Application to settle the tax litigation by opting for ‘Vivad se Vishwas Scheme 2020’(VSVS2020) - HELD THAT:- Since the assessee has opted for ‘Vivaad se Vishwas Scheme 2020’ and has filed a letter dt 17-02- 2021 mentioning that the assessee has applied under VSVS 2020 and has received Form-3 from the Income Tax Department - no purpose will be served in keeping the appeals pending. Accordingly, we dismiss the appeals of the assessee as withdrawn and the assessee is given liberty to move an application u/s 254(2) of the Act to recall the present order as per provisions of Law.
Disqualification of the petitioner as Director - Section 164(2)(a) of the Companies Act, 2013 - directors disqualified on the ground that he has not submitted financial statements for three consecutive financial years - HELD THAT:- The issue raised in this writ petition was considered by the Hon'ble Division Bench of this Court in MEETHELAVEETIL KAITHERI MURALIDHARAN, KAMAL ANEESMOHAMED, SATHISH KUMAR GOPAL, GOVINDASAMY BALASUBRAMANIAM, PAARI SENTHIL KUMAR, PAARI DHANALAKSHMI, VERSUS UNION OF INDIA, THE REGISTRAR OF COMPANIES TAMIL NADU, CHENNAI, [2020 (10) TMI 595 - MADRAS HIGH COURT] where it was held that The publication of the list of disqualified directors by the ROC and the deactivation of the DIN of the Appellants is hereby quashed.
The case on hand stands on the same footing. In the instant case also, no notice was given to the petitioner before disqualifying him as Director of M/s.Open Source Academy India Private Limited.
The impugned order dated 17.12.2018 passed by the first respondent disqualifying the petitioner as Director of M/s.Open Source Academy India Private Limited under Section 164(2) (a) of the Companies Act, 2013 is hereby set aside - Petition allowed.
Levy of GST - Freight on Reverse Charge Mechanism - GST has been paid on the freight in the case of indigenous supplies - GST has been paid on the ocean freight in the case of imports on the CIF value and the value of the ocean freight is included in the value of the imported goods - revenue neutrality - HELD THAT:- In terms of the Notification No. 10/2017- Integrated Tax (Rate) dated 28.06.2017 (as amended), in the case of import of goods on CIF basis, the appellant is liable to pay GST on the component of Ocean freight paid by the foreign supplier to the shipping company.
The service of transportation of goods is taxable both in case of imports as well as exports for domestic shipping line and for import for foreign shipping line. Since exports by domestic shipping line are already zero rated, the ITC will not be available to Indian shipping lines if the service of inward transportation of goods is not made taxable in India. Accordingly, Tax under RCM gives a level playing field to the domestic shipping lines. Moreover the goods are transported from a place outside India up-to the customs station in India for the importer and therefore, he is directly or indirectly the recipient of service - the CIF value is adopted under Customs Valuation Rules for the purpose of calculation of Customs duty on 'Goods' whereas the GST is being demanded, under reverse charge mechanism, only for the service portion involved in the transaction.
When the GST has been paid on the freight in the case of indigenous supplies, whether the supplier is required to pay again GST on the freight under RCM? - HELD THAT:- The Notification No. 13/2017- CT (Rate) dated 28.06.2017 (as amended) is squarely applicable on the Appellant and they are liable to pay the GST on the freight paid, under the reverse charge mechanism. As regard to the double taxation we are in unison with the Advance Ruling Authority that this is a revenue neutral exercise, having no additional financial impact on the appellant and it is outside the purview of the Advance Ruling Authority.
Seeking to declare the transaction of payment made by Corporate Debtor to Respondent No.1 as non-est in law - moratorium order as per section 14 of IBC - HELD THAT:- In terms of Section 14(1) of the IB code, the corporate debtor or its management or agents cease to exist and only IRP is in control of the Corporate Debtor after initiation of CIRP of the corporate debtor. Accordingly, in the present case the payments made by the corporate debtor from the bank account are in gross violation of provisions al the code. It is the contention of the applicant that the respondents being the operational creditors must file their claim before the IRP/RP which be considered in the accordance with provisions of the code.
Arguments cf Respondent No.1 that the said payment be allowed, merely on ground that the services were used by the corporate debtor in past as well as continues does not hold water in eyes of law as per the provisions of IBC clearly bars the same. Hence, this bench directs the respondent No. 1 to 5 herein to refund all payments received by them on 19.08.2020 and 20.08.2020 - Application allowed.
Seeking exclusion of period of 52 days from the 60 days extension provided in the CIRP period over and above the period of 270 days - HELD THAT:- Since, there is now a Resolution Plan for the CoC to deliberate and decide upon, we allow the present I.A. No. 259/KB/2021 and exclude the period of 52 days from the 60 days’ period of extension granted vide order dated 12/02/2020 in I.A. No. 1463/KB/2020.
Issuance of Direction to the Resolution Professional of the Corporate Debtor to accept the claim in full filed by the Applicants - Section 60 (5) of the Insolvency and Bankruptcy Code. 2016 - whether the Resolution Professional has rightly revised the claim of the Applicant to the tune of ₹ 15,75,279/-? - HELD THAT:- The provisions of the Code along with IBBI regulations, make it obligatory on part of IRP/RP to collate, verify and admit such claims of the creditors as are duly supported by appropriate evidence along with proper record in books of account of a corporate debtor. Therefore, the IRP/RP can always ask for such information/documents/evidence from creditors as is considered necessary for the purpose of verification/substantiation of the claims.
In the instant case, the petitioner has admittedly paid only an amount of ₹ 15,29,057/- to the Corporate Debtor, as is evident from books of account of the CD. This amount is duly supported by credible documentary evidence i.e., books of account and other accounting record of CD and verified by the RP. It is worthwhile to record that RP has to do the verification of claims strictly in accordance with accounting entries appearing in the CD’s accounts. The payments claimed to have been made by petitioners in cash to the Mr. Rohit is not supported with any of the entries in the books account of the CD. The applicant himself admits in the application on hand that ex-directors are fraudulent - The independent legal remedies are available with the applicant to recover the amount, if any, from Mr.Rohit. But the CIR Process can’t be used to perpetuate fraud.
The Supreme Court of India dismissed the appeals in Customs Appeal Nos 40003 and 40002 of 2021, upholding the order of the Customs, Excise and Service Tax Appellate Tribunal dated 26 February 2021.
Maintainability of petition - alternative remedy of appeal - failure to exercise the jurisdiction in a particular manner - HELD THAT:- The perusal of the writ petition reveals of the petitioner herein challenging the order of the Tribunal on various grounds. The very challenge to the proceedings filed by the bank before the Tribunal has been agitated in the writ petition and in addition to that the violation of the provisions of Section 7 and Section 10 of the Code stand highlighted in the writ petition. The proceedings initiated before the civil courts against the bank with regard to the transaction entertained into between the petitioner herein and the respondent bank and its impact on the proceedings initiated before the Tribunal are also the issues which go to the root of the case and require to be decided. As the petition has challenged the basic proceedings initiated before the Tribunal in the present petition the court is of the view that the issue has to be addressed by the court.
The present petition is maintainable in view of the grounds taken and the matter requires consideration by the court - Petition admitted.
Seeking extension of CIRP period for another 90 days - HELD THAT:- Since the moratorium under Section 14 is issued when this authority admitted the Corporate Debtor in CIRP. Hence, this application is not maintainable.
Offence under SEBI Act - Recovery proceedings - Attachment orders - whether recovery proceedings can be initiated straight away under section 28A of the SEBI Act without issuing notice for adjudicating a dispute between the regulator and the appellants and without giving an opportunity to the appellants to contend that they are not associated companies of PACL? - HELD THAT:- Assuming that the Recovery Officer does have the jurisdiction to initiate recovery proceedings under Section 28A is it not necessary for the Recovery Officer to issue notice before proceedings with the recovery of the amount and, further whether attachment order could be passed without issuing any notice especially when there is no evidence in the impugned order that there is a possibility that the appellants would run away with the money.
Appellants is a running Company and the financial year is coming to an end on 31st March. The attachment order attaching the bank accounts is certainly not in the interest of the smooth running of the business of the Company.
We direct the respondent to file a reply within two weeks from today. Two weeks thereafter to the appellant to file rejoinder. The matter would be listed for admission and for final disposal on 29th April, 2021.
In view of the undertaking given by the appellants today we direct that the attachment orders passed against the appellants shall remain in abeyance. The appellants would be permitted to operate their accounts and make necessary expenditures for the smooth running of the business.
Seeking to release/transfer Mutual Fund units in favour of Respondent No.5Applicant herein, by crediting the same in their demat account maintained by NSDL - HELD THAT:- Substantial doubts have been raised by both the Applicant and ISSL regarding each other’s involvement/collusion with Allied in perpetrating the alleged fraud and in fact, the very nature and substance of the alleged fraudulent activities itself. These questions/allegations are subject matter of the Accompanying Appeal and the investigations being carried out by SEBI and EOW. Until the final disposal of the Accompanying Appeal, it is imperative that the interests of all the parties are substantially protected, including that of the Applicant. It is not disputed that the ownership of the Mutual Fund units vests with the Respondent No. 5Applicant herein - We agree with Respondent No. 1 to the extent that mere filing of a chargesheet would not constitute a material change in circumstances showing mala fide on part of ISSL. The same is not conclusive proof of guilt. Indeed, we find it imperative to note that we do not wish to express any opinion on the merits of the allegations made by the parties against each other at this stage.
There are some merit in the Applicant’s contention that if they are compelled to encash the Mutual Fund units at this juncture, they would be deprived of increase in value of the securities. The Courts must adopt a pragmatic approach in such matters which touch upon high value commercial assets. At the same time, if it is subsequently proved that the Applicant was indeed hands in glove with Respondent No. 4 Allied, the other parties should not be left remediless. Hence, looking to the facts and circumstances, we find that the ends of justice would be served if the Mutual Fund units are released to the Respondent No. 5Applicant subject to provision of appropriate guarantee.
The interim order is modified to the extent that the Mutual Fund units of Respondent No. 5-Applicant, kept with the Respondent No.1- ISSL, be released in favour of the Respondent No.5- Applicant by way of transfer of the said Mutual Fund units and crediting the same in the demat account of the Respondent No.5-Applicant. This is subject to the Applicant furnishing requisite Bank Guarantee of equivalent value as the Mutual Fund units, to the satisfaction of the Trial Court - application disposed off.
Seeking grant of Bail - change in material circumstances which have uprooted the prosecution version - framing of charges against applicant - Section 120-B read with Section 7(c), 7(a) and 8 of the Prevention of Corruption Act, 1988 - medical condition of applicant also not good - HELD THAT:- This court is of the view that there is no doubt that two eye-witnesses of preparation of trap proceedings have not been recorded as yet who are independent witnesses but PW-3 Amrendra, who is Manager of Hotel, Kapoor Inn, has stated that the raid was made at the said hotel which is located in Delhi, and has further stated that co-accused Ranveer Singh was arrested from his hotel when the raid was conducted by C.B.I. and on this ground, co-accused Ranveer Singh has been allowed bail.
This Court is of the view that benefit of bail has already been allowed to the co-accused Ranveer who is one of the main accused in this case who was said to have gone to the house of co-accused V.S. Rathore with an amount of ₹ 20,00,000/- to be handed over to the applicant and the said coaccused V.S. Rathore. It has come on record that the applicant was never found present on the scene of occurrence and his presence is only being tried to be established on the basis of telephonic conversations between them and it is being stated that he was in the vicinity but having sensed that police was at the place near about, he fled from there feigning that his father had slipped in the bathroom so as to avoid his arrest. This would indicate that this is a factual aspect which needs to be decided at the time of trial but as on date, it may be taken that benefit of bail has been granted to the co-accused Ranveer Singh and the said benefit may also be granted to the accused-applicant as his case is on better footing as he was not arrested on the spot.
As regards medical held, record shows that he was having fibrosis in his lung and he was found Covid-19 positive and was admitted at the higher standard hospital, therefore possibility of adverse effect on his health also cannot be ruled out and lastly this Court finds that nothing has been brought on record from the side of prosecution that he did not appear regularly before the trial court as five witnesses have already been recorded and no instance of him having influenced witnesses of prosecution has been given so far, although it has been stated in counter affidavit that if he is released, he would tamper with the evidence but mere suspicion cannot take place of proof and having seen that he did not misuse his interim bail, this would be an additional ground to release him on bail.
Let the applicant Sunil Dutt involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the conditions imposed - application allowed.
Seeking grant of Bail - offence under section 132(1)(b)(c)(f)(i) of the CGST Act - HELD THAT:- Keeping in view the surrounding circumstances including the long period of detention of the Petitioner in Custody, the factum of completion of investigation as also the punishment prescribed for the offence and when the Petitioner aged about 71 years has his permanent residence at Rourkela and the case mainly rests on documentary evidence, this Court being of the view that further detention of the Petitioner would serve no useful purpose, is inclined to reconsider the prayer for grant of bail to the Petitioner.
It is directed that the Petitioner be released on bail in the aforesaid case on such terms and conditions as deemed just and proper by the Court in seisin of the case with conditions imposed - application allowed.
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - existence of debt and dispute or not - time limitation - HELD THAT:- From the perusal of the Bank Statements, this is clear that Bank Statement for the period from 05.05.2017 to 29.05.20t7 and25.02.2019 to 16.10.2019 only have been filed in the support of the claim. The invoices are from the period of 19.05.2015 to 09.1.2.20t6 but no Bank Statements pertaining to this period have been enclosed along with the petition. Ld. Counsel for the Petitioner state that ₹ 2,00,000/-(Two Lakh) received from the Corporate Debtor on 17.05.2017 was already adjusted towards dues and therefore only the balance amount is claimed in the application.
The petitioner in the application has claimed LB % as the interest per annum though he is not entitled to any interest. The petitioner has failed to satisfy this Adjudicating Authority on the total amount due and payable. It is clearly a time barred debt. Since, the period of the invoices is from the date 19.05.2015 to 09.12.2016 and 16 out of 17 invoices filed by the petitioner are clearly time barred the argument of the Ld. Counsel for the petitioner on the issue of limitation that Rupees two lakh has been received on 17.05.2017 is negated. As per the judgement of the Hon'ble High Court and Hon'ble NCLAT this application ought to have been filed within the period of three years from the date of default of invoices.
This application is clearly barred by limitation. Furthermore, petitioner has not filed the Statement of Account for the entire period of transactions to satisfy this Adjudicating Authority that the amount was due and payable - Petition dismissed.
Maintainability of appeal - appeal was dismissed on the ground of time limitation only - the order in original dated 2nd March, 2006 was made available to the appellant only on 17th July, 2018 that too after repeated letters since the year 2012 till the year 2018 - HELD THAT:- Department has delayed the dispatch of order in original dated 2nd March, 2006 by 12 years. This delay is quiet shocking in view of the mandate upon the Department to make the copy of order available to the parties concerned at the earliest so as to give them an opportunity to avail the remedy of appeal, if required. It has mandatorily to be informed to the appellant by the Department that appeal, if any, may be filed within a period not later than 3 months from the date of receipt of the order. Right to legal remedies is otherwise a statutory right of the litigant. The delay of 12 years on part of the Department in making the copy of order to the appellant has tremendously curtailed the said right of the appellant.
It is deemed important that the explanation from the respective Officer i.e. Joint Commissioner, Jaipur be called for about not delivering the order pronounced to the appellant for more than 12 years. The Officer is directed to appear in person on 27th April 2021 to explain the noticed lapse on his part. In case by that date the physical hearings are not resumed the officer concerned has to mark his presence in person, virtually - Matter be heard on 27.04.2021.
Erroneous deactivation of Director Identification Number (DIN) of the petitioner - non-compliance of the provisions of Section 164 of the Companies Act, 2013 - HELD THAT:- It is evident that there was no fault on the part of the petitioner justifying deactivation of the DIN of the petitioner under Section 164 of the 2013 Act. Moreover, it was rather beyond the scope of the jurisdiction of the Registrar of Companies to direct that the documents filed by the Directors would not be approved/registered/recorded and thus would not be available in the registry for public viewing, thereby depriving the petitioner and other Directors from exercising their legal rights in that regard.
Application is allowed, thereby setting aside the deactivation of the DIN of the petitioner and the operation of the portion of the order dated June 24, 2016 passed by the Registrar of Companies at Kolkata, by which it was directed that the documents filed by the Directors of the Company would not be approved/registered/recorded and would not be available in the registry for public viewing - application allowed.
Money Laundering - Seeking grant anticipatory bail - offence of money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 and punishable under Section 4 of the said Act - HELD THAT:- The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations. There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of the case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner.
A careful reading of the legal position and in the light of the circumstances of the case on hand, which clearly indicates that the 1st respondent has a doubt regarding the involvement of the petitioner in commission of the crime and she is being summoned for disclosure and in case of her non-disclosure of any material, on the pretext of non-co-operation, the 1st respondent may proceed to arrest her. The petitioner is a woman and she is having two minor children, whom she has to look after. Further, major part of the investigation has been completed with respect to the accounts and documents, which have already been seized. Hence, there may not be a chance of tampering with the investigation at this stage, because as rightly pointed out by the learned Senior Counsel for the petitioner that a criminal case has already been filed and the same is pending before the Special Court at Bhopal.
The petitioner is directed to surrender before the Assistant Director, Enforcement Directorate, Government of India, Hyderabad, within a period of fifteen days from today, and on such surrender, she shall be released on bail on her executing a personal bond to the tune of ₹ 5,00,000/- with two sureties each to the like amount to his satisfaction - Petition allowed.
Seeking Bail - condition to furnish a bank guarantee/ FDR for amount of ₹ 50 lakhs - a case was registered under Section 132(1) (b) & (c) punishable under Section 132(1) (i) of CGST Act - It is contended that, the imposition of condition to furnish a bank guarantee/ FDR for amount of ₹ 50 lakhs only as it was contrary to the mandate of the Supreme Court in Saravanan vs.State represented by the Inspector of Police, [2020 (10) TMI 1249 - SUPREME COURT] wherein the Supreme Court set aside the condition imposed by the High Court directing the petitioner to deposit an amount of ₹ 8 lakhs while being released on default bail.
HELD THAT:- Economic offences constitute a class apart as compared to the 3 of 6 other offences. Coming to the instant case in the wake of the allegations levelled against the petitioner, it need not be over-emphasized that the parameters in such like cases would definitely warrant a different and stricter application of the conditions of bail. Hence, the imposition of ₹ 50 lakhs as a pre-requisite condition cannot by any stretch of imagination be said to be onerous much less being against the mandate of the Supreme Court in Saravanan's case (supra).
A perusal of the impugned order reveals that the trial Court has carefully examined the facts, circumstances and background of the case while imposing the impugned condition and the same is founded on sound judicial principles.
Permission for withdrawal of petition - Impleadment as respondent No.4 - HELD THAT:- The learned senior counsel for the petitioner seeks to withdraw the writ petition with liberty to approach the High Court - Liberty granted.
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