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Showing 161 to 180 of 1589 Records
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2022 (7) TMI 1430
Clandestine Removal - difference in figures of audit report and ER-1 return for the year 2006-07 - suppression of production of 1455.205 MT of steel ingots and 395.160 MT of steel rolled products in the daily stock accounts - evasion of Central Excise Duty - Extended period of limitation - HELD THAT:- The appellant being a public limited company the financial records are available on net all the times. But, the show cause notice has been issued on 01.03.2011 by invoking extended period of limitation.
Apart from difference in figures of financial records and ER-1 return, no investigation was conducted to establish clandestine removal of goods which is serious allegation. No statement of has been recorded. In that circumstances the charge of clandestine removal of goods not sustainable as similar issue came up before this Tribunal in the case of M/S CHANDUKA HI-TECH STEEL PVT. LTD. VERSUS CESTAT, KOLKATA [2017 (11) TMI 2026 - CESTAT KOLKATA] where Tribunal has observed that the allegation of clandestine activities are serious allegation and are required to be based upon the evidences, which reflected upon the same. In the present case, the Revenue has not made any investigation as regards the clandestine manufacture and clearance of the appellant’s final product. In such a scenario, the said finding is neither warranted nor justified.
Time and again it is held by the judicial pronouncements that merely on the basis of difference in the figures of audit report and ER-1 return without establishing the parameters of clandestine manufacture and removal of goods, the charge of clandestine removal is not sustainable. Therefore, on merits also, we hold that in the absence of any statement or investigation against the appellant with corroborative evidence, the impugned order is not sustainable. Accordingly, the same is set aside.
Appeal allowed.
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2022 (7) TMI 1429
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - importer alleged to be indulging in trade based money laundering by overvaluing the imported goods was issued to the importers - HELD THAT:- From the facts as stated in the inquiry report and in the impugned order, it is quite evident that the entire case made against the appellant is on account of their failure not to properly and completely verify the antecedents of the person/ client entrusting them with the paper and consignment for import. It is now settled preposition of law that there was no need for physical visit to the premises and meeting with the client by the CB before taking the job of clearance of the goods either for import or export. Principal Commissioner has relied upon the statement recorded during the course of investigation. These statements have not been corroborated. Even the statutory documents produced by the appellant for undertaking the KYC of the importer (IEC Holder) have not been found fake during investigation - The CB was require to do the KYC on the basis of the documents prescribed. Undisputedly such KYC was done by the appellant, only what was not done was physical meeting and physical verification of the premises.
In the case of M/S POONIA & BROTHERS VERSUS COMMISSIONER OF CUSTOMS (PREV.) [2019 (4) TMI 911 - CESTAT NEW DELHI], wherein the Hon'ble Tribunal held that The CHA is not supposed to verify the each and every aspect about the business of importer as the Inspector of Department or Investigating agency. From the submission made by the ld. Advocate and fact on record, it is apparent that the appellant has taken due diligence while verifying the KYC of the appellant based on the record submitted by him.
In the present case the contravention alleged against the importer is non-declaration of retail sale price on auto parts imported by them for assessment under Section 4A of the Central Excise Act, 1944 for CVD - it is found that the bill of entry was filed by the appellant after the goods were detained by the officers of DRI. The said bill of entry was filed on first check basis for verification of the goods before assessment. In such a situation, there are no mala fide or intentional violation of any provisions of the Customs Act can be alleged on the part of the Customs broker.
In the case of SETWIN SHIPPING AGENCY VERSUS COMMISSIONER OF CUS. (GENERAL) , MUMBAI [2009 (9) TMI 759 - CESTAT MUMBAI], the Tribunal held that there is no requirement for the CHA to verify physically the premises of importer/exporter. The Tribunal also observed that it is a settled law that the punishment has to be commensurate and proportionate to the offence committed - In the present case, it is noticed that the punishment of revocation is not justifiable even if it is to be admitted that physical verification of the importer’s premises could have avoided the filing of the bill of entry by the appellant. Even in such a situation, the violation in respect of the cargo viz. the non-declaration of the RSP on the auto parts, a debatable point of interpretation, cannot be held against the appellant to result in the revocation of their licence.
Admittedly, the Customs Broker enjoyed a very important position in the Customs House and has been licensed to undertake the work of Customs clearance on behalf of the importer. However, he does not replace the Customs Officer. Commissioner has relied upon the observations made by the Hon’ble Apex Court in para 15, even without referring to the facts.
There are no merit in the impugned order and the same is set aside - appeal allowed.
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2022 (7) TMI 1428
Violation of the SEBI Act - misrepresentation of financials and violation of the accounting standards - non-furnishing of information to the Forensic Auditor was violative of Section 11(2)(i) of the SEBI Act - appellants were debarred from accessing the securities market - Penalty imposed - HELD THAT:- A clear finding has been given that there is no misappropriation of the funds of the Company nor there is any manipulation in the price of the scrip. No fraud has been played by the Company and its Directors to its investors and shareholders. Further, finding given is, that the violation of the LODR Regulations gave no disproportionate gain to anyone nor created any unfair advantage to the appellants nor any specific loss was caused to any investor.
Thus, in the absence of any finding of any fraudulent activities or misappropriation of funds or diversion of fund, we are of the opinion that the directions of debarment and the penalty given for violation of the LODR Regulations appears to be harsh and excessive.
In the instant case, the appellants were debarred from accessing the securities market for a period of one year w.e.f. July 08, 2021 this period of debarment has already been undergone by the appellants. Consequently, no further orders are required to be passed on this score. In so far as the penalty is concerned, we are of the opinion, that the quantum is harsh and excessive and does not commensurate with the alleged violation of non-disclosure under the LODR Regulations. Since no disproportionate gain was caused to any person nor caused any loss to any investor nor caused any unfair advantage to the Company or its Directors we are of the opinion that the penalty should be reduced by 75% meaning thereby that a penalty of 25% of the penalty imposed by the WTM would be just and proper in the circumstances of the case.
Accordingly, while affirming the violation committed by the appellants, we reduce the penalty to 25% of the penalty imposed by the WTM. The appeal is partly allowed. In the circumstances of the case, parties shall bear their own costs.
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2022 (7) TMI 1427
Seeking grant of anticipatory bail - jurisdiction to grant protection to the applicants - scope of transit or anticipatory bail - HELD THAT:- This court finds that there is no legislation or law which defines ''transit or anticipatory bail' in definitive or specific terms. The 41st Law Commission Report in 1969 recommended the provision of Anticipatory bail to safeguard the right to life and personal liberty of a person under Article 21 of the Constitution of India. In the Code of Criminal Procedure 1973, on such recommendation, provision of Anticipatory Bail was inserted in Section 438. The term ''transit' means the act of being moved from one place to another while the word ''anticipatory bail' means a temporary release of any accused person who is anticipating arrest, therefore, transit anticipatory bail refers to bail granted to any person who is apprehending arrest by police of a State other than the State he is presently located in.
It is to be noted that transit bail is protection from arrest for a certain definite period as granted by the Court granting such transit bail. The mere fact that an accused has been granted transit bail, does not means that the regular court, under whose jurisdiction the case would fall, would extend such transit bail and would convert such transit bail into anticipatory bail. Upon the grant of transit bail, the accused person, who has been granted such transit bail, has to apply for anticipatory bail before the regular court.
In the judgment of the Bombay High Court in the case of TEESTA ATUL SETALVAD AND ORS. VERSUS THE STATE OF MAHARASHTRA AND ORS. [2014 (1) TMI 1931 - BOMBAY HIGH COURT] it was held that the High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of power under Section 438 of the Code of Criminal Procedure. It appears from the said judgment that there is no fetter on the part of the High Court in exercising the power under Section 438 of the Code in granting anticipatory bail for a limited period to enable the applicant to move the appropriate Court as the gravity of pretrial arrest and the loss of liberty of the individual cannot be compromised on the anvil of the powers, competence and/or jurisdiction of the Court.
There is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered. There is no doubt that the right to liberty is enshrined in Part-1 of the Constitution of India and such rights cannot be impinged except by following procedure established by law. This court finds that the commercial transaction ensued between the applicants and the complainant and there are criminal cases lodged by the parties against each other. It is a fit case where the applicants should get the privilege of transit pre-arrest bail - Application allowed.
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2022 (7) TMI 1426
Income taxable in India - Addition of recharacterization of receipts from sale of software licenses to Indian customers/distributors as royalty - taxing the same receipts in hands of Respondent would result in double taxation - HELD THAT:- In the opinion of this Court, the issue of taxability of software receipts in the present cases is no longer res integra as the Supreme Court in Engineering Analysis Centre of Excellence Private Limited [2021 (3) TMI 138 - SUPREME COURT] amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in section 195 of the Income Tax Act were not liable to deduct any TDS under section 195 - Decided in favour of assessee.
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2022 (7) TMI 1425
Rejection of refund claim on the account of being time barred - application for refund made on 28-5-2021 for the tax period May 2018 to July 2018 was time barred or not? - period of limitation prescribed under section 54(1) of the CGST Act, 2017 stood extended in view of the order dated 23-3-2000 passed by the Apex Court in Suo Motu Writ Petition (Civil) No. 3/2020 and successive orders or not.
HELD THAT:- Various High Courts have decided the issue in favour of the Assessee on the same question of applicability of the period of limitation in making refund application such as, Madras High Court in W.P No. 18165 & 18168 of 2021 [2021 (11) TMI 973 - MADRAS HIGH COURT] and analogous cases dated 28-9-2021 M/s GNC Indra LLP Rep. by Partner/Authorized Signatory versus Assistant Commissioner (Circle), High Court of Bombay in Writ Petition (L) No. 1275/2021 dated 10-1-2022 Saiher Supply Chain Consulting Pvt. Ltd. v. The Union of India and Ors. [2022 (1) TMI 494 - BOMBAY HIGH COURT] and High Court of Allahabad in Writ Tax No. 173/2022 dated 3-3-2022 in Gamma Ganna Limited v. Union of India and Ors. [2022 (3) TMI 578 - ALLAHABAD HIGH COURT] - By the aforesaid decisions, it has been held that the order passed by the Apex Court in Suo Motu Writ Petition (Civil) No. 3/2020 IN RE COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (5) TMI 564 - SC ORDER] would govern the application for refund made under the GST Act - the views of jurisdictional High Courts are agreed upon.
As per the Scheme of CGST Act and Rules, any such application for refund has to be processed within the time period and in case such refund application is to be rejected, a proper show-cause notice in Form-GST-RFD-08 has to be issued before the order of rejection containing the grounds is passed in Form-GST-RFD-06 i.e. with due opportunity to the person/Assessee. It therefore, clearly shows that the proceedings are in the nature of quasi-judicial proceeding which also get the benefit of extension of time limit, as per the orders passed by the Apex Court in Suo Motu Writ Petition from time to time.
CBIC Circular dated 20-7-2021, cannot narrow down the scope of the order passed by the Apex Court in Suo Motu Writ Petition (Civil) No. 3/2020 under Article 32 of the Constitution of India.
The rejection of the refund application by the impugned order at Annexure-5 dated 1-7-2021 is set aside. The matter is remanded to the Respondent No. 3 to take a fresh decision in accordance with law, after giving due opportunity of hearing, if necessary - petition allowed by way of remand.
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2022 (7) TMI 1424
Maintainability of reassessment under Section 43 of the OVAT Act - absence of completion of assessment under Sections 39, 40, 42 or 44 of the OVAT Act - HELD THAT:- The High Court has passed the impugned order(s) on the interpretation of relevant provisions, more particularly Section 43(1) of the Odisha Value Added Tax Act, 2004, which was prevailing prior to the amendment - the view taken by the High Court is agreed upon - No interference of this Court is called for in exercise of powers under Article 136 of the Constitution of India.
SLP dismissed.
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2022 (7) TMI 1423
Levy of interest u/s. 234E for filing TDS returns belatedly - intimation u/s. 200A - Scope of provisions of section 234E of the Act was inserted by the Finance Act, 2012 w.e.f. 1.7.2012 - HELD THAT:- As relying on the case of Fatehraj Singhvi [2016 (9) TMI 964 - KARNATAKA HIGH COURT] wherein held that amendment made u/s. 200A providing that fee u/s. 234E of the Act could be computed at the time of processing of return and issue of intimation has come into effect only from 1.6.2015 and had only prospective effect and therefore, no computation of fee u/s. 234E of the Act for delayed filing of return of TDS while processing a return of TDS u/s. 234E of the Act could have been made for tax deducted at source for the assessment years prior to 1.6.2015.
All the appeals filed by the assessee are allowed and the interest u/s. 234E as tabulated hereinabove cannot be sustained.Appeals filed by the assessee stands allowed.
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2022 (7) TMI 1422
Revision u/s 263 by CIT - Unexplained cash u/s 68 - As per CIT-A cash deposited by the assessee was not verified properly and thus the order passed u/s. 143(3) was erroneous and prejudicial to the interests of the revenue - assessee has not established that Specified Bank Notes (SBNs) deposited were out of receipts prior to demonetization and therefore an adverse inference was drawn that the receipts/SBNs were received after demonetization which is contrary to public policy - HELD THAT:- As it cannot be said that the AO did not carry out enquiry or verification which ought to have been done. The adverse inference drawn by the PCIT from the documents are debatable as the PCIT has out brought any material on record to substantiate his adverse inference.
In the instant case, the AO has verified the details and applied his mind to come to the conclusion that no addition is warranted towards the cash deposited by the assessee during the demonetization period. On the other hand, the PCIT has arrived at a view that the cash was deposited out of SBN received post demonetization and proper enquiries ought to have been made by the AO which is clearly a difference of opinion which cannot be a reason for revision u/s. 263.
As decided in Gabriel India Ltd [1993 (4) TMI 55 - BOMBAY HIGH COURT] Commissioner before holding an order to be erroneous should have conducted necessary enquiries or verification in order to show that the findings of the AO is erroneous and unsustainable in law. In the present case, the PCIT has not done so and simply expressed a view based on his inference that the AO should have conducted enquiry. Such course of action by the PCIT is not in accordance with the mandate of law - Decided in favour of assessee.
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2022 (7) TMI 1421
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - HELD THAT:- Notices were issued in the aforesaid Application. The Corporate Debtor filed its reply vide Diary No. 437/2022 dated 16.02.2022, acknowledging the debt. It is stated that it is not wilfully defaulting the payment and intend to repay the said amount, and the same is evident from its commitment to making payment by confirming the outstanding dues via its Ledger Account (01.04.2021 to 10.11.2021) forwarded by the Operational Creditor. Given the global pandemic, the growth of the business has been hampered a lot, and it is passing through a significant financial crisis. It also stated that it does not want to shy away from its obligation and will pay the entire amount; however, it requires an extension of time.
It has been shown that the Corporate Debtor has failed to make payment of the aforesaid amount due till date as mentioned in statutory notice. It is also observed that the condition under Section 9 of the Code stands satisfied. Hence, this Adjudicating Authority is inclined to commence CIRP against the Corporate Debtor as envisaged under IBC, 2016.
Application admitted - moratorium declared.
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2022 (7) TMI 1420
Recovery of Customs Duty with Interest on the basis of Section 125(2) of the Customs Act, 1962 - demand made without being preceded by an adjudication of the duty payable - hospital equipments released earlier to the petitioner, consequent to the order of adjudication dated 9-1-2001 only imposing redemption fine and penalty - HELD THAT:- Hon’ble Apex Court in FORTIS HOSPITAL LTD. VERSUS COMMISSIONER OF CUSTOMS, IMPORT [2015 (4) TMI 348 - SUPREME COURT] where the Hon’ble Apex Court has held had once the show cause notice has been issued under Section 124 proposing only confiscation of imported machinery and imposition of penalty and nothing was stated about payment of duty but there was no determination of the amount of duty payable in the adjudication order, the duty cannot be demanded separately.
This Hon’ble Court be pleased to issue Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction calling for the records and proceedings in the Petitioner’s case - Petition disposed off.
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2022 (7) TMI 1419
Disallowance towards late payment of employees contribution to provident fund and ESI - Contribution made admittedly after the due date as prescribed under the relevant statute but before the due date of filing of the return - HELD THAT:- Cuttack Bench of the Tribunal in the case of Pashupati Ispat Pvt. Ltd. [2022 (4) TMI 1541 - ITAT CUTTACK] after discussing in detail and following the plethora of case laws, has held that it is not disputed that the payment of employees contribution to PF and ESI was made before filing of the return u/s.139(1) of the Act and accordingly deleted the addition made by the AO and confirmed by the CIT(A) on account of delay in depositing the employees contribution to PF & ESI.
We are of the opinion that the payments of the employees contribution to PF & ESI having been made before the due date of filing of the return though admittedly after the due date as prescribed under the relevant statute, the same is liable to be allowed.
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2022 (7) TMI 1418
Non-deduction of TDS - Disallowance u/s 40(a)(i) - reimbursement of salary expenses made on behalf of the seconded employees as fee for technical services - HELD THAT:- We note that the evidences filed by assessee has not been considered by the revenue authorities.
We therefore remand this issue to the AO to consider the claim in accordance with the decision of M/s. Flipkart Internet Pvt. Ltd. [2022 (6) TMI 1251 - KARNATAKA HIGH COURT] and M/s. Toyota Boshoku Automotive India Pvt. Ltd. [2022 (4) TMI 1443 - ITAT BANGALORE] and Goldman Sachs Services Pvt. Ltd. [2022 (4) TMI 1444 - ITAT BANGALORE] having regard to the evidences filed by the assessee. Needless to say that proper opportunity of being heard must be granted to assessee in accordance with law. Ground raised by assessee stands allowed for statistical purposes.
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2022 (7) TMI 1417
Disallowance of depreciation on assets given under finance lease - ownership status of Cisco Capital in relation to the assets leased out by it under finance lease, thereby disallowing the claim for depreciation made by Cisco Capital in the return of income - HELD THAT:- We are of the opinion that similar issue came for our consideration before this Tribunal in assessee’s own case for assessment year 2016-17 [2021 (11) TMI 1155 - ITAT BANGALORE] set aside the issue to the file of the AO for fresh adjudication in accordance with law. The assessee is directed to produce copies of those agreements which the AO may call for. The AO shall examine these agreements and if the terms & conditions mentioned in these agreements are similar to the terms and conditions mentioned in the agreements considered by the Hon’ble Supreme Court in the case of ICDS Ltd. [2013 (1) TMI 344 - SUPREME COURT] and if there are no material variations in the contracts, then depreciation has to be granted to the assessee as claimed.
TP Adjustment - adjustment alleging payment made towards administrative support services to Cisco Systems India Pvt. Ltd. as an international transaction u/s 92B - HELD THAT:- Similar issue came for consideration before this Tribunal in assessee’s own case for the assessment year 2016-17 [2021 (11) TMI 1155 - ITAT BANGALORE] as hold that the issue of administrative and marketing support services is part of the operating cost and no separate adjustment is warranted. These grounds of assessee are partly allowed for statistical purposes.
Interest on outstanding receivables - TPO has concluded that the receivable transaction should be treated as a separate international transaction and given the delay in receipt of receivables from AE’s - TP order, passed and adopted SBI PLR rate of 14% as computed interest on delayed receivables - HELD THAT:- Similar issue came for consideration before this Tribunal in the case of Swiss Re Global Business Solutions India Pvt. Ltd [2022 (1) TMI 1275 - ITAT BANGALORE], thus we direct the AO to consider the interest rate in terms of LIBOR and it would be appropriate to take the applicable rate of LIBOR + 2% and directed accordingly.
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2022 (7) TMI 1416
Disallowance of the deduction claimed u/s 35AC - making the donation to M/s.Navjeevan Charitable Trust - HELD THAT:- Issue decided in favour of assessee as relying on P.M. Bhimani Orgochem Pvt. Ltd. [2021 (12) TMI 987 - ITAT AHMEDABAD] assessee has made the donation as per the provisions of the Income Tax Act and no defect was pointed out by the Assessing Officer or by the CIT(A) regarding the donation to Navjeevan Charitable Trust. In fact, the Revenue authorities could not establish that the said amount was returned back to the assessee from any of the records as well. Decided in favour of assessee.
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2022 (7) TMI 1415
Input Tax Credit - purchase of capital goods as per Section 6(6)(b) of the U.K. VAT Act - permission of re-assessment under Section 29(4) of the U.K. VAT Act - change of opinion - HELD THAT:- If the petitioner has come to the Court, generally in normal circumstances, it is for the petitioner to demonstrate or establish that the order passed by the authorities suffers from any illegality requiring interference of this Court in exercise of certiorari jurisdiction. It is well settled principle of law that this certiorari jurisdiction should be exercised only to bring the Tribunal, functioning in the State within its jurisdiction. In this case, the respondent has demonstrated that petitioner has received input tax credit. It is also demonstrate by the respondent that upon receiving the assessment of the vendor, the Additional Commissioner was of the view that the matter should be re-looked to find if any tax concession/credit has been granted to the petitioner to which he is not entitled to.
This Court is of the opinion that the learned Senior Advocate appearing for the petitioner has failed to establish that the respondents acted beyond their jurisdiction or acted in a manner not provided in the statute. The entire litigation revolves around the question that the plant and machinery for which the petitioner has claimed the input tax credit is new machinery and not old and used machinery.
There is no merit in the writ application. The writ application is, therefore, dismissed.
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2022 (7) TMI 1414
Carry forward and set–off of long term capital loss incurred on transaction of sale of equity shares as subject to payment of Securities Transaction Tax (STT) - HELD THAT:- As decided in own case [2022 (1) TMI 537 - ITAT MUMBAI] as following the aforesaid decision in case of Raptakos Brett & Co. Ltd. [2015 (6) TMI 529 - ITAT MUMBAI] has attained finality as the appeal preferred by the department against the said decision has been dismissed by the Hon’ble Jurisdictional High Court, though, due to non-prosecution. Thus, we do not find any infirmity in the order of the Ld.CIT(A) in allowing the claim of carry forward of Long Term Capital Loss arising from sale of equity shares.
Disallowance u/s 14A - HELD THAT:- As decided in own case [2022 (1) TMI 537 - ITAT MUMBAI] disallowance u/s. 14A of the Act cannot be more than the exempt income earned by the assessee. Therefore, we are in agreement with the finding of the Ld.CIT(A) and we do not find any reasons to interfere with the finding of the Ld.CIT(A). Accordingly, ground raised by the revenue is dismissed.
Addition on account of Helicopter / air craft charges - HELD THAT:- As decided in own case [2022 (1) TMI 537 - ITAT MUMBAI] in the case of the assessee has allowed 1/7th of the expenses incurred by the assessee as personal. Ld.CIT(A) has relied on the above finding and accordingly, allowed the appeal filed by the assessee before him. No reason to disturb or interfere with the above finding. Accordingly, ground raised by the revenue is dismissed.
Addition on account of software license charges - HELD THAT:- As decided in own case [2022 (1) TMI 537 - ITAT MUMBAI] CIT(A) allowed the software licence charges expenses claimed by the assessee by relying on case of DCIT v. Integrated Technology Solutions Pvt. Ltd [2016 (4) TMI 30 - ITAT MUMBAI] After considering the detailed findings of the Ld.CIT(A) we do not find any reason to interfere with the findings of the Ld.CIT(A). Therefore, the grounds raised by the revenue is dismissed.
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2022 (7) TMI 1413
Validity of Arbitral Award - compensation payable to a land loser - fixation of the market value of land - applicability of Section 3G(7)(a) of the NH Act or Section 28 of RFCTLARR Act, 2013 - contention is that while determining the market value, the definite parameters as contained in Section 3G(7)(a) of NH Act alone would be applicable and in view of the provisions contained in Section 3J of NH Act the provisions of the Land Acquisition Act shall not be made applicable.
HELD THAT:- Reliance placed on decision referred to in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA VERSUS SAYEDABAD TEA COMPANY LTD. AND ORS. [2019 (8) TMI 1227 - SUPREME COURT]. In the said case, this Court while examining the question as to whether the land loser can seek the appointment of an Arbitrator in terms of Section 11 of Act, 1996, it was noted that such power would not be available in view of the provisions contained in Section 3G(5) of NH Act since Arbitrator is to be appointed by the Central Government to discharge its functions as per the provisions of the Arbitration and Conciliation Act. Having taken note of the said decision, though it is seen that it was held so while considering the maintainability of petition under Section 11 of the Act, 1996 to exclude the right of the land loser to seek the appointment of an Arbitrator keeping in view the statutory provision in the NH Act, the larger perspective of such limited right to the land loser in the process of arbitration is also to be kept in view. Unlike the arbitration in a contractual matter where the parties from the very inception at the stage of entering into a contract would mutually agree to refer any future dispute to an arbitrator, at that very stage are aware that in the event of any dispute arising between the parties the contours of the right, remedy, and scope from the commencement of the arbitration up to the conclusion through the judicial process. The terms of arbitration and the rights and obligations will also be a part of the agreement and a reference to the same in the award will constitute sufficient reasons for sustaining the award in terms of Section 31(3) of Act, 1996.
In the arbitration proceedings relating to NH Act, the parties are not governed by an agreement to regulate the process of arbitration. However, in the process of determination of just and fair compensation, the provisions in Section 26 to 28 of RFCTLARR Act, 2013 will be the guiding factor. The requirement therein being adverted to, should be demonstrated in the award to satisfy that Section 28(2) and 31(3) of Act, 1996 is complied. Therefore, what is also to be kept in perspective while noticing the validity or otherwise of an award regarding which the non-furnishing of reasons is contended as patent illegality is the reason assigned for determining just compensation in terms thereof. The situation which may arise in cases when a lesser compensation is determined in the arbitration proceedings and the land loser is complaining of the award is also to be kept in perspective since the requirement of reasons to be given by the learned Arbitrator in cases for determination of market value and compensation should indicate reasons since the same will have to be arrived at on a comparative analysis for which the reasons should be recorded and Section 26 to 28 of RFCTLARR Act will be relevant. Neither the land loser nor the exchequer should suffer in the matter of just and fair compensation. Hence the reasons under Section 31(3) is to be expected in that manner, the absence of which will call for interference under Section 34 of Act, 1996.
Under the scheme of the Act 1996 it would not be permissible to modify the award passed by the learned Arbitrator to enhance or reduce the compensation based on the material available on record in proceeding emanating from Section 34 of Act, 1996. The option would be to set aside the award and remand the matter.
Whether the award passed by the learned Arbitrator would stand vitiated merely because the guideline dated 28.03.2016 which is marginally subsequent in point of time is reckoned, when the acquisition notification under Section 3A of NH Act was prior to the same i.e. on 01.02.2016? - HELD THAT:- Section 3G(7)(a) of NH Act provides for determination of the market value on the date of publication of the acquisition notification under Section 3A. In a normal circumstance, for the determination of the market value, the rate prevailing prior to the date of the notification shall be the basis more particularly when the determination is made based on sale exemplars, as otherwise there is a likelihood of manipulation with escalated price being dishonestly indicated in the subsequent transactions - In circumstances where a document which is proximal to the date of acquisition is not available, it would be open to rely on a document which is much prior in point of time and if the time gap is more, determination could be made by providing for reasonable escalation depending on the area wherein the acquired property is situate and nature of property. Similarly, in a circumstance where no document which is prior to the date of the acquisition notification is available and the exemplars are subsequent to the date of acquisition notification, the value therein could be noted and reasonable de-escalation be considered to determine the appropriate value. Needless to mention that no strait-jacket formula can be applicable to all cases with arithmetical precision in the matter of determination of compensation.
In the instant case it is no doubt true that the notification issued by the Department of Stamps and Registration on 07.11.2014 is prior to the acquisition notification dated 01.02.2016. It is also to be noted that there was a time gap of more than one year between the two. In a normal circumstance, even if the notification dated 07.11.2014 was taken into consideration it would be open for the learned Arbitrator to consider certain amount of escalation to determine the market value - in the present facts and circumstances, the reliance placed on the guideline value notification dated 28.03.2016 for reckoning the market value of the property acquired under the preliminary notification dated 01.02.2016, by itself cannot be accepted to be a patent illegality committed by the learned Arbitrator.
Whether an appropriate consideration has been made by the learned Arbitrator in the matter of applying the market value notified as a guideline value under the notification dated 28.03.2016 - whether the manner in which the said guideline was taken into consideration amounts to denial of opportunity to NHAI amounting to violation of principles of natural justice violating Section 28(2)? - HELD THAT:- The land value for ‘Zunadu’ and ‘City Greens’ are notified separately at Serial Nos.250 and 529. In that circumstance not just to place reliance on the notification dated 28.03.2016 but also to apply the value notified for ‘Zunadu’ and ‘City Greens’ to the acquired lands, necessary pleading in claim petition and evidence with opportunity to NHAI to rebut the same should have been placed before the learned Arbitrator. Based on the same a consideration in that regard was required to be made by the learned Arbitrator to arrive at a conclusion with regard to the applicability of the guideline value fixed under notification dated 28.03.2016 for the lands that had been converted to purposes other than agriculture. Further while applying the guideline value fixed for ‘Zunadu’ and ‘City Greens’ to the acquired lands by discarding guideline value for the same survey number, necessary evidence to derive comparison between the lands so as to apply the value fixed in respect of another item of land in the same notification was necessary to be brought on record and was to be considered by the learned Arbitrator by assigning reasons.
From the pleading in the claim petition and from the portion extracted from the award which is the only basis for the ultimate order made by the learned Arbitrator, it would indicate that the NHAI did not have sufficient opportunity before the learned Arbitrator to controvert the material sought to be relied upon by the learned Arbitrator nor has the learned Arbitrator indicated sufficient reasons which to that extent would indicate patent illegality in the award passed by the learned Arbitrator being contrary to Section28(2) and 31(3) of Act, 1996.
That being the fact situation and also the position of law being clear that it would not be open for the court in the proceedings under Section 34 or in the appeal under Section 37 to modify the award, the appropriate course to be adopted in such event is to set aside the award and remit the matter to the learned Arbitrator in terms of Section 34(4) to keep in view these aspects of the matter and even if the notification dated 28.03.2016 relied upon is justified since we have indicated that the same could be relied upon, the further aspects with regard to the appropriate market value fixed under the said notification for the lands which is the subject matter of the acquisition or comparable lands is to be made based on appropriate evidence available before it and on assigning reasons for the conclusion to be reached by the learned Arbitrator.
C.A. No.4681/2022 @ SLP(C)No.2503/2022
Whether the course adopted by the learned Arbitrator to apply the subsequent notification dated 05.12.2018 issued by the Department of Stamps and Registration to reckon the special instructions contained in that notification so as to enhance the market value by 50% of the guidance value which is provided in the notification dated 27.10.2014 and thus arrive at the market value of Rs.25,800/- per sq. mtr. with the aid of two different guideline value notifications is justified?
HELD THAT:- The learned Arbitrator has committed patent illegality in applying two different notifications in determining the market value, keeping in view the scope available under Section 34 of Act, 1996 it would not be open for this Court to substitute our view to that of the learned Arbitrator and modify the award. Further, the learned Additional Solicitor General sought to refer to Special Instruction No.6 in the notification of 2014 to arrive at the market value even if it is accepted that the value of industrial land is not indicated in the notification. These are aspects to which the learned Arbitrator is required to advert so as to arrive at the conclusion. In the circumstance where we have opined that the award passed by the learned Arbitrator suffers from patent illegality and appropriate consideration is necessary, the only course open is to set aside the award and allow the learned Arbitrator to reconsider the matter on that aspect.
The awards passed by the learned Arbitrator is to be set aside and the matters be remanded in terms of Section 34(4) of Act, 1996 so as to enable the learned Arbitrators to assign reasons to arrive at their conclusion - The consideration to be made by the learned Arbitrator however is as to the material and evidence if any available to treat the acquired land as comparable to the lands situate in ‘City Greens’ and ‘Zunadu’ layout and award the compensation based on the guidance value indicated for the lands in the said layout if found comparable. The reason for not applying the guideline value indicated for the lands in the very survey number of the acquired lands is to be disclosed on such consideration.
Appeal disposed off.
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2022 (7) TMI 1412
Seeking grant of bail - Money Laundering - involvement in gross corruption of financial irregularities by offering jobs of primary teachers to various persons in lieu of money - illegal accumulation of huge amount of money from unscrupulous job seekers - validity of an order allowing an Advocate on behalf of the accused to remain present during his interrogation - Legality and validity of the order passed by the learned Magistrate directing the Investigating Officer to take the accused to S.S.K.M. Super speciality Hospital for his medical treatment.
Validity of an order allowing an Advocate on behalf of the accused to remain present during his interrogation - HELD THAT:- On perusal of the entire materials on record as well as the decisions referred to by the learned A.S.G., this Court is of the view that the order passed by the learned Magistrate allowing an Advocate on behalf of the accused to remain present during his interrogation suffers from patent illegality and liable to be set aside.
In the petition filed on behalf of the accused before the learned Magistrate, an order allowing the learned Advocate for the opposite party to remain present during investigation was prayed for stating, inter alia, that during raid, the E.D. did not allow the Advocate of the opposite party to be present which allegedly violated constitutional safeguard of the accused. However, on perusal of the case diary, it is found that the learned Advocate was present during raid conducted by the E.D. in the house of the accused and he talked to the accused. Therefore, the allegation against the E.D. that the Advocate of the accused was not allowed to be present at the time of raid is palpably a false statement - the impugned order allowing the learned Advocate for the accused to be present during interrogation of the accused is set aside.
Legality and validity of the order passed by the learned Magistrate directing the Investigating Officer to take the accused to S.S.K.M. Super speciality Hospital for his medical treatment - HELD THAT:- As per the direction of the Hon'ble Supreme Court in D.K. Basu [1996 (12) TMI 350 - SUPREME COURT] the Investigating Agency is under obligation to get the accused examine medically. The Investigating Officer is also under obligation to get an accused medically treated after every 48 hours during the period of remand under police custody. It is on record that the accused was declared fit by a hospital run by the Central Government after he being medically examined after arrest. From the first order passed by the learned Magistrate rejecting the prayer of the accused for bail and remanding him to the custody of E.D., this Court does not find any submission made on behalf of the accused regarding his physical illness immediately after arrest, the accused became so ill that he was admitted to S.S.K.M. Super speciality Hospital.
It is needless to say that the Doctors start medical treatment of the patient after taking HIPPOCRATIC OATH. Therefore, incredibility of medical practitioners and doctors should not be assumed. However, our experience as a common man with regard to the role of the doctors attached to S.S.K.M. Super speciality Hospital is not happy - Under such background and considering the fact that the accused is the senior most Cabinet Minister in the State of West Bengal having immense power and position, it would not be impossible for the accused with the aid of other political executives to take shelter under the garb of serious illness and medical treatment to evade interrogation. If this happens, the Lady Justice will be cursed by the tears of hundreds and thousands of deserving candidates whose future was sacrificed in lieu of money.
This Court passes the following direction:-
(i) The Investigating Agency is directed to take the accused by air ambulance to AIIMS, Bhubaneswar in the early morning on 25th July, 2022.
(ii) The accused shall be taken to NSC Bose Airport, Calcutta by an ambulance of S.S.K.M. Super speciality Hospital.
(iii) He will be accompanied by a doctor of S.S.K.M. Super speciality Hospital and an Advocate for the accused.
(iv) The AIIMS, Bhubaneswar Authority is directed to medically examine the accused by a team of specialist doctors of Cardiology, Nephrology, Respiratory Medicines and Endocrinology.
(v) The AIIMS, Bhubaneswar will prepare a report and handover the copies of the same to the Investigating Officer, Medical Officer of S.S.K.M. Super speciality Hospital and the learned Advocate for the accused by 3:00 p.m. on 25th July, 2022.
(vi) The Investigating Officer shall forward soft copy of the above-mentioned medical report to his counterpart in Calcutta who, in turn, shall produce it before the learned Special Judge under PML Act.
(vii) The learned Special Judge, shall take up the hearing of the case No. ECIR/KLZO-II/19/2022 dated 24th June, 2022 at 4:00 p.m. on 25th July, 2022.
(viii) The Investigating Officer shall make necessary arrangement for the production of the accused through the medium of electronic video linkage under amending provision of Clause (b) of sub-section (2) of Section 167 of the Code of Criminal Procedure (West Bengal Act 20 of 2004, Section 3).
Revision disposed off.
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2022 (7) TMI 1411
Benefit of concessional rate of duty - It is the case of the petitioner that initially when the impugned adjudication order was passed, petitioner’s declaration under Form-‘C’ and other documents were not accepted against interstate sales at concessional rate in the return filed by the petitioner’s dealer in its regular course of business - impugned adjudication order dated 1st September, 2011 was further challenged before the three forum i.e. before the appellate authority, revisional authority and thereafter by way of review and all the four authorities below considering the materials/documents produced before them did not accept the claim of the petitioner.
HELD THAT:- It is not a case in this writ petition that the impugned orders were passed either in violation of principle of natural justice by denying the petitioner any opportunity of hearing before the authorities or the impugned orders have been passed by the authority who have got no jurisdiction or constitutional validity of any vires of any provision of law is involved in this writ petition. The whole case of the petitioner is based on material evidence and which have been appreciated by the four authorities below and in exercise of constitutional writ jurisdiction of this Court under Article 226 of the Constitution of India, it would not be proper to interfere with the impugned orders which are based on finding of facts and based on material evidence and this writ court cannot substitute the findings of the authorities below.
Petition dismissed.
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