|
Advanced Search Options
Case Laws
Showing 161 to 180 of 1393 Records
-
2021 (2) TMI 1235
Maintainability of application - initiation of CIRP - Coporate Debtor failed to make repayment of its dues - financial creditors - financial debt or not - default as alleged, was below the threshold limit of ₹ 1 Crore notified in terms of Notification dated 24th March, 2020 or not - revocation of shares allotted to Appellant whereas the time value of money does not apply to the revocation of shares - HELD THAT:- Let learned counsel for the Respondents file their reply affidavits along with vakalatnamas within two weeks. Rejoinder thereto, if any, may be filed by the Appellant within two weeks thereof. Short written submissions, not exceeding three pages, supported by compilation of relevant judgments may also be filed along with the pleadings.
Post the matter ‘for admission (after notice)’ on 26th March, 2021.
-
2021 (2) TMI 1234
Seeking grant of anticipatory bail - illegal unregulated collective investment scheme by collecting deposits from public, without the approval of RBI/SEBI or any government agency, under the name board of "Real Estate Business" - laundering the ill-gotten wealth which is acquired by duping the lakhs of gullible public in the guise of real estate business - HELD THAT:- In the instant case, major part of the investigation has been completed and the Chairman and other Directors of the Company were granted bails and in most of the cases, the conditions imposed against the Directors while granting bail were relaxed. Though the respondent authorities have registered the case in the year 2018, a notice was issued for the first time in the year 2020 and that the petitioner has been cooperating with the authorities and attending before them along with required information as and when called for. The delay in issuing the notice after two years has not been properly explained by the respondent authorities - the application for anticipatory bail in case of P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (9) TMI 286 - SUPREME COURT], which was relied upon by the learned Counsel for the respondent authorities, was rejected on merits of the allegations and other materials and hence, the facts and circumstances of that case are entirely different from the facts of the present case.
Since the petitioner has been regularly attending before the respondent authorities as and when called for and cooperating with the investigation by furnishing required information; the main accused have already been arrested and their custodial interrogation has already been done by the respondent authorities; major part of the investigation has already been completed and the properties worth ₹ 4109.13 Crores have already been attached, the custodial interrogation of the present petitioner is not required. In such circumstances, granting anticipatory bail to the petitioner on certain conditions is justifiable.
The petitioner is directed to surrender before the Assistant Director, Directorate of Enforcement, Hyderabad, within a period of fifteen days from today, and on such surrender, he shall be released on bail on -his executing a personal bond to the tune of ₹ 5,00,000/- with two sureties each to the like amount to his satisfaction - The petitioner is granted anticipatory bail on the terms and conditions imposed - application allowed.
-
2021 (2) TMI 1233
Seeking to submit the revised Resolution Plan before CoC for legal consideration and on merits - HELD THAT:- The order of this Bench is required, to take any further step in the process. She further added that though the plan was not put before CoC meeting but oral opinion was taken from CoC members and the CoC is of the view that after the order of this Bench, the same can be considered. The Resolution is the prime purpose of the Code.
CoC is directed to consider the revised plan submitted by the present Applicant for consideration - application allowed.
-
2021 (2) TMI 1232
Deemed dividend u/s. 2(22)(e) - inter corporate deposit to the assessee company - CIT(A) has deleted the addition holding that assessee company was not a registered share holder of J.P. Escon Ltd. after placing reliance on the various judicial pronouncements - HELD THAT:- As it is undisputed fact that assessee company was not a registered share holder in J.P. Escon Ltd. from whom it has obtained loan during the year under consideration. Therefore, the addition made by the Assessing Officer as deemed dividend u/s. 2(22)(e) of the Act is not justified. In the light of the above facts and findings, we do not find any infirmity in the decision of ld. CIT(A), therefore, this appeal of the revenue is dismissed.
-
2021 (2) TMI 1231
Rejection of a portion of the claim as preferred by the Applicant - Section 60 (5) of the Insolvency and Bankruptcy Code (IBC) 2016 r/w Rule 11 of NCLT Rules of 2016 - HELD THAT:- IRP is to only merely collate the claim filed and not to dwell in to the transactions behind the Claim:-In relation to the submission of Learned Senior Counsel for the Applicant that the IRP is only required to collate the claim of the claimants based on the documents filed and nothing more, this Tribunal has its reservation in view of the recent developments which had taken place in law established by judicial pronouncements of the Hon’ble Supreme Court.
In Phoenix ARC Private Limited -vs- Spade Financial Services Ltd and Ors [2021 (2) TMI 91 - SUPREME COURT] the Apex Court had an occasion to consider claims arising out of collusive transactions as between the claimant and the corporate debtor and where the IRP had rejected the claim made by the financial creditor applying his mind.
It is clearly identifiable that in relation to IndusInd Bank facilities only the term loan amount had been reflected where as in relation to the Corporate Guarantee there had been no murmur on the part of the Applicant while the claim statement was filed initially on 04.05.2017. Thus, in the absence of any primary document/evidence being produced in relation to the Corporate Guarantee as given by the Corporate Debtor in relation to the loan availed by VDHPL, this Tribunal is constrained to uphold the decision of the IRP in rejecting the claim made in asum of ₹ 54.97,35,793/- by the Applicant.
The IRP is directed to admit the claim of ₹ 180,92,22,164/- pertaining to assignment agreement dated 29.03.2017 between the IndusInd Bank and the Applicant in the capacity as an Assignee having been ‘kept in abeyance’ vide his communication dated 06.02.2020, however the decision of the IRP in relation to Corporate Guarantee alleged to have been given by the Corporate Debtor in relation to the loan availed by Vasan Dental Hospital Private Limited and amounting to a sum of ₹ 54,97,35,793/- being the amount claimed stands rejected.
Application disposed off.
-
2021 (2) TMI 1230
Involuntary sale/assignment of the Corporate Debtor's residuary leasehold right to the applicant - transfer fee is payable or not - HELD THAT:- Since there is already an order dated 10/08/2020 passed by the West Bengal Authority for Advance Ruling and the same has not been appealed against so far, payment of transfer fee and other applicable charges to WBIDC, shall have to be made. No exception to this or waiver can be granted by this Adjudicating Authority in respect of contractual obligations between WBIDC and the Corporate Debtor. That appropriately lies within realm of Civil Court. Therefore, the issue of waiver from transfer fee shall have to be raised by the applicant before the appropriate forum.
Having held that this Adjudicating Authority cannot grant waiver from payment of applicable transfer fees, etc. to WBIDC, the only thing left to be decided in the present IA is the question as to who will bear the cost thereof. Appropriately it should be borne by the applicant concerned since it is the claimant. The applicant is, therefore, hereby directed to pay the applicable fees to the WBIDC, and if so advised, it may choose to file an appeal before the Appellate Authority for Advance Ruling in this regard.
Application disposed off.
-
2021 (2) TMI 1229
Addition on account of expenses of labour Cess - HELD THAT:- As relying on assessee's own case [2019 (5) TMI 1669 - ITAT LUCKNOW] assessee is correct in contending that the addition, if any, is maintainable only in the hands of the client of the assessee Corporation and not in the hands of the assessee. The provisions made for labour cess, do not stand debited to the profit & loss account and the profitability of the Corporation in the form of centage earned as gross profit, is not affected. The assessee Corporation is only a collecting agency for the purposes of the labour cess and deposit thereof with the Government account. Thus, the action of the ld. CIT(A) in confirming the addition for the provisions for labour cess, is reversed and the addition is deleted. The sole ground raised by the assessee in its appeal is allowed.
Difference in valuation of stock - HELD THAT:- CIT(A) in his finding has clearly held that the difference was due to typographical error and he has further observed that books of accounts of assessee were audited by statutory auditor as well as by CAG and such inventory was physically verified therefore he has rightly allowed relief to the assessee and we do not find any reason to interfere with his finding and therefore Ground No.1 of the appeal is dismissed.
Addition on account of prior period items - HELD THAT:- This issue is covered in favour of the assessee in the case of assessee itself in [2019 (5) TMI 1669 - ITAT LUCKNOW] and in [2019 (8) TMI 46 - ITAT LUCKNOW] .
Addition on account of provision of gratuity - HELD THAT:- The written back provision has been taken in the P&L account under the head other non operating income, which is apparent from paper book Pg. 52 where such schedule forming part of balance sheet is placed. The AO has wrongly made the addition of outstanding balance of provision for gratuity which the ld. CIT(A) has rightly deleted.
Accrual of income - Addition on account of interest income earned on unutilized fund by holding that the assessee was claiming TDS relating to FDRs of unutilized fund - HELD THAT:- CIT(A) has held that the interest on unutilized funds which belonged to clients of the assessee were required to be credited to their account and therefore, this income cannot be said to have accrued to the assessee. The Hon'ble Tribunal in own case [2019 (5) TMI 1669 - ITAT LUCKNOW] for AY 2010-11 and [2019 (8) TMI 46 - ITAT LUCKNOW] in AY 2011-12 has allowed relief to the assessee under similar facts and circumstances.
Addition on account of profit on sale of assets which the assessee had declared under head other income in schedule 12 forming part of balance sheet - assessee had claimed depreciation as per income tax rules on block of assets and therefore, the block of assets was arrived at after reducing the sale value of assets sold and depreciation as per Income Tax Rules was claimed as per Income Tax Rules - HELD THAT:- AO , on the one hand, allowed depreciation as per Income tax Rules but again added ₹ 98,01,151 being profit on sale of assets without appreciating the fact that no such addition was to be made as depreciation was allowed on block of assets as per Income Tax Rules where the sale consideration of assets was already reduced from the block of assets of depreciation was claimed on net block. The copy of computation sheet is placed at paper book Pg.42 where the computation of income is placed and where the assessee had reduced depreciation as per income tax rules and added back the depreciation debited in the P&L account. We find that ld. CIT(A) has made a finding of fact that assessee has claimed depreciation as per I.T. Rules on block of assets and has reduced the sale consideration of assets from gross block of assets and had claimed depreciation on net block therefore, he has rightly allowed relief to the assessee and we do not find any infirmity in the same and therefore, Ground No.5 is also dismissed.
Addition on account of interest on unlisted machinery - HELD THAT:- CIT(A) has made a finding of fact that interest on unlisted machinery is in the nature of notional interest being charged by assessee on the machinery used in the construction work undertaken by it and the notional interest chart on unlisted machinery being used in the work. The ld. CIT(A) further made a finding of fact that such amount has been debited in the contract account and therefore, the assessee had earned centage on this amount as specified by the Government and the centage so earned was taken in the P&L account - The findings of ld. CIT(A) are quite exhaustive and such addition is covered in favour of assessee by the Tribunal order in the case of assessee itself. Therefore, we do not find any reason to interfere in the same and therefore, Ground No.6 is also dismissed.
Addition on account of gratuity which the assessee had written back as no longer required - HELD THAT:- The assessee by writing back the excess provision of gratuity credited the other receipts and declared it as income and simultaneously the assessee reduced the same in the computation chart in computing net taxable income. The assessee had claimed that it never claimed the gratuity expenses and added back the same in computing of income and therefore, the addition was not justified. The Assessing Officer had wrongly made the addition, which the ld. CIT(A) has deleted by appreciating the facts correctly. The ld. CIT(A) has already dealt this issue and has rightly deleted the addition.
Additions on account of interest accrued on investment and other income which was shown in the balance sheet under the head current assets - HELD THAT:- As under the head other current assets declares interest accrued on investment at ₹ 299543067 and other income accrued but not received at ₹ 54497865. When the assessee passed this entry and declared the income as receivable naturally credit would have been given to the income which would have gone to the P&L account. The system of accounting adopted by assessee is that the income is arrived at by first adding interest received during the year less opening balance of interest accrued considered income in earlier years and then by adding accrued interest of the year not received. The ld. CIT(A) has deleted this addition rightly.
Disallowing depreciation in P&L account under the head operating expenses which was added back while computing allowable depreciation as per I.T. Rules - HELD THAT:- There is no justification in the addition made by the AO as the correct depreciation has been claimed by the appellant as per Rules after adding back the depreciation debited to the contract account and profit and loss account. The addition of ₹ 1,19,55,313/- made by the AO is deleted giving relief to the appellant. - Appeal of revenue dismissed.
-
2021 (2) TMI 1228
Denial of C-Form - inter-State sale as a result of which a higher rate of tax was charged - HELD THAT:- The High Court in J.K. CEMENT LTD. VERSUS STATE OF GUJARAT [2020 (3) TMI 140 - GUJARAT HIGH COURT] has held that the dealer has passed on the burden to the respondent and hence, to deny the claim of refund to the respondent despite the State not contesting in principle the liability to refund would be “hyper-technical”.
SLP dismissed.
-
2021 (2) TMI 1227
Classification of supply - supply of goods or supply of service - Supply of OMR Sheets, Answer Sheets/Examination Copies Printed with logo and name of educational Institution/University name - classification of services - HSN Code - supply of OMR Sheets, Answer Sheets/Examination copies are taxable or exempted under GST? - Applicability of Circular No. 11/11/2017-GST dated 20.10.2017 - HELD THAT:- As per the Circular No. 11/11/2017-GST dated 20.10.2017, the supply of OMR Sheets, Answer Sheets/Examination Copies Printed with logo and name of educational Institution/University is composite supply and the principal supply is the supply of printing falling under heading 9989 of the scheme of classification of services.
The services by way of Supply of OMR Sheets, Answer Sheets/Examination Copies Printed with logo and name of educational Institution/University name is not covered under Si. No. 27(i) above and the same falls under 51 No. 27(ii).
The supply is Supply of Service - the supply of Service under SAC code 9989 - Supply of OMR Sheets, Answer Sheets/Examination copies are taxable - application disposed off.
-
2021 (2) TMI 1226
Classification of goods - rate of GST - supply of “below Duct” to RDSO Ministry of Railways for use in Indian Railway Coaches - whether will fall under the HSN Code 8607 having GST Rate of 12% or will it fall under the HSN 8424 having GST Rate of 18%? - HELD THAT:- The classification of goods under Chapter Heading 8607 does not include 'bellow Sets (or Bellow Ducts). It only refers to parts of railway such as bogies, bissel-bogies, axels, wheels, brakes, hooks and parts thereof, in a general way; whereas, Chapter Heading 8424 clearly includes 'Bellow'. Thus from a reading of Note 2 (e) to Section XVII of the Customs Tariff and Note 2 to Chapter 86 of the Customs Tariff, the applicant's product, 'Bellow Ducts' are classifiable under HSN 8424.
Circular No. 30/4/2018-GST dated 25.01.2018 of the Government of India, Ministry of Finance, Department of Revenue (Tax and Research Unit), New Delhi has issued clarification on classification of supplies made to the Indian Railways classifiable under any chapter, other than Chapter 86. As per the said Circular, only goods, classified under Chapter 86, supplied to the railways attract 5% GST rate with no refund of unutilised input tax credit and other goods [falling in any other chapter], would attract the general applicable GST rates to such goods, under the aforesaid notifications, even if supplied to the railways. Therefore, it is very clear that, any product other than those covered under Chapter 86, supplied to the railways would not qualify for the HSN 8607 and are not to be considered as a parts of railway coaches, even if supplied to the railways. Entry 8607 is very restrictive entry for the purposes of consideration of goods to be classifiable as parts of railway bogies to avail the benefit of reduced rate of taxes.
The subject Bellow Sets (or Bellow Ducts), though to be used in Railway coaches, cannot be called as parts of railway bogies under Chapter Headings 8607 of the Tariff, due to the specific HSN available for Bellow and therefore, the Bellow Sets (Bellow Ducts) merit classification under HSN 8424 and it is covered in the Entry no. 325 of Schedule III of Notification No. 1/2017 C.T. (Rate) dt. 28.06.2017 and attract GST @18%.
-
2021 (2) TMI 1225
Levy of penalty - appropriation of amount paid by the petitioner during the course of investigation towards the tax liability - benefit of waiver from payment of Parenti under section 73 (3) of the Finance Act, 1994 - HELD THAT:- Though no counter has been filed, this writ petition is liable to be dismissed. The petitioner has been issued with the impugned show cause notice only. It is for the petitioner to file reply to the same and participate in the adjudication process under the Finance Act, 1994.
No comments made on the merits of the case - petition disposed off.
-
2021 (2) TMI 1224
Application filed by IRP for withdrawal of CIRP - Filing of Form FA by IRP - Section 12A read with Regulation 30 A of I&B Code - HELD THAT:- It is admitted fact that the Operational Creditor had filed an application for initiation of the CIRP against the Corporate Debtor and on his application, the CIRP was initiated and subsequently, the CoC was constituted in which State Bank of India being the sole financial creditor is the sole member of the CoC and it is also admitted that the State Bank of India has approved the withdrawal by 100% voting.
Mere plain reading of Section 12A shows that the Adjudicating Authority may allow the withdrawal application admitted under Section 7, 9 or 10 on an application made by the applicant with the approval of the 90% of the voting share of the CoC. Therefore, to file an application under Section 12A, the applicant is required to establish two elements i.e. first, the application must be filed by the applicant on whose prayer application under Section 7, 9 or 10 is admitted and secondly, it must be approved by 90% voting share of the CoC but herein the case in hand, it is admitted fact that the CoC which constitute the sole member of SBI by 100% voting approved the withdrawal. But so far the first element is concerned i.e. the application must be filed by the person on whose prayer application is admitted under Section 7, 9 or 10 is not established by the IRP/applicant of this present application and it is admitted fact that the present application has been filed by the IRP and not by the applicant.
In view of Section 12A the application must be filed by the applicant whose application is admitted u/s 7 or 9 or 10 IBC and nowhere either in the IBC or the in the Regulations, it is mentioned that any person other than applicant, whose application is admitted is empowered to file an application. Of course, under the Regulations it is mentioned that the application must be filed through the IRP or the RP the case may be but it never says that the application will be filed at the instance of the Corporate Debtor or the member of the CoC if it is not duly signed or filled by the applicant, therefore, we are unable to accept the contention of the IRP that in view of the directions given by the Hon'ble NCLAT, the IRP has filed the application.
The application is not filed by the applicant, on whose application CIRP is initiated therefore, the present application filed by the IRP even after the approval by the CoC by 100% voting, is not maintainable and liable to be dismissed - Application dismissed.
-
2021 (2) TMI 1223
Transfer of the plots from M/s Purolator India Ltd. to a new company M/s Mahle Filter Systems India Ltd., without taking prior permission/consent of the lessor - violation of Clause- 2(v)(a) of Lease Deed executed between HIMUDA and M/s Purolator India Ltd. - HELD THAT:- Clause-2(v)(a) of Lease Deed mandates recovery of unearned increase for breach of this clause whereby a bar has been put on the lessee on selling, transferring, assigning or otherwise parting with possession of the whole or any part of Industrial Plots, except, in writing previous consent of parties. On change of name of ‘A’ from ‘X’ to ‘Y’, the person ‘A’ remains the same and, thus, property of ‘A’ also remains with ‘A’ but with changed name and, thus, change of name of ‘A’ from ‘X’ to ’Y’ does not amount to selling, transferring, assigning or otherwise parting with possession of the property of ‘A’ to some other person. Therefore, in present case, HIMUDA has wrongly invoked this condition for issuance of notices against the Petitioner-Company and passing impugned order dated 25.2.2010.
Present case is acquisition of another company by way of amalgamation/merger and change of name of acquiring company, i.e. Lessee to the name of acquired company. Clause-2(v)(a) of Lease Deed, nowhere prohibits the lessee from changing its name. It does not contemplate a condition to have permission, muchless previous in writing permission, to change the name of lessee or to acquire any other company by way of amalgamation - In present case, assets of lessee have not been transferred to any other company but assets of another company have been transferred in favour of lessee. Previous consent for filing amalgamation petition, acquiring any other Company by lessee is not warranted under Clause-2(v)(a). Had it been a merger of lessee in any other company alongwith its assets, provisions of Clause-2(v)(a) of Lease Deed might have been attracted, but factual matrix is not so in present case. Thus, action of HIMUDA is misconceived.
M/s Mahle Filter Systems India Ltd. is none else but the M/s Purolator India Ltd. and HIMUDA is not entitled to claim 50% unearned increase of ₹ 15,80,97,144/- alongwith 14% interest from the Petitioner-Company and, accordingly, Office Order dated 25.2.2010 (Annexure-1) is quashed - HIMUDA is directed to incorporate the change of name of M/s Purolator India Ltd. in its record of allotment of concerned Industrial Plots as M/s Mahle Filter Systems India Ltd. and concerned parties, including HIMUDA, are directed to execute all necessary documents, including Supplementary Lease Deed, if required so, under the Rules, Regulations and Law applicable in present case on or before 30.4.2021.
Petition allowed.
-
2021 (2) TMI 1222
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Jurisdiction - time limitation - HELD THAT:- The date of default is 19.03.2018 that is the date of the last invoice issued which was unpaid, and the present application is filed on 20.05.2019. Hence the application is not time barred and filed within the period of limitation.
Jurisdiction - HELD THAT:- The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application.
Disputes existing prior to the issuance of the Demand Notice - HELD THAT:- The dispute must exist before the receipt of demand notice or invoice. Be that as it may, on appraisal of the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing prior to the issuance of the Demand Notice - A pre-existing dispute does not entitle the Operational Creditor to seek Insolvency Resolution of the Corporate Debtor. Whether the Operational Creditor is entitled to seek recovery of the amount of balance USD 2,28,079 out of the total USD 3,77,392.00 as set off by the Corporate Debtor through issuance of Debit Notes, is not for the consideration of this Bench. However, the Applicant has the option to file a Civil suit before the appropriate forum, for the recovery of the same.
This Bench is of the view that the prayer for initiating Corporate. Insolvency Resolution process against the Corporate Debtor is not sustainable - Application rejected.
-
2021 (2) TMI 1221
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - mutually acceptable settlement terms or not - existence of debt and dispute or not - HELD THAT:- There is no legal impediment for the CoC to entertain the settlement terms if they are mutually acceptable to both the parties, i. e., the appellant and respondent No. 1. If the IRP is approached by the appellant and respondent No. 1 by filing the settlement terms in proper format, he will place the same before the CoC for consideration. This may be done within two weeks.
This appeal does not survive for further consideration - appeal is disposed with liberty to the appellant to come back if the settlement is not allowed by the committee of creditors.
-
2021 (2) TMI 1220
Seeking grant of bail - Arrest in a case under Section 498-A of the Indian Penal Code, 1860 (IPC) and Section 4 of the Dowry Prohibition Act, 1961 - procedure contained in Section 41 Cr.P.C. fulfilled or not - HELD THAT:- Notice issued in both the petitions, and the Judgment of the High Court is stayed. The petitioner is released on ad-interim bail on conditions to the satisfaction of the trial court.
There shall be stay of the production warrants as well.
-
2021 (2) TMI 1219
Mining lease - levy of service tax - royalty - whether the royalty under the Act of 1957 is a “consideration” or not and further if that is “consideration”, then what would be the effect pertaining to payment of service tax? - HELD THAT:- An application for vacating the stay having been filed, the Special Leave Petition has been listed for that purpose. In order to obviate two rounds of legal arguments, it would be appropriate to take up the Special Leave Petitions for hearing and final disposal.
-
2021 (2) TMI 1218
Seeking grant of Bail - Smuggling - Gold - infamous handchopping case having a linkage to terrorism - offence of "terrorist act" as defined under Section 15 of the UA(P) Act - HELD THAT:- Section 24(8) of Cr.P.C. permits the Central Government or the State Government to appoint for the purposes of any case or class of cases a person who has been in practice as an advocate for not less than ten years as a special public prosecutor. In the matter of appointment of a special public prosecutor under Section 24(8) of Cr.P.C., we find no reason to insist that it should be done in consultation with the High Court as provided under Section 24(1) of Cr.P.C. In other words, the power conferred on the authorities to appoint a special public prosecutor, specified under Section 24(8) of Cr.P.C., could be regarded as a deviation from the procedure prescribed under Section 24(1) - The appeal was dismissed by the High Court for two reasons. First, the appeal for enhancement of sentence under Section 377(2) of Cr.P.C. could be filed by the public prosecutor duly authorized by the Central Government and the special public prosecutor appearing on behalf of the appellant fairly admitted that the complainant was not empowered by the Central Government to file the appeal. Second, the appeal was not filed by the public prosecutor as contemplated under Section 377(2) of Cr.P.C., but it was filed by the special public prosecutor.
Admittedly NIA Act is a special law to which Section 4(2) of Cr.P.C. may apply in respect of investigation, inquiry, trial, etc. Viewing the rival contentions in this background, it is found that the challenges raised against maintainability of the appeals are not sustainable, especially when we consider the fact that the appeals were presented by the public prosecutor appointed by NIA under Section 15 of NIA Act. We, therefore, find that the appeals filed by NIA are competent.
Smuggling of gold simplicitor will fall within Section 15(1)(a) (iiia) of UA(P) Act. In other words, gold smuggling clearly covered by the provisions of the Customs Act will not fall within the definition of terrorist act in Section 15 of UA(P) Act unless evidence is brought out to show that it is done with the intent to threaten or it is likely to threaten the economic security or monetary stability of India - it does not include gold as the words employed in the Sub-clause specifically mention about production or smuggling or circulation of high quality counterfeit Indian paper currency or coin and therefore gold cannot be grouped along with paper currency or coin even though gold is a valuable substance and has a great potential to get converted into cash. Arrangement of words indicating the things mentioned in the provision does not prompt us to think that gold smuggling with a mere illegal profit motive will fall within the aforementioned definition of terrorist act.
The trial court has carefully taken enough precautions to see that the accused persons, to whom bail had been granted, are obeying the directions and they do not interfere with progress of the investigation. Similarly, measures have been taken in the bail order by imposing necessary conditions to secure their presence at the time of trial - there are no reason to think that the accused to whom bail had been granted will flee from justice or meddle with the investigation. Moreover, the investigating agency, if succeeds in digging out materials to show their complicity in a terrorist act, certainly can move the court for cancellation of bail.
Case diary clearly revealed that 7th accused played a pivotal role in the alleged conspiracy. Various accused persons obtained smuggled gold through 7th accused. Allegations against him are certainly graver than those against the accused who were enlarged on bail. Therefore the court below rightly declined his bail plea - appeal dismissed.
-
2021 (2) TMI 1217
Applicability of the doctrine of mutuality - HELD THAT:- The High Court relying upon the decision of 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] proceeded to allow the special appeal without adjudicating, much less recording a clear finding on the factum of applicability of the doctrine of mutuality in the fact situation of the present case. To observe sobriety, it is noted that the impugned judgment does not stand the test of judicial scrutiny.
The appeal is restored to the file of the High Court, to be considered afresh on its own merits and in accordance with law - Appeal disposed off.
-
2021 (2) TMI 1216
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - privity of contract or not - HELD THAT:- The unregistered Memorandum of Understanding (MoU) dated 05.07.2019 is rejected. The Applicant has also filed Deed of Mortgage dated 20.10.2015 registered as document No. 3034/2015 on the file of the Sub-Registrar, Srirangam executed between Mr. A. Francis in his individual capacity and the Applicant herein. In this registered Deed of Mortgage, the said Mr. A. Francis has mortgaged his individual property as a security to the loan availed by him from the applicant. It is clearly mentioned that Mr. A. Francis has obtained loan and towards that loan he has offered his property as mortgage to the applicant herein. There is no Privity of Contract between the applicant and the Corporate Debtor. The Applicant failed to satisfy this Adjudicating Authority regarding disbursement of loan into the accounts of the Corporate Debtor. The loan alleged to have been availed by the Corporate Debtor is not reflected in the statement of accounts filed along with the application.
The entire transaction was on 20.10.2015. The argument of counsel for Applicant solely relies on the unregistered Memorandum of Understanding (MoU) dated 05.07.2019 wherein he states that since the Corporate Debtor has executed the above MoU, the Corporate Debtor owes a total outstanding amount of ₹ 1,00,00,000/- to the Applicant and 4 other creditors. However, proof of payment/disbursement into the account of the Corporate Debtor has not been submitted by the applicant. Further, no interest has been serviced from the accounts of the Corporate Debtor. It is clear that the Applicant has failed to prove debt and default.
Application dismissed.
............
|
9911796707
