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Showing 101 to 120 of 1962 Records
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2017 (3) TMI 1865
Dishonor of Cheque - discharge of legal liability or not - compromise between the parties have been arrived at - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- Both the contesting parties are ad idem that the compromise has been executed between them without there being any pressure, threat or undue influence and the same was witnessed by independent witnesses namely Gurtej Singh, Numberdar and Bhola Singh. The compromise would go in a long way to maintain peace and harmony between the parties. Indulgence of this Court is being sought for compounding the offence in terms of Section 147 of Negotiable Instruments Act, 1881 read with Section 320(6) Cr.P.C. - The offence relating to dishonour of cheque is having compensatory profile and it should be given precedence over punitive mechanism. The offence is almost a civil wrong which has been clothed in a criminal overtone. Therefore, priority should be given to compensatory mechanism.
The compromise in question would serve as a everlasting tool in favour of the parties for which indulgence can be given by this Court. The revisional exercise would also be in consonance with the spirit of Section 147 of Negotiable Instruments Act.
Revision petition allowed.
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2017 (3) TMI 1864
Deduction u/s. 80IB(10) - Denial of deduction as size of the housing unit is exceeding 1,500 sq.ft., the limit specified under the provisions of section 80IB(10) - HELD THAT:- In the case in hand it is undisputed that the AO has pointed out to the assessee that the area of the flats in the projects are exceeding 1,500 sq.ft. and therefore the assessee’s claim is not allowable upon which the assessee had withdrawn his claim by filing a revised return. Since the revised return was filed within the period of limitation and it was a valid return of income therefore, the Assessing Officer has framed the assessment on the basis of revised return.
AO has not proceeded further to verify and counter the claim of the assessee on the issue of built up area of dwelling units. This issue is not a pure legal issue but it involves the question of facts to be verified and then only the legal provisions are to be applied. There is no quarrel on the legal provisions that as per section 80IB(14)(a) the common area of the projects are to be excluded for the purpose of considering the built up area.
The actual built up area is required to be measured and verified. The assessee himself has accepted the objections of the AO during the assessment proceedings. Therefore this claim of the assessee raised before the CIT(A) as well as this tribunal cannot be accepted. As regards the assessment year 2007-08 is concerned it is noted that the AO has not given any finding on this issue and therefore it is not a case that the AO has carried out any exercise of measuring the built up area of the flats in question. - Decided against assessee.
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2017 (3) TMI 1863
Oppression and mismanagement - removal of the Petitioner from the directorship - closely held family company in the guise of a partnership - HELD THAT:- It is necessary to give opportunity to the Respondents for filing reply. On 15/03/2017 the meeting is schedule to be held for removal of the Petitioner from the directorship of the R-l Company. As per averment of the Petition, R-l is a Gupta family company which is managed and controlled by bunch of Gupta family members and Petitioners holding in the company is 17.58% of the valid, issued, paid-up and subscribed share capital. It is closely held family company which runs in the guise of partnership. Petitioner has taken a legal ground that removal of director is a special business and Section 102 of the Companies Act, 2013 provides that attachment of explanatory statement is required with issuing notice of EOGM for concerning special business.
Removal of director is not defined in Section 2(1)(a). Therefore, it comes under the special business and as per requirement of 102 of the Companies Act, 2013, for such business explanatory statement is necessary to be issued. Notice which is at page 491 of the Company Petition does not contain the explanatory statement for issuing notice for removal of Mr. Amit Kumar Gupta from directorship. Prima facie case is made out on account of the alleged notice which does not contain explanatory statement.
EOGM should not be stayed. In the interest of justice we do not want to stay the proceeding of EOGM but we make it clear that if any EOGM takes place then its resolution shall not be given effect without taking permission from the Tribunal - List the matter for hearing on 20/03/2017.
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2017 (3) TMI 1862
Unexplained jewellery - chargeability to tax of jewellery seized during the course of search u/s 132 - As explained by the assessee to be an old jewellery acquired and held prior to seven years preceding the date of search through various modes such as streedhan to wife at the time of marriage , gift to the assessee at the time of marriage in 1986, acquisition of the jewellery since marriage in 1986 over a period of time for which bills were not retained, gifts to wife and the assessee since 1986 by relatives, gift to son on his birth and also during several birthdays over the years - AO is contending that since the assessee could not produce bills for the said jewellery and the same was not declared to Revenue by the assessee in past as no wealth tax returns were filed or otherwise it was also not declared as no statement of affairs was ever filed, the same being an unexplained jewellery is liable to be taxed u/s 69B - HELD THAT:- The assessee is a qualified Chartered Accountant being Executive Director (Commercial) of the listed company, Ispat Industries Limited which is flagship company of the Ispat Group of companies. The assessee belonged to Hindu Marwari family. The Marwari community in India is a respected community most of whom are successfully engaged in various spectrum of businesses . The assessee has not filed any wealth tax returns with the Revenue despite having taxable wealth which is undisputed. It is also admitted position that no statement of affairs had also been filed by the assessee before the authorities below prior to the date of search on 30-11-2010.
Assessee was a man of means having substantial income declared to Revenue in last 7 years. The assessee has also filed copy of income tax return of the wife of the assesssee for assessment year 2009-10 ( which included income till her death on 26-112008 in Mumbai terror attack on Oberoi Hotel as thereafter , income is included in the hands of the assessee being a legal heirs of wife of the assessee as stated in ITR) wherein returned income was 16,14,540/- . The assessee being legal heir of wife after her death on 26-11-2008, the jewellery owned and possessed by wife at the time of her death on 26-11-2008 is also to be considered in the hands of the assessee being a legal heir of wife. The instant assessment year under appeal is assessment year 2011-12. The assessee was married in 1986 and has one son also. The assessee has one HUF also.
Jewellery of value of ₹ 42,00,656/- weighing 1644.76 gms which is sought to be explained to have been acquired by the assessee and his wife for the period from the marriage of the assessee in 1986 till seven years preceding the date of search is not substantial keeping in view habitual pattern of the assessee, culture, traditions , customs, financial and social background of the assessee
There was a seized ledger extracts which showed jewellery as on 31-03-2004 of ₹ 18.51 lacs owned by assessee wife and assessee’s HUF , market value of which jewellery as on the date of search comes to more than ₹ 50 lacs which has also to be considered while estimating unexplained jewellery in the hands of the assessee. This contentions of the assessee could not be controverted by Revenue/learned CIT-DR. Thus, no addition is warranted in the hands of the assessee in the instant case as we hold that jewellery to the extent of ₹ 42,00,656/- as was seized by the Revenue being found from locker of the assessee based on which additions have been made by the AO stood fully explained keeping in view factual matrix of the case, social and financial background of the assessee, culture, traditions and customs to which the assessee belonged. Thus, the addition made by the A.O. as sustained by the ld. CIT(A) is hereby ordered to be deleted. - Decided in favour of assessee.
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2017 (3) TMI 1861
Disallowance u/s 43B or u/s 36(1)(va) - PF deposited beyond the time prescribed - Scope of section 43B of the Act - amount has been deposited on or before the due date of filing of return - HELD THAT:- As decided in Jaipur Vidyut Nigam Ltd.[2014 (5) TMI 222 - RAJASTHAN HIGH COURT] it is an admitted fact that the entire amount was deposited by the respondent-assessee at least on or before the due date of filing of the returns under Section 139 of the I.T. Act and being a concurrent finding of fact by the respective authorities that if the amount has been deposited on or before the due date of filing the return under Section 139 and admittedly it was deposited on or before the due date then the amount cannot be disallowed under Section 43B of the I.T. Act or under Section 36(1)(va) of the Act - Appeal dismissed.
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2017 (3) TMI 1860
Validity of reopening of assessment u/s 147 - assumption of jurisdiction by the AO for reassessment - Validity of approval/sanction of the Addl. DIT - HELD THAT:- As rightly contended, in “United Electrical" [2002 (10) TMI 86 - DELHI HIGH COURT] it has been held that the Commissioner (herein Addl. DIT) is required to apply his mind to the proposal put to him for approval in the light of the material relied on by the AO; that the said power cannot be exercised casually and in a routine manner. In that case, as in the present one, the Addl. Commissioner had stated: “Yes it is a fit case for issue of notice u/s 148”. The reassessment proceedings were held to be invalid.
Thus the assumption of jurisdiction for reassessment is bad in law - Decided in favour of assessee.
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2017 (3) TMI 1859
Validity of reopening of assessment u/s 147 - eligibility of reasons to believe - addition on account of unexplained investment in the subscribed & paid up share capital u/s 69 - mandation to discharge of initial onus - HELD THAT:- Assessee company, being a private limited company which has received the amount towards the share subscription again from two other private limited companies has failed to discharge the initial onus placed on it. Mere fact that the money has been received through banking channel is not sufficient enough to discharge the burden. The confirmations, on the letterheads of the assessee company without specifying any date of confirmation, identification by way name and designation of the person signing those confirmations on behalf of the investee companies, have been filed during the appellate proceedings, however the letters issued by the Assessing officer to these two investee companies have been returned undelivered and even the new addresses submitted are incomplete which raises a serious question mark on the confirmations so filed as the same is not wholesome, credible and verifiable.
The creditworthiness and genuineness of the transaction is therefore not proved by showing merely issue and receipt of demand drafts when circumstances requires that there should be some more evidence of positive nature to show that the subscribers have made genuine investment.
AO clearly harbours doubts about the legitimacy of share subscription in the books of the assessee company and has gone about issuing letters seeking confirmation and calling for the personal attendance of the directors of the investee companies. Whilst it does appear that at the time of assessment proceedings, the assessee’s premises were locked due to some Court proceedings and the assessee couldn’t submit appropriate documentation, however the assessee was given sufficient opportunity during the appellate proceedings by the ld CIT(A) and by the AO during the remand proceedings, genuine doubts as to the identity, creditworthiness and genuineness of transaction continue to persist in the minds of the Assessing officer.
The explanation about the nature and source of such sum found credited in its books of accounts has not been found satisfactory and the initial burden on the assessee cannot be said to be have been discharged in the instant case - Decided against assessee.
Adhoc additions made by the Assessing officer - assessee has shown an increase in subscribed & paid up capital, Addition of Vanaspati Ghee, accrued/earned on FDR loans, bills/vouchers of expenses have not been produced for verification and increase in unsecured loans from others - HELD THAT:- CIT(A) has given a finding that the assessee company has produced the books of accounts during the course of remand proceedings but the ld. AO has not verified the contents of the books of account and no specific defects had been pointed out by the AO in his remand report on all the additions. It is also noted that adhoc additions have been made by the Assessing officer (except for an amount in respect of unsecured loans) which cannot be sustained in the eye of law. In light of the same, we hereby direct the deletion of all these additions made by the AO in respect of additional issues no. 2 to 4 - Decided in favour of assessee.
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2017 (3) TMI 1858
Disallowance u/s 14A - assessee argued no exempted income was earned during the relevant assessment year - HELD THAT:-undisputedly the assessee does not have any exempted income, therefore disallowance u/s 14A of the Act cannot be made. We have also examined the judgment of CHEMINVEST LIMITED [2015 (9) TMI 238 - DELHI HIGH COURT] have categorically held that where the assessee had not earned any taxable income in the relevant assessment year in question, then the corresponding expenditure could not be worked out for disallowance. Thus, no disallowance u/s. 14A of the Act can be made in the year in which no exempt income had been earned or received by the assessee - Appeal of assessee is allowed.
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2017 (3) TMI 1857
The Supreme Court of India dismissed the Review Petition on the grounds of delay and merits. (Citation: 2017 (3) TMI 1857 - SC)
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2017 (3) TMI 1856
The Supreme Court of India dismissed the appeals as the tax effect involved was only Rs. 1.5 lakhs, refusing to entertain them.
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2017 (3) TMI 1855
Extension of the stay originally granted - HELD THAT:- The Hon’ble Delhi High Court in Pepsi Foods Pvt. Ltd [2015 (5) TMI 655 - DELHI HIGH COURT] has held that the third proviso to section 254(2A) is constitutionally invalid. The net effect of this judgment is that if the appeal could not be disposed of by the Tribunal for no fault of the assessee, then the power vests with the Tribunal to extend the stay beyond the aggregate period of 365 days.
On merits, it is indisputably found that the terms of stay originally granted have been duly complied with. The appeal could not be finally heard for one reason or the other, but, for no fault of the assessee. Considering the entirety of the facts and circumstances of the instant case, we are inclined to grant extension of stay for a further period of six months from today or till the disposal of the appeal, whichever is earlier. Stay application allowed.
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2017 (3) TMI 1854
Disallowing interest expenditure - as argued lower authorities have passed the orders without properly appreciating the fact and that they further erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order - HELD THAT:- In case the assessee has given a concession, based on mistaken assumption of facts of law, such a concession cannot come in the way of assessee’s statutory right for assessment of income in accordance with the law.
Therefore, the matter should be remitted to the file of the Assessing Officer for adjudication on merits in accordance with the law, by way of a speaking order and after giving yet another opportunity of hearing - As this issue regarding disallowance of interest is being remitted to the file of the Assessing Officer anyway, I also deem it appropriate to remit the matter regarding disallowance of business expenses to the file of the Assessing Officer as well, for fresh adjudication. The matter regarding both the above disallowances thus stands restored to the file of the Assessing Officer.
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2017 (3) TMI 1853
Seeking recovery of possession of land - mutation of the suit - defendant by taking advantage of absence of the plaintiff’s company illegally and unauthorizedly trespassed and occupied the suit land and illegally got his name mutated in the records of rights - maintainability of suit - whether the learned Trial Court had rightly decided the issue No.1 in the negative against the plaintiff/appellant? - HELD THAT:- It is held that the plaintiff company was in existence on the day of filing of the instant suit. It is also held that the suit has been filed within the period of limitation. However, it is held that the suit has not been instituted by the authorized person of the Company. The suit is accordingly held to be not maintainable. The decision of the learned Trial Court in respect of issue no.1 is accordingly partly modified and held that the suit is not maintainable.
Whether the learned Trial Court rightly held that plaintiff has right, title and interest over the suit land? - HELD THAT:- The plaintiff failed to prove the execution of the Sale Deed(Exhibit-3). The Sale Deed exhibit-3 did not complete 30 years on the day it was filed in Court and even on the day it was tendered as evidence. Even otherwise, the presumption under section 90 Evidence Act does not absolve the plaintiff of his burden to prove title over the suit land on the strength of the Sale deed, as required under the law - the learned Trial Court in Issue No.2 is accordingly set aside and it is held that the plaintiff has no right, title and interest over the suit land.
Uninterrupted continuous peaceful possession and occupation of the suit land - HELD THAT:- The defendant Sri Parag Gogoi as DW1 has exhibited the certified copy of Jamabandi of P.P No.21 dated 03.02.2000 as Ext.A, the possession certificate dated 07.02.1996 in respect of the suit land as Ext.B, the land revenue receipts w.e.f 1995 to 2009 as Ext. Nos.J to U, construction permission of TDA dated 07.03.2000 as Ext.X. The possession of the defendant over the suit land has been admitted by the plaintiff also. As the plaintiff has failed to prove his right, title and interest over the suit land and as the instant suit is not maintainable, he is not entitled to recover the possession of the suit land from the defendant - The decision of the learned Trial Court in Issue No.3 is affirmed.
Right, title and interest over the suit land - HELD THAT:- As the suit of the plaintiff is held to be not maintainable and as the plaintiff has failed to prove his right, title and interest over the suit land, the plaintiff is not entitled to the reliefs prayed for. And as the defendant has not prayed for any relief in the suit, the question of granting relief to the defendant does not arise.
The plaintiff company was in existence at the time of filing the suit and that the suit has been filed within the period of limitation, but it is held that the suit has not been filed by the authorized person of the plaintiff company. The ultimate decision of the learned Trial Court in holding the suit as not-maintainable is affirmed.
The appellant is not entitled to any relief - The appeal is dismissed.
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2017 (3) TMI 1852
Dishonor of Cheque - legally enforceable debt or not - vicarious liability fastened upon the shoulder of the petitioner or not - resignation from the Directorship of the Company - HELD THAT:- The resignation of the petitioner and resolution passed by the Company, accepting resignation of the petitioner, is disputed by the respondent No. 2, which is a factual aspect. Forwarding of Form No. 32 by the petitioner to the Registrar of Companies would also be a matter of trial, and therefore, this Court cannot enter into the facts of the case, or the dispute, while deciding application for discharge under section 482 of the Code, and therefore, liability, if any, of the petitioner with the Company shall be decided by the trial court, on leading of evidence by either sides and not by this Court, at this juncture.
The present petition fails and is hereby dismissed.
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2017 (3) TMI 1851
Approval of scheme of Arrangement - section 230-232 of Companies Act - HELD THAT:- From the material on record, the Scheme appears to be fair, reasonable and is not violative of any provisions of law nor is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition Nos. 124 of 2017 and 125 of 2017 are made absolute in terms of prayer clause (a) of the respective petitions.
Petitioners are directed to lodge a copy of this order along with a copy of the Scheme of Arrangement with the concerned Registrar of Companies, electronically along with E-Form INC-28, in addition to physical copy, as per the relevant provisions of the Companies Act, 1956/2013 - The Petitioner Companies to pay costs of ₹ 25,000/- each to the Regional Director, Western Region, Mumbai. Costs to be paid within four weeks from the date of the order.
Application allowed.
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2017 (3) TMI 1850
Deduction u/s 10B - deduction of expenses incurred in foreign exchange towards insurance, travelling and communication expenses - HELD THAT:- The provisions of sub-section (3) of section 10B make it mandatory that in order to invoke the beneficial provisions of section 10B, sale proceeds of an article or thing or computer software should be received in or brought into India by the assessee in convertible foreign exchange within six months from the end of the previous year or such other period as may be permitted by the Reserve Bank of India. On plain reading of the provisions, it is clear that the benefit cannot be given to an undertaking in case no foreign exchange is received or brought into India on account of exports made by it. Reference to foreign exchange policy i.e. Exim is not required when the provisions of the Act are plain and unambiguous. The grounds of appeal filed by the assessee in this regard are dismissed.
As regards portion of the expenses incurred in foreign exchange towards insurance, travelling and communication is concerned, in the case of CIT vs. Tata Elxsi [2011 (8) TMI 782 - KARNATAKA HIGH COURT] held that the same is required to be reduced from export turnover as well as total turnover. We direct that expenses incurred in foreign exchange towards insurance, travelling and communication are to be reduced both from export turnover as well as total turnover. Therefore, the grounds of appeal filed by the assessee in this regard are allowed.
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2017 (3) TMI 1849
Valuation - MRP based assessment - allegation is that during the period under consideration, the MRP was fixed less and for the rest of the period no MRP was fixed - reassessment of value for the purpose of Excise Duty - validity of assessment made under Section 4A of the Central Excise Act, 1944 - levy of penalties on Directors and the Companies - period under consideration (2003 to 2006) - HELD THAT:- It was held in the case of CCE RAJKOT AND OTHERS VERSUS CITIZEN CERAMIC AND OTHERS [2015 (8) TMI 821 - CESTAT AHMEDABAD] where it was held that when the Rules came w.e.f. 01.03.2008, the ascertaining of value of similar goods has to be done w.e.f. 01.03.2008 and cannot be used to determine the value of the clearances made prior to 01.03.2008.
Appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1848
Rejection of a plea of specific performance of contract - rejection solely on the ground of delay - appellant was always ready and willing to perform her part of the contract - HELD THAT:- The appellant acted promptly has always been ready and willing to perform her part of the contract, the delay per se cannot be a sole ground for refusal to grant a decree of specific performance of the contract.
The High Court was not justified in dismissing the suit even though it found every issue in favour of the appellant and held that execution of the documents has been proved. Once the High Court had come to a definite conclusion that the appellant had made out her case, it should have directed specific performance of the agreement instead ordering refund of the advance amount with interest.
The reasoning given by the High Court cannot be accepted or held sustainable in the eyes of law - Appeal allowed.
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2017 (3) TMI 1847
Reopening of assessment u/s 147 - CIT-A sustaining the notional rental income determined by the Assessing Officer - HELD THAT:- Admittedly, in this case, the return filed by the assessee was processed under section 143(1) of the Act on 29.03.2010. Subsequently, the case of the assessee was selected for scrutiny and assessment was completed under section 143(3) of the Act on 20.12.2010. Thereafter, the assessment passed under section 143(3) of the Act was reopened by issue of notice under section 148 of the Act. It is a fact that there was any search or survey in assessee’s case and the Department found any tangible material to form a opinion as there was escapement of income and the assessment was reopened under section 147 of the Act even within four years. The assessee has furnished all particulars at the time of filing of return of income and after examining the details, the return filed by the assessee was processed under section 143(1) of the Act, which is subjected to 143(3) scrutiny assessment and the assessment under section 143(3) of the Act was completed.
Thus we of the considered opinion that the Assessing Officer has not validly initiated the proceedings under section 147 of the Act and therefore, the assessment order passed under section 143(3) r.w.s. 147 of the Act on 24.03.2014 is quashed. Once the reassessment order passed by the Assessing Officer is quashed, there is no need to adjudicate the issue on merits. Thus, the appeal filed by the assessee is allowed in pro tanto
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2017 (3) TMI 1846
Validity of auction notice - failure to repay the two loans availed for purchase of a truck and establishing an industry for manufacture of steel trunks - Section 85 of the Himachal Pradesh Public Moneys (Recovery of Dues) Act, 1973 - HELD THAT:- No explanation was furnished why the installments were not repaid and the loan closed. A pittance was repaid. The loan was disbursed from public funds of the tax payers' money. The Respondent was a trustee for the loan amount. It could not become a windfall for him. All attempts by the Appellant for recovery were successfully thwarted by the Respondent by either filing a Suit or successive writ petitions. The sanguine confidence of the Respondent is also reflected by his failure to appear in the present proceedings despite valid service of notice.
The bar under Order 23 Rule 1 would apply only to a fresh Suit and not proceedings under the Act. In Sarva Shramik Sanghatana v. State of Maharashtra [2007 (11) TMI 590 - SUPREME COURT], the application Under Section 25-O of the Industrial Disputes Act, 1947 for closure of undertaking was withdrawn as attempts were made for settlement of the matter. Settlement not having been possible, the Management filed a fresh application. It was opposed as barred under Order 23 of the Code of Civil Procedure since the earlier application was withdrawn unconditionally with no liberty granted.
The High Court factually erred in holding that the trunk loan was time barred because the Appellant took no steps for recovery of the dues from 1996 till 2002 overlooking the Certificate dated 3.9.1994 - it is held that the proceedings in a Suit are essentially different from proceedings under the Act. The withdrawal of the Suit was no bar to proceedings under the Act. There was no bar under the Act to the proceedings. There had been no abandonment of claim by the Appellant. It would be contrary to public policy to prevent the Appellant from recovering the loan. The recovery proceedings were not time barred.
The order of the High Court is held to be unsustainable and is set aside - Appeal allowed - decided in favor of appellant.
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