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Case Laws
Showing 301 to 320 of 1526 Records
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2023 (10) TMI 1226
Undisclosed debit entries in the impounded books - investment in advances for properties - contention of the ld. AR in respect of non-materialization of transaction with Manas Arun Kulkarni argued that the contents therein deposed before the Executive Magistrate supports the statement of non-materialization of transaction regarding the alleged payment - HELD THAT:- Since, the AO made addition taking into the said entry which was challenged before the CIT(A) except making reiteration of the statement that was made before the AO, no evidence such as the affidavit filed before the AO, also as well in the First Appellate proceedings. We see no reason for non-filing of the same before the AO and CIT(A) as rightly pointed by the ld. DR.
Further, CIT(A) clearly observed vide notice that the dates and payments was specifically mentioned and as such on the dates and payments are different. Therefore, the statement made by the said Manas Arun Kulkarni before the AO is a mere statement without any evidence.
No such evidence furnished before the CIT(A). It is for the first time, the assessee filed such affidavit before this Tribunal, in our opinion, is only to protract the litigation. The assessee ought to have filed the same before the AO during the course of assessment proceedings in 2016 and as well before the CIT(A) in 2017. It is pertinent to note that the said affidavit is dated 04-05-2017 is only after 4 days of passing of impugned order. Therefore, taking into consideration the facts and circumstances of the case and the finding of CIT(A) in the impugned order, we find no infirmity in the order of CIT(A) and it is justified. Thus, ground raised by the assessee are dismissed.
Agricultural income - According to the AO no complete details were furnished regarding the total sales and expenditure, but however, allowed 50% taking into account the large land holdings by the assessee - said 50% was treated as income from other sources is allowed setoff against the addition on account of undisclosed source of income - HELD THAT:- AO and CIT(A) made addition in this regard on estimation basis, in our opinion, without considering the land holding and crops yielded i.e. Jowar, Cotton, Udad, Adrak, Harbhara and Banana. We note that the details filed by the assessee in written statement that the Banana crop yielded alone Rs. 75,60,000/- as gross receipt, but however, both the authorities below without considering the land holding, crops yielded, and value of crop yielded therein proceeded to make disallowance on estimation basis. Therefore, taking into consideration the facts and circumstances of the case i.e. land holding and details of crop yielded, average yield as per Government chart, rate per quintals and sale amount, we reverse the order of CIT(A) and hold that the assessee is entitled to claim allowance of entire agricultural income. Thus, ground No. 5 raised by the assessee is allowed.
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2023 (10) TMI 1225
Computation of the interest on refund u/s 244A - Adjustment of refund already granted first against the interest amount and thereafter adjust the balance against the tax amount refundable to the assessee - HELD THAT:- As decided in own case [2019 (6) TMI 1707 - ITAT MUMBAI] since the statute itself has already prescribed a particular method of adjustment in explanation to section 140A(1), then justice, fairness, equity and good conscience demands that same method should be followed while making adjustment for refund of taxes, especially when no contrary provision has been provided - we find that the judicial proprietary demands that order of the Tribunal of earlier years must be followed and therefore we direct the AO to re-compute the amount of interest u/s. 244A by first adjusting the amount of refund already granted towards the interest component and balance left if any shall be adjusted towards the tax component. Thus, with these directions, the appeal of the assessee is allowed
The assessee would be entitled for interest on the unpaid refunds in accordance with the principle laid out in the aforesaid decision of Union Bank of India [2016 (8) TMI 688 - ITAT MUMBAI] AO is hereby directed to compute the interest on refund u/s 244A of the Act as per the plea of the assessee. Accordingly, the grounds raised by the assessee are allowed and that of the revenue are dismissed.
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2023 (10) TMI 1224
Validity of SCN - authority issuing the show-cause notice not being the competent authority - authorities have not taken into consideration the response and explanation given to the department at the time of the pre-notice consultation - SCN does not deal with the submission of the petitioner made in their explanation to the pre-notice consultation - laboratories have given a report that the product being unfit for human consumption.
HELD THAT:- On going through the contents of the impugned show-cause notice there were certain serious allegations levelled against the petitioner, firstly, so far as selling the product in the open market loosely and which presumably was for human consumption; secondly, the sale being not made to any of the agencies dealing with animal feeds; thirdly, the petitioner violating the declaration that he had given in the course of the import being made; fourthly, there being no sufficient documents / invoices or details of the sale made by the petitioner in respect of the entire consignment imported by them.
Reliance placed in the decision of the Hon’ble Apex Court in MALLADI DRUGS & PHARMA. LTD. VERSUS UNION OF INDIA [2004 (3) TMI 67 - SC ORDER], wherein the Hon’ble Apex Court held Neither party knows whether the Department has proceeded further and / or whether any order has been passed pursuant to the show-cause notice. Even otherwise, in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice. We see no reason to interfere. The appeals stand dismissed.
Taking into consideration the gravity of the contents of the show-cause notice, the writ petitions not entertained at this juncture - petition dismissed.
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2023 (10) TMI 1223
Levy and collection of Social Welfare Surcharge (SWS) computed @10% on the notional BCD in cash - Challenge to assessment of SWS in each of the BOEs - HELD THAT:- Since both EC and SWS are in the nature of surcharge and the provisions pertaining to their quantification as contained in Section 94(1) of the Finance (No. 2) Act, 2004 and Section 110(3) of the Finance Act, 2018 are pari materia, the jurisprudence as regards non applicability/non levy of Education Cess in respect of goods imported against the DEPB and/or Target Plus Scheme should equally apply in the context of SWS in respect of goods imported against the MEIS/SEIS Schemes.
The circular dated 10.1.2020 which takes the same view for SWS as was canvassed in Circular dt. 31.01.2005 for Education Cess cannot be given primacy over the later circular dt. 01.02.2022.
Hon’ble Supreme Court in M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT] was concerned with the interpretation of an exemption notification no. 71/2003-CE dt. 9.9.2003 granting area based exemption to units located in the north east. Under Notification No. 71/2003-CE, units in the north east were entitled to refund of specified duties paid on value addition and the question before the Hon’ble Court was whether EC, SHEC, NCCD imposed by the Finance Act 2001, 2004 and 2007 which were not specifically exempted under Notification No. 71/2003 shall also come within the scope of the said exemption for the purposes of refund - The Hon’ble Supreme Court denied refund of the un-specified duties under Notification No. 71/2003-CE as would be evident from para 40 of the said order as the exemption was categorical in its scope. Further, since refund of specified duties under Notification No. 71/2003-CE was only possible post collection, the question of non leviability of Education Cess under Section 94 of the Finance (No. 2) Act 2004 for want of collection of the underlying duty was not germane to the issue before the Hon’ble Supreme Court and was therefore not gone into.
The assessments in each of the impugned BOE’s covered by the impugned orders are modified in so far as imposition of SWS is concerned and the appeals are allowed with consequential relief.
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2023 (10) TMI 1222
Seeking transfer of proceedings pending before High Courts relating to winding to the NCLT - HELD THAT:- Clearly, the winding up petition is at a nascent stage and no proceedings have been taken after the issuance of notice in these petitions. Only pleadings have been completed. In the meantime, the Companies Act, 1956 has been amended and a provision has been enacted for transfer of winding up proceedings pending before the High Courts. Transfer of proceedings pending before High Courts relating to winding to the NCLT has been provided in Section 434 of the Companies Act, 2013.
The Supreme Court in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [2020 (12) TMI 535 - SUPREME COURT], has held that winding up proceedings which have not reached an advanced stage ought to be transferred to the National Company Law Tribunal (NCLT).
In the opinion of this Court, since hardly any proceedings have been taken towards winding up of the company, the petition no longer deserves to be continued before this Court. The petition is itself at the very nascent stage and no substantive orders have been passed towards winding up of the company. Accordingly, in view of this position and in view of the settled law, the petition is liable to be transferred to the NCLT.
The NCLT shall now proceed in accordance with law in all three petitions. The Registry to transfer all these petitions as also the electronic record of this Court to NCLT. Parties to appear before the NCLT on 5th December, 2023.
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2023 (10) TMI 1221
Re transfer of shares on account of non fulfillment of MoU by Arcadia - whether the Arcadia can be restrained from taking any decision which will hamper the interest of Hexogon while protecting their right to two mortgaged flats?
Grievance is when the full amount is not advanced, the transfer of shares of defendant nos. 5 and 6 are ineffective.
HELD THAT:- The law is well settled in case of Life Insurance Corporation of India [1985 (12) TMI 289 - SUPREME COURT] and it is reiterated by the Division bench of this Court in case of Invesco Developing Markets Fund and Ors. [2022 (3) TMI 1175 - BOMBAY HIGH COURT]. Court cannot restrain holding of any Extra Ordinary General meeting. There are only certain exceptions, where Court can interfere and it can be only when procedural and numerical requirements are not fulfilled.
The Division bench of this Court has also cautioned what will be situation if the Court will start interfering in holding of the meeting of the Company. Ultimately, it is part of the Corporate democracy. No ground is made out for stalling of EOGM. The Court cannot stall holding of any meeting of the company. This is the prerogative of the shareholders.
About offering corporate guarantee by Hexagon - when the proceeding will be go on with DRT, there will be conflict of the interest in between the Defendant No. 4 being managed only by Arcadia on one hand and Arcadia as borrower of the Kotak Mahindra Bank Limited on the other hand - HELD THAT:- No doubt, it is true that Plaintiff or Hexagon does not say that they have paid dues of the Arcadia. It is an independent issue. It is also true that the Arcadia being lender has got right as per the Memorandum of Understanding to sell those flats by giving a notice. No doubt notices are also given. That right is an independent right. However, when the question of the proceeding before the DRT arises, certainly the interest of the Hexagon needs to be protected to certain extent. The issue raised about notice by India bulls to the Hexagon cannot be considered in this application. So also the argument of by plaintiff’s counsel about newspaper articles about the antecedents of directors of Arcadia is not impressing.
This Court is aware that the issue of those flats is not subject matter of the inquiry before this Court. However, when it is question of taking decision by Arcadia being in management of the Hexagon, on limited extent, this Court can certainly interfere. It may also happen that the Arcadia being in control of the Hexagon may pass a resolution about their possible stand before DRT or may even submit to the Orders of DRT - the interest of the Plaintiff and shareholder of the Hexagon needs to be protected.
As a shareholder of defendant No. 4, Defendant No. 1 is restrained from taking any decision which may amount to giving consent/NOC for handing over possession of two flats before DRT in proceedings involving Kotak Mahindra Bank Limited. - application disposed off.
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2023 (10) TMI 1220
Seeking transfer of proceedings pending before High Courts relating to winding to the NCLT - HELD THAT:- The petition was filed some time in 2015 and since then, the pleadings have been completed in the matter. However, no further orders have been passed. In the meantime, the Companies Act, 1956 has been amended and a provision has been enacted for transfer of winding up proceedings pending before the High Courts. Transfer of proceedings pending before High Courts relating to winding to the NCLT has been provided in Section 434 of the Companies Act, 1956.
The Supreme Court in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [2020 (12) TMI 535 - SUPREME COURT], has held that winding up proceedings which have not reached an advanced stage ought to be transferred to the National Company Law Tribunal (NCLT).
In the opinion of this Court, since hardly any proceedings have been taken towards winding up of the company, the petition no longer deserves to be continued before this Court. The petition is itself at the very nascent stage and no substantive orders have been passed towards winding up of the company.
The petition is liable to be transferred to the NCLT. Parties to appear before the NCLT on 2nd November, 2023.
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2023 (10) TMI 1219
Seeking grant of bail - Money Laundering - ramifications involved in the Teachers’ Recruitment Scam - economic offences - applicability of principles as under Section 439 of the Cr.P.C. - factum of the complicity of the present petitioner so far as the proceeds of crime - HELD THAT:- At the initial stage when the argument commenced and the Enforcement Directorate prayed for filing their affidavit, this Court directed to clarify whether any policy has been adopted by the Investigating Agency so far as the exercise of the powers under Section 19 of the PMLA is concerned - There were no cogent reasons assigned by the Investigating Agency which in the background of the present case satisfies the conscience of the Court regarding the exercise of such powers. Towards the end of the hearing, it was pointed out by the Enforcement Directorate that the Teachers’ Recruitment Scam involves wide magnitude and there are materials which have recently surfaced leading to money trail where the involvement of the petitioner is glaring.
Having considered the tentative time limit set by the Hon’ble Division Bench to the Investigating Agency to conclude the investigation and further materials having surfaced for which the Investigating Agency at this stage sought for time to examine two more witnesses apart from the witnesses who have already been examined particularly with regard to the amount which has transpired relating to the donations in the account of the school, having regard to the ramifications involved in the Teachers’ Recruitment Scam, the Investigating Agency at this stage must be granted an opportunity to exhaust their powers relating to investigation. Accordingly, at this stage, the petitioner cannot be released on bail.
Bail application dismissed.
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2023 (10) TMI 1218
Money Laundering - generation of illegal income - extorting crores of Rupees from different rich people by blackmailing them to get their video footage containing objectionable and inappropriate photographs viral - applicability of provision of Section 45(1) of the PMLA - HELD THAT:- Undeniably, the provisions as to bail are founded on the philosophy of protecting the most precious individual liberty of a person which is guaranteed under Article 21 of our sacred Constitution, but grant or refusal of bail to a person accused of offence is the discretion of the Court, however, such discretion should not be arbitrary or whimsical. Article 21 of the Constitution of India always reminds that the personal liberty is paramount and sacrosanct and no person shall be deprived of his personal liberty except according to the procedure established by law.
An accused person who is sick in terms of proviso to Section 45(1) of PMLA can be granted bail without insisting upon him the strict compliance of the conditions enumerated therein, but who can be considered as a sick or what would be the level of sickness that would bring the accused within the parameters of “sick” has not been precisely defined or explained either in the PMLA or in any other act governing the provisions of bail. Normally, “sick” means suffering from disease or illness or unwell or ill and one who needs medication, but mere sickness, such as suffering from fever or illness which can be treated in the jail without any difficulty cannot be considered as “sick” so as to entitle the accused to bail in view of the exception to Section 45(1) of the PMLA.
This Court is of the considered view that the sickness which are not only life threatening, but also serious and requires special medical attention and which the jail authority cannot provide in the jail would normally be considered as a ground for grant of bail to an accused by relaxing the strict compliance of Section 45(1) of the PMLA by giving benefit of the proviso appended thereto. Granting bail on mere sickness by extending the proviso appended to Section 45(1) of the PMLA will render the aforesaid proviso otiose.
The pre trial detention of the Petitioner for near about ten months with uncertainty prevailing about execution of NBWA against coaccused affecting the commencement of the trial and, thereby, conclusion of trial being not possible in near future and regard being had to the nature of “sickness” of the Petitioner which allows him to obviate the rigor of compliance of the provision of Section 45(1) of the PMLA by way of relaxation, this Court considers that the Petitioner has made out a case for grant of bail.
The bail application of the petitioner stands allowed and the petitioner may be released on bail subject to conditions imposed.
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2023 (10) TMI 1217
Denial of benefit of Notification No. 17/2004-ST dt. 10.09.2004 - appellant are not holder of intellectual property rights but discharged service tax as receiver of service by virtue of Section 66A of the Finance Act, 1994 - inclusion of TDS amount in the gross taxable value on which service tax was paid - HELD THAT:- A similar controversy came before the Mumbai Bench of this Tribunal in M/S ROCHEM SEPARATION SYSTEMS (INDIA) PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [2015 (1) TMI 1052 - CESTAT MUMBAI]. This Tribunal analyzing Notification No. 17/2004-ST and charging Section 66 and Section 66A of the Finance Act, 1994 held that In the present case the charge of service tax is under Section 66 but the appellant being the receiver is liable to pay under Section 66A. The Commissioner’s reasoning is not correct and is rejected.
Following the above principles consistently held by the Tribunal, there are no merit in the impugned order that the benefit of Notification No. 17/2004-ST dt. 10.09.2004 would not be admissible to the appellant only on the ground that service tax was discharged by them under Sec. 66A of the Finance Act, 1994 on reverse charge mechanism basis.
Inclusion of the TDS amount paid by the appellant - HELD THAT:- The issue has been recently considered by the Chennai Bench of this Tribunal in the case of M/S. VSL INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2023 (3) TMI 802 - CESTAT CHENNAI] whereunder this Tribunal after analysing the precedent and the relevant provisions held So, when such TDS is not received from the non-resident since it is not towards value/consideration, there is no merit in requiring such assessee to include even the TDS it paid in the value of services, as in the case on hand and the appellant was correct in not including the TDS amount in the value of taxable services.
Thus, the TDS amount paid to the Income Tax department by the appellant from his own account cannot form part of the consideration of the service charges paid to the overseas service provider, accordingly, service tax is not payable on the TDS amount paid by the appellant. Also, it is brought on record that subsequent to the payment of the TDS, realizing that being wrongly paid, refund application filed.
The impugned order is set aside - Appeal allowed.
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2023 (10) TMI 1216
Denial of benefit of VCES Scheme - no inquiry against the appellant and the inquiry was only against M/s. Adani - HELD THAT:- Section 106 elaborates the nature of person who is eligible to make a declaration under VCES Scheme. Sub-section 2 of 106, prescribes that people against whom any inquiry or investigation have been initiated prior to 1 March 2013 are not eligible for making VCES declaration. In the instant case, it is found that a summon was issued to the appellant on 28 March, 2012 and subsequently again on 07.03.2013.
It is seen that Clause (ii) & (iii) of sub-Section 106 (2) prescribes that, where summon has been issued 14 of Central Excise Act 1944, the person becomes in eligible for the scheme. In the instant case, it is noticed that a summon was issued to the appellant on 28.03.2012 much prior to the cut off date of 01 March 2013. Moreover, it is also informed to the court by the Learned Counsel that the subsequently a demand SCN was issued to the appellant in the same proceedings which were initiated by said summons. In view of above the appellants were rightly held ineligible for the scheme.
There are no error in the impugned order. The appeal is therefore dismissed.
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2023 (10) TMI 1215
Grant of Sanction for prosecution - petitioners would submit that the Prosecution is bad in law since no proposal was made for prosecuting the second petitioner - HELD THAT:- Any sanction required to be issued by a specified authority which would be the competent authority, the documents pertaining to the case have to be examined by such competent authority and proceedings have to be issued by giving reasons as to why prosecution has to be launched. A duty is cast upon the competent authority to apply its mind to the facts of the case to grant sanction. A statute requiring sanction to be made is for the purpose or ensuring that criminal prosecution is not launched vexatiously or improperly or in a routine manner or when no offence is made out. The competent authority has to shoulder responsibility of scrutinizing the available material and record its satisfaction to criminally prosecute a person.
The Honourable Supreme Court in MANSUKHLAL VITHALDAS CHAUHAN VERSUS STATE OF GUJARAT [1997 (9) TMI 618 - SUPREME COURT] held that whether a sanction is valid would depend upon the material placed before the sanctioning authority. Grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act.
The prosecution instituted without a proper sanction would fail since the proceedings would be void for want of a valid sanction. The Court cannot take cognizance of an offence until pre-requisite of sanction is fulfilled by the prosecution and filed before the Court - In the present case, except the office communication dated 01.08.2014, there is no separate sanction order which is accorded by the Chief-Commissioner. A mere letter conveying that the Chief Commissioner had accorded administrative approval for launching criminal prosecution cannot be a valid document to launch prosecution against the petitioners.
Since there is no valid sanction as required, the proceedings against the petitioners in CC.No.32/2015 on the file of Special Judge for Economic Offences at Hyderabad, are hereby quashed - the Criminal Petition is allowed.
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2023 (10) TMI 1214
Condonation of delay in filing the appeal by the Commissioner (Appeal) - HELD THAT:- In terms of Section 85 (3A) of the Finance Act, 1994, it is observed that the appeal was to be filed before the Commissioner (Appeal) within two months of the date of the receipt of the order in original by the appellant. As per the proviso Commissioner (Appeal) has been granted the power to condone delay of one month in filing the appeal on sufficient cause being shown - In the present case appeal was filed before the Commissioner (Appeal) after more than a year from the date of receipt of order in original. Hence Commissioner (Appeal) has rightly held that appeal was filed beyond the prescribed period of limitation and has dismissed the same on this ground alone.
This issue is squarely covered by the decision of Hon’ble Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT], wherein it has been held that Commissioner (Appeals) could not condone the delay beyond the 30 days in filing the appeal before him.
There are no merits in this appeal filed by the appellant - appeal dismissed.
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2023 (10) TMI 1213
Method of valuation - to be valued under section 4 of CEA or not - related party transaction - case of the department is that since the manufacturing firm and the trading firms are run by one family members they are related in terms of Section 4 of Central Excise Act 1944 - levy of penalties - extended period of limitation - suppression of facts or not - HELD THAT:- Entire case is made out on the allegation that there is undervaluation of the excisable goods cleared by M/s Asha Industries on the ground that the buyer namely IPCO Sales Agency is related to M/s. Asha Industries. It is found that manufacturer Asha Industries is a partnership firm and the buyer M/s IPCO Sales Agency is proprietorship firm - a proprietorship firm and the partnership firm even though the said proprietor is one of the partner in the partnership firm, both cannot be a related person. However, this is a highly debatable issue.
Time Limitation - HELD THAT:- The appellant manufacturer was partnership firm and the names of the partners are appearing on the registration i.e. Shri Indu bhai M Patel, Shri Devang bahi R Patel, Smt. Nayna ben A Patel. With this information the department was very well within the knowledge of the constitution of the manufacturer partnership firm - appellant from time to time informed the department regarding any change either in the manufacturer firm or in the buyer firm M/s IPCO Sales Agency.
In the present case the demand was raised for the period 2002-06 to 2007-08 by issuing the show cause notice dated 30.09.2013 therefore, the entire demand is covered under the extended period of limitation - It is accepted that the above letters were submitted by the appellant with the department whereby the department was kept informed from time to time about the constitution of the manufacturer’s partnership firm as well as the buyer’s proprietorship firm. Therefore there is no suppression of fact on the part of the appellant.
In the facts and circumstances of the present case, we find that the judgments relied upon by the Learned Counsel which are on the issue of limitation directly apply in the present case. Accordingly, the entire demand is beyond the normal period of limitation. Hence the same is not sustainable on the ground of time bar. Since the demand itself is not sustainable, penalty on the appellant and other two appellants under Rule 26 shall also not be sustainable.
Appeal allowed.
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2023 (10) TMI 1212
Development of MSTT’s Website - in affidavit placed on record it is inter alia stated that as soon as the proposal for the development of website from the President, MSTT is received to the Finance Department it would expedite the process of approval at the earliest - HELD THAT:- In the present era, the courts and tribunals which cater to demands of the consumers of justice cannot be expected to function without the basic requirement of an official website to say the least. It also cannot take so long to create and make the website functional. As observed by the Supreme Court, the technology plays an essential role in securing access to court rooms and, as a result, access to justice for citizens across the country. In embracing technology, the tribunals in a progressive State like Maharashtra cannot remain primitive. Providing of a website would certainly enhance the efficiency in the working of the tribunal and make effective the access to justice.
Thus, it is of utmost necessity that the President of the MSTT on urgent basis forwards a proposal to the State Government in regard to making available video conferencing facilities in conducting Court proceedings, unless the same are already in place.
The present proceedings are adjourned at the first instance to 28th November 2023 so that the further progress on all these aspects can be informed to us by the President, MSTT as also by the State Government.
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2023 (10) TMI 1211
Validity of sentence for murder - Murder of a person with criminal history / history-sheeter - Assaulting the deceased by lathis and tabbal - Inordinate delay in filing of the First Information Report (F.I.R.) - possibility of improvements thereby casting doubt on the version of the prosecution - testimonies of the witnesses of the prosecution being contradictory - accused persons present at the scene of the crime or not - plea of alibi.
Inordinate delay in filing of the First Information Report (F.I.R.) - HELD THAT:- The document itself records the time of incident as being 8.15 a.m. and the time of report as being 11.00 a.m. The testimony of PW-3 at whose instance the FIR was recorded, shows that out of fear and having sustained numerous injuries, he ran from the place of occurrence and hid in the house of Baisakhu Kewat and only emerged therefrom two hours later - In such a situation, delay in filing of the FIR cannot be said to be fatal to the case of the prosecution more so in view of the injuries sustained by him; the place of occurrence being a remote village area and that the version of events was dictated to the police by this witness only upon their reaching his place of shelter. To us it does not appear to be a case of prior consultation; discussion; deliberation or improvements.
There are nothing emanating which would credibly suggest that the time gap between the occurrence of incidence and registration of the FIR is unjustified - Resultantly, the first contention of the convict appellants must necessarily be answered in the negative.
Plea of alibi - HELD THAT:- Both the defence witnesses do not conclusively establish the plea of alibi, based on the principle of preponderance of probability as their statements stand unsupported by any other corroborative evidence. Not only that, no reason stands explained in such testimony for A-9 having travelled from Bhalesur to Sundri in order to go to Sandi Bazar. It is a matter of record that A-9 is a resident of Bhalesur where he resided with his family. He owned farms in Sundri. The family of A-9 was not examined to substantiate the claim of such travel. For those reasons, we cannot believe the version testified to by DW-1 and DW-2 - for the plea of alibi to be established, something other than a mere ocular statement ought to have been present. After all, the prosecution has relied on the statement of eyewitnesses to establish its case against the convict-appellants leading to the unrefuted conclusion that convict-appellants were present on the spot of the crime and had indeed caused injuries unto the deceased as also PW-3 with Lathis and Tabbal on various and vital parts of their bodies.
The prosecution case relies primarily on 3 witnesses whom, the Courts below have believed without exception. It is next urged that there are contradictions in the testimonies of three witnesses, hence, it would neither be appropriate nor safe to place reliance thereon. Having perused the same, we find them to be coherent on material facts such as the presence of the accused on the spot of the crime; the death of Chetram; a blast having taken place; and the accused being the assailants - there are no force in the contention that the testimonies relied on by the prosecution are inherently contradictory.
It may be true that the deceased Chetram was a history-sheeter and had scores of criminal cases pending against him or cases in which he was involved. However, such fact is unsubstantiated on record for no detail whatsoever stands provided in respect of such cases involving the deceased - simply because the deceased had a chequered past which constituted several run-ins with the law, Courts cannot give benefit thereof, particularly when such claims are bald assertions, to those accused of committing such a person’s murder. And in any event, such a plea is merely presumptuous.
Thus, the charges levied against the accused, i.e., under Sections 148, 302 read with 149, 307 read with 149, IPC, and Sections 4/5 of the Explosive Substance Act, 1908, and the sentence corresponding thereto as awarded by the Trial Court and confirmed by the High Court, do not warrant interference of this Court. It may also be observed that the sentences awarded are in no manner excessive or disproportionate to the crimes for which the convict-appellants stand convicted.
Appeal dismissed.
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2023 (10) TMI 1210
Dishonour of Cheque - insufficient funds - right of the petitioner to cross-examine the complainant is closed - HELD THAT:- Admittedly, the petitioner has already paid the cost imposed by the learned Trial Court for the purpose of conducting cross-examination of the complainant, and as clear from the contents of present petition and the arguments addressed before this Court, the petitioner has sought setting aside of the impugned order dated 11.04.2023 only on the ground that in the said order, learned Sessions Court had failed to consider the contentions raised by the petitioner/revisionist therein regarding the maintainability of the complaint case under Section 219 of Cr.P.C. and had not passed any order qua the same.
As clear from the bare perusal of the records, the order dated 20.03.2023, which was impugned before the learned Sessions Court, did not record any observations on the maintainability of the complaint under Section 219 of Cr.P.C., rather only pertained to the right of accused to cross-examine the complainant - It is also not in dispute that the petitioner/accused has till date not challenged the order dated 16.04.2022 passed by the learned Trial Court vide which his application under Section 219 of Cr.P.C. was dismissed and though he had made references to the said order in his criminal revision petition filed before the learned Sessions Court and had taken a ground that the proceedings in the present complaint case were bad in law due to bar under Section 219 of Cr.P.C., the petitioner had still not assailed the order dated 16.04.2022 but had only challenged the order dated 20.03.2023 by virtue of which the learned Trial Court had closed his right to cross-examine the complainant.
There was no occasion for the learned Sessions Court to have recorded any findings on the issue of whether the complaint was maintainable or not since the same was not an issue before the learned Sessions Court. Thus, there are no grounds to set aside the order dated 11.04.2023 passed by the learned Sessions Court.
Petition dismissed.
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2023 (10) TMI 1209
Dishonour of Cheque - amicable settlement of dispute - acquittal of the accused - HELD THAT:- Since the parties are entering into compromise at the stage of revision, therefore, law laid down by the apex Court in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] will be applicable in this case where it was held that If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.
Thus, considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 2% of the cheque amount i.e. Rs.8,480/- by way of cost to be deposited with the “State Legal Services Authority” Indore - Subject to payment of cost at the rate of 2% of the cheque amount with the “State Legal Services Authority” Indore, within a period of 15 days from today, the applicant be released from the jail. Sentence awarded to the applicant is hereby modified by reducing the sentence to the period already undergone.
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2023 (10) TMI 1208
Constitutional validity of section 84A of the Gujarat VAT Act - Section 19 of the Constitution (101st Amendment) Act, 2016 and Article 246A enacted in exercise of constituent power - vires of Article 14 and 19(1) (g) of the Constitution of India - power of amendment or repeal, subject to limitations under Section 19 or not
Interpretation of Section 19 - HELD THAT:- In the opinion of this Court, the mere circumstance that Section 19 does not get added to the Constitution, would not make any difference. If one looks closely at Articles 243 ZF which this Court interpreted in BONDU RAMASWAMY VERSUS BANGALORE DEVELOPMENT AUTHORITY AND ORS. [2010 (5) TMI 867 - SUPREME COURT] and Article 243 ZT which was interpreted in VIPULBHAI M. CHAUDHARY VERSUS GUJARAT COOPERATIVE MILK MARKETING FEDERATION LTD. AND ORS. [2015 (3) TMI 1430 - SUPREME COURT] the effects of those provisions are the same as Section 19. Although those provisions continued to be part of the Constitution, they have no meaning and were merely historical. The reason is that they were operative, for a limited duration – like Section 19. However, the fact remains that those provisions as well as Section 19 were enacted in exercise of the constituent power. Section 19 is not, in this court’s opinion comparable to a mere Parliamentary enactment. There cannot be any gain in saying that Section 19 is not a mere legislative device. It was adopted as part of the 101st Constitutional Amendment Act. Undoubtedly, it was not inserted into the Constitution. Whatever reasons impelled Parliament to keep it outside the body of the Constitution, the fact remains that it was introduced as part of the same Amendment Act which entirely revamped the Constitution.
It cannot be in dispute that Section 20 existed for a period of two years and enabled the President to issue orders for the removal of difficulties experienced in the course of implementing the amendments to the Constitution. If indeed those parts of the amendments were not enacted in the exercise of constituent power but mere legislative power, there would be no legitimacy of the power conferred upon the President under Section 20.
On an overall interpretation of the provisions of the Amendment, it is held that Sections 19 and 20 constitute incidental and transitory provisions which have limited life, so to speak. Whether they became part of the Constitution or not is really academic. What really matters is the effect of those provisions.
Whether the power of amendment or repeal is subject to limitations under Section 19? - HELD THAT:- The effect of the 97th amendment to the Constitution which came into force on 12.01.2012 was to introduce provisions, to strengthen the functioning of the cooperative societies in a democratic, autonomous and economically sound manner. Various new provisions granted constitutional status to cooperative societies and inserted Part IX-B in the Constitution which specified several conditions for state laws relating to cooperative societies. Article 243 ZT which is worded similarly to Section 19 of the present case sought to continue in force existing laws, for a limited duration until amended or repealed or until the expiration of one year from the commencement of the amendment act.
Once it is conceded that Section 19 was enacted as part of the constituent power and has the same force as the rest of the constitutional amendment and is not a mere Parliamentary enactment, one has to consider the consequence of this sequitur to such a finding - The 101st amendment as noted earlier uniquely transformed the indirect taxation regime and revamped the constitutional compact itself in one sense. Gone were the traditional delineations of distribution of legislative power including taxation fields which traced their origins to Articles 245 and 246 and also the rules for handling repugnancy which Article 254 had enacted. Instead, what was brought in was an entirely new concept of sourcing common or concurrent power of both the state legislatures and the Union through the newly added provision Article 246A.
There were no limitations under Section 19 (read together with Article 246A), of the Amendment. That provision constituted the expression of the sovereign legislative power, available to both Parliament and state legislatures, to make necessary changes through amendment to the existing laws. As held in Rama Krishna Ramanath [1962 (2) TMI 76 - SUPREME COURT] the transitional power (in that case, Section 143 (3)) “the provision by its implication confers a limited legislative power to desire or not to desire the continuance of the levy.” This limited legislative power was not constricted or limited, in the manner alleged by the states; it is circumscribed by the time limit, indicated (i.e. one year, or till the new GST law was enacted). It could, therefore, enact provisions other than those bringing the existing provisions in conformity with the amended Constitution.
Validity of Telangana Act tested from the touch stone of its originating as an ordinance - HELD THAT:- In the present case, the Telangana ordinance was promulgated on 17.6.2016. The Telangana State GST Act was enacted and received the assent of the Governor on 25.05.2017; it was brought into force on 01.07.2017. The state GST Act contained a savings and repeal law, which sought to save acts done, privileges and rights accrued under the repealed enactment, i.e. the State VAT Act - The question of legislative competence would not arise, because the mere confirmation of an ordinance is within the competence of the State legislature. Since the law was introduced through a different procedure, i.e. ordinance, the effect of that law, empowering the VAT officials to reopen or complete assessments, was no different.
The provisions of the ordinance, as approved by the later state act, which amended the local VAT Act’s, are valid.
Gujarat and Maharashtra Acts - HELD THAT:- There is no quarrel with the proposition that a legislative body is competent to enact a curative legislation with retrospective effect. Yet, the same vice that attaches itself to the Gujarat amendment, i.e. lack of competence on the date the amendment was enacted i.e. in this case, 09.07.2019, the Maharashtra legislature ceased to have any authority over the subject matter, because the original entry 54 had undergone a substantial change, and the power to change the VAT Act, ceased, on 01.07.2017, when the GST regime came into effect. Therefore, for the same reasons, as in the other cases, the amendments to the Maharashtra VAT Act cannot survive.
The appeals (and any other special leave petitions) filed by the States of Telangana and Gujarat are hereby dismissed.
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2023 (10) TMI 1207
Constitutional Validity of Rule 31A of the CGST Rules, 2017 - HELD THAT:- After the pleadings are complete, place these matters for final disposal on 05.02.2024. Place the matters high on board subject to any overnight part-heard matters.
All these matters are to be considered together.
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