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Showing 461 to 480 of 1589 Records
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2022 (7) TMI 1130
Assessment u/s 153C - Genuineness of job work charges - HELD THAT:- As on appraisal of the facts carried out in the case of the recipient, has rendered a favourable finding. Hence, the basis for additions made in the hands of the assessee and later modified by the CIT(A) is inconsistent with the order of Co-ordinate Bench and thus cannot be countenanced. The additions were made by the AO to the extent of the job work receipt billed to Orient Craft Ltd. which were reduced to 5% thereof by the CIT(A). Hence, no case was made out on the nature of expenses incurred by the assessee herein. Consequently, the plea of the Revenue for restoration of the matter to the Assessing Officer for examination of corresponding expenses does not emanate from the assessment order and therefore cannot be entertained.
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2022 (7) TMI 1129
Jurisdiction - power of DRI to issue SCN - When jurisdictional High Court judgments are available upholding the competency of the DRI to issue show cause notice under Section 28 of the Customs Act 1962, whether the CESTAT is correct in remanding the appeal? - Power of Tribunal to remand the case without deciding the issues raised therein on the ground that jurisdiction of the officer to issue show cause notice is under dispute - HELD THAT:- Reliance placed in the case of THE COMMISSIONER OF CUSTOMS VERSUS SHRI SANKET PRAFUL TOLIA [2021 (6) TMI 432 - MADRAS HIGH COURT]where it was held that In the case of the Commissioner of COMMISSIONER OF CUSTOMS, TUTICORIN VERSUS CESTAT, CHENNAI, M/S. SRI RAJENDRA MANSUKHLAL SHAH, SHRI. MOHAMMED AZAM, M/S. VISAL TRIBOTECH (P) LTD., SHRI. R. PARRIVALLAL AND M/S. SHRI. TARUN SALOT [2019 (12) TMI 249 - MADRAS HIGH COURT] a Division Bench of this Court, to which one of us (T.S.SIVAGNANAM, J.) was a party, had an occasion to test the correctness of an identical order passed by the Tribunal and by a common Judgment, dated 04.10.2019, set aside the order of the Tribunal and restored the appeals to the file of the Tribunal to be kept pending and await the decision of the Honourable Supreme Court.
Following the latest decision in Sanket Praful Tolia's case, which is squarely covered by the issues involved herein, these Civil Miscellaneous Appeals are allowed by setting aside the order impugned herein and the matters are remanded to the Tribunal with a direction to keep the same pending and await the decision of the Hon'ble Supreme Court in the appeals filed against the decision in UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER].
Appeal disposed off.
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2022 (7) TMI 1128
Demand of 1% Extra Duty Deposit - import of Silicon Electrical Steel of Cold Rolled Full Hard (unannealed) - appellant argued that the impugned order is non-speaking and passed without application of mind - Circular No.11/2001-Cus - HELD THAT:- In terms of the decision of the Hon’ble High Court of Madras in COMMISSIONER OF CUSTOMS (EXPORTS) CUSTOM HOUSE VERSUS M/S. SAYONARA EXPORTS PVT. LTD., CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL [2015 (3) TMI 861 - MADRAS HIGH COURT], the appellants would be entitle to automatic refund of EDD without filing of application for refund under Section 27 of the Customs Act, 1962. The Hon’ble High Court held that there is no need to file any refund application and the order for refund can be made suo moto.
The appellant was not even required to file refund claim and EDD should have been refunded without filing of refund claim. In this circumstances, if and when the refund claim was filed by the appellant cannot be treated as barred by limitation - Appeal allowed.
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2022 (7) TMI 1127
Valuation of imported goods - loading of the value on the bill of entries filed by the appellant without issuance of re-assessment order in terms of Section 17 (5) of the Customs Act, 1962 - no speaking order as provided by Section 17 (5) of the Customs Act, 1962 was issued to the appellants - HELD THAT:- Admittedly in this case the value of the goods as declared by the Appellants at the time of filing the Bill of Entry has been enhanced by the assessing officer. However no order under Section 17 (5) of Customs Act, 1962 has been passed by the assessing officer - In terms of the Section 17 (5) of the Custom Act, 1962 as it existed at the material time, it was mandatory for the proper officer to issue a speaking order on the reassessment except in the cases where the importer/ exporter confirms his acceptance of the re assessment in writing. It is the submission of the appellant that they had never accepted the said re-assessment order in writing.
Plain reading of the Section 17 (5) show that acceptance of re-assessment made has to be in writing, which means that re- assessment order needs to be accepted positively by the importer and it cannot be derived in an implied manner that re- assessment order has been accepted. In absence of the written acceptance by the importer/ exporter, this section mandatorily provides that proper officer has to issue the speaking order for the re-assessment done within fifteen days of such re- assessment - there are no merits in the said findings recorded by the Commissioner (Appeal).
The documents relied upon by the Commissioner (Appeal) were never made available to appellant for replying to the same either by Commissioner (Appeal) or the assessing officer. Thus the impugned order has been passed contrary to the settled principles of natural justice and has no legs to stand on - the matter needs to be remitted back to the Commissioner (Appeal) for reconsideration of the entire issue after making available to the appellants all the documents and communications that revenue wishes to rely upon and hearing the appellants on the same.
Appeal allowed by way of remand.
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2022 (7) TMI 1126
Valuation - import of betel nuts made by the Appellant - rejection of transaction value - redetermination of value under Rule 5 of the Customs (Determination of Value of Imported Goods) Rules 2007 - evidences of contemporaneous import - HELD THAT:- The Adjudicating Authority, by Order-in-Original rejected the transaction value under Rule 12 (1) of the Custom (Determination of Value of Imported Goods) Rules 2007 and re-determined the same under Rule 5, after discussing non-adoptability of valuation under Rule 4 of the Customs Valuation Rules 2007, finding contemporaneous imports during more or less same period on higher value. Appeal against the Order passed by the Original Authority was dismissed, without modifying the original order.
Betel nut being an agricultural product, similarity and identical nature of goods can be ascertained only by quality assessment, as the price of betel nuts are largely depended on grade, quality, time of yield, age of the product, level of processing, time of import etc.. Even though Revenue has placed reliance on betel nuts imported through the ports of Chennai and Nhava Sheva, no quality test report is available on records. Even the Betel nuts imported by the Appellants are not tested to ascertain its grade and quality. In the absence of any quality assessment test reports, the contemporaneous nature of goods cannot be ascertained. NIDB data and the documents relied upon by the Department are not made available to the Tribunal and the same is not seen part of the Order-in-Original. Therefore, there is no clarity and specificity on the probative value of the documents on which reliance is placed by the Department in support of its allegation of under-valuation.
In the present case, Department has rejected transaction value under Rule 12 (1) and re-determined under Rule 5 of the Customs (Determination of Value of Imported Goods) 2007, finding that there are contemporaneous imports through the ports at Chennai and Nhava Sheva on higher transaction value. Rules are very clear to the extent that, in order to invoke Rule 5, evidences of similar goods at the same commercial level and in substantially the same quantities, as the goods being valued are required and in the absence of the later, conditions contemplated under Sub Rule (1) ( c) of Rule 4 has to be followed. In so far as the present case is concerned no evidences are available on records to prove that the relied upon contemporaneous imports through Chennai and Nhava Sheva were similar goods at the same commercial level and in substantially the same quantities - In the absence of any evidence, the Order in Original as well as Order in Appeal failed to meet the necessities mandated under Rule 5 of the Customs Valuation Rules 2007.
In view of the non-availability of evidence of identical or similar goods of same quantity and at same commercial level, the suspicion casted by the Original Authority, leading to the rejection of transaction value is also incorrect. Therefore rejection of transaction value, even at the first place, is misplaced.
In the instant case, Revenue has not come with any evidence, either in the nature of any reports or documents to meet the standards prescribed under Rule 5 - the identical nature of the goods, compared in this case, are not proved in the manner established under law and therefore applicability of this rule and sub rule mutatis mutandis to Rule 5 also fails.
Appeal allowed.
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2022 (7) TMI 1125
Seeking grant of Bail - acts of misappropriation of huge sums of money by Bhushan Steel Ltd. and Bhushan Energy Ltd. - case of applicant is that the main accused Nitin Johri and Neeraj Singhal have been granted bail, therefore, the applicant also needs to be enlarged on bail - HELD THAT:- As regards the legal embargo of Section 212(6), Sub-section-(i) has duly been complied with, as the Public Prosecutor (Ld. CGSC) has been given a chance to oppose the bail application.
The Applicant is not guilty of the offence of which he is charged with, and therefore, it is opined, that he is not likely to commit any further offence while on bail. Hence, sub-section (ii) of Section 212(6) is also complied with.
The Applicant is enlarged on bail on the following terms and conditions:
i. The applicant shall furnish a personal bond with two local sureties in the sum of Rs. 25,000/- each, to the satisfaction of the Trial Court;
ii. He shall appear before the Court as and when directed;
iii. In case he changes his address, he will inform the IO concerned and this Court also;
Application disposed off.
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2022 (7) TMI 1124
Validity of order whereby application for initiation of CIRP was accepted - subsequent withdrawal of application - appellant submits that when both the Operational Creditor and Corporate Debtor has entered into Settlement and entire operational debt of Rs. 28,07,764/- was paid on 04th June, 2022, Form FA was submitted to the IRP on 08th June, 2022 and payment of entire fee and expenses of the IRP of Rs. 11,89,657/- having been paid on 10th June, 2022 through Demand Draft dated 10th June, 2022, IRP deliberately delayed in filing of the withdrawal Application to defeat the Settlement.
HELD THAT:- It is satisfying that the fact that between the period 01.11.2021 to 31.12.2021 payment of Rs. 40 Lakhs have been made by the Corporate Debtor to the Operational Creditor and Operational Creditor is continuing with the business relation, ought to have been taken into consideration by the Adjudicating Authority which fact clearly indicated that the Corporate Debtor is not insolvent.
In any view of the matter, the Adjudicating Authority ought to have referred to directions of the Hon’ble Supreme Court which directions permitted continuance of the project to secure the interest of the home-buyers and to ensure that home-buyers should get the flats. The Adjudicating Authority ought to have adverted to the said factors before proceeding to admit the Section 9 Application for an amount of Rs. 28,07,764/- which was the Operational Debt. The Order passed by the Adjudicating Authority admitting the Section 9 Application cannot be sustained.
Settlement between the Corporate Debtor and the Operational Creditor - HELD THAT:- The fact is not disputed that on 04th June, 2022, Operational Creditor and Corporate Debtor entered into Settlement and paid Operational Debt of Rs. 28,07,764/- through the Demand Draft to the Operational Creditor and Form FA was also handed over to the IRP on 08th June, 2022 by the Operational Creditor for filing an Application for withdrawal of Section 9 Application. On 08th June, 2022, IRP had informed his fee of Rs. 6 Lakhs and expenses of Rs. 5,89,657/- which was also paid through the Demand Draft dated 10th June, 2022. Suspended Directors of the Corporate Debtor having realized that IRP might delay in filing the Application, an Application under Rule 11 of NCLT Rules, 2016 was filed by the Suspended Directors of the Corporate Debtor which Application was also signed by the Corporate Debtor praying for withdrawal of the said Application.
At the time of enactment of Insolvency and Bankruptcy Code, 2016, there was no provision akin to Section 12A it was only after the observations were made by the Hon’ble Supreme Court of India in the matter of SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] that Insolvency Application can be permitted to be withdrawn, Section 12A was inserted in the Code.
The object and purpose of the IBC is the resolution of the Corporate Debtor and in the facts of the present case when in a Real Estate Project, Operational Creditor had filed the Application for amount of Rs. 28,07,764/- which amount was paid, what was the interest of the IRP to proceed with the constitution of CoC and proceed with the CIRP has not been explained. IRP wanted to continue with the CIRP even after Corporate Debtor and Operational Creditor has settled and Application is filed for withdrawal of the CIRP. We do not find the conduct of the IRP in consonance with the scheme of the Code. Present is the case where Insolvency and Bankruptcy Board of India may look into the matter and examine the conduct of the IRP.
This Appeal deserves to be allowed.
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2022 (7) TMI 1123
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The defense raised by the Corporate Debtor is moonshine defense in response to the Demand Notice dated 04.07.2019 to shy away from the liability - this Bench is of the considered opinion that there is no dispute regarding the fact that Corporate Debtor owes money to the Financial Creditor - The Corporate Debtor while replying to the demand notice has not brought to light any pre-existing dispute as required under the Code.
The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Petition admitted - Moratorium declared.
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2022 (7) TMI 1122
Fraudulent transactions - an amount of Rs.72.45 crores has been identified as fraudulent transactions under section 66 of the IBC, 2016 - HELD THAT:- It appears that the respondents have sold out the fixed assets without passing it through the books of account. The Respondents have not provided any books of account, list of debtors and their outstanding balances - the whole story has been concocted by the suspended directors of the Corporate Debtor and the same is unbelievable and the liquidator is right in moving this application and claiming the relief as prayed in the present case.
There has been due and independent application of mind by resolution professionals besides the transaction audit report while filing this application and thus prayer of the Resolution Professional must be allowed - the Respondents No.1 and 2 are directed to jointly and/or severely pay a sum of Rs. 72.45 Crores on account of payments made to the related parties from the account of the Corporate Debtor - application disposed off.
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2022 (7) TMI 1121
Validity of order of CIRP obtained - allegation of fraud on the part of Financial Creditor (FC) - it is submitted that order of admission was obtained on the basis of fraudulent and manufactured documents for a fictitious and imaginary transaction in collusion with unknown third parties claiming to represent the Corporate Debtor without any authority, who fraudulently admitted liability though there was none - HELD THAT:- It is very strange that the Financial Creditor and the Corporate Debtor had obtained orders of CIRP fraudulently and in complicity with each other by filing a collusive petition and later on settled the matter by payment of Rs.30 Lacs, which cheques although were given on behalf of the Corporate Debtor by some unknown person and are stated to have not been encashed by the Financial Creditor. Both the parties have given a somewhat shady picture which does not bring out a real truth in this matter. This matter needs to be further investigated.
The entire transaction as narrated in the Section 7 application is plainly imaginary, concocted and fraudulent. The CD does not appear to have had any genuine liability towards the alleged FC and the entire documentation has evidently been prepared by the alleged FC in collusion with Videocon Group entities. The alleged documents disclosed in the Supplementary Affidavit of the alleged FC, far from helping its case, further demonstrate the fraudulent nature of the documents - the alleged FC is guilty of practicing and committing fraud on this Tribunal and therefore, as per Section 65 of the Code, penalty of Rs.50 lakh is imposed on the alleged FC and the CIRP stands vitiated and terminated due to the fraud committed. In any event, even apart from the aspect of fraud, the Section 7 petition was not maintainable due to the prohibition in Section 10A of the Code.
Application disposed off.
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2022 (7) TMI 1120
Validity of Show Cause Notice (SCN) - service tax is leviable on royalty paid on mining operations or not - HELD THAT:- There are no need to entertain the Special Leave Petition under Article 136 of the Constitution of India.
SLP dismissed.
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2022 (7) TMI 1119
Rejection of declaration filed by petitioner under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 - rejection has been made by passing a very cryptic order without spelling out the reason - opportunity of hearing also not provided - violation of principles of natural justice - HELD THAT:- Reliance placed in the MAGNUM MANAGEMENT AND SERVICES P. LTD. VERSUS UNION OF INDIA & ORS. [2021 (3) TMI 136 - BOMBAY HIGH COURT], where it was held that the petitioner ought to have been given a personal hearing before his declaration was rejected.
The order is set aside with a direction to respondents to reconsider petitioner’s declaration and pass order as it deemed fit but after offering an opportunity of a personal hearing to petitioner. The notice for personal hearing shall be given atleast 7 days in advance. The order shall be a reasoned order, if respondents are not willing to accept petitioner’s explanation.
Petition disposed off.
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2022 (7) TMI 1118
Rejection of Form SVLDRS-1 - rejection of petitioner’s declaration on the ground that as per final audit report dated 7th November 2019 the amount of tax dues was not quantified before 30th June 2019 - HELD THAT:- To see whether the duty demand was quantified on or before 30th June 2019, let us examine the audit report which was released to petitioner on 9th October 2019. In the audit report the dates on which audit was undertaken is given as 29th March 2019 and 1st April 2019. Though the audit was completed on these two dates the Monitoring Committee held its meeting on 8th July 2019 and the Monitoring Committee issued Minutes of the Meeting on 16th July 2019. This date of 16th July 2019 is what has been relied upon in the impugned rejection letter. First of all, we are unable to accept that the date on which the audit committee decides to have its meeting and issue Minutes of the Meeting can ever be stated to be the date on which the amount was quantified. Generally, the same members of the audit committee may have to carry out audit of various other declarants and it would be impossible for them to prepare Minutes of the Meeting over night. This is one of the reason the circular dated 27th August 2019 has been issued where it says that ‘during the enquiry or audit the liability is admitted by the person in the audit report’.
As could be seen from the four audit objections mentioned above, the declarant has admitted the duty liability under each head. Since the audit was conducted on 29th March 2019 and 1st April 2019, these would be the dates on which the amount of duty has been quantified. Therefore, the amount of duty has been quantified on or before 30th June 2019.
Therefore, draft of the Minutes of the Managing Committee has been prepared by June 2019 itself and hence it can be safely concluded that though there was audit, amount of duty quantified also has been quantified before 30th June 2019. In our view, therefore, rejection of petitioner’s declaration on the ground that final audit report is issued after 30th June 2019 is incorrect.
Respondents are directed to reconsider the declaration filed by petitioner and issue necessary discharge certificate in Form SVLDRS in accordance with law - petition allowed.
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2022 (7) TMI 1117
CENVAT Credit - Short payment of Service Tax - Transport of Goods by road - Business Auxiliary Services - Renting of immovable property services - rent received from their clients by way of reimbursement - extended period of limitation - penalty u/s 78 of FA - HELD THAT:- It is an admitted fact that the appellant have received the rent for the use of the said premises from their clients, by way of reimbursement, whose goods are stored and transported by the appellant. Further, the admitted fact is that the appellant have paid input tax on the rent for the use of the godown of M/s. Excellent Packaging, which is also a registered assessee. Further, the admitted fact is that the appellant have duly accounted for all the receipts in the books of accounts maintained in the ordinary course. The issue appears to be wholly interpretational in nature, as it appeared to the appellant that they have received lesser rent than the rent paid by them for the same godown and accordingly, they are not liable to pay service tax.
CENVAT Credit - HELD THAT:- The denial of input cenvat credit for the rent paid by the appellant to M/s.Excellent Packaging is erroneous and against the provisions of law - the appellant is entitled to cenvat credit for the rent paid by them to M/s. Excellent Packaging for hiring of the godown as the same is input service for them. They have also received the rent from their clients by way of providing output service for the same premises, which is held to be taxable.
Penalty under Section 78 of FA - HELD THAT:- The penalty under Section 78 is reduced to Rs.10,000/-.
The matter to the Adjudicating Authority for the limited purpose of re-calculating the tax liability, after taking into consideration the input cenvat credit available to the appellant for the rent paid as well as any other input service received by them, in accordance with law - Appeal allowed by way of remand.
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2022 (7) TMI 1116
Continuation of proceedings after death or adjudication as an insolvent of a party to the appeal or application - HELD THAT:- Till date there are no application being filed in the matter for continuation of the proceedings by the successor-ininterest.
Sufficient time has been allowed for the successor-in-interest to file an application for continuation of proceedings in this case. In absence of any such application by the operation of Rule 22 of the CESTAT (Procedure) Rules, these appeals abate.
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2022 (7) TMI 1115
Service of notice beyond time limitation - whether the order in Annexure E is vitiated for any commission or omission by the Deputy Commissioner in making the order dated 30.09.2016 in Annexure E? - suo motu revision under Section 35 is properly exercised and decided by the Deputy Commissioner or not - HELD THAT:- The argument on service of notice and that the revision is beyond the period of limitation prima facie appears to be both unavailable to the dealer and untenable in view of the earlier round of litigation. The Deputy Commissioner was directed by the Supreme Court to give one more opportunity to the dealer and finalize the assessment. The Deputy Commissioner accorded opportunity, and from the order in Annexure E, it is equally evident that the dealer filed a reply. The reply is considered by the Deputy Commissioner, resulting in order in Annexure E. What is under challenge before the Tribunal or what is the consideration is the order in Annexure E.
Whether the exercise of suo motu revision by the Deputy Commissioner is correct and whether the order made thereon is sustainable? - HELD THAT:- The Tribunal has given a finding that when fresh assessment proceedings are initiated, the appellant would get a reasonable opportunity of being heard. The appellant would be at liberty to file all objections before the assessing authority and establish the appellant's case that the penalty proceedings cannot be relied upon. In the above circumstances, we find no reason to interfere with the order of the Deputy Commissioner under Section 35 - The dealer did not demonstrate an infirmity in the above-said finding.
Revision dismissed.
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2022 (7) TMI 1114
Dishonor of Cheque - Funds Insufficient - discharge of legally enforceable debt or not - presumption in favour of the holder of the cheque - rebuttal of presumption - acquittal of the accused - HELD THAT:- In the present case, the complainant has been unable to establish his financial capacity to advance such a huge loan to the respondent/accused. In fact, he has categorically admitted that he did not possess any documents to establish the alleged transaction. This becomes even more glaring because the appellant is an educated person being an advocate. Further, the complainant has not been able to establish a close friendly relationship with the accused; he did not know the name of the wife of the accused, the details of his other family members or the residential address of the accused. It does not stand to reason that a person would advance a loan of Rs.15 lakhs to a virtually unknown person whose residential address is also not to his knowledge. Interestingly, he has not mentioned any specific date of the issuance of the friendly loan either in the examination-in-chief or in the body of the complaint. He has further been discrepant about when the cheque had been issued to him i.e. either at the time he had advanced the loan or 05 months thereafter, when he had sought the return of the said amount. A perusal of the cheque would also reveal that the signatures of the accused have been affixed with green ink while the particulars of the cheque have been filled with blank ink. This fact also remained unexplained by the accused.
With respect to the involvement of Gurpartap Singh Wadal, it may be pertinent to mention here that the complainant himself had very close friendly relations with the said person, though he has tried to explain during his cross-examination that the relationship with the accused developed through the above-said Gurpartap Singh Wadala. Strangely, this fact too has not been mentioned in the complaint.
The accused-respondent has been able to rebut the presumption of there being a legally enforceable debt - thus, the respondent accused has been able to rebut the presumption that the cheque was issued in the discharge of a legally enforceable debt and the view taken by the Trial Court while acquitting the accused is a reasonable view based on the evidence on the record and cannot be said to be perverse and as such is not required to be interfered with.
The leave to appeal is hereby dismissed.
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2022 (7) TMI 1113
Dishonor of Cheque - compounding of the case - acquittal of the accused - framing of charges - Section 147 of the Negotiable Instruments Act - HELD THAT:- Section 138 of the Negotiable Instruments Act empowers the Court to award compensation in favour of complainant, which may extend to twice to amount of cheque. The maximum compensation has already been awarded by the trial Court. Therefore, the respondent stands adequately compensated in the matter.
So far as imprisonment is concerned, in case of compounding the accused/petitioner is to be acquitted and in view of provision of Section 147 of the Negotiable Instruments Act, present case is compounded and complaint arising out of dishonor of cheque, under Section 138 of the Negotiable Instruments Act, is treated to be withdrawn and judgments of conviction and sentence passed by the Courts below are quashed and set aside. Petitioner-accused is acquitted of the accusation framed against him.
Learned counsel for the petitioner submits that considering the ratio of law laid down by the Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT] as clarified by the Apex Court in MADHYA PRADESH STATE LEGAL SERVICES AUTHORITY VERSUS PRATEEK JAIN & ANOTHER [2014 (10) TMI 528 - SUPREME COURT], a lenient view be taken and the petitioner be exempted from payment of compounding fee.
After depositing compounding fee, petitioner shall place a copy of receipt of deposit of compounding fee on record of this petition. In case of default in depositing compounding fee/cost with the H.P. State Legal Service Authority, Shimla within four weeks from today, the consequential action shall follow to recover the said amount as fine under Cr.P.C. - Petition stands disposed of.
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2022 (7) TMI 1112
Dishonor of Cheque - Insufficient Balance - offences by companies - Vicaricious liability - offence against the petitioner in an individual capacity - Section 141 of Negotiable Instrument Act, 1881 - HELD THAT:- The provisions of Section 141 of Negotiable Instrument Act, 1881 are concerned with the offences by the company. It makes the other person vicariously liable for commission of an offence on the part of the company. The vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Negotiable Instrument Act stands satisfied. 'Company' means anybody corporate and includes a firm or other association of individuals.
It is also clear as crystal that if a person who commits an offence under Section 138 of the Negotiable Instrument Act is a company, the company as well as other persons in charge of, are responsible to the company for the conduct of the business of the company at the time of commission of the offence shall be deemed to be guilty of the offence - In the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT], it has been held that "when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof."
In the present complaint, there are averments that the petitioner/accused gave an account payee cheque bearing cheque No.909210 of Account No.34170258215 for Rs.11 lacs to the complainant on 15/09/2019. In this case there are no averments in the complaint that the petitioner-accused signed the cheque in the capacity of the director or the person in charge of the affairs of the firm or that the transaction was with the firm. The complaint has been filed without any reference to the firm. The factum that the applicant-accused signed the cheque in the capacity of the director or the person in charge of the affairs of the firm or that the transaction was with the firm can be determined during the stage of trial otherwise also invoking the powers under the provisions of Section 319 of Cr.P.C. the Court can array the firm as an accused in the course of trial.
It is well settled that while exercising Inherent jurisdiction u/s 482 or Revision jurisdiction u/s 379 of The Code of Criminal Procedure where complaint is sought to be quashed, it is not proper for the High Court to consider the defense of the accused or embark upon an inquiry in respect of merits of the accusation.
The present petition is hereby dismissed.
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2022 (7) TMI 1111
Dishonor of Cheque - rebuttal of fresh evidence to rebut the reasons given in the judgment by the trial court and for just adjudication of the appeal filed by the Petitioner - opportunity to rebut preponderance of presumption of a liability in a complaint filed under section 138 of the Negotiable Instruments Act, 1888 - HELD THAT:- The object of judicial administration is to secure ends of justice. The courts exist for rendering justice to the people. Chapter XXIX of the Code deals with “Appeals”. Section 391 of the Code empowers the Appellate Court to take further evidence or direct it to be taken.
The relevant words incorporated in section 391(1) are “if it thinks additional evidence to be necessary” which implies necessary for deciding the appeal to secure ends of justice and there are no fetters on the power under Section 391 of the Code. The legislative intent in enacting Section 391 is to empower the appellate court to see that justice is done and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in allowing further evidence under Section 391. But such power must be exercised only in suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice.
The Supreme Court again in Rambhau and another V State of Maharashtra, [2001 (4) TMI 937 - SUPREME COURT] had noted the power of the Appellate Court under section 391 of the Code and observed that there is available a very wide discretion in the matter of obtaining additional evidence in terms of section 391 of the Code. However additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused.
The petitioner wants to file contain documents to establish monetary transactions in regard to a chit fund between him and the respondent no 2. The trial court in final judgment did not believe the defence of the petitioner that cheque was given to the uncle of the respondent no 2 by giving detailed reasons. The appellate court in impugned judgment also observed that the documents are hand written notes and not signed by anyone and the appellant would not be able to prove handing over the cheque in question in the year 2004 to the respondent no 2 on the strength of these unsigned documents. The appellate court by giving appropriate reasoning rightly disallowed prayer of the petitioner to place these documents as additional evidence.
The petitioner also did not put forward cogent reasons for placing documents pertaining to his catering business. The nature of business being carried by the appellant does not have any relevance in context of present dispute between the respondent no 2 and the petitioner. The appellate court rightly observed that surety bond sought to be proved would only show that the respondent no 2 was aware about catering business of the petitioner and ITR of the petitioner does not appear to be relevant.
The documents sought to be produced on record as additional evidence are not necessary to pronounce judgment and there would not be failure of justice if these documents are not allowed as additional documents. If the application under section 391 of the Code is allowed it would result in retrial of the case. The petitioner initiated legal proceedings for filing additional evidence at much belated stage with intention to delay final disposal of appeal. The appellant has not filed these documents at the earliest point of time. The petitioner was aware of these documents and in possession of these documents when the respondent no 2 filed the complaint under section 138 of the Negotiable Instruments Act, 1888 - The application under section 391 of the Code is after thought and is filed to protract the appeal and fill up lacunae and for extraneous circumstances. The decision of the trial court would not be changed even if the these documents are received as additional evidence and taken into consideration as the trial considered the defence of the petitioner in detail and not accepted by giving detailed and cogent reasons.
The appellate court rightly dismissed the application under section 391 of the Code by considering every legal and factual position and appropriately observed that application have been moved only to delay the disposal of the appeal. There is no legal or factual infirmity in the impugned order which cannot be interfered - Petition dismissed.
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