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Showing 461 to 480 of 1393 Records

• 2021 (2) TMI 935
  

  Validity of reopening of assessment u/s 147 - Undisclosed client code modification - assessee provided fictitious loss to different clients as well as fictitious profit to other clients - HELD THAT:- Reasons recorded clearly indicate that the reopening of assessments is on the basis of a letter received from DDIT (Inv.), Ahmedabad, wherein, it is alleged that some brokers are misusing the client code modification facilities to benefit their clients and in the process received commission varying between 0.5% to 2% of the amount of loss/profit transferred to the respective clients. It is noticed, on the basis of identical reasoning in assessee’s own case for the assessment year 2010-11, assessment was reopened u/s 147 of the Act. The Tribunal while deciding the issue [2020 (2) TMI 1455 - ITAT MUMBAI] following the decision of Hon’ble Bombay High Court in case of M/s Coronation Agro Industries Ltd. vs. DCIT. [2017 (1) TMI 904 - BOMBAY HIGH COURT], held the reopening of assessment as invalid and accordingly, quashed the assessment orders. Reopening of assessment is invalid - Decided in favour of assessee.

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• 2021 (2) TMI 934
  

  Reopening of assessment u/s 147 - Addition u/s 69A - assessee failed to explain the source of the cash deposits in the bank account - HELD THAT:- Assessee explained to AO before recording the reasons of reopening of the assessment that total cash deposited in his two bank accounts out of the sale proceeds of Popular Trees. Still AO has mentioned incorrect amount in the reasons. Ultimately AO accepted that the figure of ₹ 17,69,000/- mentioned in the reason is incorrect because he made addition of ₹ 18,78,400/-in the reassessment order.

  The assessee also explained that he has several source of income and sale proceeds of Popular Trees were deposited in cash in bank account. Thus, the cash deposit per se may not be income of the assessee. Thus, it is clear that AO has not verified information so recorded. AO in the reasons also mentioned another incorrect fact that he has reasons to believe that income assessed u/s 143(1) has escaped assessment because income assessed u/s 143(1) was at ₹ 1,79,300/- only.

  AO never mentioned in reasons u/s 148 that he has reasons to believe that income of ₹ 17,69,000/- chargeable to tax had escaped assessment. The reasons are therefore, incorrect and based on no belief of AO. The ingredients of section 147 of IT Act are, therefore, not satisfied. The AO did not apply mind to information. The issue is, therefore, covered by order of ITAT Delhi Bench in the case of Dheeraj Yadav [2021 (1) TMI 731 - ITAT DELHI]. Following the same, we set aside the orders of the authorities below and quash the reopening of the assessment. Resultantly, all additions stand deleted. - Decided in favour of assessee.

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• 2021 (2) TMI 933
  

  Disallowance u/s 14A r.w.r 8D - assessee has claimed deduction of expenses in relating to income which is exempt from tax - whether the dividend income earned from overseas joint-venture OMIFCO-OMAN can be subjected to disallowance under section 14A - assessee had received dividend income from its overseas joint-venture OMIFCO-OMAN - According to the AO, the assessee is effectively not paying any tax on this income either in the source country or in India and thus dividend income for all purposes is exempted from tax - HELD THAT:- Tribunal in the case of the assessee for assessment years 2008-09 [2018 (5) TMI 1035 - ITAT DELHI] wherein the Tribunal has decided to exclude the investment in OMIFCO-Oman for the purpose of the computing disallowance in terms of Rule 8D(2)(iii) of the Rules.

  Dividend income from M/s OMIFCO-Oman is not in the nature of the exempted income, respectfully following the finding of the Tribunal, we uphold the finding of the Ld. CIT(A) of computing disallowance under section 14A of the Act after excluding the dividend income from M/s OMIFCO-Oman. We do not find any infirmity in the order of the Learned CIT(A) on the issue in dispute, and accordingly, we uphold the same. The ground of the appeal of the Revenue is accordingly dismissed.

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• 2021 (2) TMI 932
  

  Oppression and Mismanagement - scope of arbitration clause under the MoU - seeking to direct independent forensic audit into the affairs of the Company from the F.Y, 2011-2012 till the F.Y. 2018-2019 by an appointing an independent auditor - Section 241 read with Section 242 of the Companies Act, 2013 or Sections 397 and 398 read with of the Companies Act, 1956 - HELD THAT:- In order to succeed in getting a reference of the dispute arose under Section 241-242, 244 read with Section 337, 341 of the Companies Act, 2013, the applicant would not only be liable to show that the entire gamut of the dispute falls within the purview of Arbitration Agreement but also the fact that the Company Petition is a sham and mischievous one which has been decked deliberately so as to gainfully sustain the plea of non-arbitrability of such dispute. There would also be a heavy burden cast upon the applicants to show that the Arbitration Agreement would bind the non-signatory respondents. In a case involving such complex question of law and facts, determination of the aforesaid aspect may call for deeper examination of the matter by this Tribunal. However, the applicant herein could not show that the entire gamut of he dispute falls within the purview of Arbitration Agreement.

  In the matter of a winding up petition, the petitioner therein M/s Haryana Telecon Limited filed an application under Section 8 of the Arbitration and Conciliation Act, 1996, inter alia, contending that the High Court should refer the matter to arbitration. The Division Bench of the Hon’ble High Court dismissed the plea of the appellants stating that the question regarding the winding up of a company could not be referred to an arbitrator - In this case, the CP is filed for oppression and mismanagement in the Company. In addition to that serious fraud has also been alleged by the petitioners. Since those questions cannot be considered by an Arbitral Tribunal, the relief prayed for reference to an Arbitral Tribunal cannot be accepted.

  It would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action that is to say the subject matter of the CP or in some cases bifurcation of the CP between the parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. Since there is no such indication in the language, it follows that bifurcation of the subject matter of an action brought before the judicial authority is not allowed. Such bifurcation of a suit in two parts, one to be decided by the Arbitral Tribunal and the other to be decided by this Tribunal would inevitably delay the proceedings. The whole purpose of speedy disposal of the dispute and decreasing the cost of litigation would be frustrated by such procedure. It would also increase the cost of litigation and harassment to the parties and on occasions there is possibility of conflicting judgments and orders by two different forums.

  Application filed for referring the matter to Arbitral Tribunal in terms of Arbitration Agreement contained in clause 8 of Memorandum of Understanding (MoU) dated 31st March, 2007 is dismissed.

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• 2021 (2) TMI 931
  

  Liquidation of Corporate Debtor - seeking to direct the Liquidator to arrange with prior notice to the Applicant for a sitting for a minimum period of a week to enable the Workmen to prefer their claim afresh by enlarging the period for preferring their claim for a further period of three months or till the disposal of the assets, whichever is earlier - seeking to direct the Liquidator to include the nominee of the applicant in the Stakeholders Consultation Committee Viz. Rajesh. R as workmen representative in place of the present incumbent Shri Venugopal, who is actually a management representative, within a time to be fixed by the Hon'ble Tribunal - seeking to direct the Liquidator to decide and admit the amount due to each Workmen in the same format as Annexure- W-5, irrespective of whether they have preferred a claim, based on the books and records of the company especially as some of the workmen may have expired and their legal heirs may not be aware of the Liquidation proceedings - Section 33 read with Section 53 of the Insolvency and Bankruptcy Code 2016 read with Rule 11 and 32 of the National Company Law Tribunal Rules, 2016.

  HELD THAT:- It is found that according to the learned counsel for the applicant , the purpose of forming the association was to collectively agitate before all the forums including this Bench and that there are 132 former workmen of the Company in Liquidation who are the members of this association, who have joined together to bring the issues before this Bench relating to the said workmen. Along with the written submission the learned counsel has submitted a copy of the members list, whereas, in the IA the applicant has not mentioned the number of employees in the association and only the signatories of Memorandum were annexed, in which only 7 members name are mentioned. Therefore, it is apparent from the records that the applicant Association itself is not sure as to how many workmen the association filed this application for the reliefs sought.

  The respondent is in the process of issuing fresh orders under Section 40 (2) of the I & B Code clearly categorizing the amounts accepted and the amounts rejected, with reasons, the application filed under Section 33 read with Section 53 of the I & B code, 2016 and Rules 11 and 32 of the National Company Law Tribunal Rules,2016 cannot be accepted. In case the applicants are aggrieved by the order passed by the liquidator, the applicants are at liberty to approach the appropriate forum under Section 42 of the I & B Code.

  Application dismissed.

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• 2021 (2) TMI 930
  

  Applicability of Transitional Provision under Section 142(11)(c), (Chapter XX) of TNGST Act, 2017/CGST Act, 2017 for the remaining installments of “Mobilization Advance’, which transitioned into the GST regime and to be adjusted/ deducted by them post the implementation of GST (i.e. Post July 1, 2017) - Levy of GST - Input tax Credit (ITC) on Service Tax paid which was transferred from Pre-GST period through TRAN-1 Return filed in terms of the section 142(11)(c), under Transitional Provisions (Chapter XX) of both TNGST Act, 2017/CGST Act, 2017.

  HELD THAT:- On the applicability of GST on the ‘Mobilization Advance’ which is transitioned to GST, the lower authority has ruled that ‘the transition provision applicable to the case at hand is as per Section 142(11)(b) of the act and Mobilisation advance to the extent received prior to the implementation of GST towards supply of Works Contract Service is not to be subjected to GST as per the provisions of Section 142(11)(b) of the GST Act 2017’. We find that the appellant seeks a clarification before us as to whether they are liable to pay GST on that portion of the ‘transitioned Mobilization advance’ on which Service Tax was not leviable/payable under the existing law or there is no GST liability on the entire ‘Mobilization advance’ received by them prior to the implementation of GST. Thus, we find that the issue to be decided is whether GST is payable on that portion of Mobilization advance transitioned into GST and on which no tax has been paid in the Pre-GST regime

  ‘Mobilisation Advance’ has been paid to the appellant by his service receiver against the ‘bank guarantee’ executed by the appellant for the entire amount. This shows that the amount received by the appellant is ‘consideration’ towards the supply to be made. It is also to be noted that the appellant holds the amount received as ‘advance’ and considers as payment towards supply only when he raises the RA bills against the supplies made by him to the receiver, i.e., his client. Further, the transition provision 142 (11) (b) considering such scenario provides for payment of GST on the consideration which has not suffered service tax under Chapter V of the Finance Act and the Non-obstante clause with regard to Section 13 in the said provision also points to the leviability/payment of GST on such consideration which has not suffered Service Tax in the Pre-GST regime - In the case of the appellant, on 01.07.2017, the advance amount received is accounted and maintained as ‘Advance’ and applying the provisions of Section 142(11)(b) of the Act, GST is liable to be paid on the said amount reduced by the Service Tax paid under Chapter V of the Finance Act 1994 on 01.07.2017.

  As per Section 101(3), there is no advance ruling issued on the Time of Supply’ of the Mobilization advance transitioned into GST, which has not suffered any tax in the Pre-GST regime and the applicability of Sec. 142(11)(b) to the facts of this case.

  Eligibility to credit based on the transitional provisions which has not been answered by the Lower Authority - Scope of Advance Ruling authority - HELD THAT:- The Authority is to rule only on the issues spelt in Section 97 (2) of the Act and only to those who are eligible to seek such ruling under Section 95 of the Act. The lower authority in Para 6 of the ruling, has considered all the three questions raised and found that the question relating to eligibility to credit under transitional provisions is not in the ambit of this authority, to which we do not see any reason to disagree. This authority can rule only on the questions within the scope of the authority. While we understand the appellant’s grievance of not answering all the questions raised by them in complete manner, we re-iterate that Advance Ruling Authority has their limits defined and could act only within its authority.

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• 2021 (2) TMI 929
  

  Exemption u/s 11 - Rejection of application of registration u/s 12AA - Object of Trust charitable or not u/s 2(15) - Receipt of capitation fee for admission of students found during search - HELD THAT:- As appellant seeks leave to withdraw this appeal in view of the fact that the appellant has resolved its dispute under Vivad Se Vishwas Scheme, 2020.

  The civil appeal is, accordingly, dismissed as withdrawn.

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• 2021 (2) TMI 928
  

  Violation of principles of natural justice - Detention of goods - Short ground raised in the present petition is that the first notice of the proceeding fixed 10.02.2020 was served on the petitioner, however, the petitioner did not appear on the next date fixed - Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 - HELD THAT:- Though it is not denied that the notice for the date 10.02.2020 had been served on the petitioner, it is admitted on record that no order came to be passed on that date. Further order dated 15.02.2020 makes it clear that the proper officer did not reserve order on 10.02.2020 but kept the proceeding pending till the date 15.02.2020. Even on 15.02.2020 the only order passed was to proceed ex parte - That being the status, though the petitioner may not have filed reply, it cannot be said that he lost his right to be heard before the order dated 20.02.2020 came to be passed.

  The orders dated 03.06.2020 and 17.07.2020 are set aside and the matter remitted to the proper officer to pass a fresh order in accordance with law - writ petition is thus allowed.

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• 2021 (2) TMI 927
  

  Attachment of Bank Accounts of petitioner - Section 83 of the CGST Act, 2017 - HELD THAT:- This writ-application disposed off directing the writ-applicant that he shall maintain the minimum balance of ₹ 22 lac in the bank account in question up to 21st September 2021. On this condition, we permit the writ-applicant to operate his bank account. The respondents shall intimate the bank concerned about this order and permit the writ-applicant to operate his bank account. The writ-applicant shall file his undertaking in this regard on oath in writing before the concerned department as well as placed the same undertaking on the record of this case also. The inquiry, if any, initiated, shall proceed further in accordance with law.

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• 2021 (2) TMI 926
  

  Seeking interim order of attachment - seeking order of injunction against the defendant - HELD THAT:- In the facts of the present case, the plaintiff has claimed a decree for a sum in excess of ₹ 81 crores on the basis of an agreement under which, the defendant was to construct and deliver flats to the plaintiff. The ultimate agreement between the parties, had obliged the defendant to construct and make over unit Nos. 12W, 13W and 14W located on the 12th, 13th and 14th floor on the proposed building “Wellside Camac” to be constructed by the defendant upon the plaintiff paying the agreed consideration in respect thereof. Admittedly, the plaintiff had paid a sum of ₹ 14,06,70,000/- to the defendant. Apparently, the parties had fallen out of the contract. The parties have claimed differently with regard to the termination of the contract. According to the plaintiff, it has originally terminated the contract and the defendant is obliged to refund the entirety of the consideration advanced along with interest at the rate of 18 per cent per annum. According to the defendant, the termination effected by the plaintiff has been premature therefore entitling the defendant to deduct amounts stipulated in the contract. According to the defendant, it has to pay a sum of ₹ 12,81,22,349/- to the plaintiff after deduction as claimed. The plaintiff has expressed its unwillingness to accept such sum in full and final settlement of its claim. This stand of the respective parties has raised triable issues.

  The parties to the instant suit have raised triable issues. However, it can be garnered out of the facts of the present case at this stage that, the defendant is liable to pay the plaintiff. The quantum of liability has to be decided - Till such time such quantum of liability is decided and the defendant pays the same, and since, the contract that the parties had entered into related to units Nos. 12W, 13W and 14W on the 12th, 13th and 14th floor of the proposed building, it would be appropriate to grant an order of injunction restraining the defendant from creating any third party rights over and in respect of such units without the leave of the Court.

  Application disposed off.

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• 2021 (2) TMI 925
  

  Undue harassment - Dr. Dhavale has assured that the inquiry or investigation that may be undertaken shall be in accordance with law - HELD THAT:- We would not have asked the officers to join the video conference but for the serious allegations which have been levelled in the respective writ-applications. We do not intend to discourage or lower down the morale of all the officers before us. Our endeavour is only to bring it to their notice that they should act and perform their duties within the four corners of law. They should not take law in their hands. On the contrary, this Court has always appreciated the efforts put in by the officers in catching hold of fraudsters and all those persons involved in the huge scam of tax evasion etc. It shall be open for the officers to conduct the search proceedings under Section-67, but, strictly in accordance with law.

  Post these matters for further hearing on 23rd February 2021.
  
  Earlier Interim Order [2021 (2) TMI 701 - GUJARAT HIGH COURT]

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• 2021 (2) TMI 924
  

  Withholding of Provisional/ Final refund on the ground that investigation is pending - Seeking disbursal of provisional refund - section 54(11) of the Central Goods and Services Tax Act, 2017 - Rule 90(2) of CGST Rules, 2017 - non completion of the proceedings to disburse the full refund - HELD THAT:- A perusal of the provision of sub section 11 of section 54 of CGST Act clearly reveals that the appropriate authority of the department is vested with the power to withhold the refund, however, the refund can be withheld by the authority only once he is of the opinion that grant of such refund is likely to adversely affect the revenue in some appeal or any other proceedings because of malfeasance or fraud committed by the applicant. Thus, what we find is that for exercising the authority vested by sub section 11 of section 54 of the Act for withholding the refund, the officer concerned has to form an opinion regarding refund having the tendency of adversely affecting the revenue in some proceedings - It is also relevant to notice that such opinion is to be formed only if the authority opines that refund will adversely affect the revenue on account of some malfeasance or fraud committed. In this view, it is not only that the opinion of the officer concerned needs to be recorded but that opinion regarding refund adversely affecting the revenue has to be based on some malfeasance or fraud.

  From a perusal of Part B of FORM GST RFD-07 it is clear that the proper officer or Commissioner has to assign the reasons for withholding the refund. Passing of an order in Part B of FORM GST RFD-07 is a statutory mandate which is binding on the department for the reason that different forms appended with the Rules, 2017 are part of the Rules which are statutory in nature having been framed under section 164 of the Act, 2017 - recording of reasons while passing of the order for withholding the refund is not only statutorily requirement as per the provisions contained in Rule 92(2) of the Rules read with Part B of Form GST RFD-07 and section 54(11) of the Act but it is also required so as to make the person, aggrieved by such an order, realize his right of appeal as available under section 107 of the Act.

  We are unable to agree with the said offer given by Shri Nag for the reason that Part B of Form GST RFD07 is not a form for the purposes of communicating the decision; rather it is a form in which an order has to be passed keeping in view the requirement of section 54(11) of the Act read with Rule 92(2) of the Rules. The said form contains a separate specific column where requirement is to record reasons for withholding the refund and those reasons are to be in conformity with the requirement of section 54(11) of the Act and Rules 92(2) of the Rules. The order withholding the refund can be passed only if the prerequisites of recording of the opinion in terms of the aforesaid provision is found present in a particular case.

  The decision by the Principal Commissioner, dated 13.10.2020 as is available in the record produced by the learned counsel representing the respondents is hereby quashed. The Principal Commissioner or any other competent authority will take a decision in respect of withholding of the refund amount afresh within 15 days from the date a certified copy of this order is produced before him - Petition disposed off.

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• 2021 (2) TMI 923
  

  Seizure of goods - Mis-classification of imported goods - import and trading of “Food Items” especially “Masalas” of different flavours - it was opined by the Officers of Customs that the goods were mis declared in terms of classification in so far as the same were mis classified under CTH 09109100, instead the same shall fall under Customs Tariff Heading 21039040 attracting IGST at the rate of 12% instead of 5%, thus leading to shortfall of Customs Duty - HELD THAT:- The petitioner has made a details representation dated 25.01.2021 (Annexure P-10) and reminder dated 01.02.2021 (Annexure P-11), but no action has been taken thereon till date. Notice of motion.

  This petition is disposed of by giving direction to respondent No.3-Additional Commissioner of Customs to look into the representation/ reminder dated 25.01.2021/01.02.2021 (Annexures P-10 and P-11) and after affording an opportunity of hearing to the petitioner, pass a speaking order thereon in accordance with law.

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• 2021 (2) TMI 922
  

  Refund of excess amount of excise duty paid - appeal has been rejected by the learned CESTAT on the sole ground that petitioner had not been able to produce the clearance certificate from the Committee on Disputes (COD) - HELD THAT:- The learned CESTAT proceeded on an erroneous understanding that the appeal instituted by the appellant could not be entertained since the COD permission had not been obtained. Learned Tribunal gave a liberty to the appellant to seek restoration of the appeal after obtaining the COD permission. However, that requirement has been done away with by virtue of the judgment rendered by the Apex Court. The reasoning of the learned Tribunal in dismissing the appeal does not exist.

  The matter is remitted to the learned CESTAT for hearing the appeal on merits - Petition allowed by way of remand.

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• 2021 (2) TMI 921
  

  Refund of IGST - refund has been declined for the reason that the writ applicant had availed drawback at the rate of 1.10% - It is the case of the writ applicant that it has claimed lower rate of drawback in accordance with the Notification No.131/2016 dated 31st October 2016 - HELD THAT:- The writ-applications is disposed off with a direction to the respondent No.1 to immediately look into the matters and pass an appropriate order in accordance with law as regards the claim of the IGST refund keeping in mind the ratio of the decisions of this Court rendered in the case of M/s. Amit Cotton Industries (supra) as well as AWADKRUPA PLASTOMECH PVT. LTD. VERSUS UNION OF INDIA [2020 (12) TMI 1116 - GUJARAT HIGH COURT] - Let this exercise be completed within a period of six weeks from the date of receipt of the writ of this order. One copy of this order shall be furnished to Mr. Ankit Shah, the learned Senior Standing Counsel appearing for the respondents for its onward communication. One copy of this order shall also be furnished to Ms. Sancheti, the learned counsel appearing for the writ applicant.

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• 2021 (2) TMI 920
  

  Seeking provisional release of goods - stand of the petitioner is that they have already been mutilated and that therefore, their import is free - HELD THAT:- When the petitioner is entitled to call upon the customs authority to mutilate the goods and clear them thereafter and when the petitioner has not invoked his right under Section 110 of the Customs Act, 1962, the third respondent could not have passed the impugned order. In this view of the matter, the impugned order is quashed. The respondents are directed to permit the petitioner to have the goods mutilated at the cost of the petitioner, but under the supervision of the third respondent. As agreed by the petitioner, the goods of mutilation will be included in FOB. The entire exercise will be concluded within a period of three weeks from the date of receipt of a copy of this order. The petitioner has to comply with the other formalities and the respondents will also facilitate the implementation of this order.

  Petition allowed - decided in favor of petitioner.

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• 2021 (2) TMI 919
  

  Service of relied on documents - Levy of penalty under Section 114(iii) and 114AA of the Customs Act, 1962 - principles of natural justice - HELD THAT:- In the impugned order, though it is admitted that the reply was received in response to the show cause notice from the petitioner, this contention as regards the non-supply of the relied on documents was not dealt with or controverted - Nothing stopped the adjudicating authority from averring in the impugned order that the contention taken by the noticee/petitioner herein was false. He could have also furnished proof of having served the documents in question on the petitioner. Such an averment or finding is totally absent in the impugned order.

  The petitioner's counsel also drew my attention to yet another aspect. At page No.85 of the typed set of papers, the Speed Post cover in which the show cause notice was sent has been enclosed. It is seen therefrom that the said show cause notice was despatched on 26.02.2020. It is seen in the postal endorsement that the weight of the contents was 110 gms. and 50 Rupees stamp was affixed on the cover. The show cause notice runs to 36 pages. It is stated by the petitioner's counsel that the weight of the show cause notice alone would come to 110 gms. If all the 24 documents had been enclosed, the weight would have been much higher and that would have been reflected in the stamp value also. I find this circumstance to be quite interesting and indicative of the truth of the version projected by the petitioner herein.

  Thus, the writ petitioner was not served with copies of the documents relied upon by the department both in the show cause notice as well as in the impugned order - petition allowed - decided in favor of petitioner.

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• 2021 (2) TMI 918
  

  Seeking to initiate the proceedings in time bound manner - seeking direction directing respondent no.6 to remove the Import Export Code placed under the Denied Entity List of Directorate General of Foreign Trade - HELD THAT:- This writ-application is disposed off with a direction to the Joint Director General, DGGI, Zonal Unit Ahmedabad, Ahmedabad to immediately look into the representation dated 26th September 2020; Annexure-J; Page-46 to this writ-application and take an appropriate decision in accordance with law with a period of four weeks from the date of the receipt of this order. We also direct the Joint Director General of Foreign Trade, Surat to look into the representation dated 5^th November, 2020 at Annexure-Q; Page-68 and take an appropriate decision in accordance with law with a period of four weeks from the date of the receipt of this order.

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• 2021 (2) TMI 917
  

  Provisional attachment of the bank account of the petitioner - Section 83 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- We are left with the situation where till date no notice has been issued under sub-Section (1) of Section 74.

  In the circumstances, this petition is allowed and impugned order attaching the bank accounts is set aside. It is, however, clarified that the revenue would be at liberty to take appropriate steps after initiating the proceedings in accordance with law.

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• 2021 (2) TMI 916
  

  Dishonor of Cheque - honourable acquittal - full exoneration - conviction of the respondent u/s 138 of the Negotiable Instruments Act - claim for backwages - HELD THAT:- It has been averred in the complaint before the Labour Court that during the period of his conviction and acquittal, the respondent was not gainfully employed. The fact of acquittal of the respondent by this Court, was made aware to the petitioner, in March, 2011 itself, which is indicated from the application for amendment filed before the Labour Court (Annexure-B/pg.13), pursuant to which the petitioner, ought to have reinstated the respondent in service, in March, 2011 itself, since the reason for his termination, did not survive and could have availed the benefit of the services of the respondent till the time of his superannuation. The petitioner, for reasons, best known to it, did not do so and forced the respondent to continue with the litigation before the Labour Court, which resulted in the direction for his reinstatement with continuity in services and 50% back wages. Not only this, the petitioner, challenged the said judgment before the Industrial Court by way of a revision during which period, the respondent retired having crossed the age of superannuation. In spite of the dismissal of the revision, as filed by the petitioner, and stay to the effect, operation and execution of the orders passed by the subordinate Courts, except to the extent of the direction to pay 50% back wages, being declined, and a direction to process the claim of the respondent for other retiral benefits, the order dated 11/9/2015, records that this has not been done. This conduct, on part of the petitioner clearly defies logic.

  In Baldev Singh Vs. Union of India and others, [2005 (10) TMI 600 - SUPREME COURT], relied upon by Mr. Mehadia, learned Counsel for the petitioner, the Hon'ble Apex Court has held that merely because there has been an acquittal, it does not automatically entitle the employee to get salary for the period concerned. Thus, the award of 50% back wages, to the respondent, in light of the above position of law, is not sustainable. However, the claim for back wages from the date of acquittal till the date of superannuation, is clearly sustainable in law.

  The impugned judgement is modified as follows:

  (A) The direction as passed by the learned Labour Court for reinstatement of the respondent with continuity of service is maintained.

  (B) The direction as passed by the learned Labour Court to pay 50% back wages is hereby set aside.

  (C) The petitioner is directed to pay full back wages to the respondent from the date of acquittal, i.e., from 22/2/2011 to the date of superannuation.

  (D) All the above payments should be made within three months from the date of this order, subject to adjustments of any amounts which may have been received by the respondent earlier.

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