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Showing 321 to 340 of 1564 Records
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2022 (12) TMI 1244
Offence under FERA - sentence on economic offence - petitioner was found involved in huge transaction of foreign exchange and was dealing in prohibited items i.e. gold biscuits of foreign origin - judgment of enhancement of sentence - order of sentence holding petitioner guilty of offence u/s 8(1) & 8(2) of FERA and sentencing him to undergo imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo R.I. for a period of three months - appeal filed by the complainant for enhancement of the sentence was allowed and the petitioner was directed to undergo R.I. for a period of two years and to pay a fine of Rs.5,000/-. In default of payment of fine, to further undergo R.I. for a period of two months under Section 56 of FERA.
HELD THAT:- Present revision petition is partly allowed to the extent that impugned judgment passed by the lower appellate Court, enhancing six months R.I. and fine of Rs.5,000/-, as awarded by the trial Court, to 02 years R.I. and to pay a fine of Rs.5,000/- and in default thereof, to further undergo R.I. for two months, is set aside and that of the trial Court is restored.
As the fine has already been paid and the petitioner, as per the custody certificate, has already undergone 07 months of sentence i.e. over and above 06 months R.I. awarded by the trial Court, no further action is called for, as he has already undergone the entire sentence.
With the aforesaid modifications, present revision petition is disposed of.
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2022 (12) TMI 1243
Criminal conspiracy - scheduled offences - predicate offences - Large scale bungling - misappropriation and cheating of public funds, while implementing the NRHM by the government officials, in active connivance and conspiracy with private persons - HELD THAT:- Offence of money laundering is clearly a distinct and distinguishable from predicate offence. The FIR could be triggering point for initiation of proceedings under the PMLA. If it is found that the accused have also committed an offence which is punishable under the PMLA, the prosecution under the PMLA will be initiated by filing complaint under Section 45 of the PMLA. The scheduled offence and offence of money laundering are mutually exclusive and independent of each other.
The offence under Section 3 of the PMLA does not prescribe any limit of proceeds of crime for initiating the proceedings under the PMLA. Section 4 of the PMLA also does not provide that the offence under Section 3 of the PMLA would be punishable when the proceeds of crime is Rs. 1 Crore or more. The offence of money laundering is made punishable for activities related to money laundering but not the quantum of money. The attachment proceedings are associated with civil proceedings mentioned in the PMLA. Even for the civil action i.e. attachment of proceeds of crime and property under the PMLA, it is not a condition precedent that against such a person, there should existing proceedings under scheduled offences. The definition of proceeds of crime and property under the PMLA would allow for confiscation of property derived or obtained directly or indirectly from proceeds of crime relating to a scheduled (predicate) offence, including income, profit and other benefits from the proceeds of crime.
Offence of money laundering is a contining offence and relevance of the date of commission of the scheduled offence is irrelevant for the reason that as long as one is in possession of the proceeds of crime, he would be liable to be prosecuted for the offence under Section 3/4 of the PMLA - application dismissed.
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2022 (12) TMI 1242
Money laundering - misappropriated the loan amount - company has misappropriated the money lent by the bank and there was clear cut diversion of funds by the company - HELD THAT:- Money laundering often involves a complex series of transactions and it generally includes placement i.e. introduction of the proceeds of crime into the financial system. The proceeds of crime is layered in several financial transactions to distance the illicit proceeds from their source and to disguise the audit trail. In this process, a series of conversions or transactions are involved for moving the funds and places such as offshore financial centers operating in a liberal regulatory regime.
The proceeds of crime is invested in the legitimate economy, so that the money may get the colour of legitimacy and this is achieved by techniques such as lending the money through front companies, etc.
Prima facie the offence of money laundering is made out against the petitioner, he being the Chief Executive Officer of the company when the corporate loans were obtained and which were diverted for the purposes other than for which the loans were sanctioned to the company. No ground to quash the impugned proceedings.
Thus, the present petition has no merit and substance, which is hereby dismissed.
As provided that if the petitioner surrenders before the PMLA Court and applies for regular bail, his bail application should be considered expeditiously in accordance with law.
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2022 (12) TMI 1241
Maintainability of appeal - requirement of pre-deposit has not been complied with before filing of the appeal - HELD THAT:- Learned Commissioner (Appeals) vide paragraph 4 and 5 in the impugned order has acknowledged the fact that the pre-deposit of 7.5% was made by the appellant under the CGST Act in form DRC-03. However, such payment was not considered by the first appellate authority for the purpose of entertaining the appeal and accordingly, the appeal filed by the appellant was dismissed by him.
On perusal of the case records, it is found that the Learned Commissioner (Appeals) has not discussed the merits of the case and simply rejected the appeal on the ground of noncompliance with the requirement of pre-deposit. Since merits of the case have to be decided by Commissioner (Appeals), the matter is remanded to him for deciding the appeal afresh on the basis of available records and submissions to be made by the appellant. Needless to say, that opportunity of hearing should be granted to the appellant before deciding the issue afresh - appeal allowed by way of remand.
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2022 (12) TMI 1240
Wealth tax assessment - Nature of land - “urban land” - land was converted for non-agricultural purpose - whether sanction of conversion of land for non–agricultural purposes would change the nature of land when the land is continued to be held as agricultural land by the appellant as on the valuation date? - urban land as classified as agricultural land in the record of the Government and used for agricultural purposes - HELD THAT:- Records of Right placed before us prima facie demonstrate that name of Shri. A.R. Narendranath is found in the Government Record. So far as use of the land for agricultural purposes is concerned, it is recorded in the Valuation Report dated November 28, 2014 prepared by Shri. V. Vellaichamy, District Valuation Officer of the Income Tax Department.
Thus, according to the Valuation Officer, there were several trees in the entire land in Sy. No.11/3. It also shows that the access to the said land is through Sy. No.14/1 owned by Shri. A.N. Narendranath. The Report does not clearly indicate whether standing trees were in Sy. No.11/3 or 14/1. Therefore, it requires reconsideration in the hands of the ITAT, which is the last fact finding authority
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2022 (12) TMI 1239
Seeking exemption from filing the impugned order - Order VII Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- Apart from the statutory requirements Under Section 86(7) of the Act of 1951, of expeditious proceedings and conclusion of trial of the election petition within six months from the date of presentation, it is even otherwise indisputable that this litigation, by its very nature, calls for expeditious proceedings while being assigned a specific priority by the Court dealing with the same.
In the present matter, we do not find it necessary to refer to or dilate upon the previous proceedings, including the order passed by this Court on 21.03.2021 but, find it difficult to countenance the position that even after pronouncement of the result on the application Under Order VII Rule 11 Code of Civil Procedure on 15.06.2022, the reasoned order is not available to the parties until this date.
In the present case, the position obtaining at present is that even after more than three months from pronouncement of the order by the High Court, the reasons are not forthcoming and are not available with either of the parties. Looking to the nature of litigation and the overall circumstances, we find it difficult to countenance this position - Even if we take into consideration the submissions made on behalf of the Respondents about availability of the remedy of appeal to this Court, in our view, such an appeal, which could be preferred on the question/s of law or fact, would also remain an empty formality for the simple reason that neither determination of question of law nor determination of any question of fact by the High Court for the purpose of dealing with the application Under Order VII Rule 11 Code of Civil Procedure is available to the parties.
It is deemed appropriate that this order and the entire matter be placed for necessary orders before the Chief Justice of the High Court, who may issue appropriate assigning orders for dealing with the matter pursuant to this order and in accordance with law - appeal allowed.
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2022 (12) TMI 1238
Seeking re-instatement of the respondent – workman in service with continuity of service along with 20% backwages - workman within the meaning of Section 2(S) of the Industrial Dispute Act, 1947 - HELD THAT:- It is relevant to note that it is the case of the petitioner company in the statement of claim that he was working in Spinning Department of the Santram Spinners Ltd. - present petitioner as a Technical Maintenance In-charge and was earning Rs.9,000/- per month and the petitioner company has terminated his services on 18.04.1997 by oral order, without any genuine reason and without giving any notice or paying any salary towards notice as well as without following any required procedure for terminating his services. He has further pleaded in the statement of claim that he has issued notice to the petitioner company by registered post AD and the petitioner company has not responded to that notice. It is also relevant to note that in the written statement filed by the present petitioner before the learned Labour Court that the petitioner company has specifically disputed that the respondent company is not covered within the definition of workman with a view to Section 2(S) of the Industrial Dispute Act, 1947.
The petitioner has successfully established its defence by producing cogent and convincing evidence in view of the vouchers, TDS certificate, etc., and has also proved its case by cross-examining the respondent workman and also examining the manager at Exh.16, therefore, in view of that the learned Labour Court has committed gross error in drawing adverse inference that the petitioner company has not produced attendance register or payment register before the learned Labour Court, therefore, adverse inference should be drawn by inferring that the respondent is working as a workman in the petitioner company, as pleaded by the respondent in the statement of claim, this finding is also perverse and erroneous and the citations, which are cited at Bar by the learned advocate for the petitioner, are helpful in the facts and circumstances of the present case.
In view of the findings given by the learned Labour Court are found perverse, illegal and improper and the same is against the materials available on record, therefore, it is found that this is a fit case where the supervisory powers, under Article 227 of the Constitution of India are required to be exercised, by interfering in the impugned judgment and award passed by the learned Labour Court. Accordingly, if judgment and award passed by the learned Labour Court is required to be quashed and set aside, the ends of justice would be met.
Petition allowed.
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2022 (12) TMI 1237
Reopening of assessment u/s 147 - Necessity of taking approval from the appropriate authority u/s 151 before issuance of such notice - petitioner has challenged the impugned notice u/s 148A(b) on the ground that the impugned notice was issued in contravention of Section 151(ii) by not taking approval from the appropriate authority before issuance of such notice - HELD THAT:- Mr. Dutt, learned advocate appearing for the respondent shall take appropriate instruction in the aforesaid regard.
List this matter on 08.12.2022.
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2022 (12) TMI 1236
Seeking provisional release of seized goods - detention of goods on the ground that E-way bill was not generated for movement of the consignment - HELD THAT:- This Court would now set aside the impugned order. This means that the matter reverts to the detention/seizure order under Section 129(1) of TN-G&ST Act. This Court would also now be directing the respondent to redo Section 129(3) legal drill after affording a fresh opportunity to the writ petitioner.
In this view of the matter, as Section 129(1) scenario gets revived, learned counsel for writ petitioner on instructions submits that the writ petitioner is ready to furnish Bank Guarantee for the entire amount payable qua Section 129(1)(a) i.e., penalty of 200% of the tax payable. This submission is recorded.
Impugned order under Section 129(3) is set aside - the writ petitioner shall furnish Bank Guarantee as per 129(1)(c) read with Section 129(1)(a) i.e., (penalty equivalent to 200% of the tax payable) latest by Monday i.e., by 26.12.2022 - application disposed off.
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2022 (12) TMI 1235
Maintainability of petition - availability of alternative remedy - fair opportunity of hearing - ex-parte order - violation of principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This we say so, for two reasons - (a) violation of principles of natural justice, i.e. fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case and (b) order passed ex parte in nature, does not assign any reasons sufficient even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences, (c) We also find the authorities not to have adjudicated the matter on the attending facts and circumstances. All issues of fact and law ought to have been dealt with, even if the proceedings were ex parte in nature. As such, on this short ground alone, we dispose of the present writ petition.
The instant petition sands disposed of.
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2022 (12) TMI 1234
Freezing of Bank Accounts of petitioner - petitioner claims that it was denied access to its bank account on 05.11.2021 without being informed of any reason for the same, since then the petitioner is unable to operate the bank account - HELD THAT:- Section 83 of the CGST Act empowers the concerned authority to provisionally attach assets, in cases where the proceedings have been initiated under Chapter XII, XIV or XV of the CGST Act and the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary to issue provisional attachment.
In the present case, it is contended on behalf of the respondent that information had been received from another Commissionerate (DGGI, Ghaziabad) that certain entities have colluded to fraudulently avail GST. Apparently, the petitioner was named as one of the suspicious entities - In so far as the reasons for freezing the bank account is concerned, the petitioner is at liberty to approach the ICICI Bank for seeking the reasons for freezing the bank account. The bank is directed to provide the petitioner the reasons for the same.
Petition is disposed off.
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2022 (12) TMI 1233
Maintainability of the writ petition - Availability of efficacious remedy of appeal - dispute pertains to questions of fact - seeking direction upon the respondents to show cause as to how an Officer of the State Taxes could carry out the proceedings under Section 129 of CGST Act - HELD THAT:- Taking into consideration that an efficacious alternative remedy by way of appeal is available to the petitioner under Section 107 of JGST Act, we therefore, grant liberty to the petitioner to approach the appellate authority against the impugned order passed under Form GST MOV 09. On his approaching, the State Taxes Officer, Intelligence Bureau, Dhanbad Division, Dhanbad shall provide the GSTIN number so that the petitioner can prefer an appeal online. In case the appeal is not accepted online for any technical reasons, he would be at liberty to prefer an appeal manually before the appellate authority.
Writ petition is disposed off.
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2022 (12) TMI 1232
Refund of additional tax liability incurred by the petitioner in the light of GST law introduced w.e.f. 1.7.2017 onwards - HELD THAT:- Reliance placed upon the order of this Court in M/S D.A. ENTERPRISES THROUGH ITS PROPRIETOR DINESH KUMAR MISHRA VERSUS STATE OF CHHATTISGARH THROUGH THE SECRETARY; CHIEF ENGINEER HASDEO BASIN; SUPERINTENDING ENGINEER; EXECUTIVE ENGINEER MANIYARI [2022 (12) TMI 1136 - CHHATTISGARH HIGH COURT], wherein under identical set of facts, this Court has allowed the said writ petition.
Considering the submissions of learned counsel for the parties and also taking into consideration the judgment of this Court in the case of M/s D.A. Enterprises, the writ petition as of now stands disposed of permitting the petitioner to approach respondents No.2 to 5 in terms of the order of the State Government dated 10.10.2018 (Annexure P-2). The petitioner is also required to produce before the authority concern necessary proof of the additional tax liability incurred on account of the introduction of the GST law within a period of one week - petition disposed off.
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2022 (12) TMI 1231
Release of seized perishable goods - conclusion of adjudication proceedings expeditiously - seeking cross examination of the Panch witnesses, other witnesses whose statements are relied upon in the Show Cause Notice and the officers of the DGGI - allegations made against the petitioners is that they had fraudulently availed input tax credit - HELD THAT:- The learned counsel for the petitioners states that although the replies to the Show Cause Notice (SCN No. 8/2021) were termed as interim replies, the same may be considered as final and the adjudicating authority may proceed on the said basis.
Insofar as the petitioner’s request for permission to cross-examine certain witnesses and officers is concerned, this Court does not consider it apposite to decide the same in these proceedings - The adjudicating authority is requested to complete the proceedings pursuant to the show cause notice as expeditiously as possible and in any event within a period of four months from today. The adjudicating authority shall consider and dispose of the petition’s application for cross examination of witnesses/officers in accordance with law.
The petition is disposed of.
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2022 (12) TMI 1230
Seeking provisional release of seized goods - petitioner submitted that E-way bill can be applied for only after weighment at the weigh bridge - consignment was transported by truck from the Railway yard to a weigh bridge and the interception occurred during such transit - HELD THAT:- This writ Court refrains itself from expressing any opinion or view on the same. There is another reason as to why this writ Court refrains itself from expressing any opinion and proceeds to dispose of the writ petition. That other reason is, learned Revenue counsel, on instructions, submits that pursuant to interception on 06.12.2022, a show-cause notice as statutorily required under Section 129(3) of C-G&ST Act has been issued to the writ petitioner on 07.12.2022, the writ petitioner has sent a reply on the same day, the third respondent has considered the same and has made an order dated 09.12.2022, which has been placed before this Court.
To be noted, copy of the 09.12.2022 proceedings has been handed over by the learned Revenue counsel to the learned counsel for writ petitioner today. If the writ petitioner chooses to do the same in accordance with law, the Authority / forum / Court would consider the same on its own merits and in accordance with law untrammelled by any observation in this order which has been made for the limited purpose of disposal of captioned writ petition.
The writ petition fails and the same is dismissed.
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2022 (12) TMI 1229
Validity of Assessment order and Demand of GST - It was alleged that the petitioner was supplied nil rated or exempted supply, but he had not reversed the ITC related to the said exempt supply as per Section 17(2) - violation of principle of natural justice - HELD THAT:- This Court notices that this is not the case where the Court would like to employ the ratio laid down in case of Graziano Transmission India Private Limited vs. State of Gujarat [2022 (7) TMI 752 - GUJARAT HIGH COURT]. As the facts were completely different and here as can be noticed, his request for adjournment had been acceded to not for 30 days, but for 15 days. The online portal also is indicative of the fact that it was for both adjournment and the personal hearing, however, on 11.02.2022 admittedly, neither the response was given in writing nor had the petitioner appeared in person. He also never bothered thereafter to know as to what had happened on 11.02.2022.
It is also a matter of record that search was conducted at the official premise on 17.02.2022 and consequent upon the said search not only the petitioner, but some other employees were also called by the officer concerned for recording the statement and eventually on 21.02.2022, the order came to be passed which is impugned. He has reversed credit as has been detailed in the petition and that according to him was the reason for him to believe that everything was over till he received the communication from the Bank on 21.06.2022 where electronically the demand had been raised and the Bank was asked to adjust his demand - Be that as it may, for present, the petitioner is desirous of going to the Appellate Authority for questioning and challenging the assessment which has been finalized and that being his right, if he has missed out on the limitation, condoning this period of limitation in the given circumstance, keeping the larger issue open, this petition is allowed.
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2022 (12) TMI 1228
Seeking direction to the respondent to release the vehicle and consignment - invalid E-way bill - E-way bill has been generated at 09.56pm at 03.12.2022 at Tiruvannamalai but movement of the vehicle was noticed on 03.12.2022 at 10:56pm at Thoppur Toll. - Section 129(3) of The Central Goods and Services Tax Act, 2017, Tamil Nadu Goods and Services Act, 2017 and Integrated Goods and Services Tax Act, 2017 - HELD THAT:- In any event, on a demurrer even if it is construed as 10.56p.m, the question as to whether the vehicle could have crossed Thoppur Toll within one hour of declaration of e-way bill are all matters turning on facts. Section 129 provides for issue of notice / hearing before order is made. This Court is informed that notice has been issued on 04.12.2022. The order has to be made within 7 days but owing to the captioned writ petition being filed on 09.12.2022, making of the order has been put on hold is learned Revenue counsel's say.
This is not a fit case for interfering with the impugned notice. Let the petitioner respond to 04.12.2022 notice, let the respondent consider the same on its own merits and in accordance with law after affording an opportunity to the writ petitioner as per Section 129(3) of C-G &ST Act. Though obvious, it is made clear that if the order is adverse to the writ petitioner, it is open to the writ petitioner to assail the same in a manner known to law - Petition dismissed.
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2022 (12) TMI 1227
Condonation of delay in filing appeal - three months prescribed period and one month condonable period vide Section 107 of the Central Goods and Services Tax Act, 2017 elapsed within Covid-19 period - HELD THAT:- In identical circumstances, this Court had penned a judgment in THE GENERAL MANAGER SOUTHERN RAILWAY HEAD QUARTERS OFFICE PARK TOWN CHENNAI AND THE CHIEF ENGINEER/CENTRAL (CONSTRUCTION) N SOUTHERN RAILWAY PERIYAR E.V.R. HIGH ROAD EGMORE CHENNAI VERSUS EAGLE-OMEGA AND KR AND CO. (JV) REPRESENTED BY ITS LEAD PARTNER MR. C. KARNAN [2020 (10) TMI 1348 - MADRAS HIGH COURT] wherein delay in filing an application under Section 34 of The Arbitration and Conciliation Act, 1996 left the protagonist of a Section 34 high and dry.
Hon'ble Supreme Court has made it clear that what was extended by order of Hon'ble Supreme Court qua Covid-19 period was only the period of limitation and not the period upto which the delay can be condoned in exercise of discretion conferred by the Statute. Therefore, this Court in the light of the authoritative pronouncement of Hon'ble Supreme Court, finds no grounds to interfere with the order of the first respondent.
The argument that impugned order returns a finding in favour of writ petitioner but does not grant relief owing to limitation bar is no argument as law is well settled that when limitation elapses right is not extinguished but remedy is barred.
Petition dismissed.
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2022 (12) TMI 1226
Maintainability of petition - availability of alternative remedy - fair opportunity of hearing - ex-parte order - violation of principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This we say so, for two reasons - (a) violation of principles of natural justice, i.e. fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case and (b) order passed ex parte in nature, does not assign any reasons sufficient even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences.
The instant petition sands disposed of.
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2022 (12) TMI 1225
Deduction u/s 40(b)(v) - deduction of the amount of remuneration paid to the partners - Payment of remuneration to partners not authorized by the Partnership Deed - HELD THAT:- According to the Tribunal, the appellant has to be authorized by the partnership deed and the same has to be in accordance with the terms of the partnership deed. Referring to the partnership deed constituting the appellant, Tribunal held that the partnership deed did not contain any terms for payment to the working partners. In that view of the matter, Tribunal while confirming the order of the assessing officer held that payment made to the partners amounting to Rs.1,08,000.00 is not an allowable deduction as per Section 40(b)(v) of the Act.
On due consideration, we do not find any error or infirmity in the view taken by the Tribunal. No question of law, not to speak of any substantial question of law, arises from the said order of the Tribunal.Appeal is devoid of any merit and the same is accordingly dismissed.
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