the fact that weather they have issued the invoices in question or not? In that circumstance, the investigation is faulty. Further, in the absence of evidence on record that if the invoices were not accompanying the goods then from where these manufacturers have procured the goods who has manufactured the dutiable goods which has been cleared on payment of duty. In some of the cases, the cenvet credit has already been allowed, therefore, no penalty is imposable on the appellants under Rules 25/26 of the Central Excise Rules, 2002.
Appeal allowed - decided in favor of appellant.
-
2021 (1) TMI 1343
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - tax dues to be quantified on or before 30.06.2019 - maintainability of declaration made under the category of investigation, enquiry or audit under the scheme - Board’s circular dated 27.08.2019 - HELD THAT:- There was a clear admission on the part of the petitioner as to its service tax liability and such admission was prior to the cut off date of 30.06.2019.
There is admission by the petitioner that the amount of service tax liability for the related period was ₹ 1,26,54,725.00 on 28.06.2019 which was before the cut off date of 30.06.2019 - As held in SAKSHAM FACILITY SERVICES PRIVATE LIMITED VERSUS UNION OF INDIA AND OTHERS [2020 (12) TMI 318 - BOMBAY HIGH COURT] the work “quantified” appearing in the scheme would mean a written communication of the amount of duty payable which would include a letter intimating duty demand or duty liability admitted during enquiry, investigation, audit or audit report and not necessarily the amount crystallized following adjudication - In so far the letter dated 06.09.2019 is concerned, the same was only in reiteration of the admission made by the proprietor on 28.06.2019. Further, such an admission is to be examined not for the purpose of investigation into alleged tax evasion but for the purpose of eligibility under the scheme.
Respondents were not justified in rejecting the declaration of the petitioner under the scheme on the ground that quantification of tax dues was not made final on or before 30.06.2019 - Matter is remanded back to respondent Nos.2 and 3 to consider the declaration of the petitioner as a valid declaration under the category of investigation, enquiry or audit in terms of the scheme and after giving due opportunity of hearing grant the consequential relief(s) to the petitioner - Petition allowed by way of remand.
-
2021 (1) TMI 1342
Condonation of delay - delay of 539 days in filing this appeal - HELD THAT:- The delay in filing of this appeal was on account of the then Finance Manager not following the issue with the Consultant. Later, the Finance Manager had resigned and the matter was left unattended. There are affidavits to the effect from both the earlier Manager and the present Manager of the assessee. The management came to know about the appeal not being filed on time when statutory audit for the financial year 2019-2020 was being prepared. Due to Covid-19 Pandemic, the process of filing the appeal took some more time from the end of the Chartered Accountant. Therefore, in the given facts and circumstances of the case, we are of the view that there is reasonable and sufficient cause in filing the appeal belatedly.
Disallowance of deduction u/s 35(2AB) - AO disallowed the deduction on the ground that DSIR has not approved the expenditure in Form 3CL - CIT-A confirmed disallowance as stated that deduction u/s 35(2AB) of the I.T.Act. is not allowable to the extent of Research & Development activity carried outside the in-house R&D facility of the assessee - HELD THAT:- In the present case since the deduction is with reference to assessment year 2016-2017 (where the law applicable is the 1st day of April, 2016), which is prior to the Income Tax (Tenth Amendment) Rules, 2016, with effect from 01.07.2016 of Rule 6(7A) of the I.T.Rules, deduction u/s 35(2AB) has to be allowed on the basis of the expenditure as recorded by the assessee in the books of account. Admittedly, the Assessing Officer has not disputed the correctness of the claim of expenditure incurred on Scientific Research. The contention of the DR that the amendment to Rule 6(7A) is procedural cannot be accepted, since the amended rule stipulates a condition that apart from approval of in-house R & D facility of assessee, the expenditure also has to be quantified by the prescribed authority for weighted deduction u/s 35(2AB).
As amended Rule 6(7A) effect the substantive right of the assessee and cannot be termed merely as procedural. Moreover, the co-ordinate Bench of Bangalore Tribunal in case of M/s.Mahindra Electric Mobility Ltd. v. ACIT [2019 (1) TMI 20 - ITAT BANGALORE] have clearly held that prior to 01.07.2016 Form 3CL has no legal sanctity and it is only w.e.f. 01.07.2016 with the amendment to Rule 6(7A) of the I.T.Rules, that the quantification of weighted deduction u/s 35(2AB) of the I.T.Act has significance. Therefore, we hold that the deduction u/s 35(2AB) of the I.T.Act be granted as claimed by the assessee instead of restricting it to the quantum of claim as mentioned in .Form No.3CL by the prescribed authority. - Decided in favour of assessee.
-
2021 (1) TMI 1337
Condonation of delay of 442 days in filing the Civil Appeal against the order of the Customs, Excise and Service Tax Appellate Tribunal - no satisfactory explanation - HELD THAT:- The Civil Appeal is accordingly dismissed on the ground of delay.
-
2021 (1) TMI 1336
Seeking grant of anticipatory bail - Vicarious liability of applicant, being a former director and current shareholder of the company involved in the alleged fraud - HELD THAT:- The applicant is named in the FIR as the wife of Sanjay Bhati. She herself has admitted that she was the Director of the Company in question till February, 2017. Thereafter, she resigned from the said post. She remains shareholder of 3.8% shares till today. It is also evident from the record that a huge money of the investors invested in Bike Boat Scheme of the Company has been diverted / reinvested in different other Schemes. It is also evident that EMI and other benefits, assured / agreed upon between the investors and the Company, have not been returned / paid to them. A number of criminal cases have been lodged against the applicant, as is clear from the rejection orders of the anticipatory bail annexed with the bail application as Annexure-13. It is also evident that at the time of diversion of the money in different other schemes invested by the investors against the agreement entered into between the investors and the Company, applicant was also having share of 3.8% in the Company.
A reward of Rs. 50,000/-is also against her, as applicant is not cooperating the investigating agency. It is true that there is no need to make out a special or exceptional case for anticipatory bail but during investigation in this case evidence under Section 409 IPC and other offences, as disclosed here-inabove, have also been added; number of investors (more than 2.5 lakhs) have invested their money in the Company; invested amount is also over and above 3500 crores and they are still waiting for return of the money invested by them in the Company, hence, having regard to the entire facts and circumstances of the case and the law laid down by the Apex Court in Lavesh case [2012 (8) TMI 1190 - SUPREME COURT] and also considering the submissions of learned counsel for the parties and keeping in view the nature and gravity of offence, money invested by the investors with the Company, modus operandi adopted by the Company diverting the investors' amount in other different Scheme against the agreement, criminal cases lodged against the applicant, issuance of non-bailable warrant and reward of Rs. 50,000/- and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has not made out a case for anticipatory bail.
Conclusion - The applicant's non-cooperation and the issuance of a non-bailable warrant justified the denial of anticipatory bail.
The anticipatory bail application is rejected.
-
2021 (1) TMI 1335
Challenge to disqualification of the petitioner as Director under Section 164(2)(a) of the Companies Act, 2013 on the ground that he has not submitted financial statements for three consecutive financial years - impugned order challenged on the ground that without affording opportunity to the petitioner, the said order has been passed - violaton of principles of natural justice - HELD THAT:- The issue raised in this writ petition was considered by the Hon'ble Division Bench of this Court in the case of Meetgelaveetil Kaitheri Muralidharan Versus Union of India & Another [2020 (10) TMI 595 - MADRAS HIGH COURT], it has been held that 'apart from the fact that the AQD Rules do not empower the ROC to deactivate the DIN, we find that such deactivation would also be contrary to Section 164(2) read with 167(1) of CA 2013 inasmuch as the person concerned would continue to be a director of the Defaulting Company.'
The case on hand stands on the same footing. In the instant case, also, no notice was given to the petitioner before disqualifying him as Director of M/s. Pearl Auto Service Pvt. Ltd and M/s. Le Grand Impex Pvt. Ltd.
The impugned order dated 13.12.2019 passed by the second respondent disqualifying the petitioner as Directors of M/s. Pearl Auto Service Pvt. Ltd and M/s. Le Grand Impex Pvt. Ltd. under Section 164(2)(a) of the Companies Act, 2013 is hereby set aside - Petition allowed.
-
2021 (1) TMI 1334
Dissolution of company u/s 497(6) of the Companies Act, 1956 - HELD THAT:- The Registrar of Companies has provided a letter, dated 13th February, 2020, stating that the necessary documents and forms have been filed by the Company and that it has no objection to the dissolution of the subject Company.
The contributory of the subject Company, i.e. RITES Ltd., through its company secretary, has submitted an indemnity bond, dated 6th December, 2019, undertaking to pay and settle all lawful claims arising in future after the winding up of the Company and to indemnify any person for any losses and to settle all lawful claims and liabilities which had not come to their knowledge at that stage - The Official Liquidator has further submitted that the affairs of the Company have been conducted in a manner, not prejudicial to the interest of the members, and is thus of the opinion that the Company may be dissolved with effect from the date of the filing of the petition.
The prayer made in the petition is allowed and the Company is wound up and shall be deemed to be dissolved with effect from the date of the filing of the present petition, i.e. 24th December, 2020.
Petition disposed off.
-
2021 (1) TMI 1333
Miscellaneous application filled seeking for early hearing of appeal - HELD THAT:- The reason for early hearing mentioned in the miscellaneous application seems reasonable. Accordingly, the miscellaneous application is allowed. Registry is directed to list the matter on 04.02.2021.
-
2021 (1) TMI 1332
Reversal of CENVAT Credit - formula to be adopted for reversing the applicable CENVAT credit on common input services used in manufacture of dutiable products and taxable and exempted services in terms of Rule 6 (3A)(c)(ii) of CCR, 2004 - HELD THAT:- The issue is no longer res integra. Moreover, it is found that in the case of appellants themselves, this Bench has decided the issue in their favour relying on the ratio of the case of Chennai Petroleum Corporation Ltd.
It is held that for the purposes of calculating the amount to be reversed under Rule 6 (3A)(c)(ii) of CCR, 2004, the appellants have rightly considered common CENVAT credit in the numerator in place of total CENVAT credit.
Appeal allowed.
-
2021 (1) TMI 1331
Maintainability of appeal u/s 26 of PMLA, 2002 - Jurisdiction of Appellate Tribunal to maintain the appeal - main contention of the appellant is that neither any order is passed on the applications dated 6-1-2021 & 18-1-2021 nor these have been disposed of but the O.A. No. 404/2020 has been kept for argument on 19-1-2021 - HELD THAT:- From the perusal of the pleadings and what is made out from the submissions of the appellant are that he is seeking relief from this Appellate Tribunal for a direction to the Adjudicating Authority to decide the aforesaid applications before proceeding further. The order dated 19-1-2021 is an order fixing the argument of the O.A. No.404/2020 on 25-1-2021 and the O.A. is further adjourned to 01-2-2021 for argument and that admittedly there is no order on the applications dated 6-1-2021 & 18-01-2021. It appears that the appellant has taken shelter under the garb of the order dated 19-1-2021 to dispose of the applications dated 6-1-2021 & 18-1-2021.
On a plain reading of Section 26(1) of the PMLA, 2002, it is clear that there must be an order of Adjudicating Authority by which the Director or any person aggrieved may prefer an appeal to the Appellate Tribunal. In fact the order dated 19-1-2021 appears to have been passed on a different context and by taking shelter of this order dated 19-1-2021 the appellant is trying to get an order on aforesaid two applications which are, admittedly, yet to be disposed of. That being so, it is held that the order dated 19-1-2021 is not an appealable order to pass any orders on applications which are yet to be decided. The Appellate Tribunal has no jurisdiction to entertain such an appeal.
In fact the facts of the judgment of Hon'ble High Court, Delhi in the matter of between Hamilton Houseware (P.) Ltd. [2021 (2) TMI 488 - DELHI HIGH COURT] is different in view of the fact that the Adjudicating Authority had passed the final order and after passing of the final order, the matter was taken to Hon'ble High Court challenging the final order dated 28-12-2020 and stating therein that the petitioner's specific application dated 14-12-2020 was neither considered nor disposed of by the Adjudicating Authority. It is not the case in the present appeal. So, this judgment is not applicable to the facts and circumstances of the appellant's present case/appeal.
There is no order on the applications against which the appellant is seeking remedy under section 26(1) of the PMLA, 2002, therefore, no appeal lies under section 26(1) to the appeal and is not maintainable, hence dismissed.
........
|
9911796707
