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Showing 121 to 140 of 1434 Records
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2021 (8) TMI 1316
Assessment u/s 153A - benami income arising out of the sales and purchases transactions of 70 entities as assessed in the hand of assessee - reliance on pen-drive as found during the course of search proceedings - HELD THAT:- As no substance could be found in the plea that the pen-drive did not belong to the assessee or the same was not found from assessee’s premises particularly when the contents of the pen drive completely matched with incriminating material found during the course of search operations. The seizure of the same was duly recorded in the Panchnama which was vouched by independent Panchas. The vital link was established between the pen drive and the estimate sheets as well as the regular books of benami concerns being run by the assessee. Therefore, we do not find any substance in this plea as raised by Ld. AR before us and therefore, we reject the same.
So far as the other arguments are concerned, we find that that the assessee was running more than 70 benami concern under name-sake directors / partners /proprietors. These persons were acting as per the direction of the assessee against remuneration. Most of them, in their statement u/s 132(4), made admission of those facts. They also made admission that they assisted / abetted the assessee in the business of providing accommodation entries. Their PAN Cards, IDs, blank signed cheque books etc were found at centralized premises. They were visiting the centralized premises to sign the blank cheque books as per the directions of the assessee. All these persons had superficial knowledge about nature of business being conducted by their respective concerns.
Most of these persons were residing at premises owned by the assessee group. The books of accounts of all these entities were being maintained at two premises in a centralized manner. The books were found in the same computer and audited by common Auditor. The auditor admitted to have signed the financial statements as per the directions of Shri Lunkaran Parasmal Kothari without verifying the books of accounts. This is further fortified by survey action at BKC, Mumbai wherein more than 30 firms were found to be operating from common premises. All the 70 entities were found to have common features in their respective financial statements. All these factors strongly prove the allegations of the department that all the concerns were being run by the group in a combined manner with a view to provide accommodation entries to various beneficiaries against commission.
So far as the retraction of the statement made by the assessee is concerned, we find that the retraction was made after more than 8 months and the same was devoid of any material evidence. The statements were made on oath u/s 132(4) and heavy onus was on assessee to rebut the same with cogent material while retracting the same. However, nothing of that sort as done by the assessee, has been shown before us. Glaring contradictions as well as similarities has been found in the retraction affidavits. As rightly held by lower authorities, the retraction was nothing but mere after-thought and tutored statement to thwart the process of investigation. The retraction was bereft of any material evidence and therefore, the same was to be completely ignored.
The aforesaid factual matrix as well as findings would lead to inescapable conclusion that all the 70 entities under consideration were being managed and controlled by the assessee group and therefore, lower authorities were quite justified in estimating commission income earned by the assessee group from all these benami concerns. - Decided against assessee.
Estimation of Quantum Additions - The estimation of 0.02% on import purchases as made by Ld. CIT(A) is based on confessional statement of the assessee and the same is also corroborated by relevant entries made in the estimation sheets which is illustrated in the impugned order. Therefore, we confirm this estimation.
The estimation of commission on local purchase is based primarily on the assumption that the assessee would have earned commission on all the transactions. However, there is no reference to any incriminating material while making this enhancement. The assessee has also not admitted to have earned such commission. Thus, the same is based on mere presumption and hence, we are inclined to delete the same. The estimation of 0.05% on accommodation entries of bogus purchases provided by assessee is based on our estimation in the case of Shri Rajendra P. Jain.
Our estimation with respect to bogus unsecured Loans provided by assessee draw strength from the fact that the assessee has carried out maximum transactions of this nature. The rate of commission may not be constant in all the transactions. Therefore, estimating the same merely on the basis of few illustrations only may not be a correct approach. Keeping in view the notions of equity and reasonableness, we have estimated the same @1% per annum which is much more than our estimation in the case of Shri Rajendra P. Jain.
The expenses allowance of 25%, in our considered opinion, would be more than enough to take care of the estimated expenses being incurred by the assessee to carry out its operations under all these concerns keeping in view the magnitude of the transactions. The assessee was maintaining all the concerns in a centralized manner. Evidently, the assessee was employing only a limited number of trusted employees only and the expenditure would remain, more or less, constant even if the number of concerns would have become more. The expenditure could not be assumed to have increased in direct proportion to the increase in turnover. Therefore, the estimation as made by Ld. CIT(A) is reasoned one and no further relief could be provided to the assessee, on this account.
Having said so, no other benefit / credit of returned income etc. would be available to the assessee. No credit of taxed paid by various entities would be available since TDS refund has been claimed by many of these entities.
The addition in the hands of the assessee would be over and above respective returned income of these concerns and also without any benefit of taxes paid by these concerns.
Unexplained jewellery - As quite evident that during appellate proceedings, the assessee was able to reconcile the jewellery as found during the course of search operations vis-à-vis jewellery declared in the wealth tax return. It is undisputed fact that declared jewellery was more than actual jewellery found during search operations. The findings of Ld. CIT(A) remain undisturbed before us. Therefore, our interference in the matter is unwarranted. This ground of revenue’s appeal stands dismissed.
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2021 (8) TMI 1315
Seeking stay to the Formation of CoC - HELD THAT:- In the set of facts although the Learned Sr. Counsel for the Appellant is seeking stay to the Formation of CoC, there is no good reason found to stay the formation of CoC. The IBC is time-bound process and if tomorrow Appellant succeeds the suitable orders would follow.
Issue Notice - List the Appeal ‘For Admission (After Notice)’ Hearing on 07th October, 2021.
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2021 (8) TMI 1314
Violation of the securities laws - Misstatement in the prospectus - IPO proceeds were diverted and misutlised by the Company - some amount of the IPO proceeds were disbursed to certain entities under the pretext of advances towards work contracts for IPO objectives, but in fact, no substantial work contracts were executed - Directors of the Company known as Birla Pacific Medspa Ltd. have been restrained from accessing the securities market directly or indirectly, in any manner and further prohibited from buying, selling or otherwise dealing in securities, directly or indirectly, or being associated with the securities market in any manner for a period of two years - HELD THAT:- Merely because the word ‘ICD’ was not mentioned in the interim use of funds in the prospectus does not become a case of misstatement in the prospectus nor does it become a deliberate part of larger design to come out with an IPO and, thereafter, funding the operations of its group company through ICDs thereby siphoning of the money from the genuine investors. In our opinion, the word ‘liquid instrument’ is wide enough to include ICDs
The finding that because the word ‘corporate’ was included in the resolution of the Board of Directors dated 11 July, 2011 indicates that the prospectus lacked material particulars is patently erroneous as we have held that liquid instruments includes ICDs and, therefore, there was no misstatement in the prospectus. Consequently, the prospectus did not lack material particulars. Further, the resolution of 11 July, 2011 was not in contradiction or in violation of the terms indicated in the prospectus but only clarified the deployment of the IPO proceeds on a temporary basis. Such clarification in our opinion was in consonance with the use of the word ‘liquid instruments’ given in the prospectus.
The offer document is required to contain all material disclosures to enable the investors/subscribers to take an informed decision and that such disclosure must be prompt, true and fair. In the instant case, the disclosures made in the prospectus were material disclosures which were true, fair and adequate. There is no finding of the WTM that the disclosures made in the prospectus were not true and fair or were inadequate. The use of the word ‘corporate’ in the resolution of the Board of Directors dated 11 July, 2011 does not make the prospectus untrue or inadequate. In our view, the resolution of the Board of Directors was in accordance with the disclosures made in the prospectus. The usage of the word ‘corporate’ in the resolution does not dilute the statement made in the prospectus. In fact, it only clarifies it. Thus, there is no breach of Regulation 57(1), 60(4)(a) and 60(7)(a) of ‘ICDR Regulations, 2009’ and Clause 2 (XVI) (B) (2) of Part A of Schedule VIII read with Regulation 57(2)(a) of ICDR Regulations, 2009.
The contention raised by appellant that they were denied inspection of documents in violation of the principles of natural justice or on the issue that the proceedings were initiated belatedly or on the issue that the appellants being Non-Executive Director/Non Independent Executive Director no liability could be fastened upon them as they had a limited role to play in affairs of the Company need not be gone into as we are satisfied that the appellants did not commit any breach of the ICDR Regulations nor made any misstatement in the prospectus.
The impugned order in so far as it relates to the appellants cannot be sustained and is quashed. All the appeals are allowed. In the circumstances of the case, parties shall bear their own costs. All the misc. applications are accordingly disposed of.
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2021 (8) TMI 1313
Petitioner seeking direction against respondent to produce all documents relied upon by them while issuing SCN including investigation report - Code of Conduct for regulation monitoring prevention of insider trading approved and followed by the Company - HELD THAT:- On the basis of the reply filed by the respondent when this Court declined to entertain the petition, the petitioner submitted that the petitioner may be permitted to withdraw the petition with liberty to put all these issues before the authority i.e. the person who is going to hear the show cause notice. Hence, the following order is passed.
Writ petition stands dismissed as withdrawn. All contentions of both parties are kept open. No order as to costs.
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2021 (8) TMI 1312
Undisclosed investment u/s 69 in purchase of land properties - profit arising on sale of land by the firm required to be taxed in the hands of the firm OR in the hands of the partner - Assessee filed applications before the ITSC for settlement of his case in the first round of litigation - HELD THAT:- We find that the addition made by the Assessing Officer is contrary to the findings and the decision of the ITSC in the assessees’ own cases as the ITSC, while dealing with the application of the assessees has discussed the facts and after considering the report of the PCIT under rule 9, has also rendered a categorical finding stating that “we have no doubt in our mind that both the unaccounted investment in land purchased by the firm M/s RNR Devcon as well as the profit arising on sale of land by the firm are required to be taxed in the hands of the firm.
The receipts of the applicants (accounted as well as unaccounted) in lieu of forgoing their partnership share to Kakwani family would be capital receipts and not revenue receipts.” Therefore, even as per the categorical findings of the ITSC in the assessees’ own cases, the alleged unaccounted investment could not have been taxed in the hands of the present assessee.
These observations of the ITSC have been accepted by the PCIT/Assessing Officer in so far as the order of ITSC has not been challenged. The Assessing Officer failed to bring any evidence suggesting that the alleged on-money for purchase of the land was paid by the assessees out of their personal resources. There is no reference of any enquiry having been conducted from the firm. Thus, the addition has been made only on surmises and conjectures. Thus, we have no doubt in our mind that the investment in land purchase by the said firm as well as the profit arising on sale of land by the firm is required to be taxed in the hands of the firm and not in the hands of the partner i.e. present assessees. - Decided against revenue.
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2021 (8) TMI 1311
Club or Association Services - member only club incorporated under the provisions of the Indian Companies Act 1913 - mutuality of interest - period from 2006-07 to 2008-09 and from 2009-10 to 2010-11 - HELD THAT:- The issue is no longer res integra in view of the Judgement of Hon’ble Supreme Court in the case of STATE OF WEST BENGAL Versus CALCUTTA CLUB LIMITED [STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT]], whereby it was held that there cannot be any levy of Service Tax between the members of the club and the club and the history of taxation of Service Tax was also traced by the Hon’ble Supreme Court.
The above judgment of the Supreme Court was also referred to in the case of COMMISSIONER OF SERVICE TAX, KOLKATA & ORS. VERSUS THE BENGAL ROWING CLUB & ANR. [2020 (2) TMI 1640 - CALCUTTA HIGH COURT], wherein the Hon’ble Calcutta High Court has also dismissed the appeal filed by the Revenue in a similar matter concerning taxability between the members of the club and the club itself.
Appeal allowed - decided in favor of appellant.
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2021 (8) TMI 1310
Violation of principles of natural justice - opportunity to represent the case not provided - Valuation of imported goods - loading of 3.5% towards royalty and license fee on the transaction value of goods imported from related party - Section 14(1) of the Customs Act, 1962 read with Rule 10(1)(c) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 - HELD THAT:- Based on the findings made in the investigation report, the department should have issued a Show Cause Notice before finalizing the provisional Bills of Entry in accordance with guidelines provided under Circular No.5/2016-Cus dated 09.02.2016 which it failed to do in the instant case - Therefore, it is found that the Appellant has not been provided an opportunity to present its case on merits and make submissions against the investigation report.
The matter is remanded to the adjudicating authority with direction to follow the procedure as laid down in Circular No.5/2016 dated 09.02.2016 preferably within 3(three) months from the date of receipt of this order - Appeal allowed by way of remand.
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2021 (8) TMI 1309
Classification of imported goods - carbonated food drinks such as Big Cola, Big Orange Cola, Big Lemon etc. - classifiable under Tariff Item 2202 99 20 of the Customs Tariff Act, 1975 and specified at Sl. No.48 under Schedule-II as “fruit pulp or fruit juice based drinks” of Notification No.1/2017-Integrated Tax (Rate) dated 28.06.2017 or not - the imported product is in conformity with clause 3-A to Regulation 2.3.30 of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 as amended, or not - HELD THAT:- The issue is no more res integra and the facts of the present case are squarely covered by the decision of the Tribunal in Appellant’s own case COMMISSIONER OF CUSTOMS (PREV.) , WEST BENGAL, KOLKATA VERSUS M/S ANUTHAM EXIM PRIVATE LIMITED [2021 (2) TMI 822 - CESTAT KOLKATA] - The Tribunal in the said case rejected the Appeal filed by the Department and held that the subject goods are appropriately classifiable under tariff item 2202 99 20. It is abundantly clear that the issue has since been decided by the Tribunal in Appellant’s own case for the consignments of the identical goods, imported previously, the impugned order is liable to be set aside.
Appeal allowed - decided in favor of appellant.
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2021 (8) TMI 1307
On-money received on sale of various units - Assessment u/s 153A - CIT-A deleted the addition - HELD THAT:- We find that the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any corroborative material on record to justify the additions made by the Assessing Officer. We find that the assessee had duly shown the short-term capital gain from sale of units in ‘The View’ project and business income from sale of units in ‘Almas Elements’ project in his original returns of income furnished u/s 139 of the Act. We further find that during the course of the assessment proceedings, the assessee had duly furnished all the necessary details, documents, bills, vouchers etc. in respect of both the projects before the Assessing Officer. We also find that the Assessing Officer has also not made any independent enquiry or investigation from the buyers of the property as regard to actual receipt of sale consideration despite specifically being insisted by the assessee during the course of the assessment proceedings. Further, the Assessing Officer has also not brought any incriminating material or evidence on record which could substantiate that the assessee has actually received any on-money from the sale of units in ‘The View’ and ‘Almas Elements’ projects. We also found that the assessee has duly shown the income by having regard to the provisions of section 50C of the Act. Therefore, we are of the considered view that the Assessing Officer has made the additions purely on his guess work and surmises which do not have any basis whatsoever. We do not find any reason to interfere with the findings of the Ld. CIT(A). Accordingly, the action of the Ld. CIT(A) in deleting the additions on account of ‘The View’ and ‘Almas Elements’ projects respectively, is hereby sustained. - Decided against revenue.
Unexplained investment in property - AO noted while examining the books of account of the assessee family, this payment was not found recorded in the regular books of account of any of the assessees of Chugh family - HELD THAT:- We find that the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any corroborative material on record to justify the additions made by the Assessing Officer. We find that during the course of the assessment proceedings, the assessee has duly furnished a notarized affidavit of Shri Anil Sogani, one of the partners of M/s. Gold Terrace Apartment, stating that except a payment of Rs.50,00,000/-, no other payment was made towards the said agreement. However, the said Affidavit was not controverted by the Assessing Officer. We also find that during the course of the assessment proceedings only, the assessee has also demonstrated the refund of Rs.50,00,000/- to Shri Nitesh Chugh on 29.04.2013 through RTGS but, the Assessing Officer did not make any reference thereof in his assessment order and instead, the AO made an incorrect finding to the effect that the amount of Rs.50,00,000/- was not found refunded by the seller to the assessee family. We also find that the Assessing Officer, except placing his reliance on the payment terms stated in the unsigned and undated agreement, could not bring any corroborative evidence on record to establish that the installment of Rs.1,75,00,000/- was actually paid before the date of the search. We have also carefully perused the judicial pronouncements cited and discussed by the Ld. CIT(A) in the impugned order.
Unexplained investment for purchase of plots in Pulak City - HELD THAT:- Merely on the presumption basis, any difference in the guideline value and apparent consideration paid by an assessee for purchase of an immovable property cannot be deemed as income of the assessee. Undisputedly, in the present case, no positive evidence has been brought on record to establish that the assessee has parted with any consideration over and above that shown in the registered sale deeds. In such circumstances, we are of the considered view that the Ld. CIT(A) has rightly deleted the addition made by the Assessing Officer in the assessee’s income on the allegation of payment of on-money by the assessee and his son Shri Vivek Chugh. Accordingly, this ground of the Revenue for the A.Y. 2013-14 is dismissed.
Eligibility of Deduction u/s. 54F in respect on-money - HELD THAT:- We find merit in the argument of the AR that under provisions of clause (b) of section 153A, the Assessing Officer is required to assess or reassess the total income of an assessee. We also find that the expression ‘total income’ has been defined under clause (45) of section 2 of the Act and according to which, the expression ‘total income’ means the total amount of income referred to in section 5, computed in the manner laid down in the Act.
Thus, in our considered opinion, even in the assessment proceedings u/s. 153A, the total income has to be computed in the same manner in which it is computable under the normal assessments under the provisions of s.143(3) of the Act and no discriminatory treatment can be given for computation of total income in pursuance of the assessment made u/s. 153A of the Act. We also find that the position of law for giving a different treatment has got changed only by way of insertion of a new section 115BBE in the statute by way of the Finance Act, 2012 w.e.f. 1-4-2013, which is not applicable for the assessment year under consideration. Thus, we are of the considered view that the assessee is eligible for claim of deduction u/s. 54F of the Act in respect of the on-money of Rs.2,08,00,000/- received from sale of subject capital asset. This view is supported by the decision of the Coordinate Bench of ITAT, Pune in the case of Shri Manish Madhav Malpani [ 2015 (5) TMI 1232 - ITAT PUNE] as also relied upon by the ld. CIT(A). - Thus action of the Ld. CIT(A) in deleting the addition on account of receipt of on-money from sale of agricultural land, is confirmed.
Addition of cash loan given from unaccounted income - unexplained investment in purchase of plots by the assessee - HELD THAT:- We find that the Ld. CIT-DR, except placing his reliance on the findings of the Assessing Officer, could not bring any further material on record to justify the addition made by the Assessing Officer. We find that the assessee himself had offered a sum as additional income on account of cash loans in his return of income filed post-search for the A.Y. 2013-14. Thus, the Assessing Officer was not justified in re-making the addition to the tune of Rs.1,89,000/- in the assessee’s income for the relevant assessment year.
Also we find that the said loose paper is in the form of a promissory note dated 25.03.2007 given by Shri Sanjay Wadhwani in favour of Shri Vivek Chugh. We are in full agreement with the finding of the ld. CIT(A) that the said promissory note neither contains the name of the assessee nor it pertains to the assessment year under consideration and in such circumstances, no addition could be made in the assessee’s income on this count for the relevant assessment year. Accordingly, the action of the ld. CIT(A) in deleting the entire addition.
Unexplained investment for purchase of plots in Pulak City - HELD THAT:- Assessing Officer failed to discharge such onus and made the addition merely on presumption and assumption. We further find force in the contention of the assessee that the impugned transactions of purchases were carried out during the financial year 2012-13 relevant to A.Y. 2013-14 and for such year, the provisions of s.56(2)(vii) were not made applicable. It is worth notable that the provisions of s.56(2)(vii) have been introduced in the statute by the Finance Act, 2013 w.e.f. 1.4.2014 only and such provisions are not retrospective in the nature. In such circumstances, merely on the presumption basis, any difference in the guideline value and apparent consideration paid by an assessee for purchase of an immovable property cannot be deemed as income of the assessee. Undisputedly, in the present case, no positive evidence has been brought on record to establish that the assessee has parted with any consideration over and above that shown in the registered sale deeds. In such circumstances, we are of the considered view that the Ld. CIT(A) has rightly deleted the addition made by the Assessing Officer in the assessee’s income on the allegation of payment of on-money by the assessee
Provisions of section 43CA which have been inserted in the Statute by the Finance Act, 2013 w.e.f. 1-4-2014, were not applicable in the case of the assessee firm for the assessment year under consideration. Therefore, we do not find any reason for making addition by the Assessing Officer in the assessee’s income on this count.
Unexplained expenditure in ‘Sun City’ project - HELD THAT:- No addition in the assessee’s income merely on guess work without bringing any cogent and corroborative material or evidence on record.
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2021 (8) TMI 1306
Seeking grant of Regular Bail - passing of undue input tax credit by making invoices without movement of goods and caused loss of revenue - Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 - HELD THAT:- In view of the facts and circumstances of the case, nature of accusation and evidence against the petitioner, the period of his custody, the fact that all the offences are triable by the Judicial Magistrate First Class and also the fact that the trial is likely to take long time due to restrictions imposed to prevent spread of infection of Covid-19, but without commenting on the merits of the case, the concession of regular bail is extended to the petitioner.
The petitioner is ordered to be released on regular bail on furnishing of bail bonds by him to the satisfaction of the Trial Court/Chief Judicial Magistrate/Duty Magistrate concerned - Petition allowed.
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2021 (8) TMI 1305
Rectification of mistake u/s 254 - Taxability of the interest received on compensation under the Land Acquisition Act - AO brought to tax the interest received on compensation placing reliance on the provisions of section 145A r.w.s. 56(2)(viii) - HELD THAT:- As on mere reading of the order of Tribunal, we find that the Tribunal relying upon the decision of the Hon’ble Supreme Court in the case of (i) Ghanshyam (HUF) [2009 (7) TMI 12 - SUPREME COURT] and (ii) Bikram Singh & Ors. [1996 (9) TMI 6 - SUPREME COURT] had deleted the additions without adverting to the provisions of section 145A r.w.s. 56(2)(viii) of the Act. In our considered opinion, non-consideration of the particular provisions of the Act especially when the lower authorities had placed reliance for the purpose of making the addition, is a mistake apparent from the record which is capable of being rectified u/s 254(2) of the Act. Thus, the appeal is recalled for a limited purpose of deciding as to the applicability or otherwise of provisions of section 145A r.w.s. 56(2)(viii) of the Act. Accordingly, the Registry is directed to fix the appeal in due course of hearing.
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2021 (8) TMI 1304
Expunction of disparaging remarks against a person whose conduct comes in for consideration before a Court of law - party whose conduct is in question is before the court or has an opportunity of explaining or defending himself? - evidence on record bearing on that conduct justifying the remarks - HELD THAT:- Having perused the offending comments recorded in the High Court judgments, we feel that those could have been avoided as they were unnecessary for deciding the disputes. Moreover, they appear to be based on the personal perception of the learned Judge. It is also apparent that the learned Judge did not, before recording the adverse comments, give any opportunity to the Appellant to put forth his explanation. The remarks so recorded have cast aspersion on the professional integrity of the Appellant. Such condemnation of the Counsel, without giving him an opportunity of being heard would be a negation of the principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations is also found to be missing in the offending comments.
The tenor of the remarks recorded against the Appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments, it will be a cross that the Appellant will have to bear, all his life. To allow him to suffer thus, would be prejudicial and unjust.
The offending remarks recorded by the learned judge against the Appellant should not have been recorded in the manner it was done. The Appellant whose professional conduct was questioned, was not provided any opportunity to explain his conduct or defend himself - Appeal disposed off.
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2021 (8) TMI 1303
Seeking release of detenue - proximate or live connection between the acts complained of and the date of the Detention Order - infringement of public order - habitual fraudster - HELD THAT:- There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large - There can be no doubt that what is alleged in the five FIRs pertain to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation.
The reason for not adopting a narrow meaning of ‘public order’ in that case was because of the expression “in the interests of” which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question - considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.
In YUMMAN ONGBI LEMBI LEIMA VERSUS STATE OF MANIPUR & ORS. [2012 (1) TMI 200 - SUPREME COURT], this Court specifically adverted to when a preventive detention order would be bad, as recourse to the ordinary law would be sufficient in the facts of a given case, with particular regard being had to bail having been granted.
It is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute.
Appeal allowed.
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2021 (8) TMI 1302
Levy of penalty under Section 77(2) of the Finance Act, 1994 - case of appellant is that the main party i.e. M/s Haryana Ex Service League has already gone into ‘SVLDR Scheme’ and obtained discharged certificate - HELD THAT:- Considering the fact that main party has already been discharged and obtained Form-4, in that circumstance, the penalty imposed on the appellant is waived.
The appeal is allowed with consequential relief, if any.
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2021 (8) TMI 1301
Maintainability of criminal revision petition - deposit of fine amount shall be a condition precedent even for entertaining the criminal revision petition, preferred by the accused in terms of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 or not - HELD THAT:- The High Court could not have made the deposit of fine amount a condition precedent for the purpose of hearing the revision petition. As to what order is to be passed ultimately in the revision petition is a matter entirely different and that would depend on the examination of the matter in terms of the requirements of revisional jurisdiction but, in any case, depositing of fine amount could not have been made a condition precedent for the purpose of even hearing of the revision petition so filed by the appellant.
The impugned order is, therefore, set aside - the case is not commented on merits of the case either way and all the aspects relating to revision petition are left open for consideration by the High Court - Appeal allowed.
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2021 (8) TMI 1300
Maintainability of appeal - low tax effect - Special Order directed filing of appeal on merit, in cases involving organized Tax Evasion Activity - HELD THAT:- Since the tax effect involved in this matter is Rs.66,89,957/-, in terms of Circular dated 08.08.2019 issued by the Department of Revenue, Central Board of Direct Taxes, Ministry of Finance, Government of India, we see no reason to interfere in this matter. The Special Leave Petition is dismissed, leaving all the questions of law open.
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2021 (8) TMI 1299
Insider trading - charge of violation of Regulations 3 and 4 of the PFUTP Regulations - contravention of Section 12A(d) of the SEBI Act - conspiracy in the commissioning of the offence of insider trading - As urged by the appellant Rohit Gupta that the WTM has miserably failed to establish the charge of trading against the appellant and has been found guilty only on the basis of preponderance of probability - Contention of the appellants is that adequate opportunity was not provided - HELD THAT:- We find that pursuant to the show cause notice dated July 31, 2018 which was duly served on all the notices, the appellants were required to appear on September 3, 2019 and file a reply which they failed to do so. By a letter dated December 9, 2018 some of the noticees, namely, Navin Tayal and Jyotika Tayal intimated that their authorized signatory would appear on their behalf but failed to appear on next date i.e. September 3, 2019. On September 3, 2019, the AO fixed the hearing date for September 17, 2019. All the noticees requested for an adjournment on September 17, 2019 and prayed that they may be provided an opportunity to inspect the documents.
AO, in the interest of justice, adjourned the matter for November 18, 2019. Prior to that date, noticee No. 1 on November 4, 2019 and on November 5, 2019, the appellants Navin Tayal, Jyotika Tayal and Azam Shaikh, on November 14, 2019 Advik and on November 15, 2019 Kulwinder Nayyar vide the letters requested the AO for inspection of documents. The matter was accordingly adjourned on November 18, 2019 and vide notice dated December 27, 2019, all the noticees were given an opportunity to inspect the documents on January 30, 2020. By the said notice, all the noticees were intimated that the hearing would be fixed on February 17, 2020. The record indicates that no one appeared to inspect the documents on January 30, 2020 in spite of the receipt of the notice nor appeared on the date fixed for hearing i.e. February 17, 2020 and accordingly the AO proceeded ex-parte and passed the impugned order.
The contention that the notice dated December 12, 2019 was received by the appellants on January 28, 2020 was vehemently denied by the respondent. The respondent contended that the said notice was received by the appellants on January 17, 2020 and proof of delivery of service has been annexed to the reply. It was contended that the letter of the appellants dated February 11, 2020 seeking further time to inspect the documents and for adjournment and for reschedulement of the hearing was never received and the appellants were put to strict proof. In rejoinder, the appellants admitted that the notice dated December 27, 2019 was received on January 17, 2020 but was not placed before the appellants and, therefore, could not appear for inspection of documents. It was also stated that on account of personal exigency, the appellants could not attend the date fixed for hearing. No proof have been filed by the appellants with regard to the service of letter dated February 11, 2020.
It is apparently clear that the appellants were duly served with the notice. Adequate opportunity was provided to inspect the documents and appear on the date fixed for hearing. The appellants chose not to inspect the documents nor appeared personally nor appeared through their authorized representative on the date fixed for hearing. Consequently, we are of the opinion that the principles of natural justice was fully complied with. The appellants deliberately chose not to participate in the proceedings and, therefore, we do not find any fault in the proceedings adopted by the AO. The order of the AO does not suffer from any error of law.
All the appeals filed against the order of the WTM and against the order of the AO are dismissed with no order as to costs.
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2021 (8) TMI 1298
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- This Adjudicating Authority is satisfied that,
a) The Corporate Debtor availed the loan/ credit facilities from the Financial Creditor;
b) Existence of debt is above Rupees One Lac;
c) Debt is due, payable and defaulted;
d) Default occurred on 28.01.2020; e) Application has been filed within the limitation period, as the date of default is 28.01.2020, when the Application under Section 7 of the IBC has been filed by the FC i.e. State Bank of India on 18.03.2021;
f) Copy of the Application/Amended Application filed before this Bench has been sent to the Corporate Debtor and the application filed by the Applicant Bank under Section 7 of the IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process in respect of the Corporate Debtor; Hence, the present IB Petition is admitted with the following directions/observations. The date of admission of this petition is 26/08/2021.
Petition admitted - moratorium declared.
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2021 (8) TMI 1297
Offence under Black money - permission to travel abroad to petitioner defaulter - Learned Single Judge has, permitted Respondent No.1 to travel to U.S. for a two years course in Masters in Public Administration at the Harvard Kennedy School, John F. Kennedy School, subject to the conditions stipulated therein - whether the LOC issued in 2019 can now stand in the way of the petitioner travelling abroad? - HELD THAT:- As stringent conditions have been imposed by the learned Single Judge while permitting Respondent No.1 to travel to U.S. Additionally, learned counsel appearing for Respondent No.1 voluntarily undertakes that the father of the original Petitioner, Respondent No.1 herein, namely, Shri Kuldeep Bishnoi S/o Late Shri Bhajan Lal shall deposit his Passport with the Registrar General of this Court, within two days from today.
It is accordingly directed that on receipt of the passports as aforesaid, the Registrar General shall keep the passports of Shri Kuldeep Bishnoi S/o Late Shri Bhajan Lal in safe custody in a sealed cover. As and when the father of Respondent No.1 would require the said passports for certain genuine and valid reasons, the father of Respondent No.1 may apply to this Court for necessary permission. In the absence of any further order by this Court, the Registrar General shall not release the passports to Sh. Kuldeep Bishnoi.
Learned counsel appearing for Respondent No.1 further undertakes voluntarily that within one week of Respondent No.1 reaching the Harvard College, Respondent No.1 shall surrender his passport with the concerned Authorities at the Office of the Indian Embassy in United States of America (‘USA’), which is located closest to the College/University where respondent no. 1 is going to study.
The undertaking given on behalf of Respondent No.1 is accepted by this Court. It is directed that as soon as the Passport is surrendered by Respondent No.1, the concerned Authority / Officer at the Indian Embassy shall place the same in a sealed cover and retain in safe custody, until further orders passed by this Court or any other Court of competent jurisdiction, in India. Needless to state that in case Respondent No.1 requires the Passport for a genuine cause, he shall be at liberty to prefer an appropriate application before this Court.
We, however, make it clear that Respondent No.1 is being permitted to travel subject to compliance of the conditions imposed by the learned Single Judge and abiding by the undertaking given to this Court today.
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2021 (8) TMI 1296
Black Money - Application seeking suspension of the look-out circular (“LOC”) so as to enable him to travel to US - It is the case of the petitioner that the LOC against him was issued in 2019 at the behest of respondent no.4, which fact came to his knowledge only on 05.11.2019, when he was stopped from boarding a flight to Dubai at the New Delhi International Airport - HELD THAT:- The fact that the petitioner had, on earlier occasions, been granted permission to go abroad, albeit for shorter periods when he duly returned back to India, is undisputed. It is also undisputed that the petitioner, who has already obtained degrees in B.Sc and M.Sc from prestigious universities abroad, has now secured admission at the Harvard Kennedy School, John F. Kennedy School of Government for undergoing a two-year MPA course. In light of the fact that the petitioner’s father is willing to furnish an undertaking not to leave the country while the petitioner is abroad, do not find the petitioner evidencing any intent of absconding from India. The question of whether the LOC issued in 2019 can now stand in the way of the petitioner travelling abroad is yet to be determined. No doubt, the respondent claims to have already filed a complaint against the petitioner for an offence under the Black Money Act; however, as on date, no cognizance has been taken of the said complaint and therefore, I am inclined to grant permission to the petitioner to travel to US for a period of two-years to attend the MPA Course, subject to the following conditions:
(i) The petitioner will keep the respondents informed about his travel itinerary from time to time;
(ii) He will not tamper with the evidence or contact any person who is a part of the investigation;
(iii) The petitioner’s father will file an undertaking before the Registrar General of this Court that he will not leave the country as long as the petitioner is abroad;
(iv) The petitioner, besides the security already furnished by him in respect of AG-059 (Old No.FLG 04), Phase-I, Ansal Plaza, Greater Noida, UP and the security of ₹ 5 Lakhs - which is already lying with the Registrar General of this Court in terms of order dated 22.02.2021, will furnish a security to the satisfaction of the Registrar General of this Court for a further sum of ₹ 1 Crore in the form of an FDR or a deposit.
(v) The petitioner will appear before any office of the Indian Embassy in the US, once in every eight weeks.
It is, however, made clear that this order will not come in the way of the concerned Additional Chief Metropolitan Magistrate from passing any orders requiring the petitioner’s presence in the country; in which case, it will be for the petitioner to move an appropriate application before the concerned Court, which will be considered in accordance with law.
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