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Showing 141 to 160 of 1281 Records
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2014 (9) TMI 1147 - KARNATAKA APPELLATE TRIBUNAL
Transfer of right to use - sale or service - Whether in facts and law, the FAA is correct in deciding that the transactions between the appellant-company and the CBUs is one of technical service activity and does not involve the transfer of right to use the trademark or there is no deemed sale of trademark?
Held that: - he appellant-company has granted only permission to use the trademark which means to say it is only the licence to manufacture the beer as per the terms and conditions of the appellant-company. The permission to use the trademark is inevitable as the beer so manufactured is for the appellant-company only as the label clearly stipulates that it is 'For United Breweries only' i.e., for the appellant-company only.
The agreements are of composite nature which involves rendering of services, technical consultancy, monitoring of production and marketing and distribution of the beer manufactured on behalf of the appellant. It is the contention of the AA that there is transfer of right to use the trademark - the necessary concomitant of the plain language of the agreement proves that it is merely the licence to use the goods rather than the transfer of right to use as envisaged under the Act. This is explicitly laid down under Clause 2.2 which states that 'UBL hereby grants to BDL i.e. CBL's, the non-assignable, non-transferable and non-exclusive right during the term of the agreement. The sub-clauses 2.2.1, 2.2.2 and 2.2.3 makes it clear that it is only the licence to use the trademark in the composite contract transactions.
The FAA is correct in deciding the issue that the transactions between the appellant and the CBUs does not involve the transfer of right to use the trademark or brand name and thereby the brand franchisee fee is not liable for tax - decided in affirmative.
Whether, the State in cross appeals has established in facts and law that there is transfer of right to use the trademark as per the agreements and the FAA has erred in allowing the appeals in part? - Held that: - the trademark is first of all an intellectual property right and permission to use the trademark amounts to intellectual property services. The appellant-company has adduced copies of the returns in Form ST-3, the prescribed form under Section 70 of the Finance Act, 1994 to demonstrate that the service tax has been paid on the payments realised by way of economic surplus in the form of marketing fee during the impugned tax periods - the cross appeals of the State do not sustain and liable to be dismissed - decided in negative.
Whether, the FAA is correct in deciding that the royalty realised by the appellant amounts to transfer of right to use the brand name "Kingfisher" to the licensees to manufacture and sale of packaged mineral water with that brand name? - Held that: - the law is clear to the effect if royalty received by the appellant has been offered to the service tax under Finance Act, 1994 then it cannot be construed as transfer of right to use the trademark 'Kingfisher' in favour of water bottling units. As the appellant-company has adduced proof by furnishing the copies of Form ST-3, the prescribed form under Section 70 of the Finance Act, 1994 wherein the entire royalty has been admitted to service tax right from April 2006 to March 2011 i.e. during the impugned tax periods of financial years 2005-2006 to 2010-2011 (six financial years) - decided in negative.
There is no need to restore the orders of the AA - appeal allowed in part.
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2014 (9) TMI 1146 - SUPREME COURT
Whether the provisions of Mines and Minerals Act explicitly or impliedly excludes the provisions of Indian Penal Code when the act of an accused is an offence both under the Indian Penal Code and under the provisions of Mines and Minerals (Development and Regulation) Act?
Held that: - It is well known principle that the rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offences are distinct.
There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Similarly, Article 51A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all the living creatures. In view of the Constitutional provisions, the Doctrine of Public Trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, waters and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership.
There is no complete and absolute bar in prosecuting persons under the Indian Penal Code where the offences committed by persons are penal and cognizable offence.
Considering the principles of interpretation and the wordings used in Section 22, it can be said that the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed.
The ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the Indian Penal Code. Hence, for the commission of offence Under Section 378 Code of Criminal Procedure, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act.
Appeal disposed off.
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2014 (9) TMI 1145 - ITAT MUMBAI
Disallowance of deduction u/s 801B(10) - Gram Panchayat as competent authority for issuing completion certificate - project was not approved by Local Authority i.e. CIDCO as housing project but as residential building in shop line as there was no provision for commercial area in housing project prior to 01/04/2004 - Held that:- In the present case the project was approved for commencement vide letter of CIDCO dated 05/03/2004. Thus, the project was approved for commencement before 31/3/2005 and old law will apply when it was not a condition precedent to submit completion certificate. Deduction u/s. 80 IB (10) cannot be denied to the assessee for want of completion certificate from CIDCO.
In common parlance “housing project” would mean constructing the building or group of buildings consisting of several residential units. In fact the explanation in section 80 IB(10) supports the contention of the assessee that approval granted to housing project. Therefore, it is clear that construction of even one building with several residential units of size not exceeding 1000 sq.fts. “E” Building in that case would constitute a housing project under section 10 IB(10) of the Act. Project constructed by the assessee was a separate project different from the project carried out by M/s. Sai Leela Developers. Therefore, such passing observations of AO cannot be held to be a ground for rejection of assessee’s claim for deduction under section 80 IB (10) of the Act.
For the aforementioned reasons we set aside the order passed by Ld. CIT(A) and hold that assessee is entitled to get deduction under section 80 IB(10) and accordingly the AO is directed to allow the deduction to the assessee under section 80 IB(10). Ground No.1 to 5 are allowed in the manner aforesaid.
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2014 (9) TMI 1144 - SUPREME COURT
Admission to the M.B.B.S. course in the NRI category quota - scope and interpretation of term "NRI".
Held that: - The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted - When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the Courts cannot grant any relief to the candidate in the form of securing an admission.
There was total lack of diligence displayed by the contesting Respondent right from the stage when the submission of the application was made. We have noted that the prospectus which was issued in April, 2013 and the offending clause in the prospectus was not challenged promptly while knowing full well that under the said clause the candidate was not eligible, but yet for reason best known to her, an application was filed and that to three days prior to the last date notified for submission of such application. There was no reason, much less justifiable reason, for not challenging the relevant clause before the filing of the application. There was no reason for the contesting Respondent to wait for any reply from the Chandigarh Administration.
Such a recalcitrant attitude displayed by the contesting Respondent should not be encouraged at the cost of the rights of the other candidates for the year 2014-15 against whom the contesting Respondent had no axe to grind - Appeal allowed.
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2014 (9) TMI 1143 - ITAT MUMBAI
Penalty u/s. 271(1)(c) - claim of bad debts under section 36(1)(vii) r.w.s.36(2) rejected - Held that:- When the issue is debatable and substantial question of law has been accepted by the Hon’ble High Court, no penalty is leviable. This issue is squarely covered by the decision of Hon’ble jurisdictional High Court in the case of M/s Nayan Builders & Developers Pvt. Ltd. (2014 (7) TMI 1150 - BOMBAY HIGH COURT) wherein it was categorically held that mere admission of appeal by the High Court is sufficient to debar the penalty levied u/s.271(1)(c) of the Act.
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2014 (9) TMI 1142 - CALCUTTA HIGH COURT
Reopening of assessment - reassessment was pursued by the Assessing Officer on the other issues for which reasons were not recorded - Held that:- Since the reassessment proceedings could not be carried on the original grounds, the Tribunal was justified in dismissing the appeal as it was not open for the Assessing Officer to expand the scope of reassessment by including some other issues. Therefore, no substantial question of law arises.
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2014 (9) TMI 1141 - ITAT MUMBAI
Additional claim for exclusion from the total income on the ground that the receipt had been disputed by the project authorities - Held that:- Before determining the tax liability of the assessee for the year under consideration both the agreements have to be taken in to consideration. Therefore, in the interest of justice, we are remitting back the matter to the file of the AO for fresh adjudication with a limited purpose of deciding the year of taxation and amount to be taxed in the respective year/years after considering the above referred two agreements. The AO is directed to decide both the issues only after hearing the assessee. With these observations, ground no.2 is allowed in favour of the AO, in part.
Prior period expenses - Held that:- We find that while deciding the issue the AO had not considered the method of accounting adopted by the assessee. It is a fact that the assessee was following completed contract method and reconginsing the revenue in a particular manner. It was showing all the expenditure in the work in progress till it got the bills from contractee in the year under appeal. The assessee had shown that both the expenditure had arisen during the year only. Considering the above, we are of the opinion that the FAA was justified in deleting addition of ₹ 90.02 lakhs.
Addition of retention money - Held that:- We find that the disputed amount has direct nexus with the agreement entered between the assessee and the Contractee, that at the time of passing the assessment order the AO the agreement was not in existence. We are of the opinion that without considering the same proper taxability of the assessee cannot be determined. Therefore, in the interest of justice matter is being restored back to the file of the AO for deciding the issue in light of the agreement dated 11.11.2009.He is directed to afford a reasonable opportunity of hearing to the assessee before deciding the assessment-year in which the income has to be taxed. Ground no.4 is allowed in favour of the AO, in part.
Insurance reimbursement in respect of assets destroyed in flood - Held that:- We find that the FAA had directed the AO to verify two facts about the claim made by the assessee, before taking final decision. While giving effect to the order of the FAA, the AO had allowed relief after verification. If the AO was not convinced he would have not allowed the relief to the assessee. The FAA had only indicated the principles that were to be followed for deciding the issue, but facts were to be verified by the AO. Considering these developments, we are of the opinion that the ground has become infructous and needs on adjudication.
Addition of delayed PF contribution - Held that:- It is found that the assessee had paid the disputed sums before the due date of filing of return as envisaged by the provisions of section 139(1)of the Act. Therefore, confirming the order of the FAA, we decide ground against the revenue.
Contribution to superannuation fund (SF) - allowable expenditure in the hands of the assessee - Held that:- We find that the AO had not given any reason for rejecting the claim made by the assessee except referring to the audit report. He did not call for any explanation from the assessee in this regard. The FAA while deciding the appeal has considered all the facts that were necessary to adjudicate the issue. It is a fact that assessee is an AOP and employees from HCC had joined it till the completion of the JV project. As per the service agreements contribution had to be made to SF and the assessee made payment to HCC SF. - Decided against revenue
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2014 (9) TMI 1140 - ITAT MUMBAI
Income from sale of shares - capital gain or busniss income - Held that:- There was no motive of the appellant to take advantage of concessional tax rate applicable to capital gains and also the various ratios worked out in the above manner, clearly establish that appellant was an investor and not a trader in respect of shares held by it and therefore the assessing officer was not justified in computing the income under the head business as against capital gain shown by the appellant.
Claim of deduction u/s 37(1) - CIT(A) set aside the disallowance - Held that:- We are of the view that the order passed by the CIT(A) does not call for any interference. It deserves to be noticed that it is the primary duty of an appellant to point out the errors in the order passed by the CIT(A) and merely relying upon the order passed by the AO, without bringing on record any material to contradict the findings of the CIT(A), could not serve any purpose except indicating the casual approach of the Revenue in dealing with such matters.
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2014 (9) TMI 1139 - CALCUTTA HIGH COURT
Winding up petition - Held that:- This Court unhesitatingly holds that the company is liable to pay the balance sum of ₹ 6,53,097.77p, as claimed by the petitioning creditor in the statutory notice. Since the company has failed to make payment in terms of this statutory notice, it is liable to be wound up.
The petition is, therefore, admitted for a sum of ₹ 6,53,097.77p along with interest at the rate of 7% per annum, to be calculated from the date of statutory notice till date of actual payment. If the company pays the principal amount together with interest within a period of 12(twelve) weeks from the date of communication of this order, either by way of single instalment or by means of spread over payment within the aforementioned timeframe, this winding up petition shall remain permanently stayed.
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2014 (9) TMI 1138 - ITAT PANAJI
Exemption u/s 80 P (2)(a)(i) eligibility - assessee regarded to be a primary co-operative bank - whether the Assessee is hit by the provisions of Sec. 80P(4) which was introduced in the statute by the Finance Act, 2006 w.e.f. 1.4.2007? - Held that:-Section 80P(4) clearly excludes primary agriculture credit society from its domain. Therefore this decision will not assist the assessee. As gone through the decision of Pune Bench in the case of ITO vs Jankalyan Nagri Sahakari Pad Sanstha Ltd [2012 (9) TMI 288 - ITAT, PUNE]. This we have already stated that section 80P(2)(a)(i) nowhere talks of co-operative credit society and therefore the distinction made under the Banking Regulation Act cannot be imported u/s 80P(2)(a)(i). This decision in our opinion will not assist the assessee
Also gone through the decision of Tararani Mahila Cooperative Credit Society Ltd [2014 (3) TMI 293 - ITAT PANJI] to which the undersigned is the author similar finding as has been given in this are given in that case also. The decision of Karnataka High Court in the case of CIT vs Sri Biluru Gurubasava Pattana Sahakari Sangh Niyamitha [2015 (1) TMI 821 - KARNATAKA HIGH COURT] relates to an appeal filed against the order passed u/s 263 and the question involved was whether the Revisional Authority was justified in invoking his power u/s 263 without the foundational fact of the assessee being co-operative bank. Therefore, this decision is not applicable.
Thus hold that the Assessee has to be regarded to be a primary co-operative bank as all the three basic conditions are not complied with, therefore, it is a co-operative bank and the provisions of Sec. 80P(4) are applicable in the case of the Assessee and Assessee is not entitled for deduction u/s 80P(2)(a)(i). We, therefore, confirm the order of the CIT(A) not allowing deduction to the assessee u/s 80P(2)(a)(i) on the income generated for providing banking or credit facilities to its members. - Decided against assessee.
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2014 (9) TMI 1137 - DELHI HIGH COURT
Withdraw the present suit - Held that:- In view of the settlement, the plaintiff wishes to withdraw the present suit. As prayed, the same is dismissed as withdrawn. The parties shall be bound by the terms and conditions of the settlement as mentioned in the application. The application under Order XXXIX Rule 2A CPC being I.A. filed by the plaintiff is also disposed of.
Another prayer is made in the application for refund of the Court fee paid by the plaintiff on the plaint. In view of the fact that the matter has been resolved between the parties and the plaintiff has withdrawn the suit at the initial stage, the plaintiff is entitled for refund of half of the Court fee amount under Section 16A of the Court- fees Act, 1870. Accordingly, the Registry is directed to issue requisite certificate to the plaintiff through counsel, for refund of half the amount of the Court fee from the Collector, within eight weeks from today.
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2014 (9) TMI 1136 - DELHI HIGH COURT
Order of acquittal - Section 378 of NI Act - whether an acquittal order can be challenged under Section 372 Cr.P.C. or special leave is required to prefer an appeal under Section 378 (4) Cr.P.C.? - Held that: - the 'complainant' in the proceedings under Section 138 N.I.Act cannot be considered 'victim' in the letter and spirit of the definition of Section 2 (wa) of the Code and definition of 'injury' under Section 44 IPC cannot be imported into Section 138 N.I.Act. In every such proceedings at first instance, every complainant considers / claims himself / herself a 'victim'. The complainants in these proceedings cannot be taken at par with those who put criminal law into motion to bring the offenders to book at whose hands, they have sustained 'injury' as defined in Section 44 IPC. The changes in Cr.P.C. were for 'victims' who were the worst sufferers in a crime and did not have much role in the Court proceedings.
The remedy available to the complainants under Section 138 N.I.Act against order of acquittal is only to seek special leave before filing an appeal under Section 378 (4) Cr.P.C. before the High Court. In the instant case, the appellant has not sought any such leave - appeals filed by the appellant are dismissed as not maintainable.
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2014 (9) TMI 1135 - CESTAT, BANGALORE
100% EOU - Refund claim - whether the services are taxable in India or the same are export of service outside India in terms of Service Rules, 2005 and for this reason are not taxable in India? - Held that: - Even though the services have been performed in India, the service being business auxiliary service, the same are in respect of the business of the principal located abroad - services are covered by clause (iii) of Rule 3(1) of Export Services Rules 2005.
CVD taken on inputs - Held that: - a 100% EOU need not have to pay the CVD at all - CVD taken on inputs is not eligible.
The impugned orders are set aside and the matters are remanded to the original adjudicating authority to consider the refund claims - appeal allowed by way of remand.
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2014 (9) TMI 1134 - DELHI HIGH COURT
Penalty - non-performance/non-compliance of Past Performance Entitlement - Held that: - Though the appellant even before us has not furnished the copy of the said reply dated 15th September, 2005 but the counsel for the appellant has in this regard drawn our attention to the order dated 19th October, 2006 of the First Appellate Committee where the plea of the appellant of the short shipment being due to Embargo Cat. 338 is noticed. We may however note that the said contention was not accepted by the First Appellate Committee. We may further notice that even the Second Appellate Committee held that there is no justification in the said contention of the appellant for short shipment, because there was a facility for surrendering balance unutilized quota for the exporter in case of embargo and which was not availed of by the appellant - to enable the appellant to succeed on the said plea, it was incumbent upon the appellant to establish that the shortfall was only in quota items of US 338 and not in other quota of different countries code but which the appellant had failed to do and thus the said plea could not be believed.
If the non-fulfilment of the export quota allocated to the appellant was on account of any ban or embargo put on exports, the appellant ought to have surrendered the unfulfilled quota. The appellant admittedly did not do so and now cannot be permitted to wriggle out of his liability for penalty on the said ground.
Appeal dismissed with certain cost to be borne by appellant - decided against appellant.
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2014 (9) TMI 1133 - ITAT JAIPUR
Reduction in FBT - Held that:- Neither the AOs action of 50% ad hoc disallowance nor CIT(A)’s direction to reduce the disallowance to the extent of 20% and allow corresponding reduction from FBT tax are sustainable. Thus the entire disallowance should be deleted consequently the direction to give reduction in FBT will become non est.
Allowing 43B claim - Held that:- No infirmity in the order of ld CIT(A) in allowing the 43B claim to the assesseE since it has not been disputed that amount in question was paid before due date of filing return of income and necessary evidence is brought on the record. Hence this ground of the revenue is dismissed.
Allowability of expenditure - Held that:- No infirmity in the order of ld. CIT(A) in respect of expenditure of ₹ 4,75,121/- as it has not been disputed that same pertained to AY 2008-09 and was booked in subsequent year before filing of the audit report. It is trite law that assessee can claim such expenditure relating to a year which is though accounted for in subsequent year but before filing of the audit report. In any case it will amount to postponement of liability and in such eventuality Hon’ble Supreme Court judgment in the case of Excel Industries [2013 (10) TMI 324 - SUPREME COURT ] is also applicable. Therefore, this ground of the revenue is dismissed.
Ad hoc disallowance in respect of items of expenditure on Gifts to dealer/mason on dealers/mason meet, Sweets etc. on occasion of festivals/visits of guest/Govt. Officials and Gifts to Govt. Officials/Guests on festival/visi tcannot be made. Assessees books are not rejected and the same are duly audited. We find no force in AOs vague and sweeping observations that expenditure is unverifiable. The expenditure being wholly and exclusively for assessee’s business is allowable. In view thereof, there is no justification in retaining the ad hoc 20% by ld. CIT(A). Consequently the CIT(A)’s direction about FBT becomes infructuous. Revenue ground in this behalf is dismissed and assessee’s grounds are allowed.
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2014 (9) TMI 1132 - SUPREME COURT
Cancellation of bail granted to the Petitioners herein by the High Court - whether the exercise of jurisdiction by the High Court Under Section 439(2) of the Code justified in the instant case? - Held that:- It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a Court is bound to act within the four corners of the Statute. The statutory exercise of the power stands on a different pedestal than the power of judicial review vested in a Court.It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law.
In the instant case, the order for bail in the bail application preferred by the accused-Petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the accused-Petitioners. Even though the cancellation of bail rides on the satisfaction and discretion of the Court Under Section 439(2) of the Code, it does not vest the power of review in the Court which granted bail. Even in the light of fact of misrepresentation by the accused-Petitioners during the grant of bail, the High Court could not have entertained the Respondent/informant's prayer by sitting in review of its judgment by entertaining miscellaneous petition.
Herein, the High Court has assigned an erroneous interpretation to the well settled position of law, assumed expanded jurisdiction onto itself and passed an order in contravention of Section 362 of the Code cancelling the bail granted to the Petitioners herein. Therefore, in our considered opinion, the High Court is not justified in reviewing its earlier order of grant of bail and thus, the impugned judgment and order requires to be set aside.
The judgment and order passed by the High Court is set aside. The interim order granted on 02.09.2013 by this Court granting bail to the accused-Petitioners shall continue till the disposal of Police Case No. 126 of 2012 corresponding to Sessions Case No. 182 of 2012.
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2014 (9) TMI 1131 - ITAT, MUMBAI
Disallowance of claim of deduction u/s.10B in respect of sales tax refund - AO disallowed claim on the plea that the CST refund is not on account of profits and gains derived from EOU export of articles or things - Held that:- In the instant case as per contention of Ld. AR, it appears that assessee has already debited the amount paid under sales tax as its expenses forming part of cost of goods purchased for export, however, subsequently part of such sales tax was refunded which go to reduce the cost of purchases. The corresponding increase in profit due to such refund is eligible for claim of deduction u/s.10B. The sales tax refund is not a separate source of income nor it is the due to any Government policy for paying any incentive. Neither it is export incentive nor any payment under scheme of Government. Therefore, the source of receipt cannot be attributed to such scheme. It is simply refund of excess sales tax paid which has already formed part of cost of purchases.
We accordingly, direct the AO to verify as to whether the sales tax refund received by the assessee already formed part of its cost of purchases either during the year under consideration or in earlier years. Accordingly, assessee is directed to furnish details of such payment of sales tax and the year in which it has formed part of its cost of purchase in trading/P&L account. If the AO finds that such sales tax have already been debited in the trading/profit and loss account as a cost of purchases, assessee should be given benefit of deduction u/s.10B with respect to such amount of sales tax refund. Appeal of the assessee is allowed for statistical purposes.
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2014 (9) TMI 1130 - GUJARAT HIGH COURT
Validity of order passed by the Deputy Registrar of the Trade Unions - election of the Union and the modalities - Held that:- The matter is large open before the Industrial Court. The Court below has already directed to hold fresh election and for that, even modalities are worked out in the impugned order. While doing so, the order passed by the Deputy Registrar of the Trade Unions dated 26.02.2014 is already suspended, which is evident from record also. Under these circumstances, this Court does not see any reason to interfere in the course adopted by the Industrial Court as reflected in the impugned order. This petition therefore needs to be dismissed.
So far the grievance of the petitioner about the alleged large scale irregularities and high-handedness of the office bearers of the Union etc. is concerned, those are the aspects which can be taken care of by the collective wisdom of the members of the Union at the time of election and there can not be interference by the Court in that regard. If any offence is committed, it is always open to the concerned member to take recourse to the appropriate remedy, but the same can not be a ground to thwart the election process. It is vehemently submitted on behalf of the petitioner that, the time period granted by the Tribunal is already over, and therefore the election can not be held now. This argument needs to be rejected because the petition can not be, and is not for challenging the election ordered by the Industrial Court. This argument would show lack of bona fide of the petitioner and needs to be rejected. Any procedural aspect can be looked into by the Court below which is seized of the matter. This petition needs to be dismissed.
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2014 (9) TMI 1129 - SUPREME COURT
Cognizance of an offence punishable under Section 138 of NI Act - Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? - can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired? - Held that:- Section 142 of the NI Act prescribes the mode and so also the time within which a complaint for an offence under Section 138 of the NI Act can be filed. A complaint made under Section 138 by the payee or the holder in due course of the cheque has to be in writing and needs to be made within one month from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The period of one month under Section 142(b) begins from the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. However, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period of one month, a complaint may be taken by the Court after the prescribed period.
Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i). As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause.
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2014 (9) TMI 1128 - SC ORDER
Arbitrable disputes - Dispute covered by an arbitration agreement - Is a dispute brought before the Company Law Board invoking the provisions of Sections 397, 398 and 402 of the Companies Act, 1956 at all referable to a private tribunal, viz., an arbitral panel for resolution? - Does a decision of a foreign court on the question of whether a dispute is covered by an arbitration agreement bind the Company Law Board? - Held that:- Taken on board. Leave granted. No stay.
The matter may proceed before the Company Law Board in accordance with law. See HC order [2014 (8) TMI 1050 - BOMBAY HIGH COURT].
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