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Showing 21 to 40 of 1526 Records
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2023 (10) TMI 1506
Exemption u/s 10(10AA)(i) - case of employees of DOT who have been w.e.f.01-10-20222 absorbed in BSNL and thus is a Government employees and is entitled for full exemption - HELD THAT:- Since the leave encashment as claimed by the assessee u/s 10(10AA)(i) of the Act which is below the limit of Rs.25.00 lacs as specified vide Notification No. 31/2023 issued by the CBDT, Ministry of Finance, New Delhi, therefore, the assessee is eligible to claim deduction of said amount and thus the AO is directed to allow the claim of the assessee u/s 10(10AA)(i) of the Act within the revised limit as prescribed in the notification . Hence, in terms of these observations, the appeal of the assessee is allowed.
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2023 (10) TMI 1505
Addition u/s 68 - bogus Long Term Capital Gain/Short Term Capital Loss - HELD THAT:- AO had added the sale consideration merely on the general statement of Shri Vipul V. Bhatt without contrary disproving these documents. Mr. Vipul V. Bhatt had retracted his statement by way of affidavit.
The assessee also submitted that they were not provided any copy of information and the statement relied upon by the assessing officer. We have also perused the balance sheet of the assessee showing that assessee was a regular investor in the shares.
As per balance sheet as on 31.03.2014 the assessee has made investment in 26 different scrips as per statement of investment which demonstrate that assessee had not made investment in only one scrip but assessee was regular investor.
Apart from the fact that assessee was a regular investor in many scrips, even for this particular scrip also it seems that this scrip was listed in stock exchange at the time of purchase as well as at the time of sale and also it continues to be listed in the stock exchange till date.
Nothing has been brought on record that SEBI or any other agency has banned the trading or any adverse finding has been given against the scrip. AO has not even conducted any enquiry from either the broker of the assessee Hornic Investment Pvt. Ltd. or from the exit provider. Simply relying upon the information from the Investigation Wing of some of the brokers who have provided accommodation entry in this scrip cannot be the sole reason of adverse inference unless AO himself carries out any enquiry or there is some other information or material on record that this scrip was banned or debarred in trading of the shares.
As perused the judicial pronouncements relied upon by the ld. Counsel and observe that on similar facts and identical issue in respect of shares of Sunrise Asian Ltd. have decided the issue in favour of the assessee.
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2023 (10) TMI 1504
Money Laundering - Seeking grant of bail - organised crime - hatching a conspiracy by impersonating as Government Officers of the highest ranks - HELD THAT:- The Apex Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr. [2005 (4) TMI 566 - SUPREME COURT], inter-alia, held that the role of the appellant was said to be of rendering help and support to the organizing crime syndicate while functioning as Commissioner of Police at different places. The Apex court was essentially concerned with the operation of Section 24 of MCOCA providing for punishment of public servant failing in discharge of their duty. However, the court taking overall view of the matter with reference to the facts from the prima facie opinion that the High Court might not have been correct while coming to the conclusion that the appellant committed an offence under Section 3(2) as well as Section 24 of MCOC Act; the interim bail granted to the appellant was continued. In this case, it was inter alia held 'There are offences and offences under the Penal Code, 1860 and other penal statutes providing for punishment of three years or more and in relation to such offences more than one charge-sheet may be filed. As we have indicated herein before, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA.'.
It is a well settled proposition that these conditions are cumulative and not alternative. It was reiterated in Sandeep Omprakash Gupta [2022 (12) TMI 1103 - SUPREME COURT] that the satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds and the expression "reasonable grounds" means something more than prime facie grounds. It was further inter alia held that it contemplates substantial provable causes for believing that the accused is not guilty of the alleged offence.
In the present case, as per the prosecution, the evidence against the petitioner is that she was roped in by Sukesh Chandra Shekhar to facilitate him to get in touch with various bollywood celebrities and the petitioner was always in knowledge of the fact that Sukesh Chandra Shekhar is running organized crime syndicate in Tihar Jail - It is an admitted case that the petitioner was not directly involved in the foundational crime. However, taking into account the fact that the mens rea is a necessary ingredient, this court even at the stage of bail has to examine and evaluate whether the petitioner was a member of the organized crime syndicate or had required mens rea. It is pertinent to mention here that the act alleged to have been committed by the alleged accused should not only be prohibited by law but should also be a cognizable offence punishable with imprisonment for three years or more and must have been done singly or jointly as a member of an organized crime syndicate or on behalf of such organized crime syndicate.
The court is only required to evaluate and examine the case on the basis of broad probabilities. In regard to the offence to be committed in the future, the antecedents of the offender have to be seen. It is a settled proposition that at the stage of bail, the Court cannot meticulously examine the evidence and conduct a mini trial. The findings at this stage are tentative in nature and do not affect the merits of the case. The case at this stage has to be seen from the angle of prima-facie view. Even the rigors of section 21(4) of MCOCA does not completely oust the jurisdiction to grant bail, if the broad probability is in favor of petitioner.
In the present case, there is nothing on the record regarding the criminal antecedents of the petitioner. It is also to be taken into account that the accused is a woman of 52 years of age and has been in custody since 30.11.2022.
Conclusion - MCOCA is a special statute requiring strict interpretation and that the conditions for bail under Section 21(4) are cumulative and not alternative. Bail granted subject to specific conditions.
Application allowed.
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2023 (10) TMI 1503
Rejection of impleadment application filed by the appellant - Substitution of appellant as the legal representative of the deceased plaintiff - suit pending for trial for past 41 years.
Whether the impugned order passed by the High Court whereby the order passed by trial court allowing the impleadment application filed by the appellant herein had been rejected, is to be sustained or set aside? - HELD THAT:- The records would clearly indicate that Manoj Kumar Jain himself had filed an application, accompanied by affidavit before the Revisional Court in Civil Revision No.2 of 2010, stating thereunder that he would not press the application filed by him for substitution and this was sufficient for the High Court to have accepted the plea of the appellant or in other words, it should have sustained the order of trial court and ordered for appellant being brought on record as legal representative of deceased Urmila Devi.
The impugned order which has resulted in rejection of the application filed by the appellant to be brought on record as legal representative of Urmila Devi if sustained would result in the estate of deceased plaintiff not being represented, as a consequence of which suit would abate or would be put to a silent death by the defendants without claim made in the suit being adjudicated on merits. Hence, question is answered in favour of the appellant and against respondents and therefore, the impugned order is set aside.
Whether any further direction or directions requires to be issued for concluding the proceedings in a time bound manner on account of Suit pending for trial for past 41 years? - HELD THAT:- The very fact of the pendency of the present suit No. 2 of 1982, in the instant case, for the past 41 years is reflective of the fact, as to how some of the civil courts are functioning and also depicting how stakeholders are contributing to such delays either directly or indirectly. The procedure that is being adopted by the courts below or specifically the trial courts is contrary to the express provisions of the CPC. It can also be noticed that there are party induced delays. It is laid down under Orders VIII Rule (1) that a defendant shall at or before the first hearing or within 30 days, or 90 days as the court may permit, present a written statement of his defence. In most cases, there would be no difficulty in presenting such a written statement on the date fixed, and no adjournment should be given for the said purpose except for a good cause shown, and in proper cases, costs should be awarded to the opposite side, namely realistic costs. However, this is seldom found.
It is high time that the presiding officers of all the trial courts across the country strictly enforce the time schedule prescribed under sub-rule (1) of Rule (1) of Order VIII in its letter and spirit rather than extending the olive branch on account of said provision being held directory to its illogical end even where circumstances of a particular case does not warrant time being enlarged. Although Order XVII of the CPC indicate under the heading “adjournments”, making it explicitly clear the procedure which requires to be adopted by the civil courts in the matter of trial, as evident from plain reading of the said provision would reveal, seems to have been completely lost sight of by all the stakeholders, which can be held as one of the root cause for delay in disposal of civil cases.
Conclusion - i) The High Court's order set aside by reinstating the trial court's decision on substitution. ii) It is imperative to note that about 6 per cent of the population in India is affected by litigation, in such a scenario the courts would play an important role in the life of a nation governed by Rule of Law.
Petition disposed off.
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2023 (10) TMI 1502
Fraudulent and Unfair Trade Practices - Trading in illiquid stock options done by the Noticee during the Investigation Period was in violation of Regulations 3(a), (b), (c), (d), 4(1) and 4(2)(a) of the PFUTP Regulations - whether the Noticee is liable for a levy of monetary penalty u/s 15HA of the SEBI Act and if yes, how much should be the penalty?
HELD THAT:- Noticee had contributed to the artificial volume in the range of 10.81% to 22.57% vs total market volume in the said contracts. Thus, find that the Noticee by executing non genuine trades, had contributed to the creation of artificial volumes in the said contracts.
Trades between the Noticee and the counterparties were a consequence of pre-meditated decision of all the parties and hence are unfair trades as per PFUTP Regulations. It cannot be a matter of coincidence or lack of awareness, or without knowledge of the counterparties. Hence, the trades placed on the stock exchange platform by mutual understanding are non-genuine trades, which are prohibited under PFUTP Regulations.
Noticee’s transactions, were fraudulent/ manipulative, as contemplated in the PFUTP Regulations. Hence, as inclined to impose monetary penalty on the Noticee.
Quantum of penalty to be levied, we take into regard the manipulative nature of the trades placed by the Noticee that has led to creation of artificial volume in the contract.
Determine the quantum of penalty to be imposed, bearing in mind the parameters laid down in Section 15J of the SEBI Act. The amount of disproportionate gain or unfair advantage is not quantifiable. Therefore, considering all the facts and circumstances in this matter, we are inclined to impose a minimum penalty against the Noticee, as provided under Section 15HA of the SEBI Act.
As per the provisions of the Amendment of Section 15HA vide the Securities Laws (Amendment) Act, 2014, that came into force on September 08, 2014, the penalty shall not be less than five lakh rupees. In the instant case, it is observed that the violation of the PFUTP Regulations, took place after the aforesaid date, therefore, the penalty shall not be less than five lakh rupees.
Therefore, in exercise of powers conferred upon me under Section 15-I(2) of the SEBI Act read with Rule 5 of the Adjudication Rules, I hereby impose a penalty of Rs 5,00,000/- (Rupees Five Lakhs only) upon the Noticee i.e., Manoj Jain HUF (PAN No: AAJHM5595D) under Section 15HA of the SEBI Act for violation of Regulations 3(a), (b), (c), (d), 4(1) and 4(2)(a) of the PFUTP Regulations.
Noticee shall remit / pay the said amount of penalty within 45 days of receipt of this order through online payment facility available on the website of SEBI.
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2023 (10) TMI 1501
Validity of reopening of assessment - reassessment beyond four years - reasons to believe - Revenue appeal was dismissed on the ground of Low Tax Effect and then recalled by order in M.A on the ground that though the tax effect is less than Rs. 50 lacs because of the audit objection involved in this case which is exclusion clause 8(c) of the CBDT Circular No. 3/2018.
Whether the CIT(A) is erred in holding the reopening of the assessment is bad in law, without appreciating the fact that the Revenue has reopened the case based on some materials/information available, which is within the meaning of clause (ca) of explanation 2 of section 147? - HELD THAT:- As in the case of CIT Vs. Kelvinator of India Ltd. [2002 (4) TMI 37 - DELHI HIGH COURT] clearly held that the AO does not have any jurisdiction to review his own order, his jurisdiction is confined only to rectification of mistake as contained in section 154 of the Act, that too “mistake apparent on record” and not on debatable issues.
Thus the only remedy left with the department is to invoke Revision proceedings u/s. 263 of the Act, to revise the assessment order by the Commissioner of Income Tax on the ground that the assessment order is erroneous and prejudicial to the interest of Revenue.
Wherever a regular assessment order is passed by AO, it is presumed that the order was passed after application of mind, thereby AO are not given powers to reopen the assessment on the same set of facts in the absence of tangible material.
We have no hesitation in holding that when there is no failure on the part of the assessee in disclosing the income and No new tangible material on record, the reopening of assessment after 4 years period amounts to “change of opinion” only. Therefore the reopening of assessment invalid in law. Thus the finding arrived by the Ld. CIT(A) does not require any interference. Decided in favour of assessee.
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2023 (10) TMI 1500
Interpretation of statute - amendment to the Sugarcane (Control) Order 1966 - Dismissal of the writ petition holding that the omitted Clause 5A of the Sugarcane Control Order, 1966 can be invoked against the members of the Appellant Association - HELD THAT:- The sheet anchor of the argument of the appellants is that after the amendment in 2009 to the Sugarcane Control Order, deleting the Statutory Minimum Price and substituting Fair and Remunerative Price consequently omission of Second Schedule with effect from 22.10.2009 leads to a situation where the first respondent has no jurisdiction to determine the "L" Factor for the sugar seasons 2004-2005 to 2008-09. It is further contended that omission of a Second Schedule with effect from 22.10.2009 is a deletion and no action can be taken on deleted / omitted provision since Section 6 of the General Clauses Act would have no application to a Control Order which is neither an enactment nor a regulation in terms of Section 6 of the General Clauses Act.
The Writ Court, taking into consideration the scope of Essential Commodities Act, the object of the Sugarcane Control Order, the decisions of the Hon'ble Supreme Court in Union of India v. Cynamide India Ltd and another [1987 (4) TMI 478 - SUPREME COURT] and K. Ramanathan v. State of Tamil Nadu and another [1985 (2) TMI 249 - SUPREME COURT], observed that no attempt can be permitted to be made to dilute the object and if done, would be against the public interest.
The right of cane growers to be entitled for Statutory Minimum Price (SMP) is a statutory right. It accrues on the date when supply of sugarcane is made to the sugar mills. The Central Government, though thought fit to introduce a new system of determining fair price and brought into effect Fair Remunerative Price, that would not in any manner affect the rights of cane growers to be entitled to SMP, which was very much available in the Sugarcane Control Order at the relevant time during which supply of sugarcane has been done.
Nowhere in the amendment in the year 2009, there is any such intention to obliterate or to deny the benefit which has accrued in favour of the cane growers. The Central Government is right in its stand that the Sugarcane Control Amendment Order, 2009 dated 22.10.2009 is prospective with effect from the date of its publication in the Official Gazette and no time limit has been fixed for arriving at "L Factor. Such a ground cannot be raised by the appellant to deny and defeat the vested rights of the cane growers. The Writ Court has considered all the aforesaid aspects in proper perspective and this Court, in exercise of is appellate jurisdiction, finds no reason to interfere with the order of the Writ Court and accordingly the writ appeal is liable to be dismissed.
Conclusion - i) The omission of Clause 5A and the Second Schedule does not retroactively affect the rights of sugarcane growers to receive additional pricing for supplies made before the amendment. ii) Section 6 of the General Clauses Act applies to subordinate legislation, preserving accrued rights despite the omission of provisions.
Appeal dismissed.
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2023 (10) TMI 1499
Clandestine removal - demand confirmed mainly on the basis of the consumption of gas required for manufacture of the final product - case is mainly based on statement of various persons - right to cross-examine the statements - principles of natural justice - HELD THAT:- The appellant in the reply raised specific issue that certain documents relied upon/non relied upon were not provided to the appellant. The appellant also requested for cross examination of the witnesses whose statements were heavily relied upon to confirm the charge of clandestine removal and consequential demand of Excise duty. It os found from the entire adjudication order the Adjudicating Authority has not given any heed to the request of the appellant in as much as they have specifically asked to provided relied upon/ Non relied upon documents and cross examination of the witnesses. The case is mainly based on statements of various persons.
It is statutory mandate in terms of Section 35D of the Central Excise Act, 1944 that the Adjudicating Authority that it is incumbent upon the Adjudicating Authority to examine/cross examine the witnesses before accepting the statements of those witnesses as evidence for adjudication of the case. In the present case even despite retraction by the witnesses the adjudicating authority has not granted the cross examination of the witnesses. In this fact the entire order of the Adjudicating Authority based on mainly statements of the various persons, without allowing cross examination, is not sustainable.
The adjudicating authority must allow the cross examination of the witnesses and also provide the documents required by the appellant, if not earlier provided. The adjudicating authority has gravely erred in violating the principles of natural justice. Therefore, the order without following the principle of natural justice cannot be sustained as held by the Apex Court in number of judgments.
Conclusion - The adjudicating authority has gravely erred in violating the principles of natural justice. Therefore, the order without following the principle of natural justice cannot be sustained.
Matter to the Adjudicating authority for passing a fresh de-novo order - appeal allowed by way of remand.
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2023 (10) TMI 1498
Permanent stay on winding up of Company Ltd u/s 466 of the Companies Act, 1956 - HELD THAT:- Permanent stay of the winding up of Svadeshi Mills Company Ltd is granted, the handover of assets is directed, and new directors appointed, subject to compliance with the Companies Act, 2013.
Application disposed off.
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2023 (10) TMI 1497
Estimation of income - bogus purchases - CIT(A) restricted the addition from 100% to 6% - HELD THAT:- Since the issue is squarely covered by the decision of Pankaj K. Chaudhary [2021 (10) TMI 653 - ITAT SURAT] wherein @ 6% addition was upheld on bogus purchases, and there is no change in facts and law and Revenue is unable to produce any material to controvert the aforesaid findings. We dismiss the appeals of the assessees and we allow the appeals of the Revenue partly.
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2023 (10) TMI 1496
Fraudulent and Unfair Trade Practices under SEBI Act -manipulation or structured trade - imposition of penalties for creating misleading appearance of trading through miniscule trades - HELD THAT:- No error in the orders of the Securities Appellate Tribunal [2023 (5) TMI 1419 - SECURITIES APPELLATE TRIBUNAL MUMBAI] and [2023 (7) TMI 1546 - SECURITIES APPELLATE TRIBUNAL MUMBAI]wherein contention that there was no manipulation or structured trade is patently erroneous in as much as we find that the trading pattern of the buyers and the sellers was that they traded in close proximity of time inter-se between them.
Appeals are accordingly dismissed.
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2023 (10) TMI 1495
Maintainability of petition - availability of statutory remedy of appeal under Section 107 of U.P. Goods and Service Tax Act, 2017 - SCN was issued - petitioner did not respond - HELD THAT:- Without entering into the issue as to whether the show cause notice was served and the petitioner was given opportunity of hearing or not, it is opined that the said ground being urged by the learned counsel for the petitioner in these proceedings can very well be taken up before the Appellate Authority by preferring appeal under Section 107 of U.P. Goods and Service Tax Act, 2017.
It is not inclined to entertain this writ petition - petition disposed off.
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2023 (10) TMI 1494
Money Laundering - Legality of arrest of the Petitioner - gross violation of the fundamental rights of the Petitioner guaranteed under Article 21 and 22 of the Constitution of India - legality of remand order - Whether ratio laid down by the Supreme Court in Pankaj Bansal versus Union of India and Others [2023 (10) TMI 175 - SUPREME COURT] can be made applicable to the present case? - HELD THAT:- In the said case, the Supreme Court was considering the effect of section 19(1) & (2) of PMLA and as to the right of an arrestee to be furnished with the written grounds of arrest at the time of arrest. The Apex Court had observed, on facts, that the authorities under PMLA were providing information of grounds of arrest in varied methods, in that, at some places, the grounds of arrest were informed orally and in some places, they were being permitted to be read or were read out and in others, written grounds of arrest were being furnished. After considering the effect of section 19(1) & (2) of PMLA and coming to the conclusion that it was incumbent upon the authorities to record the reasons for arrest in writing as per section 19(1), the Supreme Court held that there was no reason why the authorities could not provide the grounds of arrest in writing to the arrestee. The Supreme Court had also reached the said conclusion keeping in view the power to initiate action under section 62 of PMLA against the officer concerned, in case of noncompliance of the provisions of section 19 of PMLA, while relying upon the judgement of the Supreme Court in V. Senthil Balaji vs. State Represented by Deputy Director and Ors [2023 (8) TMI 410 - SUPREME COURT].
The Supreme Court also considered the effect of section 45 of PMLA to conclude that the rights of the arrestee to obtain bail under the stringent conditions would not be possible unless the arrestee has correct and complete information with respect to his grounds of arrest - Another issue which was considered by the Supreme Court in respect of Section 19(1) of PMLA was with regard to the sensitive material which may be contained in the grounds of arrest. To that, the Supreme Court had observed that such information/sensitive portions could always be redacted, so as to safeguard the sanctity of the investigation.
The grounds of arrest need to be informed to the arrestee within 24 hours of such arrest, however furnishing of such grounds, in written, are not mandated by the UAPA. Keeping in view the law laid down by the Supreme Court in Pankaj Bansal, and also considering the stringent provisions of UAPA, it would be advisable that the respondent, henceforth, provide grounds of arrest in writing, though after redacting what in the opinion of the respondent would constitute “sensitive material”. This too would obviate, as held by the Supreme Court, any such challenge to the arrest as made in the present case.
Legality of arrest and remand - HELD THAT:- The entire arguments on facts in respect of the arrest and the subsequent remand proceedings appear to be clearly at variance. So much so, they are at times, contradictory. The petitioner was at pains to demonstrate as to how the arrest itself was illegal, in that, the grounds of arrest were not informed or conveyed to him at the time of arrest. Whereas, it is the categoric stand of the respondent that not only the grounds of arrest were informed to the petitioner orally, the same was virtually conveyed in writing vide the Memo of Arrest. This fact has been asserted by the respondent in the counter affidavit signed and executed by an officer of the rank of Deputy Commissioner of Police.
The contention regarding the remand order already having been passed at 6 A.M., the subsequent furnishing of the remand application and oral telephonic hearing provided to the counsel being an empty formality is also contradicted by the admissions of the petitioner in his petition. In that, the petitioner himself submits that he was produced before the learned Special Judge between 6-6:30 A.M. and that it was at around 7 A.M. when, according to the petitioner, the remand proceedings were getting concluded, that he sought and was granted permission to contact his counsel through a family member. That apart, as already observed above, the counsel was provided with the remand application as also was heard, though telephonically by the learned Special Judge before passing the remand order.
Keeping in view the gravity and the seriousness of the offences as also considering the fact that the individual right of life and personal liberty and freedom guaranteed under the Constitution of India are affected, it appears appropriate to also consider as to where the Constitutional Courts are to lean, in such circumstances - In the present case too, the offences which are alleged, fall within the ambit of Unlawful Activities (Prevention) Act, 1967 and directly impact the stability, integrity and sovereignty of the country and are of utmost importance since they would affect the national security.
It appears as of now that the grounds of arrest were indeed conveyed to the petitioner, as soon as may be, after the arrest and as such, there does not appear to be any procedural infirmity or violation of the provisions of the Section 43B of the UAPA or the Article 22(1) of the Constitution of India and as such, the arrest are in accordance with law.
Conclusion - Under the UAPA, oral communication of grounds of arrest is sufficient, and the Pankaj Bansal decision does not alter this requirement.
This Court is of the considered opinion that the remand order is sustainable in law in the given circumstances - Petition dismissed.
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2023 (10) TMI 1493
Direction to respondent to renew the GST registration of the petitioner based on the representation dated 07.08.2023 - HELD THAT:- Considering the facts and circumstances of the case, this Court is inclined to direct the respondent to consider the representation made by the petitioner dated 07.08.2023 and dispose of the same on merits within a period of four weeks from the date of receipt of copy of this order.
Petition disposed off.
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2023 (10) TMI 1492
Challenge to notice issued for cancellation of registration and the order passed - appeal dismissed for delay occasioned and also for not availing the Amnesty Scheme, as offered by the State - HELD THAT:- In the present case, it is a fact that the order issued does not show any reason nor does the notice raise any allegation against the petitioner of not having filed returns for a continuous period of six months; as stated by the learned counsel. Only in the circumstance of no reasons having been shown, we are of the opinion that the order has to be interfered with. The order also does not clearly indicate the failure to file the return despite the fact that the petitioner has not filed any reply to the show cause notice issued.
Considering fact that there was an Amnesty Scheme in operation which has now expired, the Annexure-1 order set aside conditionally on the specific undertaking made by the petitioner.
Conclusion - The order set aside conditionally, based on the petitioner's undertaking to pay the entire tax, interest, and penalty within one month and to file the necessary returns.
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2023 (10) TMI 1491
Seeking to quash specific notices and communications (Exhibit P10 and P12) issued by the third respondent - HELD THAT:- The present writ petition is disposed of with a direction to the petitioner to deposit arrears of tax in six equal monthly installments, the first of which shall be paid on or before 10.11.2023, and the other installments shall be paid on or before 10th of every subsequent five months. If the petitioner commits default in making payment of any of the installments, the respondents can initiate proceedings to collect the same.
Petition dismissed.
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2023 (10) TMI 1490
Rejection of appeal on the ground of delay - invocation of extraordinary jurisdiction under Article 226 of the Constitution - HELD THAT:- As soon as the recommendation is given effect to, the petitioner/assessee gets a right to seek for restoration of the appeal filed before the first Appellate Authority. Reserving such liberty, if the recommendation is brought out as a notification or circular, the writ petition would stand dismissed.
It is made clear that the dismissal of the writ petition would not stand in the way of the petitioner seeking for restoration of the appeal or filing a fresh appeal, if and when the recommendation of the G.S.T. Council is brought out as notification/ circular/ amendment.
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2023 (10) TMI 1489
Dismissal of appeal for non-prosecution - ground stated of mismatch being in existence is a cursory one without any discussion of the facts and figures - HELD THAT:- Looking at the provisions of the Bihar Goods and Services Tax Act especially sub-sections (8), (9), (10), (11) and (12) of Section 107 of the Act, that the Appellate Authority has a duty and an obligation under the statute to look into the merits of the matter and also examine the grounds raised by the appellant, even if there is no presence recorded of the appellant before the Appellate Authority and decide the issue on merits. The Appellate Authority by dismissing the appeal without any reasoning and also finding the appellant having not presented the appeal properly would be abdicating its powers especially looking at the provisions where the Appellate Authority has been empowered to conduct such further enquiry as found necessary to decide the appeal, which decision also shall be on the points raised.
The appellate order set aside - restoration of appeal before the Appellate Authority directed.
Petition allowed.
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2023 (10) TMI 1488
Maintainability of petition - availability of alternative remedy - entitlement to benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112 - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Petiiton disposed off.
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2023 (10) TMI 1487
Seeking to set aside the order taking cognizance arising out of the application under Section 167 Cr.P.C. being treated as Complaint Case No.2144 of 2018, pending in the Court of the learned Presiding Officer, Special Court, Economic Offences, Jamshedpur - HELD THAT:- It appears that in absence of any complaint and without any sanction, the learned Court has taken cognizance, which is not in accordance with law. There are procedure prescribed in the Central Goods and Services Tax Act. The cognizance was taken on 24.07.2018 and the sanction has been made on 26.09.2023 as discussed in the counter affidavit filed by respondent no.2 - the said order taking cognizance is not in accordance with law. Accordingly, the order taking cognizance dated 24.07.2018 arising out of the application under Section 167 Cr.P.C. being treated as Complaint Case No.2144 of 2018, pending in the Court of the learned Presiding Officer, Special Court, Economic Offences, Jamshedpur is set aside.
Petition allowed.
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9911796707
