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Showing 121 to 140 of 1320 Records
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2020 (9) TMI 1202
Cancellation of the sale effected by respondent - reversal of sale transaction - Whether the sale of the secured asset in public auction as per Section 13(4) of SARFAESI Act, which ended in issuance of a sale certificate as per Rule 9(7) of the Security Interest (Enforcement) Rules, 2002 is a complete and absolute sale for the purpose of SARFAESI Act or whether the sale would become final only on the registration of the sale certificate? - scope of SARFAESI Act.
HELD THAT:- The SARFAESI Act is concerned since the sale is by public auction, therefore, the moment bid is accepted and authorised officer confirmed the sale in favour of purchaser, the sale become absolute and the title vests in the purchaser. A sale certificate is issued only when the sale become absolute. Purpose of registration is to pay only the stamp duty and registration charge and due to non registration of sale certificate, sale shall not be treated void and liable to set aside.
In this case, auction was conducted on 24/10/2019 and on the same day, Sale confirmation Advice was issued in favour of Respondent no. 3 Alucom Penals Pvt. Ltd. and subsequently on 30/12/2019, sale certificate was issued, therefore, the sale become absolute on the day, when his bid was accepted and sale confirmation advice was issued, i.e. on 24/10/2019 and title is vested with the purchaser and issuance of sale certificate on 30/12/2019 is merely an evidence of that title and the registration of the sale certificate is merely the formality, which is required under the Registration Act. Unlike the transfer of the immovable property made under the TP Act, the sale under the public auction is completed, the moment the bid is accepted and sale confirmation advice is issued.
The contention of the Ld. Counsel for petitioner the sale can only be completed when the registration of the sale certificate is made, is not liable to be accepted.
Section 52 T.P. Act - HELD THAT:- Although this point has not been raised by the Ld. Counsel for petitioner in course of his arguments but since it is stated in the application, therefore, we wanted to make comments on this issue also. It is the settled principle of law that the transactions made during the pendency of the suit or proceeding under Section 52 of the TP Act is not void ab-initio, rather it depends upon the result of the suit.
There is no merit in the application filed by the applicant, and there is no violation of Moratorium declared u/s 14 of IBC - application dismissed.
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2020 (9) TMI 1201
Cancellation of registration of petitioner - case of petitioner is that the petitioner had never sought for cancellation of the registration and that the cancellation in fact was sought by another establishment namely Omkar Steel - HELD THAT:- The admitted factual position is that the petitioner was a duly registered body under the GST law. On account of inadvertence on the part of the Consultant of the petitioner, the application for cancellation of registration was put up by the Consultant in the name of the petitioner whereas the said application was in fact intended on behalf of another establishment namely M/s Omkar Steel. Thereafter, the petitioner had approached the respondents for revocation of the cancellation of registration which for want of proper provisions under the Act as also under the Rules has not been acceded or accepted by the Department.
In the absence of any power so conferred upon the authorities in respect of the category whose cancellation has been done on an application filed by the registered person themselves, it will be difficult for this Court for issuance of a specific writ to consider the application for revocation of the cancellation of registration. Though in the opinion of this Court, once under Section 30 of the Act a power has been given to the proper officer for revocation of the cancellation of registration in respect of those establishments where the cancellation has been done at the instance of the Department, hence there is no reason why the other category where the registration has been cancelled at the behest of the registered person also not get an opportunity for moving before the authorities seeking for a revocation of the cancellation of registration if they so want. Rather, it should be a case where the said provision should be read in a manner where such category of persons also would have the liberty of approaching the authorities seeking for revocation of the cancellation of registration.
This Court directs the petitioner to approach the GST Council in respect of their grievance and the stand taken by the Department. At the same time, this Court would also like to direct the respondents to consider referring the dispute of the petitioner to the GST Council for an appropriate clarification or guideline.
Petition disposed off.
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2020 (9) TMI 1200
Seeking extension of the CIR Process - the Bank is one of the constituents of the COC - HELD THAT:- At this stage, the IRP along with the Counsel caused appearance and submitted that on an earlier point of time, the HDFC Bank had declined to seek the extension of the CIR Process.
In the circumstances, it is deemed appropriate to direct the IRP to send short notice to all the members of the COC for convening the meeting for deliberating on the issue with regard to extension of the CIR Process. The meeting shall be convened on 13th October, 2020 through visual hearing and the report shall be filed on 16th October, 2020.
List on 16.10.2020.
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2020 (9) TMI 1199
Assessment u/s 153A - incriminating material found during the course of search or not? - HELD THAT:- In the instant case also both the CIT(A) as well as the ITAT have held that the addition is not based on any incriminating material found during the course of search and the assessment was not pending on the date of search. In the proceedings before the CIT(A) as well as the ITAT, the Revenue has not made any attempt as to disclose the incriminating material.
The view taken by the tax authorities based on the decision of CIT Vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] cannot be held to be perverse. The questions of law proposed by the Revenue are squarely covered by the aforesaid judgment.
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2020 (9) TMI 1198
Deduction u/s 80IB - whether the appellants are to be assessed as AOP or as individual? - income from housing project in the name of "Hampton Park" belongs to AOP and not in the individual capacity as co-owner - AO declined the benefit of deduction to the assessee on the premise that deduction u/s. 80IB(10) was available only to an undertaking engaged in developing and building house project subject to fulfillment of conditions laid down in sub-section (10) of section 80IB - HELD THAT:- It is settled law that owner of the land as well as developer of the land both were eligible for claiming deduction u/s 80IB(10) in respect of housing project where the owner contributes the land as well as resources to develops the housing project. Thus, assessee was also eligible for claiming deduction under section 80IB(10) as it full fills all the conditions laid down under section 80IB.
In the case of Sudhir Nagpal and Others Vs. ITO [2013 (2) TMI 371 - PUNJAB AND HARYANA HIGH COURT] wherein agricultural land was inherited by the co-owners from their forefather and general power of Attorney was executed by all the co- owners in favour of the "S" appointing him to construct plinth on their joint agricultural land in the name of all the owners and to further lease out such open plinth to any party on their behalf.
In this case, the issue came up whether the appellants are to be assessed as AOP or as individual. It was held that the co-owners had inherited the property from their ancestors and there was nothing to show that they had acted as AOP. It was also held that in order to asses individual to be forming AOP, the individual co-owners should have joined their resources and thereafter acquired their property in the name of AOP. The ratio of this decision is again directly applicable to the facts of share of profit eligible of deed under section 80IB of the Act. The proceeds relating to sale of plots have been deposited in a separate bank amount of the assessee and her son .and. the same has been shared equally.
There was non-existence of AOP, otherwise proceeds on sale of plots would not have been deposited in a separate bank account. The assessee also filed development permission letter bearing the name of co-owners in their individual capacity. It was further pointed out that the assessee as well as Ashok Govindbhai Patel has obtained separate registration under the Service Tax act in the individual capacity and the Service Tax Return filed along with deposit of service tax in the individual capacity were also furnished. It was contended that this is not the case where two or more independent persons have joined together for acquiring land and construction housing project by pooling their joint resources. The, assessee with her son cannot be at all be said to be -voluntarily, because the land has been received by them jointly by way of; inheritance. In such cases, the association of two or more persons is a forced association of the joint legatees and therefore, the status can only be regarded as co-ownership.
Assessee was a builder and developer. It carried out the project for developing the land held by assessee. Assessee received his share of profit from the same and claimed deduction of her share of profit as per provision of section 80IB (10). The AO declined the benefit of deduction to the assessee on the premise that deduction u/s. 80IB(10) was available only to an undertaking engaged in developing and building house project subject to fulfillment of conditions laid down in sub-section (10) of section 80IB. It is settled law that owner of the land as well as developer of the land both were eligible for claiming deduction under section 80IB(10) in respect of housing project where the owner contributes the land as well as resources to develops the housing project. Thus, assessee was also eligible for claiming deduction under section 80IB(10) as it full fills all the conditions laid down under section 80IB
Our view is further, fortified from the decision of CIT v. Shrayanee Constructions [2012 (7) TMI 88 - KARNATAKA HIGH COURT] wherein it was has held that it is not merely building housing project, which attracts provisions of section 80IB(10), it is developing and building housing project, which attracts said provisions for allowing deduction under section 80IB of the Act - Appeal of the assessee is allowed.
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2020 (9) TMI 1197
TPA - comparable selection - comparability of 7 companies with a SWD service provider such as the Assessee - HELD THAT:- Assessee in engaged in the business of provision of Software Development Services (SWD services), to its wholly owned holding company. In terms of the provisions of Sec.92-A - Companies functionally dissimilar with that of assessee need to be deselected from final list.
Risk adjustment while determining ALP - A perusal of the order of the DRP in this regard shows that the DRP has not directed the AO to allow risk adjustment @ 1%, but has only directed the AO to decide the percentage of risk adjustment to be calculated and to take guidance from the decision of the ITAT Bangalore in the case of Hellosoft Pvt. Ltd. [2013 (10) TMI 747 - ITAT HYDERABAD]. Nevertheless there is no basis or discussion on what are the risks and its quantification. Hence, we are of the view that the said direction is not in accordance with law and hence Gr.No.2 raised by the revenue is allowed, in the facts and circumstances of the present case.
Negative working capital adjustment - HELD THAT:- The grievance that advances received from AE should be considered as part of payables for computing working capital requirement is also a settled proposition. Since the issue has not been dealt with in proper perspective and there are factual contradictions, we deem it fit and appropriate to remand the issue of working capital adjustment to the TPO/AO for a consideration afresh after opportunity to the Assessee and in the light of the observations made in this order on working capital adjustment.
The grievance that advances received from AE should be considered as part of payables for computing working capital requirement is also a settled proposition. Since the issue has not been dealt with in proper perspective and there are factual contradictions, we deem it fit and appropriate to remand the issue of working capital adjustment to the TPO/AO for a consideration afresh after opportunity to the Assessee and in the light of the observations made in this order on working capital adjustment.
Computation of deduction u/s 10A - exclusion of telecommunication expenses, insurance charges and foreign exchange loss both from the export turnover and total turnover for the purpose of computation of deduction u/s. 10A - HELD THAT:- It is not in dispute before us that the Hon’ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] has held that charges/expenses relating to telecommunication, insurance charges and foreign exchange loss should be excluded both from export turnover and total turnover while computing deduction u/s.10A of the Act i.e., whatever is removed from the numerator should also be excluded from the denominator while working total turnover and export turnover for allowing deduction u/s.10A of the Act. The aforesaid decision of the jurisdictional High Court has been upheld by the Hon’ble Supreme Court in the case of CIT v. HCL Technologies Ltd [2018 (5) TMI 357 - SUPREME COURT]
Depreciation on the Written Down Value [WDV] of the lease rentals capitalized in AY 2010-11 in respect of which DRP for AY 2010-11 directed the AO to allow depreciation - premise on lease and paid lease rent - HELD THAT: - AO in his draft assessment order dated 30.3.2015 did not disallow the claim of the Assessee for deduction on account of depreciation. On objections by the Assessee before DRP, the DRP directed the AO to give effect to directions of DRP for AY 2010-11 and allow depreciation. AO in his final assessment order which is subject matter of this appeal disallowed a sum of ₹ 1,49,65,386 instead of allowing depreciation on WDV of the sum of ₹ 1,64,45,484/- as directed by the DRP. The sum of ₹ 1,49,65,386 was arrived at by the AO by reducing a sum of ₹ 14,80,094 from the opening WDV of lease rentals of ₹ 1,64,45,484/-. The approach of the AO in the final order of assessment is not accordance with law and in compliance with the directions of the DRP. As per directions of DRP, the AO should have allowed deduction on account of depreciation of ₹ 14,80,094 - We hold and direct accordingly and allow ground.
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2020 (9) TMI 1196
Approval of Resolution Plan - section 30(6) of IBC, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Process of Corporate Persons) Regulations, 2016 - HELD THAT:- On going through the Resolution Plan submitted by M/s. Invent Assets Securitisation and Reconstruction Pvt Ltd which satisfies the threshold approval by 60% voting right of the CoC. As per the CoC, the plan stands the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the RP and the Resolution Applicant for making the plan effective after approval by this Bench.
Further, in case of non-compliance of this order or withdrawal of Resolution Plan by the Resolution Applicant, the CoC shall forfeit the EMD amount paid by the Resolution Applicant.
The Resolution Plan submitted by M/s. Invent Assets Securitisation and Reconstruction Pvt Ltd. is hereby APPROVED - Application allowed.
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2020 (9) TMI 1195
Seeking extension of time period of CIRP for a period of 90 days excluding lockdown period - Section 12 of the Insolvency & Bankruptcy Code, 2016 (Code) read with Regulation 12 (2) of IBBI(Insolvency Resolution Process for Corporate Persons) Regulations 2016 - HELD THAT:- As per the decision taken by COC it is prayed that this Adjudicating Authority may be pleased to issue order extending the CIRP process by a period of 90 days from 17.7.2020 excluding the lock down period of 72 days (till 15.10.2020).
The extension of CIRP by 90 days is granted and the period of 72 days from 27" August, 2020 to 15" October, 2020 is also considered for being excluded while calculating the number of available days for CIRP calculation.
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2020 (9) TMI 1194
Seeking grant of extension in time, for making the re-payment of the balance settlement amount in terms of One Time Settlement (OTS) - balance could not be paid due to prevailing lockdown situation - Whether this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, has the jurisdiction to extend the period of One Time Settlement? - HELD THAT:- If the settlement policies of the banks itself provide for an extension subject to payment of interest, there is no reason to hold that the Courts in exercise of their equitable jurisdiction under Article 226 of the Constitution of India, cannot extend such time period of settlement.
Further, it is also to be noticed, that invariably in all the settlement schemes or the policies, there are already sufficient checks and balances to identify eligible borrowers to whom such concessions can be extended to lead to an OTS. It is needless to mention that settlement takes place, only after the case of the borrower has been tested on the basis of criteria of eligibility for settlement provided under the scheme or policy itself. For example we see, that cases of wilful default and fraud are normally excluded - a deserving borrower, who has deposited substantial amounts within the originally stipulated period of settlement, proved his bona fides and is willing to clear the remaining in a reasonable period, and compensate the creditor with interest for the period of delay, should be considered with some flexibility to achieve the ultimate aim of such settlements. It is with this perspective, that extensions can be considered to be granted to deserving cases.
This issue in answered in AFFIRMATIVE and hold that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India would have the jurisdiction to extend the period of settlement as originally provided for, in the OTS letter.
Whether in the facts of the present case, the petitioners would be entitled for an extension in making payment of the balance settlement amount pursuant to One Time Settlement dated 29.01.2019? - HELD THAT:- In the present case, the petitioner has prayed for extension of settlement period pursuant to an OTS entered with respondent No. 2 and has paid substantial portion of the same and is willing to pay the remaining with interest. In our considered opinion, if the petitioners are in litigation with other creditors the same by no stretch of imagination constitutes to be a material fact, disclosure of which would have had any impact over the decision of the present case. So long as the respondent No. 2 is getting its money back, under a settlement voluntarily entered into by it, it would have no concern with what the petitioners are litigating with the other creditors - there are no hesitation in rejecting this argument of the respondent.
The petitioners would have to pay the remaining amount due in two quarterly instalments, of which a sum of ₹ 25 lacs shall be payable on or before 31.12.2020 and the remaining amount by 31.03.2021. The petitioners shall also pay interest @ 9% p.a. simple on the delayed payments on reducing balance payable w.e.f. 01.06.2019 i.e. the closing date of the settlement/OTS. It shall be the responsibility of Respondent No. 2 to calculate the amounts due on account of interest and inform the petitioners well in advance, so as to enable the petitioners to ensure adherence to the time schedule of repayment.
Whether the present petition is maintainable in view of the proceedings pending before National Company Law Tribunal, Mumbai? - HELD THAT:- The present case is peculiar in nature, inasmuch as, usually it is Corporate Debtors of private and public nature which are subjected to Insolvency proceedings at the instance of the creditors (Financial/Operational). However, proceedings before the Adjudicating Authority i.e. the "National Company Law Tribunal, in the present case, have been initiated against the Respondent/Financial Service Provider i.e. the creditor itself, at the instance of the Regulator i.e. Reserve Bank of India. Such proceedings against the Financial Service Provider are governed under the Code, 2016 by virtue of Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Provider and Application to Adjudicating Authority) Rules, 2019.
On one hand, the respondent, is facing liquidity issues resulting into initiation of insolvency proceedings and surprisingly on other hand is opposing the prayer of a borrower who intends to make payment to the respondent, which should be the need of the hour, as far as the respondent is concerned. We are yet to notice a plea taken by an entity facing insolvency proceedings, to oppose the prayer of the petitioner which is proposing to make payment of its dues payable to respondent. In our opinion, the interpretation sought to be given by the respondent, is a self defeating argument and hence we express our inability to accept the same - this issue is answered in AFFIRMATIVE and it is held that in the peculiar facts and circumstances of the present petition, the petition would be maintainable.
The petitioners would have to pay the remaining amount due pursuant to OTS dated 02.01.2019 (P-11) in two quarterly instalments, of which a sum of ₹ 25 lacs shall be payable on or before 31.12.2020 and the remaining amount by 31.03.2021. The petitioners shall also pay interest @ 9% p.a. simple on the delayed payments on reducing balance payable w.e.f. 01.06.2019 i.e. the closing date of the settlement/OTS. It shall be the responsibility of respondent No. 2 to calculate the amounts due on account of interest and inform the petitioners well in advance, so as to enable the petitioners to adhere to the time schedule of repayment - Petition allowed.
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2020 (9) TMI 1193
Seeking extension of time period of Corporate Insolvency Resolution Process - Section 40(2) of CIRP Regulation and as per Section 12(2) of IBC 2016 - HELD THAT:- On going through the pleadings on record as also the minutes of the 6th COC meeting held on 15.9.2020 in which a resolution was passed to file application under Section 40(2) of CIRP Regulation and as per Section 12(2) of IBC 2016 for a time period extension of 30 days with effect from 13.9.2020 so as to consider and evaluate the revised Resolution plan.
The prayer for extension of Corporate Insolvency Resolution Process period for extension of 30 days with effect from 13.09.2020 is allowed - Application allowed.
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2020 (9) TMI 1192
Deduction u/s 10A - deduction allowed without reducing the brought forward losses pertaining to the year subsequent to the assessment year and setting the same off against gains of business in the current year - HELD THAT:- The issue raised in this appeal is covered by the decision of this Court in the case of M/s.Comstar Automative Technologies Private Ltd [2020 (7) TMI 730 - MADRAS HIGH COURT] in favour of the assessee. Further in the decision of this Court in the case of CIT Vs. M/s.Comstar Automotive Technologies Pvt. Ltd. 2020 (3) TMI 814 - MADRAS HIGH COUR T]to which, one of us (TSSJ) was a party, the above mentioned substantial question of law was decided against the Revenue.
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2020 (9) TMI 1191
Effect of issuance of notification dated 14th September, 2020 on export of goods, which were loaded and were with the customs authority, prior to issuance of the said notification - Onions - validity of shipping bills - HELD THAT:- It appears that the consignments of the Petitioners were with the customs authority prior to issuance of the impugned notification. While the decision taken by the Respondents are appreciated, to mitigate the hardship of those exporters where consignments were already loaded for export, it would be in the interest of justice if the same benefit is extended to the goods of the Petitioners because according to them their consignments were with the customs authority prior to issuance of the notification.
It is expected that a decision to be taken expeditiously as admittedly the goods are perishable - also,the shipping bills prior to issuance of the impugned notification shall not be construed to have lapsed till the matter is decided - Stand over to 29th September, 2020.
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2020 (9) TMI 1190
Nature of expenditure - Expenditure on payment of franchisee fees - assessee company has acquired the rights for the sale of products belonging to the specific brands - revenue or capital expenditure - HELD THAT:- In this case, the assessee entered into various Agreements with various parties as discussed earlier which is the payment of franchisee fees - The above payments based on certain percentage of sales by the assessee. The parties with whom the assessee has entered into Agreement has not transferred any business or commercial rights with enduring benefits to the assessee. The assessee cannot be said to have any enduring benefit by entering into these agreements.
These are in the nature of day to day operations of the assessee's business. Being so, the CIT(Appeals) justified in allowing the expenditure as revenue expenditure. This position is fortified with the decision in the case of Jonas Woodhead & Sons Ltd. Vs.CIT [1978 (11) TMI 44 - MADRAS HIGH COURT].
Hon'ble Madras High Court in the case of CIT Vs. TVS Ltd [1976 (11) TMI 40 - MADRAS HIGH COURT] held that when the payment made by the assessee to a company was in the nature of license fees which constitute an item of allowable expenditure in the computation of profit and gains and it cannot be a capital expenditure. In our opinion, the findings and reasons given by the CIT(Appeals) to allow the claim of the expenses in regard to franchisee on the Agreement entered by the assessee is a revenue expenditure and it cannot be construed as a capital expenditure. Hence the appeal of revenue is dismissed.
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2020 (9) TMI 1189
Disqualification of directors Companies Fresh Start Scheme, 2020 - applicability of Section 167 (3) of Companies Act - HELD THAT:- Nothing stops this Petitioner from persuading the other directors or the promoter from nominating any other person as a director to apply under the Scheme. We have to also keep in mind the delay and the stage at which the Petitioner has approached this Court regarding the Scheme.
Since the position has been clarified by the learned Additional Solicitor General as above, that in the capacity of promoter the Petitioner/s can nominate any person as a director and follow section 167(3) of the Act to apply under the Scheme, it is not necessary for us to issue any further directions. This course of action is, therefore, available to the Petitioner/s regarding the Scheme.
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2020 (9) TMI 1188
Seeking condonation of delay of 230 days in preferring Company Petition - availability of Section of the Limitation Act, 1963 to an Application filed under Section 7 or Section 9 by a Creditor - HELD THAT:- The Hon'ble Supreme Court of India in B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] has stated that Limitation Act is applicable since the inception of the Code (IBC, 2016) while posing itself with a query as to whether the Limitation Act, 1963 will apply to Applications that are made under Section 7 and or Section 9 of the Code (IBC, 2016) on and from its commencement on 01.12.2016 to 06.06.2018 (date of amendment of insertion of Section 238-A coming into effect), Referring to the Report of the Insolvency Law Committee of March, 2018 in this regard and after extracting paragraph 28.1 to 28.3 of the said Report and highlighting that the Code (IBC, 2016) could not have been to give a new lease of life to debts which are time barred and has thereby gone to give a finding that the Limitation Act is applicable from the inception of the Code.
The reasons hence given in the Application that since the Limitation Act, 1963 came to be applied only from 06.06.2018 and in the circumstances in effect there has been a laxity on the part of the Applicant to approach this Tribunal also does not hold much water in view of the observations made by the Hon'ble Supreme Court of India that bringing into effect the amendment on and from 06.06.2018 by insertion of Section 238-A of IBC, 2016 is more by way of only a clarification about the applicability of the 'Limitation Act' and cannot be claimed to be made applicable only from the date when the 'Amendment Act' came into force on 06.06.2018.
The pleadings have failed to clearly bring out as to how the number of day's delay as stated in the Application of 230 days has been computed giving out clearly the start and end date. Even when the learned Counsel for the Respondent specifically raised the issue, Learned Counsel for the Applicant was not in a position to answer the issue - thus, no sufficient cause has been demonstrated to involve Section '5' of the Limitation Act, 1963, even assuming it can be applied at all.
The Application seeking for condonation of delay, in filing a Petition / Application under Section '9' of IBC, 2016 invoking Section '5' of the Limitation Act, 1963 stands dismissed.
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2020 (9) TMI 1187
Dishonor of Cheque - acquittal of the accused - acquittal on suspicion, surmises and conjectures - the recovery of knife and rope at the instance of the Accused - appreciation of evidence on doubtful disclosure statements - non-examination of material witnesses - prosecution has to prove the complete chain of events - material contradictions and even the recovery of jeep, knife and rope, photographs from the jeep.
HELD THAT:- It is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the Accused and such evidence should not only be consistent with the guilt of the Accused but should be inconsistent with his innocence.
In the present case, the prosecution as well as the High Court considered the recovery of photographs; recovery of mobile phone belonging to PW7, recovery of the knife and rope at the instance of the Accused and on alleged disclosure statements of the Accused on 9.9.2010. The prosecution also relied upon the recovery of jeep in which the photographs of the Accused were found. The prosecution also relied upon the disclosure statement of the Accused Anwar Ali with respect to recovery of crates and for the aforesaid prosecution heavily relied upon the testimony of PW5, PW6 and PW7 - the prosecution and the IO suppressed the material facts. Even in the cross-examination, the IO has stated that the sniffer dog had done nothing on the spot. In the cross-examination, he has also specifically stated that "it is incorrect to suggest that the sniffer dog had traced the strings Ex. P52, knife Ex. P59 and vest Ex. P54. However, PW4 and PW5 in their deposition have categorically stated that the knife and rope were recovered on 2.9.2010. The aforesaid cannot be said to be minor contradictions. Therefore, the trial Court was justified in not believing the disclosure statements of the Accused and the recovery of the knife, rope etc. on 9.9.2010 as alleged by the prosecution. From evidence, it emerges that the knife, rope and vest were recovered on 2.9.2010 i.e., much prior to 8.9.2010 when the Accused were arrested.
The Investigating Officer did not follow the procedure as required to be followed Under Section 166(3 & 4), Code of Criminal Procedure Even he did not comply with the provisions of Section 100(4) Code of Criminal Procedure Non-following of the aforesaid provisions alone may not be a ground to acquit the Accused. However, considering the overall surrounding circumstances and in a case where recovery is seriously doubted, non-compliance of the aforesaid play an important role - Even the recovery of the mobile phone from the jeep belonging to PW7 also creates doubt. Though, PW7 has stated that his mobile was stolen or cheated, he never filed any complaint earlier. Even the IO has not tried to have the call details of the mobile. He has not tried to verify from the call details the conversation to or from the mobile.
The findings recorded by the learned trial Court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial Court did not consider any material evidence on record. Trial Court was justified in recording the acquittal by observing that prosecution has failed to complete the entire chain of event - the High Court is not justified in reversing the order of acquittal passed by the learned trial Court.
Petition allowed.
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2020 (9) TMI 1186
Dishonor of Cheque - validity of summon order passed by the Court - Intent of drawer is clear that he will not make payment - HELD THAT:- The provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. Proviso (c) of the said Act is to see the bona fide of the drawer of the cheque and is with a view to grant him a chance to make the payment - In this case, the cheque was drawn by the accused on an account maintained by him with the bank. The period of 15 days is for making payment. In this case the accused did not make the payment and did not even appear before the Court below for a year. It is in the month of August, 2020 that he has approached this Court.
In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no' - Reason given by the learned Magistrate is very clear. It is well reasoned order which was passed on 30.11.2019. For a period of one year, the petitioner has chosen not to appear before the learned Magistrate and has moved this Court now.
This petition is dismissed with cost of ₹ 15,000/- to be deposited before the Court below.
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2020 (9) TMI 1185
Grant of Regular Bail - input credit availed on the basis of forged document - HELD THAT:- List this case after four weeks along with B.A. No.4348 of 2020 and analogous cases arising out of Govindpur P.S. Case No.256 of 2019.
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2020 (9) TMI 1184
Maintainability of petition - Territorial Jurisdiction - import of consignment at Tuticorin Port - petitioner is residing at Kerala and the authority is based in Haryana - HELD THAT:- A mere look at Article 226 of the Constitution of India would indicate that even if the authority is located outside the territorial limits of the High Court where the writ petition has been filed still orders can be passed, if at least a part of the cause of action had arisen within the territorial limits of this Court. It is not in dispute that the petitioner had imported the consignment in question only at Tuticorin Port. Thus, not a mere part of the cause of action but the basic cause of action had arisen only within the territorial limits of this Court.
There are jurisdiction to maintain this writ petition - the first respondent to dispose of the petition mentioned appeal on merits and in accordance with law within a period of two weeks from the date of receipt of a copy of this order.
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2020 (9) TMI 1183
Grant of Anticipatory Bail - acceptance of huge bribe amount from the complainant - Raids of the factory - physically the stocks of raw material were much more than that was recorded in the books - HELD THAT:- Accused Kuldeep Hooda and present applicant Gurvinder Singh Sohal are alleged to have demanded and accepted the remaining bribe amount of ₹ 6 lacs on 14.08.2020 in moving Creta vehicle, but the accused after getting apprehensive, abandoned the vehicle and the bribe amount as well as the vehicle were recovered and taken in possession by the CBI in the presence of independent witnesses and applicant-accused is absconding since 14.08.2020. Applicant-accused along with co-accused demanded huge bribe amount from the complainant and there are also recorded conversations indicating prima facie active involvement of applicant-accused in the alleged offences and therefore custodial interrogation of applicant-accused is very much necessary in the interest of investigation. No public servant can be allowed to behave and act as an extortionist. The menace of corruption is eating into the vitals of our society and the same needs to be dealt with sternly. Keeping in view the entirety of the facts and circumstances and in the light of allegations against the applicant-accused, this Court of the considered opinion that it is not a fit case to exercise extraordinary power of granting anticipatory bail to the applicant-accused.
Without commenting on the merits of the case, present bail application of applicant-accused, namely, Gurvinder Singh Sohal for grant of anticipatory bail, being devoid of merits, is hereby dismissed.
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