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Showing 161 to 180 of 2056 Records
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2019 (7) TMI 1897
Recovery of salary paid - breach of contract - employee leaves the employment before completion of contract period - HELD THAT:- On perusal of record and provisions of Service Tax w.e.f. 1 July, 2002, it is noted that a service provided by employee to an employer is not covered by the provision of service tax. The transaction in the present case is recovery of such salary paid to the employee for breach of contract. Therefore, the same is not covered by levy of Service Tax.
Appeal allowed - decided in favor of appellant.
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2019 (7) TMI 1896
The Supreme Court of India dismissed the Civil Appeal as withdrawn based on a letter from the appellant's counsel seeking withdrawal. (2019 (7) TMI 1896 - Supreme Court)
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2019 (7) TMI 1895
Seeking grant of anticipatory bail - Large scale misappropriation of money of innocent depositors and investors - HELD THAT:- The material presently on record does indicate that there has been large scale financial misappropriation leading to serious financial loss to the aforesaid Bank and consequently to the investors and depositors. It is evident that the trouble in the Bank was brewing since the year 2016 when the R.B.I. issued a directive on 15.12.2016 to the Bank to cease its Banking activities. The report of the Special Auditor also shows the details of the large scale misappropriation and consequent loss to the Bank. There is no dispute about the fact that the applicants are Chairman/Directors of the said Bank and that they are husband and wife. As the Chairman of the Bank, the applicant was certainly responsible for the activities of the Bank and ultimately for the aforesaid misappropriation of huge amounts of money, although details of the same and the evidence against him would be a matter for trial.
In the case of SUDHIR AND ORS. VERSUS THE STATE OF MAHARASHTRA AND ORS. [2015 (10) TMI 2765 - SUPREME COURT], while considering question of grant of anticipatory bail, in a similar case involving misappropriation of public funds and corruption, the Hon'ble Supreme Court held that anticipatory bail granted by the Sessions Court, was rightly cancelled by the High Court, looking to the gravity of the offences.
The documents handed over by the learned APP to this Court which have been unearthed during the investigation do indicate that there has been large scale misappropriation of funds in the said Bank. The applicant/Chairman of the Bank was obviously in the know of the happenings in the Bank from the year 2015 and even earlier, which ultimately led to the R.B.I. directive closing down all banking activities and appointment of Liquidator on the Bank. But, that alone cannot be a reason to conclude that custodial interrogation of the said applicants would be mandatory - But, the material on record to which the learned APP has invited attention of this Court, clearly indicates that the applicant/Chairman of the Bank had actively connived with co-accused persons in causing loss and misappropriation of crores of rupees. This prima facie finding can be rendered on the basis of the material presently on record, only limited to deciding the question as to whether the present application of the Chairman of the Bank can be granted. There is no doubt about the fact that offences alleged against the applicants are of an extremely serious nature because there has been large scale misappropriation of funds of the Bank, which has ultimately caused serious financial loss to innocent depositors and investors.
Huge amounts of money in cash were facilitated to be siphoned off in connivance with co-accused persons. In this context, it would be futile to take the view that since investigation in such a case necessarily involves documentary material, the custodial interrogation of the applicants would not be necessary. The money trail in such cases can be unearthed only after proper interrogation and investigation is carried out by the investigating agency - There can be no doubt about the fact that there would be attempts by the accused persons to stall the investigation and to ensure that money trail is lost. This is particularly significant when there is prima facie material to show that large scale manipulations have been undertaken in account books as well as computer data entries at the behest of accused like the applicant/Chairman of the Bank herein.
As regards the question of adverse inference drawn by the Sessions Court due to absence of the applicants before the said Court on three dates despite specific orders to remain present, it cannot be said that such an adverse inference was wrongly drawn by the Sessions Court. Section 438 (4) of the Cr.P.C. (Maharashtra State Amendment) clearly provides that the presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. In the present case, there is no dispute about the fact that the Sessions Court had directed the applicants to remain present before the Court on a specific application moved by the prosecution - Since the investigation in the present case is still underway and the FIR itself was registered only on 15.05.2019, the material presently on record does indicate that insofar as the applicant in Criminal Application (ABA) No. 476 of 2019 i.e. the Chairman of the Bank is concerned, the prayer for grant of anticipatory bail cannot be accepted.
The said applicant is arrested in Crime No. 181 of 2019 registered at Police Station Dhantoli, district Nagpur City, dated 15.05.2019, she shall be released on bail on the conditions imposed - application allowed.
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2019 (7) TMI 1894
Guilty of indulging in financial irregularities and misconduct in conduct of business - fine/penalty of ₹ 10 lakhs with suspension from trading membership of the appellant for five trading days came to be imposed - As submitted that the decision of the DAC of NSE is in violation of NSE Circular dated June 27, 2013, because, as per that circular suspending the trading is not contemplated for the violations allegedly committed by the appellant - HELD THAT:- Appellate Tribunal, has not examined this contention but proceeded to reject the appeal on the specious ground that the penalty imposed by the appropriate authority cannot be said to be unreasonable or excessive. The argument of the appellant was that even though the appropriate authority can suspend the trading membership of the member indulging in misconduct, it can be resorted to only when it falls within the concerned Bye-law such as Bye-law 8(a) relied upon by the respondent - which envisages that the trading member must conduct business “in a manner prejudicial to the Exchange” etc.
The penalty could not have exceeded an amount of ₹ 1 lakh or 0.1% of the value of misuse, whichever is higher. These arguments have not been dealt with by the Appellate Tribunal at all.
Resultantly, we deem it appropriate to set aside the impugned order and relegate the appellant before the Appellate Tribunal by restoring appeal No. 53 of 2017 to the file of the Securities Appellate Tribunal, Mumbai for reconsideration only on the issue of quantum of punishment awarded to the appellant. Indeed, while passing the final order, it will be open to the Tribunal to pass appropriate order with regard to the amount deposited by the appellant pursuant to order dated 27.02.2017 passed by this Court.
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2019 (7) TMI 1893
Violation of principles justice - clear non-application of mind - HELD THAT:- lt is for the authorities to establish before this Court that there is a possibility of imputing wrongdoing to the petitioner in the light of the admitted fact that the import was made by the third respondent-Corporation and the petitioner claims that it has no role in choosing the country from which such imports would be made.
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2019 (7) TMI 1892
Seeking continuation of the ad-interim relief relying upon the order of the Hon'ble Apex Court in UOI VERSUS SAPNA JAIN AND ORS. [2019 (6) TMI 58 - SC ORDER] - HELD THAT:- The Hon'ble Apex Court noted it down that different High Courts of the Country have taken divergent views in the matter and made observation that position in law should be clarified by the Apex Court. The Apex Court had taken a note of our order dated 11th April, 2019 wherein, we granted protection to the petitioners and specifically observed that it was not inclined to interfere with the same - The Apex Court, however made it clear that the High Courts while entertaining such request in future, will keep in mind that the Apex Court by its order dated 27th May, 2019 passed in SLP (Crl.) No. 4430 of 2019 had dismissed the special leave petition filed against the judgment of the Telangana High court in similar matter, wherein the High Court of Telangana had taken a view contrary to what has been held by the High Court in the present case.
Stand over to 26th August, 2019.
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2019 (7) TMI 1891
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The balance sheet of the Respondent for 2015-16 reflects the amount claimed by the Applicant under the head 'Other Liabilities', which amounts to a written acknowledgment of the liability by the Respondent extending the limitation period. This means that the limitation period will be calculated from 31.032016 and the present application was filed before the expiry of three years from such date. Thus, the application is not barred by limitation.
Whether the share application money can be categorized as financial debt? - HELD THAT:- It is clear from a reading of Section 42 of the Act and the Deposit Rules that if the shares are not allotted within 60 days of the receipt of the money the share application money has to be refunded and of the refund does not take place within 15 days from the expiry of the 60 days' time limit, then the share application money will be treated as a deposit. On the non-allotment of shares, after the expiry of the time limit of 75 (60+15) days the share application money will be a deposit advanced to the company, which has to be returned by the company at the rate of 12% per annum from the expiry of the 60th day. The person applying for the shares will get compensation for the time vale of the share application money given by him to the company, which makes the money advanced a financial debt to be repaid by the company - In the present case the money was transmitted in 2008 and the allotment has not been made till date, thus, the money transmitted is a deposit and can be treated as a financial debt.
Whether there is a default on behalf of the Respondent in payment of the amount claimed? - HELD THAT:- This issue cannot be answered in favour of the Applicant as a perusal of the documents show that the Respondent has been ready to refund the money after it receives the required letter from the Applicant. Although the Applicant has placed on record a letter dated 03.07.2015 signed by the Applicant's representative, there is nothing to show that the said letter was actually delivered to the Respondent. Even if it was delivered by hand as claimed by the Applicant, there should have been an acknowledgment of receipt by the Applicant on the copy of the letter.
In the absence of anything to show that the delivery was actually made and that the Applicant has fulfilled all its formalities, it cannot be said that it is the Respondent's fault that the refund of the money has not been made - application allowed.
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2019 (7) TMI 1890
Unexplained income on account of investment in margin money of share trading besides RD Interest - Addition of investment by the assessee after withdrawing from the bank account jointly held with his father - HELD THAT:- Agricultural land was owned by the assessee’s father.However, the assessee has not claimed such an agricultural income from his father either in the earlier assessment years or in the succeeding years. Over and above the assessee’s father is neither filing return of income nor any statement of account including income and expenditure statement of working of his agricultural income has been furnished by the assessee either before Authorities below or before us so as to ascertain the correct amount of agricultural income.
Assessee has failed to produce material documentary evidence to proof cultivation of agricultural produce by way of Khasra Khatauni, source of irrigation (tube well/canal), evidence on cold storage etc. to justify the cash deposits in the aforesaid joint bank account in which even the cash deposits do not correlate with the proceeds emanating from Mandi Parishad.Therefore, the agricultural income claimed from the sale of accumulated produce of two and a half years in between March 2010 to October 2010 towards cash deposit in the bank account in anticipation to corresponding withdrawals to the agricultural operations to be carried out for earning such volume of agricultural income is rightly disbelieved by the ld. CIT(A),to demonstrate availability of cash for investment in margin money of share trading business.
Addition in respect of the accumulated interest on RD A/c - it is noticed that the aforesaid interest amount was found credited in the RD bank amount in the year under consideration by the AO. Since, the assessee failed to demonstrate on the basis of documentary evidence that the said Interest income was related to earlier years either before the authorities below or before us and therefore, we are inclined to appreciate the finding of the CIT(A) on this issue as legal and justified and confirm the addition accordingly. This ground of appeal is also rejected. Assessee appeal dismissed.
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2019 (7) TMI 1889
Exemption u/s 11 - Charitable activity u/s 2(15) - proof of charitable activity undertaken by assessee trust - income from business As applied or accumulated for application for the charitable or religious purpose of the trust - HELD THAT:- We agree with the contentions of the Ld. AR that the assessee’s case is covered in its favour by the orders of the Coordinate Benches of the Tribunal in assessee’s own cases for three different assessment years. We would like to make a reference to the Tribunal’s order for assessment year 2009-10 wherein detailed findings have been recorded by the Tribunal. This order was upheld by the Hon’ble Uttarakhand High Court in[2019 (2) TMI 1616 - UTTARAKHAND HIGH COURT] - there is no bar in the charitable trust/institution carrying on business provided the conditions prescribed in section 11(4)/11(4A) of the Act are satisfied. The Hon'ble Supreme Court in the case of P. Krishna Warriers [1964 (4) TMI 13 - SUPREME COURT] has been pleased to hold with reference to income tax Act 1922 that if the trust carried on business and the business itself is held in trust and the income from such business is applied or accumulated for application for the charitable or religious purpose of the trust, the conditions prescribed in section 4(3)(i) and fulfilled and the income is exempt from taxation.
Authorities below have grossly erred in holding that the appellant's activities in relation to production and sale of ayurvedic preparations are not incidental to its main objective as the same are commercial in nature.
We thus hold that in the present case the authorities below have failed to appreciate that the business set up and held by the appellant under trust is to sub serve the predominant charitable objects of providing medical relief education and relief to poor. Furthermore, since separate books of accounts were maintained and the entire profits are for charitable objects, the conditions prescribed in section 11(4A) of the Act, too were fulfilled. - Decided against revenue.
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2019 (7) TMI 1888
Depreciation on hoardings - temporary v/s permanent structure - depreciation at the rate 100% by treating these hoardings to be temporary structures - HELD THAT:- On examination of the impugned order of the tribunal [2016 (8) TMI 1555 - ITAT KOLKATA] we find that its finding that the subject structure of the respondent was temporary and not permanent was substantially derived from the findings of the tribunal in respect of the same respondent for the earlier assessment years. This finding of fact has not been challenged by the revenue in appeal or it remains untouched by any superior Court.
Appellant, could not show us any case made out by his client in the subject assessment year that there was any technological advancement or modification in the temporary structure in such a manner so as to classify it as a permanent one.
The issue as to whether the subject structure was temporary or permanent in the assessment year in question has become res judicata.
Hence, we find no infirmity in the impugned order of the tribunal holding that it was so and allowing the respondent assessee 100% depreciation. - Decided in favour of assessee.
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2019 (7) TMI 1887
Jurisdiction - unilateral demand of tax and interest for different periods ranging from 2000-01, 2001-02, 2002-03 and 2003-04 under the Odisha Sales Tax Act, 1947 - violation of principles of natural justice - HELD THAT:- On perusal of record, more particularly the order impugned herein, it reveals that the order of re-computation has been passed without issuance of notice and extending opportunity of hearing to the petitioner.
The order under Annexure-2 is required to be quashed and set aside, on the ground of violation of principle of natural justice - Petition allowed.
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2019 (7) TMI 1886
Seeking to permit the Objector herein to intervene in the main case and place their objections to the admission of the main Company Petition - notification dated 21.06.1972 R/ w Regulations 76 and 77 of the State Bank of India General Regulations, 1956.
HELD THAT:- By reading the terms and conditions of the agreement in question and the letter of Karnataka Bank dated 2nd June 2011, the State bank of India cannot claim on the plots unless the concerned plots are registered in the name of the concerned parties. Moreover, as per one of the terms of Tripartite Agreement, the Bank is entitled to recall the loan from the Borrowers in case the completion of the construction of the Building in question is delayed beyond 6 months from the completion date indicated by the Vendor/ Developers'. As per legal notice dated 02.05.2018 (enclosed to the application as document No. 4) issued to the Borrowers as well as Petitioner and Respondent, the construction of the Apartment should have been completed on or before 30th November, 2012 with additional grace time of the three months. However, the applicant stated to have not taken any action till date except filing the instant application. It is also clearly mentioned by the Bank in the No Objection letter cited supra, that they will issue NOC only after receipt of all the proceeds as per the above referred "Agreement to sell".
The claim of Bank on the plots in question is premature and they are only entitled for deposit of sale title deeds of Borrowers, only in case they are registered in their name and otherwise they can proceed on Borrowers to recover their loan amount given to them. Hence, they are not proper and necessary party to be impleaded to the main Company Petition and it same is misconceived - the instant application lacks merits and thus it is liable to be dismissed.
As Per: Rajeswara Rao Vittanala, Member (J) - M/s. Phoenix ARC Pvt. Ltd. Versus M/s. Sovereign Developers and Infrastructure Pvt. Ltd.
HELD THAT:- The assignment of the loan by the Bank to petitioner is not only accepted by the Respondent but it also obtained additional funding for ₹ 5,00,00,000/-. Accordingly new loan agreement dated 09.06.2016 was executed by the parties and also furnished personal guarantees for the loan. The Corporate debtor failed to pay the outstanding amount even after repeated demands made to the Corporate Debtor for total amount of ₹ 35,33,34,286/- towards the dues of the Assigned Debt as well as the New Loan as on 16th August, 2017, which became ₹ 42,80,92,640/- along with interest as on 02.09.2018. The assigned debt and additional loan in question and subsequent debt and default are not in dispute. The Petitioner has also given a sufficient opportunity to the Respondent to pay the outstanding amount and also issued a Legal Notice dated 26th June, 2017, by inter alia stating that they have sanctioned additional loan of ₹ 5,00,00,000/- in the larger interest of the purchasers of the apartments to complete Phase-I works - The amount due was not paid, and they have also denied the allegations that they have charged interest at 42% p.a by clarifying that they have charged interest at 14% p.a compounded monthly. The Respondent also addressed letters to the Prime Minister's office, Finance Minister and Reserve Bank of India.
The Instant Petition is filed in accordance with extant provisions of Code and the rules made thereunder, and debt and default in question are not in dispute, and qualified Resolution Professional namely, Shri Guruprasad Makam with Registration No.IBBI/IPA-001/IPP00932/2017-18/11550, is suggested to appoint him as IRP, who has declared that he is qualified Resolution Professional not undergoing any disciplinary proceedings and also filed Written Communication dated 03.09.2018 - it is a fit case to admit and appoint said Insolvency Professional as IRP.
Application admitted.
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2019 (7) TMI 1885
Evasion of service tax - Supply of Tangible Goods Services - invocation of extended period of limitation solely based upon the profit and loss account and 26AS form submitted with the Income Tax Authorities which has been held to be as not proper - HELD THAT:- Inasmuch as, the revenue’s entire case is based upon the profit and loss accounts read with the 26AS Form and the service tax stands confirmed by invoking the longer period of limitation, the impugned order of Commissioner (Appeals) is not sustainable on limitation itself.
Appeal allowed - decided in favor of appellant.
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2019 (7) TMI 1884
Dishonor of Cheque - appellant has absconded - maintainability of revision against conviction and sentence - HELD THAT:- A bare reading of the rules, no revision shall be entertained against any conviction and sentence if the applicant is absconded and not obeying the order of trial Court as well as appellate Court. During absconding of the applicant, revision is not tenable before this Court. The applicant has not filed any application to the effect that the applicant due to some disability could not appear before the Court and made a prayer to entertain the revision in the absconding stage of the applicant. Meaning thereby the applicant is not obeying the law. Legal maxim Dura Lex Sed Lex, which means “it is harsh, but it is the law”, stands attracted in the present situation.
When this revision is not maintainable ab initio, no further proceeding can be considered without admission of this revision.
Revision dismissed.
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2019 (7) TMI 1883
TP adjustment - comparable selection - determination of Arm's length price (ALP) in respect of a transaction of rendering software development service by the Assessee to its Associated enterprise (AE) - excluding M/s. Flextronics Software Services Ltd., iGate Global Solution, M/s. Infosys Technologies Ltd., Satyam Computers Services Ltd., and L&T Infotech Ltd., on the ground that the turnover of these companies was above ₹ 200 crores and therefore the Assessee whose turnover is only ₹ 6.36 Crores cannot be compared with those companies - HELD THAT:- The admitted factual position is that these companies have turnover of over ₹ 200 crores in the relevant asst. year whereas the assessee's turnover is only 6.36 crores. It has been held by the Bangalore Bench of ITAT that turnover filter is a valid filter in the matter of exclusion of comparables that companies with turnover below 200 crores cannot be compared with the companies above 200 crores. In this regard, Bangalore Bench of the Tribunal in the case of Auto Desk India Pvt. Ltd. [2018 (12) TMI 1742 - ITAT BANGALORE] has taken the aforesaid view after considering several decisions on the issue. In view of the above, we find no grounds to interfere with the exclusion of the aforesaid 5 companies by the CIT(A).
Exclusion of M/s. Exensys Software Solutions Ltd., and Thirdware Solutions Ltd., as not comparable companies by the CIT(A) on the ground that these companies showed abnormal profits - On the issue of exclusion of companies on account of abnormal profits, the law is well settled that abnormal profits by itself is not a ground to exclude a company which is otherwise comparable, but if the abnormal profits are owing to some unusual circumstances, then those companies can be excluded. As far as exclusion of M/s. Exensys Software Solutions Ltd., is concerned, the same is due to amalgamation that happened between this company and some other company during the relevant previous year and therefore the CIT(A) was justified in excluding this company.
Thirdware Solutions Ltd company was a product company and not a SWD service provider such as the Assessee and this company was excluded. We are of the view that in view of the aforesaid order of the Tribunal, we sustain the order of CIT(A) on the basis that this company needs to be excluded as functionally not comparable
M/s. Quintegra Solutions Ltd., had a different accounting year than that of the Assessee and therefore this company ought to have been excluded by the CIT(A) and the learned counsel for the Assessee did not object to its exclusion from the list of comparable companies . Therefore ground No.5 raised by the revenue is allowed.
Exclusion of the following companies Bodhtree Consulting Ltd., Geometric Software Solutions Co. Ltd., and Tata Elxsi Ltd., from the list of comparable companies - The assessee is pure software SWD service provider, whereas these companies were software product companies. The exclusion of these companies in the case of pure software development service provider such as the assessee was considered by this Tribunal in the case of Kodiak Network India Pvt. Ltd[2015 (8) TMI 225 - ITAT BANGALORE] AND M/S. SHARP SOFTWARE DEVELOPMENT (INDIA) PVT. LTD. AND VICE-VERSA. [2017 (1) TMI 1734 - ITAT BANGALORE] - Both these cases relate to asst. year 2005-06 and in these cases it was held in that case that the aforesaid companies were software product companies and not software development service provider such as the Assessee and the segmental details of SWD services and SW Products were not available and therefore the profit margin in the SWD services segment of these companies were not available for comparison. In the light of the aforesaid decision of the Tribunal, we are of the view that the exclusion of the aforesaid companies by the CIT(A) was justified.
Inclusion of M/s. VJIL Consulting Ltd., as not comparable. It was agreed by the parties that this company can be treated as a comparable company and hence ground No.7 raised by the revenue is allowed.
Directing working capital adjustment to be allowed - Even the TPO in his order has allowed working capital adjustment. In transfer pricing analysis allowing working capital adjustment is necessary and it is settled law that such adjustment should be made for proper comparison of profit margin of Assessee and the comparable companies. We find no merit in this ground of appeal raised by the revenue.
Computation of deduction u/s 10A - HELD THAT:- Taking into consideration the decision rendered by the Hon'ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT], we are of the view that communication charges should be excluded both from export turnover and total turnover. We are of the view that as of today, law declared by the Hon'ble High Court of Karnataka which is the jurisdictional High Court is binding on us.
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2019 (7) TMI 1882
The National Company Law Tribunal Chennai Bench directed the Financial Creditor to file a claim before the Insolvency Resolution Professional (IRP) for a Corporate Debtor already under Corporate Insolvency Resolution (CIR) process. The application was disposed of accordingly.
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2019 (7) TMI 1881
Penalty u/s 271(1 )(c) - addition u/s 68 on bogus LTCG - HELD THAT :- It is not in dispute that the assessee has furnished the supporting bills and details of payments in support of transactions reported to be long term capital gain. It was contended that entire addition is based on the statement of Mr. Mukesh Chokshi which was never provided to the assessee. It was also pointed out that it is quite possible that Mr. Mukesh Chokshi has not included the transactions with assessee in his statement at all.
Incidence of penalty under s. 271(1 )(c) of the Act is not automatic and should not be imposed merely because it is lawful to do. Considering the smallness of the amount involved, we consider it expedient to give benefit of doubt to the assessee owing to mitigating circumstances viz: the absence of copy of statement of Mr. Mukesh Chokshi or any other substantive material. The assessee has supported the face value of transactions with bills and payments. In the backdrop of ambiguity in circumstances, it is difficult to hold that the explanation offered by the assessee is blatantly false. We are thus inclined to exonerate the assessee from the incidence of penalty. - Decided in favour of assessee.
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2019 (7) TMI 1880
Addition u/s 69 - addition of undisclosed investment in land made by the AO on the basis of seized material - whether corroborative material found during search? - HELD THAT:- In the case of Sahitya Housing (P) Ltd.[2014 (2) TMI 811 - ITAT HYDERABAD] some entries were found in a pen drive which pertained to two persons, one of whom accepted the entries and offered for taxation while the other did not do so. It was held that it is not substantiated by any corroborative evidence that the second assessee was involved in the transaction so as to make addition in the hands of the second assessee. In absence of corroborative evidence, the addition was held to be not justified.
Addition made by the AO on account of purchase of 32.68 acres of land merely on the basis of the excel sheet contained in the seized pen drive and entries in loose papers in the seized documents, unsubstantiated with any corroborative evidence, is not justified, which has been rightly deleted by learned CIT(A) - Decided in favour of assessee.
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2019 (7) TMI 1879
Validity of order passed by the CESTAT - Levy of tax - use of natural gas or gas for heating, in manufacture of the soap, is use of power for manufacturing - suppression of facts - extended period of limitation - Reliance upon the Circulars dated 22-3-1968 and 25-3-1968, which, however, are no longer in force - HELD THAT:- The Appellate Tribunal, however, has not examined that aspect at all. Resultantly, we are inclined to set aside the impugned judgment and relegate the parties before the Appellate Tribunal for reconsideration of the appeals afresh on its own merits. - Matter restored back.
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2019 (7) TMI 1878
Proceedings under FEMA - effect of the adjudication order made during the pendency of the writ appeals - ad-interim relief - Merely because the adjudicating authority has passed an order during the pendency of the writ appeals, it cannot be said that the writ appeals have become infructuous - whether writ appeals should be entertained? - HELD THAT:- As appellants were fully aware about the date fixed for hearing before the adjudicating authority. There is a default on the part of the appellants as they did not appear before the adjudicating authority and they did not move this Court for grant of appropriate interim relief. Knowing fully well that the adjudicating authority is proceeding with the hearing, the appellants took no steps and allowed the adjudicating authority to pass an order. It is not as if immediately after the impugned order was passed, that the adjudicating authority fixed the matter for hearing. The date for hearing was fixed nearly one year after the present appeals were filed.
As observed earlier, one of the arguments canvassed on behalf of the respondents that the appeals have become infructuous, cannot be accepted. However, these appeals are continuation of writ proceedings before the learned Single Judge under Article 226 of the Constitution of India. A remedy under Article 226 of the Constitution of India is always discretionary and equitable. The impugned order of the learned Single Judge was passed on 6th October 2017. The present appeals were pending from 17th November 2017. The adjudicating authority granted enough time to the appellants to seek interim relief in these appeals. The hearing was fixed one year after the impugned order of the learned Single Judge.
The appellants took the risk of not attending before the adjudicating authority knowing fully well that the appellants were not armed with any ad-interim order of stay of this Court. Thus, due to their own conduct, the appellants allowed the adjudicating authority to pass orders of adjudication. It is not the case of the appellants that they did not receive legal advice. They are represented by Senior Advocates.
As pointed out earlier, an efficacious remedy of filing an appeal under Section 19(1) of FEMA is available to the appellants. It cannot be said that the remedy is not efficacious as there is a power vested in the appellate Tribunal to waive the requirement of the deposit of the penalty. Moreover, all contentions which are raised in the appeals can be gone into by the appellate authority.
The issues raised by the appellants have not been finally concluded and notwithstanding the observations made by the learned Single Judge, all issues remain open which can be agitated by the appellants in the statutory appeals. It is for the reasons which are recorded above that we are not inclined to entertain the writ appeals and interfere with the proceedings under FEMA. Accordingly, appeals and also pending interlocutory applications are dismissed.
We direct that the ad-interim order in terms of paragraph 5 of the order dated 28th March 2019 will continue to operate for a period of one month from today.
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9911796707
