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Showing 101 to 120 of 1393 Records
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2021 (2) TMI 1299
Jurisdiction - power to issue SCN - Issuance of SCN by Additional Director General of GST Intelligence, Coimbatore Zonal Unit, Coimbatore, proposing to levy central excise duty with interest and penalty - applicability of Doctrine of implied powers - HELD THAT:- The authority of the first respondent to issue the show cause notice cannot really be questioned. This is because, Notification No.14/2017-Central Tax, dated 01.07.2017 issued by the Central Board of Excise and Customs under Sections 3 and 5 of the Central Goods and Services Tax Act, 2017 gives power to Additional Director General/first respondent to issue show cause notice. The contest is more around the competence of the second respondent to adjudicate the matter - Thus, this office order enclosed at Page No.70 of the respondents' typed set answers the question as to why the petitioner has been asked to show cause before ADG (Adj), Mumbai.
Whether the Principal Director General, DGGI, Hqrs, New Delhi is competent to issue such an officer order? - HELD THAT:- When the legislation specifically permits the institution of the assessment proceedings even after coming into force of the Central Goods and Services Act, 2017 in respect of the liability incurred under the repealed Act, the only inference can be that the earlier statutory regime remains intact for the purpose of the proceeding against the petitioner for the aforementioned liability. If Section 174(2) of the Central Goods and Services Act, 2017 enables institution of assessment proceedings under the Repealed Act, then this Court has to necessarily conclude that it gives power to the authorities to do everything for carrying out the aforesaid purpose. The doctrine of implied powers has to be applied to the case on hand.
A combined reading of the various notifications and office orders referred to above would show that the first respondent has not acted on his own. That the demand of duty from the petitioner is above Rs.5.00 crores is apparent. The Central Board of Excise and Customs has authorised the Director General of CEI to issue general orders for assigning cases and for issuing show cause notice. Duty involving more than Rs.5 Crores shall be adjudicated by the Additional Director General(Adjudication). In the Circular No.994/01/2015-CX, dated 10.02.2015, it is seen that the Additional Director General(Adjudication), Mumbai, is the adjudicating authority for all matters involving the Central Excise Duty/Service Tax of more than Rs.5 Crores.
Thus it is necessarily held that the second respondent is having the territorial jurisdiction to go into the issue on hand. In view of the foregoing discussion, it is held that the impugned show cause notice cannot be rejected as lacking in jurisdiction - there are no merits in the petition.
Petition dismissed.
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2021 (2) TMI 1298
Disallowance u/s 14A - assessee offered a suo-motu disallowance towards the expenditure to earn dividend income - As specifically contended before the AO and the ld. CIT(A) that no borrowed funds were utilized for the purpose of making the investments which yielded the dividend income for the year under consideration - HELD THAT:- The lower authorities without considering the submissions made in proper perspective had proceeded to make the disallowance. On perusal of the material it is clear that no borrowings were utilized for the purpose of making the investments which yielded the dividend income. The borrowings shown in the books of account were made for specific purpose.
In the absence of evidence to the contrary, it cannot be presumed that the borrowed funds have been utilized for the purpose of making the investments which yielded the dividend income. Therefore, we are of the considered opinion that no further disallowance u/s 14A of the Act is warranted. Accordingly, we direct the Assessing Officer to delete the addition made u/s 14A of the Act. Appeal of assessee allowed.
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2021 (2) TMI 1297
Levy of penalty, interest and GST for the remittance of the shortage value in stock - HELD THAT:- In a similar Writ Petition in K.R. SUBRAMANIAN VERSUS THE MANAGING DIRECTOR, THE SENIOR REGIONAL MANAGER, THE DISTRICT MANAGER, TAMIL NADU STATE MARKETING CORPORATION LIMITED (TASMAC), [2020 (12) TMI 1338 - MADRAS HIGH COURT] has considered the identical impugned order and set aside the same. It was held that the imposition of the GST by the respondents, to the penalty imposed, under Rule 7(b) (xiv) of the Code, in a disciplinary proceedings initiated against the and W.M.P.Nos.15636, 15637, 15683, 15686, 15688, 15689, 15758, 15759, 17253, 17257, 23030 & 22961 of 2020 employees would not attract the GST and the penalty referred therein would only refer the penalty imposed in the course of trade or commerce.
The present Writ Petitions are allowed and all the respective impugned orders passed by the concerned District Manager, TASMAC, are hereby set aside.
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2021 (2) TMI 1296
Disallowance u/s 14A r.w.r 8D - whether the investment is yielding taxable income, exempt income or no income and that the satisfaction regarding the incorrect amount disallowed by the assessee was not recorded by the AO? - HELD THAT:- In view of the admitted position that the facts and circumstances involved for this year are identical to ones involved in assessment years 2009-10, 2010-11 and 2011-12, in which the issue was restored to the file of AO to take a fresh view in the light of directions given [2014 (7) TMI 1314 - ITAT DELHI] for assessment year 2009-10, we are of the considered opinion that the request of the assessee can be accepted. We accordingly, while setting aside the impugned findings of the authorities below, restore the issue to the file of Assessing Officer to decide the same in the light of the view to be taken for earlier assessment years. Appeal of the assessee is allowed for statistical purposes.
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2021 (2) TMI 1295
Purchase of notified land from the villagers at the meagre price - obtaining fraudulent licenses for colonization in connivance with other accused / bureaucrats / public servants - Sections 420, 465, 467, 471 and 120-B of IPC and under Section 13 of the Prevention of Corruption Act, 1988 - HELD THAT:- Notice of motion for 31.03.2021.
Mr. Satya Pal Jain, Additional Solicitor General of India, assisted by Mr. Sanjay Vashisth, Sr. Panel Counsel, UOI, who is on advance notice, accepts notice on behalf of the respondent(s)-UOI.
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2021 (2) TMI 1294
Assessment u/s 153A - assessment in respect of seized documents - Proof of incriminatory material was found during the search - HELD THAT:- In view of the admitted position of fact in this case that no incriminatory material was found during the search operations pertaining to this particular assessment year, AO could not have proceeded to frame assessment under section 153A of the Act and on this score we uphold the findings of the Ld. CIT(A) and decline to interfere with the same. - Decided against revenue.
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2021 (2) TMI 1293
Input Tax Credit - Input services - construction or works contract procured for the development of an Industrial area or the special maintenance expenses of the area? - mechanism for apportionment of ITC between exempt and taxable supplies as in an industrial area - long term leasing of 'industrial plot' of land is exempt under N/N. 12/2017-Central Tax(Rate) or not - leasing of 'nonindustrial plot' of land/commercial plot of land is a taxable supply or not?
HELD THAT:- Section 16 (1) of the CGST Act specifically provides that every registered person shall be entitled to take credit of the input tax charged on any supply of goods or services or both made to him, which are used or intended to be used in the course or furtherance of his business. Such entitlement is subject to fulfillment of certain conditions such as possession of invoice, receipt of goods/service, payment of tax to Government etc. as provided under Section 16(2) of the GST Act, 2017. However, the availability of credit is subject to the restrictions as stipulated under Section 17(5)(d) of the GST Act, 2017.
Section 17(5)(c) and (d) of the CGST Act, 2017 denies availment of ITC on works contract service and on goods and services when supplied for construction of an immovable property (other than plant and machinery) on his own account including when such goods or services or both are used in the furtherance of business. Applicant does not deny that the civil work i.e. roads drainage, approaches, culverts, rain water harvesting system, power supply related work like laying of new power lines, street light work, work for common facilities in the industrial area like Administrative office, building for fire tenders, Post office/Bank building etc. is an immovable property. In fact, they have obtained land from state Government/private land and after the development work, the land is allotted on lease to the various persons who applies for the same - as per Sub Section 5(c) and 5(d) of Section 17 of CGST Act, 2017 the input tax credit will not be allowed for works contract service and on the goods and service used by the taxable person on his own account.
Since, the work done by the applicant on the acquired land is not of the nature of any type of repair or maintenance on immovable property, but a new fixed asset is constructed and it appreciate the value of the property/land - such expenses, which enhance the value of the property permanently and as per accounting convention, the expenditure are capital in nature, has to be capitalized and cannot be treated as revenue expenditure. The applicant's contention cannot be accepted. Therefore, as per Section 17(5)(c) & (d) of the CGST/RGST Act, 2017, No ITC is available to the applicant.
ITC not available - application disposed off.
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2021 (2) TMI 1292
Rate of tax - construction and installation of solar power unit as a part of the EPC contract - irrigation system has to be operated on solar power - scope of the works contract - HELD THAT:- is clear that the applicant is neither manufacturing renewable energy devices & parts thereof nor providing Service by way of construction or engineering or installation or other technical services in relation of setting up of renewable energy. The tender is for supply of the lift irrigation project as a whole and not only for solar power generating system. The applicant will be undertaking the construction of a lift irrigation project for irrigation (Sprinkler system) in various villages of Banswara district, where solar power would be used only for power, which is a small fraction of the whole project. Whereas the applicant has claimed that the whole project system is a “solar power device” which is incorrect and contrary to their own contention made in their application.
From the definition of the Solar power device & the nature of work to be undertaken by the applicant, it cannot be classified as solar power device, resultantly would not be covered under the entry 234 of Schedule I of the notification No. 1/2017 & entry no. 38 of Notification No. 11/2017 -Central Tax (Rate) dated 28.06.2017.
The activity proposed to be undertaken is a composite supply of works contract, the rate of tax in given service shall be determined in accordance with the Notification No 11/2017-CT (Rate) dated 28.06.2017, as amended from time to time.
As per tender document the setting up the irrigation project including Construction of Intake well, Pump House, Panel Room and Supply, Erecting/Laying, Testing Commissioning Submerge V.T. Pumps, Rising Mains, Distribution network of Pipe Line at Chaks, O&M for Eight years including installation of Solar Power unit of 5x100 KW capacity, EPC contract on turnkey basis by the applicant is a Works Contract of Composite Supply. This composite supply is a mixed of goods and services. Since this supply is undertaken for a Water Resources Department, a unit of Government of Rajasthan, hence shall attract GST @12% (6% CGST and 6% SGST) under S. No. 3 (Heading 9954) (iii) of Notification No. 11/2017, dated 28.06.2017.
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2021 (2) TMI 1291
Reopening of assessment u/s 147 - undisclosed loan transactions - action under Section 147 after the expiry of 4 years from the end of relevant assessment year - whether the revenue is justified in reopening the assessment for the year under consideration? - HELD THAT:- The record indicates that the assessee had disclosed the transactions of loan in their books of accounts and return of income. It is also admitted facts that during the scrutiny assessment proceedings, the assessee had furnished all the details as called for including bank statement of parties from whom loan was taken. It is the case of the revenue that the information received from the concerned, M/s. Ramdev Shares and Securities Pvt. Ltd, is paper company, managed by Mr. Pravin Jain and he was found to be an accommodation entry provider and the alleged transaction is bogus transaction and therefore, the amount of unsecured loan and interest thereon is liable to tax and has escaped assessment.
After careful examination of the reasons recorded and the order of disposing of the objection, we find that on 08.10.2014, the scrutiny assessment was concluded. The search action carried out on 01.10.2013 in the case of Mr. Pravinkumar Jain. In the reasons recorded, it is nowhere mention that on which date the information was received by the department. Thus, we are of the considered view that the information as mentioned in the reasons recorded, cannot be termed as tangible material, as at the time of scrutiny assessment, it was very much available with the department.
Assessee had disclosed fully and truly material facts, with respect to loan transaction as well the interest paid on the loan. Admittedly, the loan was paid up by the assessee on 21.08.2014 with the interest, after deducting TDS thereon. The Assessing Officer at the time of scrutiny assessment, accepted the transaction. Under the circumstances, it cannot be said that the assessee had withheld the primary material and assessee failed to disclose truly and fully all material facts of the assessment. Thus, the conditions precedent for exercise of power under Section 147 after expiry of period of 4 years of relevant assessment year are not satisfied - Decided in favour of assessee.
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2021 (2) TMI 1290
Reversal of CIRP - Degree of completion of construction work - HELD THAT:- It emerges from the Proposed Settlement Plan that the construction work had been awarded to M/s Era Infra Engineering Limited for completion of Phase-I of the project comprising of Tower 1 to 12. But the contract stood terminated and Indsao Infratech was engaged as the new contractor in January, 2016 to complete the construction work. 70% of the construction work is stated to have been completed. As regards the main grievance of the Homebuyers of the Project viz. ‘Orion Galaxy’ i.e. restart of construction work and its completion besides payment of dues of DGTCP and others, a revival plan has been offered covering page 13 to 15 of the Proposed Settlement Plan.
Let the Appellant/Promoter file a revised settlement plan removing this ambiguity and elucidating the factual position in this regard and also explaining how it proposed to generate/ arrange funds for completion of the project within a definite timeframe, it being gathered from the Report filed by the Interim Resolution Professional that the Promoter has agreed to infuse a sum of Rs.5 Crore which by no means can be said to be an adequate amount to either start or complete the project. Let the Revised Proposed Settlement Plan be filed by the Appellant/ Promoter within two weeks.
List the appeal ‘for hearing’ on 16th March, 2021 at 12:00 Noon.
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2021 (2) TMI 1289
Review Jurisdiction - error apparent on the face of the order or not - HELD THAT:- While holding that no grounds are made out for reviewing the impugned order, this Court directs the petitioners to take earnest steps to resolve the mismatch issue and as far as possible, avoid the dealers being called upon to produce documents by verifying details available in the departmental website and only when it is not possible for the Department to reconcile, then the dealers may be put on notice and in such circumstances, a more conciliatory approach shall be taken if the dealers are called upon to appear.
The review application is dismissed.
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2021 (2) TMI 1288
Assessment u/s 153A - Addition equal to 20% of the total labour sub contract expenses - Disallowance on the ground that assessee has not maintained any books of accounts - HELD THAT:- The assessee has made payments to these individuals for the further disbursement to these labourers. We note that AO has not pointed out any defect in the books of accounts of the assessee and in these labour contractors bills and just made the disallowance that these are not allowable under section 37(1) of the Act being not wholly and exclusively incurred for the purpose of business of the assessee. We find that Ld. CIT(A) has taken into account all the aspects of the matter and documents while allowing the appeal of the assessee as has been stated hereinabove copies of bills and vouchers, TDS certificates, copies of PF payments and payment through banking channels etc. The case of the assessee also finds support from the decision of TUV India Pvt. Ltd [2019 (8) TMI 1050 - ITAT MUMBAI] wherein it has been held that where the assessee submits complete details of expenses and AO not finding any defects in the books of accounts, the adhoc disallowance of expenses by the AO are not justified.
Admittedly no incriminating material qua these sub contract expenses were found during the course of search and it is a trait and settled law that that no addition can be made in the unabated assessment which has attained finality on the date of search without any incriminating material. The case of the assessee is supported by the decision of the Apex Court in the case of PCIT vs. Meeta Gutgutia [2018 (7) TMI 569 - SC ORDER] wherein the Hon’ble Supreme Court has held that invocation of section 153A to reopen the concluded assessment was not justified in absence of any incriminating material found during the course of search - Decided against revenue.
Bogus cement purchases - assessee has deviated from SOP which could not be explained during the assessment proceedings - sustaining of addition to the extent of 15% by the ld CIT(A) - HELD THAT:- CIT(A) has observed that AO has declined to examine the gate entry registry, internal transfer challans produced before him. CIT(A) has even noted that AO has not examined the claim of the assessee that bills furnished were in fact invoices cum delivery challans with all details and AO has primarily relied on the statements recorded which had been retracted since then in para 5.14. - CIT(A) has also recorded a finding that there is no evidence brought on record that payments to cement manufacturers have come back to the assessee. Under these facts and circumstances, we are not in agreement with the conclusion drawn by the CIT(A) that a disallowance to the extent of 15% can be sustained. We note that AO has not pointed out any defects in the books of accounts of the assessee. The case of the assessee finds support from the decision of Hon’ble Gujarat High Court in the case of CIT vs. Tejua Rohitkumar Kapadia [2018 (7) TMI 590 - SC ORDER] wherein it has been held that purchases made by the assessee were duly supported by bills and payments and account payee cheques and further confirmed by the seller and the AO not bringing any evidence on record to show that amount is recycled back to the assessee beside accepting the sales out of the purchases , then addition under section 69C was not called for - no disallowance can be made towards bogus purchases and thus the order of Ld. CIT(A) can not be sustained on this. - Decided in favour of assessee.
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2021 (2) TMI 1287
Rejection of rectification of error apparent on the face of record - non-hearing of the case - no opportunity of hearing was granted to the petitioner - Section 66 of KVAT Act - violation of principles of natural justice - HELD THAT:- Provision of Section 66 deals with power of the authority to rectify any error apparent of the face of record. However, any provision in the said Section is not found, which declaring that no opportunity of hearing can be granted to the assessee filing an application for rectification.
In the case in hand, the application for rectification under section 66 of the KVAT Act (Ex.P9) contains a specific prayer made by the petitioner that his application for rectification should be decided after granting an opportunity of personal hearing to him. It is evident from the order at Ext.P10 that no opportunity of hearing was granted to the petitioner while passing the order rejecting the application for rectification. Moreover, the order at Ext.P10 cannot be said to be a reasoned order, rejecting the application for rectification which has raised several grounds.
Writ petition disposed off.
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2021 (2) TMI 1286
Preferential and undervalued as well as fraudulent transactions - whether the RP has adhered to sections 43 and 46 of the Code read with regulation 35A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for the Corporate Persons) Regulations, 2016 (CIRP Regulations)? - HELD THAT:- As per the said regulation, the RP has to form an opinion whether the Corporate Debtor has been subjected to preferential transaction on or before seventy-fifth day of the CIRP commencement date. Thereafter, on or before one hundred and fifteenth day of forming such opinion, the RP shall make a determination that the Corporate Debtor has been subjected to preferential transaction. Upon making such determination the RP shall make an application before the Adjudicating Authority on or before on hundred and thirty-fifth day.
In the present case, although the RP submits that he has formed his opinion and determined that the lease deed dated 30.11.2016 amounted to preferential and undervalued transaction, he has not apprised us of the timeline in which he did so; except for the fact that he pointed it out to the CoC on 06.02.2020. The present application was filed on 04.09.2020, which is after three hundred and thirty-three days from the date of initiation of CIRP. The CIRP Regulations envisage no role to the CoC in respect of determination to be arrived at in the case of avoidance transactions. It is a duty cast solely on the RP.
The reasons for not complying with the timeline as envisaged under regulation 35A of the CIRP Regulations by the RP are not satisfying, even if the reasons were to be accepted, these reasons, section 46 of the Code binds the hands from proceeding further inasmuch as we cannot look into transactions that were entered into during the period of two years preceding the date of commencement of CIRP. It is the RP’s own case that the lease deed was entered into between the Corporate Debtor and Respondent No. 6 and 7 on 30.11.2016 whereas the CIRP had commenced on 18.10.2019, which is way beyond the two years’ timeframe envisaged under section 46 of the Code. The RP is not expected to undertake any roving inquiry beyond the timeframe stipulated in the Code and the regulations.
The facts and circumstances of the present application do not inspire the confidence that it is maintainable ex facie. The application is first hit by regulation 35A of the CIRP Regulations and then by section 46 of the Code.
Application dismissed.
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2021 (2) TMI 1285
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - privity of contract or not - HELD THAT:- There are sufficient merit in the claims made by and on behalf of the alleged Corporate Debtor as these letters merely state that the payment due to the work done by the main contractor i.e., M/s FCIPL through the Operational Creditor would be made directly to the Operational Creditor. This is the real substance of these two letters. Further, this also requires various formalities to be completed before such payment could be released. It is also found that the direct payments were to be made for the works to be executed w.e.f. 10.09.2014 only and this arrangement has been made to complete the balance pending work.
The main contractor has not raised the bills for the alleged outstanding amount as well as retention money nor any claim till then had been filed before the RP of FCIPL who was undergoing CIRP. Also the reply to notice of demand issued under Section 8 of IBC, 2016, alleged Corporate Debtor has clarified its stand and opposed the demand so raised.
In the absence of privity of contract and non- compliances of the submission of invoices/bills by the main contractor along with necessary back up documents required as per the contractual provisions, the said letters of assurance do not result into a cause of action against the alleged Corporate Debtor - the Corporate Debtor is Public Sector Undertaking (PSU), hence, instead of pursuing its claim with the main contractor, the Operational Creditor has chosen to file this application.
Petition dismissed.
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2021 (2) TMI 1284
Unexplained cash credit u/s 68 - Bogus LTCG - Addition based on third party statement - onus to prove - Reliance on findings rendered by investigation wing, Kolkata merely on the basis of statement of various operators, entry providers and stock brokers including the statement of Shri Anil Aggarwal - HELD THAT:- AO has nowhere established the involvement of the assessee in price rigging or price manipulation. No collusion between the assessee and alleged entry providers or operators is shown to have existed. Another noteworthy point is that no opportunity to cross-examine the persons making adverse statement was provided to the assessee despite being specifically pointed out before lower authorities. There is no admission or evidence based finding that any cash got exchanged between the assessee and any of the alleged bogus entities. It is trite law that no additions could be made merely on the basis of suspicion, conjectures or surmise. The addition thus made purely on the basis of third-party statement recorded at the back of the assessee could not be sustained in the eyes of law unless the same are confronted to the assessee and the same are backed by any corroborative material. No effective investigation is shown to have been carried out by Ld. AO to dislodge the assessee’s claim by bringing on record cogent evidences as well as confronting the same. However, except for general allegations as narrated in the investigation wing report, there is no evidence which would link assessee’s involvement in jacking up the prices of the shares with a view to earn artificial gains.
Onus casted upon revenue to corroborate the impugned additions by controverting the documentary evidences furnished by the assessee and by bringing on record, any cogent material to sustain those additions, could not be discharged by the revenue. The whole basis of making additions is third party statement and no opportunity of cross-examination has been provided to the assessee to confront the said parties. As against this, the assessee’s position that that the transactions were genuine and duly supported by various documentary evidences, could not be disturbed by the revenue.
Finally, going by the factual matrix and respectfully following the earlier view of coordinate bench in the cited order, we are of the considered opinion that the additions thus made by Ld. AO and confirmed by Ld. CIT(A) are not sustainable in the eyes of law. Therefore, we are inclined to delete the same. Consequentially, the addition of estimated commission also stands deleted. - Decided in favour of assessee.
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2021 (2) TMI 1283
Seeking grant of default bail - inclusion of days of remand or not - whether while computing the period of 90 days or 60 days as contemplated in Section 167 (2)(a)(ii) of the CrPC, the day of remand is to be included or excluded, for considering a claim for default bail?
HELD THAT:- The moot question has been considered by this Court in various matters, but there is divergence of opinion on how the period available for completing the investigation is to be computed. Some judgements have favoured the exclusion of date of remand, while few other cases have taken a contrary view.
The appellants rely inter alia on the line of reasoning in RAVI PRAKASH SINGH VERSUS STATE OF BIHAR [2015 (2) TMI 1371 - SUPREME COURT] and M. RAVINDRAN VERSUS THE INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE [2020 (10) TMI 1105 - SUPREME COURT] where it was held that the date of remand is to be excluded for computing the permitted period for completion of investigation - On the other hand, the Respondents seek to rely inter alia on CHAGANTI SATYANARAYAN VERSUS STATE OF AP. [1986 (5) TMI 265 - SUPREME COURT], CENTRAL BUREAU OF INVESTIGATION SPECIAL INVESTIGATION CELL-I VERSUS ANUPAM J. KULKARNI [1992 (5) TMI 191 - SUPREME COURT], STATE THROUGH CBI VERSUS MOHD. ASHRAFT BHAT & ANR. [1995 (12) TMI 389 - SUPREME COURT], STATE OF MAHARASHTRA VERSUS MRS. BHARATI CHANDMAL VARMA @ AYESHA KHAN [2001 (12) TMI 876 - SUPREME COURT], and SADHWI PRAGYNA SINGH THAKUR VERSUS STATE OF MAHARASHTRA [2011 (9) TMI 1078 - SUPREME COURT] to contend that the date of remand must be included for computing the available period for investigation for determining entitlement to default bail.
Because of the conflicting view on the proposition of law for grant of default bail, a judicial conundrum has arisen which is required to be resolved for guidance of the Court. In Chaganti, the Court examined the legislative intent for expeditious conclusion of investigation and the consequences of the failure of the prosecution to conclude investigation within the permitted period. However, the ratio in Chaganti and also in Mhd. Ashraft Bhat Supra was not brought to the notice of the 3 judges bench in M Ravindran and the Court took a contrary view in declaring that the date of remand is to be excluded for computing the period of investigation, to facilitate the claim of default bail by an accused.
Since the earlier position of law was not considered and the latest decision is of a 3 judges bench, it is necessary for a bench of appropriate strength to settle the law taking note of the earlier precedents. Unless the issue is appropriately determined, the courts across the country may take decision on the issue depending upon which judgement is brought to the Court’s notice or on the Courts own understanding of the law, covering default bail under Section 167 (2)(a) II of CrPC.
As the respondents are praying for benefit of the High Court’s bail order, which was stayed on 3.9.2020, this matter be placed before a bench of 3 judges on a near date, for consideration of the interim prayer for the respondents.
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2021 (2) TMI 1282
Review petition - error apparent on the face of record or not - Unilateral termination of lease by the Revenue - termination of the lease was only on account of his conviction in the case under section 138 of the Negotiable Instruments Act - violation of principles of natural justice - HELD THAT:- This petition is a review petition. The petitioner has been unable to reveal before us any apparent error on the face of record. As regards the question whether he is a person affected because of the impugned order passed by the respondent No. 1 against respondent No. 2, the answer is that the petitioner herein was never a necessary party because the act of the respondent No. 1 gave only a cause of action to the respondent No. 2, who was an affected party, who approached the Single Judge by way of W.P. No. 5993/2021, which passed the order in favour of the respondent No. 2.
It cannot be held that the petitioner was an essential party before the writ Court, as he was in no way concerned or affected by the impugned order which was challenged in the writ petition passed by respondent No. 1 against the respondent No. 2 - the relief, if any, is available to the petitioner before the civil court where a civil suit is already pending where he is the defendant.
Petition dismissed.
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2021 (2) TMI 1281
Appointment of Liquidator - IRP not submitted the consent - COC also not constituted - HELD THAT:- A bare perusal of the provision shows that in terms of Section 34 (1) whenever a Liquidation order is passed under Section 33 of IBC, then the Resolution Professional appointed for the CIRP shall act as the liquidator for the purposes of liquidation unless replaced by the Adjudicating Authority under sub-section (4) of Section 34 of IBC 2016. His appointment is subject to condition that the Resolution Professional is required to submit a written consent for his appointment as Liquidator.
Here in the case in hand, the IRP has not submitted the consent even in this matter no CoC was constituted and this fact was considered while passing the order of liquidation on 25th January, 2022 and the matter was listed to appoint the Liquidator on 31.01.2022, but the erstwhile IRP declined to act as Liquidator - As it is seen that neither the CoC was constituted nor there is other claimant, therefore, in the peculiar facts and circumstances of the case in hand, it is deemed proper to exercise the powers under Rule 11 of NCLT Rules - application disposed off.
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2021 (2) TMI 1280
Permission for withdrawal of appeal - HELD THAT:- Leave is sought to withdraw the appeals reserving the right to pursue appropriate remedies with regard to other grievances, if any.
Civil Appeals stand dismissed as withdrawn.
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9911796707
