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Showing 21 to 40 of 834 Records
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2020 (6) TMI 815 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Classification of supply - supply of goods or a supply of service - composite supply or mixed supply - rate of tax - supply of pure food items such as sweetmeats, namkeens, cold drink and other edible items from sweetshop which also runs a restaurant - input tax credit - HELD THAT:- The applicant has a sweetshop in the ground floor and a restaurant at the first floor of the same building. In a case where two or more goods or a combination of goods and services are involved or supplied together earlier under the Service Tax regime this mechanism was called bundled service which is rendering of a service or services with another element of service of services, wherein service tax law dealt with pure services and not with goods per se. In the changed regime of GST the concept introduced dealt with goods as well and is linked with the concept of Principal Supply. Under GST law, supplies which are bundled with two or more supplies of goods or services or combination of goods and services are classified, with distinct characteristics, as (i) Composite Supply (ii) Mixed Supply. As already discussed, Composite supply is ore where two or more goods or services or both are together, in a natural bundle and in a normal course of business, provided one of which is a principal supply. However, principal supply will be that supply which is predominant over other supplies - in order to identify -if the particular supply is a Mixed Supply, the first requisite is to rule out that the supply is a composite supply. A supply can be a mixed supply only if it is not a composite supply. As a corollary it can be said that if the transaction consists of supplies not naturally' bundled in the ordinary course of business then it would be a mixed Supply. Once the amenability of the transaction as a composite supply is ruled out, it would be mixed supply, classified in terms of a supply of goods or services attracting highest rate of tax.
The activity of the applicant from their restaurant comes under the purview of "restaurant services", falling under Heading 9963 leviable to GST rates on services as stipulated under Notification No. 11/2017-Central Rate (Tax) dated 28.06.2017 (as amended time to time) - the rate of GST on activity shall be 5% as on date.
Input tax credit - HELD THAT:- The applicant cannot avail credit on the GST paid on the goods and services used in their said activity in terms of notification.
In case where goods are supplied to customers through sweetshop counter having no direct or indirect nexus with restaurant service i.e. any stand alone customer who visit such sweet shop exclusively for purchase of any item of any quantity across the counter without visiting the restaurant, the billings of such sales are also done separately, such exclusive sales to such exclusive stand alone customer across the counter cannot be clubbed with restaurant service, it being an exclusive transaction of supply of goods independent of restaurant service - These sales do not satisfy the basic requirement of a ‘composite supply’ i.e. 'these cannot be treated as' being naturally bundled and supplied in conjunction with each other'. Such across the counter soles [rom sweetshop definitely requires dissimilar treatment, it being completely independent of restaurant activity at such supply would continue unhindered, irrespective of whether the restaurant is dosed or open, either temporarily or permanently. Hence such sales will be treated as supply of goods with applicable GST rates on the items supplied / sold and for only such exclusive supplies input tax credit stands admissible.
In case the goods supplied from the restaurant are billed under restaurant head then in such a situation such transaction will purely depend upon the constituents of each individual supply and as to whether same satisfies the conditions/ingredients of a & composite supply' or 'mixed supply', as defined under section 2(30) and 2(74) of the CGST Act respectively.
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2020 (6) TMI 814 - DELHI HIGH COURT
Seeking a direction to the respondent to finalise the bills of entry filed by the petitioner for clearance of goods namely Polyester knitted Fabrics during the period 2013 to 2016 - HELD THAT:- Keeping in view the limited prayer made in the writ petition, the same is disposed of with a direction to the respondent to finalise the bills of entry filed by the petitioner for clearance of goods namely Polyester knitted Fabrics during the period 2013 to 2016 within a period of six weeks.
The present writ petition stands disposed of.
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2020 (6) TMI 813 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Imposition of cost of Rs. 7 Lakhs for restoration of name of company - Appellant had not filed Annual Returns since incorporation. - Restoration of the name of the Company was allowed by the NCLT subject to payment of costs Rs. 7 Lakhs.
HELD THAT:- The Impugned Order does not show as to why such a huge costs of Rs. 7 lakhs have been imposed. Mr. Prakash K. Pandya, Practising Company Secretary states that this Tribunal may substitute the costs imposed by any reasonable amount.
Going through the matter, it appears to us that in the facts of the case, in place of Rs. 7,00,000/-, costs should be Rupees One Lakh Fifty Thousand only/- . In the Impugned Order, in place of "Rs. 7,00,000/-" read "Rs.1,50,000/-".
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2020 (6) TMI 812 - KERALA HIGH COURT
Rectification of mistake u/s 154 - petitioner submits that without complying the principles of natural justice the impugned order has been passed by rejecting the rectification application - HELD THAT:- As per communication Ext.P5 dated 29.01.2020 it is clear that the rectification application would not have been undertaken, owing to certain technical problems i.e, the functionality of the Department. However vide impugned communication dated 05.07.2019 Ext.P5, same has been rejected in a most sketchy and mechanical manner. Even the order do not disclose affording of any other opportunity of hearing.
Considering the facts and circumstances, petitioner cannot be relegated to alternate remedy as the order prima facie is without jurisdiction. Accordingly, impugned order Ext.P7 dated 05.06.2020 is quashed and matter is remitted to 1st respondent to decide the rectification application Ext.P6 afresh, in accordance with law, after affording an opportunity of being heard to the petitioner. Let this exercise be undertaken within a period of two months from the date of receipt of a certified copy of the judgment. Till such time, no coercive measures shall be taken against the petitioner.
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2020 (6) TMI 811 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - applicant reserves its right to claim damages and/or other remedies, interest, service charges and other amounts due and arising out of and/or in connection with the sales contract and/or the operational debt - pre-existing disputes between the parties or not - time limitation - HELD THAT:- On perusal of records it is found that the applicant had issued letter dated 5th April, 2017 (page 131) to the corporate debtor seeking balance confirmation as on 31st March, 2017 for the audit purpose. The said letter bears signature with rubber stamp of the respondent acknowledging the debt - On perusal of the records it is also found that between the operational creditor and corporate debtor, email communication had taken place during the period from 10th January, 2015 to 10th October, 2018 (page 56-73 to the reply) regarding quality/quantity of the goods supplied and mode of transport. It is also found that during the period from 25.12.2014 to 08.12.2018 the respondent has raised seven debit notes on the applicant towards excess fines in vessels, production loss due to inferior quality of material and short material received.
This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of I & B Code. That, service is complete and no dispute has been raised by the respondent at any point of time. That, Applicant is an Operational Creditor within the meaning of Section 5 sub section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force.
This is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code - petition admitted - moratorium declared.
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2020 (6) TMI 810 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA
Rejection of claim of purported financial creditor - Inclusion of New Hind Silk House P. Ltd as the financial creditor of CD - rejection for the reason that claim of New Hind Silk House P. Ltd admitted by the RP is barred by limitation - whether, admission of the claim of New Hind Silk House P. Ltd. and inclusion of it as a member of CoC is in contravention of any of the provisions of the l&B,Code and Regulations and provisions of the law for the time being in force? - HELD THAT:- The CIRP was initiated in the instant case vide order of admission dated 13/12/2019. According to the RP the claims of "New Hind Silk House Private Limited" was received on 27.02.2020 and the RP collated, verified and admitted it on 02.03.2020. The RP had relied on the above said acknowledgement of debts signed by the CD dated 1.04.2016 & 01.04.2017. A look at the said disputed documents leads no doubt of fabrication of it by the RP or by the FC. It contains affixture of the seal of the CD, and signature of two directors of the CD - in this case, the document under challenge being signed by the two directors of the CD, that it contains seal of the CD, the production of the same along with Form C by the FC cannot be doubted unless substantive proof is produced on the side of the applicant. In the absences o such material to doubt the genuineness of the above said disputed documents, there are no merit in the submission on the side of the applicant in this regard.
Admission of Audited Balance Sheet upto the financial year ending 31/03/2019 - HELD THAT:- Admittedly the CD was not in operation, and its name was struck off from the register of Companies, W.B. The audited balance statement, till the financial year ending 31.3.2016 alone was available with the CD when the RP took over the assets of the CD. The company's name was then restored and the RP appointed the auditor for preparation of balance sheet for the leftover periods and made it up to date in compliance with the provisions of the Companies Act. It is an act empowered to do by the RP as an administrator of the CD undergoing resolution. An auditor is statutorily liable for any fraud played for the fabrication of a balance sheet - It is an admitted fact that the loan availed by the CD from the disputed FC reflects in the books of accounts and interest to the loan was paid by the CD up to 05/08/2016. The disputed and undisputed balance sheets includes the admitted loan availed by the CD.
An overall scrutiny of the documents placed and considering the above said circumstances discussed, it is opined that the RP has screened the referred documents with utmost care and caution expected to apply as per the provisions of the Code and Regulations, in the nature of the matter under consideration. More over this application is bad for nonjoinder of two directors of CD who had signed the disputed acknowledgement and the FC/ New Hind Silk House Private Limited who had submitted the same along with Form C to the RP.
Application dismissed.
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2020 (6) TMI 809 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Invocation of arbitration proceedings - valuation of the respondent-financial creditor's OCRPS - right of the respondent-financial creditor to redeem such OCRPS when it had participated in the process to convert its OCRPS into equity shares of the applicant-corporate debtor - fixing of the QIPO date - HELD THAT:- It is not satisfying that a default has occurred.
Mr. Mustafa Doctor's statements that the applicant-corporate debtor is a solvent, debt-free and profitable company. It will unnecessarily push an otherwise solvent, debt-free company into insolvency, which is not a very desirable result at this stage. The disputes that form the subject-matter of the underlying company petition, viz., valuation of shares, calculation and conversion formula and fixing of QIPO date are all arbitrable, since they involve valuation of the shares and fixing of the QIPO date. Therefore, an attempt must be made to reconcile the differences between the parties and their respective perceptions. Also, no meaningful purpose will be served by pushing the applicant-corporate debtor into CIRP at this stage.
It is further noted that the arbitration petition bearing Arbitration Case No. 48/2019 filed by the applicant-corporate debtor is pending consideration before the hon'ble Supreme Court for appointment of an arbitrator.
Petition admitted.
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2020 (6) TMI 808 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA
Seeking reconsideration of Scheme of Compromise and Arrangement under Section 230 of the Companies Act,2013, proposed by the shareholders along with the TEV Study - direction in the interim to the liquidator not to discharge or dismiss any employee and maintain their employment - HELD THAT:- As rightly pointed out by the Ld.counsel for the creditors a scheme would have been passed and accepted within 90 days of the order of liquidation as per Regulation 2-B of the IBBI ( Liquidation Process) Regulations, 2016. After a lapse of 2 years even in the midst of the Novel Corona Pandemic, it appears to me that allowing this application will not any way help the applicants to present a techno economically viable plan as mandated by the creditors. Since the power of the tribunal is limited and this Tribunal has no power to interfere with the commercial wisdom of the creditors to approve or not to approve the scheme, the submission on the side of the applicant, cannot be accepted, extending sympathy upon them. The law is settled as to the power of the tribunal in regards issuing direction to the creditors to reconsider a scheme like the scheme in hand. Law is settled that the Company Court's jurisdiction is peripheral and supervisory and not appellate.
This application is not worth consideration. Accordingly liable to be dismissed.
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2020 (6) TMI 807 - DELHI HIGH COURT
Constitutional Validity of Conditions No. 4 and 5 under Technical Bid Evaluation (Additional Eligibility) criteria in e-tender notice ID No. 2020- _AAI_048738_1 issued by the respondent No.2/AAI (AAI) inviting applications for providing environmental support services (up- keeping) - HELD THAT:- The scope of judicial review in matters relating to tender are now well settled.
In JAGDISH MANDAL VERSUS STATE OF ORISSA AND OTHERS [2006 (12) TMI 447 - SUPREME COURT], after considering the relevant case law, the Supreme Court had observed that There were good and adequate reasons for the Committee to reject the lowest tenders of fifth respondent in both cases and there was no justification for the High Court to interfere with the contracts awarded to the respective appellant in these two appeals. We also record the statement made by the counsel for the appellants in the two appeals, on instructions, that the appellants are ready and willing to execute their respective works, without seeking any revision in rates or compensation for the delay in commencement of the work on account of pendency of the legal proceedings till now.
In the instant case, nothing has been brought out by the petitioner to demonstrate that the process adopted or the decision taken by the respondent No 2/AAI is contrary to the law laid down by the Supreme Court. There is no material to arrive to a conclusion that the decision taken by the respondent No.2/AAI is arbitrary or irrational or that public interest is adversely affected that would compel us to interfere in the tender conditions - It has only made them more stringent. It cannot be said that the authority issuing the tender is not empowered to impose more stringent conditions to ensure better quality of performance of the contract and also to ensure that the contractor has the financial means to execute the contract and that he is not a fly by night operator who will abandon the work midstream.
In the present case, the petitioner has failed to demonstrate as to how Conditions No.4 and 5 have been introduced only to eliminate it or to favour a few individuals. There is no justification for this court to exercise its jurisdiction under Article 226 of the Constitution of India only to dilute the additional stringent conditions imposed by the respondent No.2/AAI in order to make it compliant with the CVC guidelines.
From a perusal of the above, the principle which emerges is that after having participated in the tender process, a bidder cannot turn around and challenge the tender conditions. The bidder has no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested parties in response to the NIT in a transparent manner and free from any hidden agenda - petition dismissed.
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2020 (6) TMI 806 - SUPREME COURT
Abduction - illegal confinememt - murder and cremation in fictitious name - Discharge of burden of prove - effect of acquittal of the Appellants under Section 120B - conviction Under Section 302 besides Sections 387, 365 read with Section 109 of the Indian Penal Code and Sections 364 and 201 of the Indian Penal Code - HELD THAT:- The fact that the Appellants have been acquitted Under Section 120B will not extricate them from criminal liability for their acts which would constitute substantive offences Under Sections 302, 347 and 387 of the Indian Penal Code.
It is clear that the deceased was abducted on 30.12.2001. It is also established that he was confined illegally at the upstairs portion of the factory at Moudihur owned by PW34. It is clear from the evidence that it was the body of the deceased which was cremated and a fictitious name was used and a certificate issued at the instance of A3(P27) which circumstance is clinching in establishing the prosecution case. As far as the murder is concerned, there is no direct evidence. There is no direct evidence that deceased is murdered by strangulating him. However, it is equally true that on the basis of recovery made at the instance of A16 a nylon rope and chain was recovered which undoubtedly strengthens the prosecution case. There cannot be medical evidence relating to murder in a case where the body stood cremated - there are no hesitation in ignoring the evidence relating to recovery of certain parts of the body of the deceased but that is not sufficient for the Accused to persuade us to throw out the prosecution case. A carefully thought out criminal plan has led to the cruel snuffing out of precious life. The players thought it through meticulously by destroying the corpus delicti by cremation.
The abduction followed by murder in appropriate cases can enable a court to presume that the abductor is the murderer. Now the principle is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim. Section 106 of the Evidence Act would come to the assistance of the prosecution.
Section 387 is heightened form of extortion in which the victim is put in the fear of death or grievous hurt. Section 347 involves wrongful confinement of a person for the purpose of committing extortion. The Appellants have been convicted Under Sections 347 and 387 of the Indian Penal Code. This is not an inexorable Rule but to be applied based on the factual matrix presented before the court. Where abduction is followed by illegal confinement and still later by death, the inference becomes overwhelming that the victim died at the hands of those who abducted/confined him. Nobody has a case that the deceased died a natural death.
The role of A15 is clear who was not only been referred to in the accomplice evidence but corroborates his link in the abduction with the recovery of motorcycle at his instance. It has rightfully earned him conviction Under Section 365 Indian Penal Code. There were two cars apart from the Ford Escort on 30.12.2001 at the site of the illegal confinement. From the Maruti Zen, three persons emerged as witnessed by PW11. It is true that PW11 has not identified them. That apart there was also a Tata Sumo, PW11 no doubt identified A5 and A7 apart from A15 as the persons who came back on 30.12.2001 with tiffin after leaving the factory.
A4, A7, A11, A14, A15, A16 and A17 are persons who have been found guilty Under Section 365 of the Indian Penal Code. A3, A5, A6 and A8 stand convicted Under Section 365 of the Indian Penal Code with the aid of Section 109 of Indian Penal Code. All of them have also been convicted Under Section 364 of the Indian Penal Code. In this regard there is a dichotomy involved. The law attaches criminality to the act or omission by a person. Another person may become liable as an abettor, a person who has conspired and thus liable Under Section 120B, a person who has shared a common object and thus become vicariously liable and if there be 5 or more persons Under Section 141 read with Section 149 or if the principle of vicarious liability embedded in Section 34 of the Indian Penal Code is attracted. In other words, for a conviction Under Section 364 actual abduction is necessary. A person could no doubt be liable Under Section 364 read with Section 34 or Under Section 364 read with Section 149 or Under Section 364 read with Section 109 or if he is found guilty Under Section 120B. In this case there is no scope for either 120B or 149 - it is found that that the accomplice witnesses, who have been relied upon by two courts, are to be treated as credible witnesses and, even in the absence of corroborative evidence, in the facts and circumstances of this case, we see no reason to disturb that conviction. If that is so, even in the absence of any direct evidence relating to murder, the presumption of murder, being committed by the Appellants before us, would apply. In fact, the courts below have drawn a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis. Having regard to the facts and circumstances before us, we are of the view that it cannot be contended that no case is made out against the Appellants.
Appeal disposed off.
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2020 (6) TMI 805 - JHARKHAND HIGH COURT
Right to vote in the forthcoming Rajya Sabha - Magistrate has specifically stated that the petitioner shall be taken to Vidhan Sabha for voting purpose and brought back to Dhanbad Mandal Kara after casting of the vote under strict police security and custody - HELD THAT:- The grievance of the petitioner in this criminal writ application stands redressed. The Jail Superintendent, Dhanbad and the Senior Superintendent of Police, Dhanbad will ensure compliance of the aforesaid order.
This criminal writ petition is kept pending because of the submission made by the learned Advocate General wherein he has stated that this petitioner has filed an application before SDJM, Dhanbad for similar relief - the matter needs to be looked into. In the meantime the petitioner is directed to bring on record the petition which he had filed before the court below through Jail Superintendent which prompted the court to pass the order dated 16.6.2020.
List this case after two weeks.
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2020 (6) TMI 804 - ITAT DELHI
Penalty u/s 271(1) - defective notice u/s 274 - inappropriate words in the penalty notice has not been struck off - non specification of clear charge - HELD THAT:- It is pertinent to note that there is no concealment in the present case. The Assessee filed all the details during the regular assessment proceedings. From the notice dated 10.05.2010 produced by the Ld. AR during the hearing, it can be seen that the Assessing Officer was not sure under which provisions of Section 271 of the Income Tax Act, 1961, the assessee is liable for penalty. The issue is squarely covered by the decision of the Hon'ble Supreme Court in case of M/s SSA’ Emerald Meadows [2016 (8) TMI 1145 - SC ORDER]
Since in the instant case also the inappropriate words in the penalty notice has not been struck off and the notice does not specify as to under which limb of the provisions, the penalty u/s 271(1)(c) has been initiated, therefore, we are of the considered opinion that the penalty levied u/s 271(1)(c) is not sustainable and has to be deleted. Although the Ld. DR submitted that mere non-striking off of the inappropriate words will not invalidate the penalty proceedings, however, the decision of the Hon’ble Karnataka High Court in the case of SSA’S Emerald Meadows [2015 (11) TMI 1620 - KARNATAKA HIGH COURT] where the SLP filed by the Revenue has been dismissed is directly on the issue contested herein by the Assessee [2016 (8) TMI 1145 - SC ORDER] Further, when the notice is not mentioning the concealment or the furnishing of inaccurate particulars, the ratio laid down by the Hon’ble High Court in case of M/s. Sahara India Life Insurance Company Ltd. [2019 (8) TMI 409 - DELHI HIGH COURT] will be applicable in the present case.
The CIT(A) relying upon the decision of the Hon’ble Apex Court in case of CIT vs. Reliance Petro Products Pvt. Ld. [2010 (3) TMI 80 - SUPREME COURT] held that it is not the Assessing Officer’s case that the details supplied in the return are inaccurate. Merely because the assessee claimed the expenditure by virtue of a change of head of income and the claim was not acceptable to the Assessing Officer cannot per se attract penalty u/s 271(1)(c) of the Act. Thus, the CIT(A) has rightly deleted the penalty. The appeal of the Revenue is dismissed.
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2020 (6) TMI 803 - ITAT PUNE
Unexplained loan given - Addition based on the seized paper - HELD THAT:- The figure “1998” is mentioned on this page and the Assessing Officer interpreted the same as relatable to this assessment year 1999-2000. Assessing Officer’s order is silent on the reasons. These figures could be taken for assessment year 1998-99 too. Thus, there exists an ambiguity. Considering the same, we are of the opinion that interpreting the figures “1998” as relatable to the A.Y. 1999-2000 is not proper. Assessing Officer and CIT(A) failed to give reasoned order for taxing the “entry” in this year. The same cannot be taxed in 2000-01 too. Therefore, we are of the opinion such additions are not sustainable. Accordingly, the ground no.1 raised by the assessee is allowed.
Agricultural income - As undisputed fact that the Department Authorities are engaged in the time barred issues. Therefore, we are of the considered opinion, that grounds no.3, 4 and 5 should be remanded to the file of the Assessing Officer for fresh adjudication. The direction to the Assessing Officer shall include that (i) the Assessing Officer shall comply with the calculation related exercise by passing a modification order in the hands of M.N. Navale (Bigger HUF) in the time barred manner and (ii) after due calculating of the said agricultural income and also after following the direction of the Tribunal (supra), the Assessing Officer shall examine the availability of funds and also examine the correctness of the claim of loans of Rs.10,37,000/- and a sum of Rs.1,50,000/- and also the sources thereof from M.N. Navale (Bigger HUF). The Assessing Officer shall grant reasonable opportunity of being heard to the assessee in accordance with set principles of natural justice.
Ownership of the seized papers - Whether seized documents/papers do not belong to the assessee? - HELD THAT:- It is not the case of the Revenue that there was any investigation into these papers. No question is raised/asked while recording the statement of the assessee during the search action in this aspect. Therefore, considering the incompleteness of the proceedings of the Revenue to these papers, in our considered view, the addition made by the Assessing Officer appears to be premature. Thus, the matter should be travelled to the file of the Assessing Officer for one more round of investigation/recording of statement. It is necessary to establish the relatability/belongingness of the papers to the assessee under consideration. Accordingly, the matter is remanded to the file of the Assessing Officer for fresh adjudication. The Assessing Officer shall grant reasonable opportunity of being heard to the assessee in accordance with set principles of natural justice. Thus, the grounds no.1 and 2 are allowed for statistical purposes.
Addition on account of difference in rent received, relying on a noting found recorded on the loose papers seized during the search and seizure action - HELD THAT:- CIT(A) also confirmed the addition made by the Assessing Officer without appreciating all the facts relating to the property. There is no dispute on these facts. The only dispute is with reference to the monthly rent. It is the case of the assessee that at the relevant point of time i.e. A.Y. 2002-03, the property was let out to Sunind Private Limited and the applicability of monthly rent is Rs.30,000/- only. In the subsequent year 2004 onwards, the property is rented to STES with the applicable rent of Rs.75,000/- and this applicable Rs.75,000/- is born out of the records. Therefore, the addition of Rs.5,40,000/- made by the Assessing Officer in the assessment year 2002-03 is not correct. We find the dates and the lease deed are relevant and the rental agreement between the assessee and the STES. This aspect was not raised before the lower authorities as pointed out by the ld. DR for the Revenue. In all fairness, therefore, we are of the opinion that this issue requires re-verification of facts relating to the date of letting out of property to the assessee and the date of rent to STES in 2004. Considering the fact that the seized paper or lease deed does not contain the date or the year, the Assessing Officer is directed to re-verify the same and pass a speaking order after granting reasonable opportunity of being heard to the assessee.
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2020 (6) TMI 802 - SUPREME COURT
Whether the learned Magistrate could, at all, have taken cognizance against the Appellant, in the private complaint, in the absence of sanction Under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, 1963, as amended by the Karnataka Police (Amendment) Act, 2013? - whether the High Court should have quashed the impugned order of the Magistrate concerned, instead of remitting the complaint to the Magistrate concerned and requiring the Accused Appellant to appear before him and file an application for discharge? - HELD THAT:- The object of sanction for prosecution, whether Under Section 197 of the Code of Criminal Procedure, or Under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings.
In STATE OF ORISSA THROUGH KUMAR RAGHVENDRA SINGH AND ORS. VERSUS GANESH CHANDRA JEW [2004 (3) TMI 824 - SUPREME COURT], this Court interpreted the use of the expression "official duty" to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the Section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty.
This Court held that an act is not "under" a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done "'under" a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation, the act cannot be said to be done under the particular provision of law. It cannot be said that beating a person suspected of a crime or confining him or sending him away in an injured condition, at a time when the police were engaged in investigation, were acts done or intended to be done under the provisions of the Madras District Police Act or the Code of Criminal Procedure or any other law conferring powers on the police. It could not be said that the provisions of Section 161 of the Code of Criminal Procedure authorised the police officer examining a person to beat him or to confine him for the purpose of inducing him to make a particular statement.
The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer Under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court - Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected Under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.
To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law - If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained Under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.
It is well settled that an application Under Section 482 of the Code of Criminal Procedure is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power Under Section 482 of the Code of Criminal Procedure would have to be exercised to quash the proceedings, to prevent abuse of process of court.
The High Court has by its judgment and order observed "it is well recognized principle of law that sanction is a legal requirement which empowers the Court to take cognizance so far as the public servant is concerned. If at all the sanction is absolute requirement, if takes cognizance it becomes illegal therefore an order too overcome any illegality the duty of the magistrate is that even at any subsequent stages if the sanction is raised it is the duty of the Magistrate to consider" - the High Court clearly erred in law in refusing to exercise its jurisdiction Under Section 482 of the Code of Criminal Procedure to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance.
The appeal is allowed.
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2020 (6) TMI 801 - SUPREME COURT
Appointment in the post of Shiksha Mitras - HELD THAT:- It is clear that the State Government was directed that the services of all the Siksha Mitras who are presently working as on that date holding the post of Assistant Teachers shall not be disturbed.
Despite the same, it is, prima facie, borne out from the records now produced that the State Government is proceeding with the selection to fill up all the posts. Such process to be adopted by the State Government shall not be permitted in view of the interim order passed by this Court on 21.5.2020.
List the matters on 14.7.2020 as directed earlier.
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2020 (6) TMI 800 - APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA
Exemption from GST - provisioning of diagnostic imaging services under the agreement/contract executed by Siemens Healthcare Pvt. Ltd. (SHPL) with its customers - eligible for exemption under Serial Number 74 of the Notification 12/2017-CT(R) dated 28/06/2017 or not - HELD THAT:- The exemption is to Services and not to Technicians or Doctors/ Medical Practitioners or Para-Medics or Ambulance Operators - Clearly, the case of Appellant M/s. Siemens Healthcare Pvt. Ltd. (SHPL) is not covered under ambulance services.
Whether the Appellant’s services meet the dual criteria of being health care services and clinical establishment? - HELD THAT:- Obviously the services under examination are not to be provided by the Appellant as Authorised Medical Practitioner’ or as ‘Para Medics’.
The appellant’s contention is that since the circular 32/6/2018-GST dated 12.02.2018 allows exemption to the technicians hired by hospitals also, the exemption is admissible to SHPL also as its technicians are to operate MRI (Magnetic Resonance Imaging) & CT (Computerized Tomography), X-Ray and Mammography machines installed in the clinical establishments (Customers of SHPL) & are to provide diagnostic images to the clinical establishments - It is observed that there are kinds of Technicians. For the exemption to be admissible, the technician’s role/ activity has to amount to Healthcare Services. Not all the technicians provide healthcare Services. It is observed that services of technicians who are ‘Emergency Medical Technicians’ or the services of technicians who are akin to Para-medics, are healthcare services. Apparently the CBIC’s circular ibid refers to such technicians only.
It is observed that SHPL is providing the input services of provision of installing/operating the MRI, CT scanners etc in the premises of its Customers (clinical establishments) and providing diagnostic images to them (clinical establishments) - providing diagnostic images is not equivalent to providing diagnosis, and the services by SHPL is not an independent establishments for providing diagnostic service.
To avail the benefit of the exemption all the limbs of the notification must be satisfied i.e., the services have to be health care services as defined in clause (Zg) of para 2 of the notification & the services have to be provided by clinical establishment as defined in clause (s) of para 2 of the said notification. Since the appellant is to provide its diagnostic imaging services to the clinical establishment which in turn makes use of these images provided by the appellant & with the advice/opinion of medical practitioner/pathologist/radiologist makes diagnosis & provides it to the patient, the appellant can’t be said to provide diagnosis services to the patient, & hence not eligible to the exemption.
It is therefore clear that the services exempt under the Notification are healthcare services and would include diagnosis where the services are in the line of aiding diagnosis. Also, from the Applicant’s ibid submission itself in the Statement of Facts, it is obvious that the ‘Diagnosis’ is not complete unless the Radiologist gives it on the basis of images prepared by the Applicant. Also the services have not been provided to the patient.
Hon’ble Supreme Court’s judgment in TATA OIL MILLS CO. LTD. VERSUS COLLECTOR OF C. EX. [1989 (8) TMI 79 - SUPREME COURT] is not applicable. In the instant case the Appellant has not pleaded that intent of the legislature is to also exempt the inputs/ input services consumed for providing the Healthcare services; nor is there any notification or clarification providing such exemption viz. to input services. Appellant’s activity remains an Input Service for providing diagnosis.
The AAR has correctly held that the nature of the Applicant’s services is of input services - Appeal dismissed.
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2020 (6) TMI 799 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Oppression and mismanagement - Allegation of changing mode of account operation and committed fraud in submitting the application to the Bank - section 241 and 242 of the Companies Act, 2013 - HELD THAT:- The delay in filing like application at the instances of the petitioner, being not explained properly, that a criminal complaint was already lodged and an FIR was allegedly registered in the alleged fraud, let the investigation may bring the real truth behind it. An overall circumstances brought out in the case in hand not sufficient enough to have a prima facie finding that the petitioner came with a clean hand claiming equitable relief. R3 also asserted that respondents are not at all thought of issuance of fresh shares and induction of further directors in order to reduce the shareholding of the petitioners into a minority. So the apprehension of the petitioners that if an order of injunction is not passed as prayed for there is every chance of resorting to issuance of fresh shares and induction of further directors in order to dilute the shareholdings and rights of the petitioners is devoid of any merit.
When people feel scared and hopeless interrupting the business of R-1 under the effective management of R3, as he submitted, changing the mode of operation of the R1 bank account may work great hardship to the business operation of the R1 company. Accordingly, the balance of convenience also does not favour the petitioners.
List the matter for further consideration after lifting the lockdown, preferably on 5th August, 2020.
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2020 (6) TMI 798 - DELHI HIGH COURT
Money Laundering - Provisional attachment of bank accounts - Sub-Section (1) of Section 5 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- All the writ petitions are disposed of with the direction that the impugned provisional attachment order dated 05.05.2020 being specific for the amounts attached, the respective petitioners would be at liberty to operate their bank accounts mentioned in the impugned provisional attachment order subject to keeping a balance of the amount attached and that, this would be without prejudice to the rights and contentions of the respondent nos. 1 & 2 to pass such further orders of attachment in accordance with law, as may be called for.
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2020 (6) TMI 797 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI, BENCH V
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - dispute regarding quality of goods, raised prior to the receiving of the Demand Notice - defective goods supplied or not - HELD THAT:- On reading of Sections 8 & 9 of the IBC together, it is found that before filing an application under Section 9 of IBC, an Operational Creditor is required to deliver a Demand Notice under Section 8 (1) of the IBC and the Corporate Debtor is required to file a reply to the same within 10 days of receiving the Demand Notice or copy of the invoices mentioned in sub-section (1) and bring to the notice of the operational creditor (a) existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute. The Corporate Debtor is also required to produce the documents to show that the amount if any has been paid. And after the expiry of the period of 10 days, if the Operational Creditor does not receive the payment from the Corporate Debtor or notice of dispute under sub-section 2 of Section 8 of IBC then the Operational Creditor has right to file an application before the Adjudicating Authority for initiating Corporate Insolvency Resolution Process.
The Corporate Debtor shows that they made the payment or sent notice of dispute in that case the application under Section 9 of IBC is not maintainable. In other words, if “notice of dispute has been received by the operational creditor or there is record of dispute in the information utility” then the Adjudicating Authority may reject the application - in the present case, it is found that the Corporate Debtor has raised a dispute regarding the quality of goods prior to the receiving of Demand Notice.
Mere plain reading of Section 5(6) of the IBC shows that the “dispute” includes a suit or arbitration proceedings relating to the existence of the amount of debt, or the quality of goods or service or the breach of a representation or warranty - Here in the case in hand, the Corporate Debtor has raised a dispute regarding the quality of the goods, which is one of the dispute u/s5(6) of IBC and in support of that they have placed reliance upon two letters which are enclosed at page nos. 19 & 21 of the reply, in which it is specifically mentioned that Corporate Debtor has raised a question relating to quality of goods supplied by the Operational Creditor on 09.10.2015 and also sent a reminder on 16.10.2015 in which it is alleged that the Operational Creditor is not responding to their quality complaint.
The contention of the Corporate Debtor that they raised the dispute regarding the quality of goods is correct and liable to be accepted. As it is already stated that the last date of invoice is 05.10.2015 and soon thereafter, the dispute relating to quality was raised by the Corporate Debtor - the Corporate Debtor had raised a dispute regarding the quality of goods and Operational Creditor had failed to convince us that the same dispute was resolved, therefore, the Operational Creditor has falsely sworn an affidavit under Section 9 (3) (b) that no notice was given by the Corporate Debtor relating to the payment of the unpaid operational debt, therefore, in view of Section 9 (5) (ii) (d), if the notice or dispute has been raised by the Corporate Debtor or there is record of dispute in the information utility, in that case the Adjudicating Authority has no option but to reject the application of the Operational Creditor.
The present application is not maintainable and same is dismissed.
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2020 (6) TMI 796 - DELHI HIGH COURT
Seeking grant of bail - applicant is seeking bail on the ground of surgery of dependent family member - HELD THAT:- In view of the status report, issue notice to Dr. Gajinder Nayyar, MBBS, MAMC DMC No. 36089, to show cause as to why the matter be not referred for further investigation into the allegations made in the status report.
List on 12.06.2020.
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