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Showing 501 to 520 of 1740 Records
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2024 (9) TMI 1242
Dishonour of Cheque - petitioner was not the Director of the Company when the loan was taken - vicarious liability of the petitioner - HELD THAT:- The criminal complaint has been filed under Section 138 read with Section 141 of the NI Act. The petitioner has been impleaded in the capacity of Director of the accused company. The present petition is accompanied by Form No. DIR-11 and DIR-12. The said documents i.e. DIR-11 and DIR-12 indicate that the petitioner was appointed as an Additional Independent Non-Executive Director on 26.02.2020 and that he resigned on 08.12.2021.
The issue whether requisite allegations are to be made against Directors and more particularly against the Directors who are Additional Independent Non-Executive, has come up before the Supreme Court in a catena of decisions. In POOJA RAVINDER DEVIDASANI VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (12) TMI 1070 - SUPREME COURT] the Supreme Court, while following the ratio of the decision in NATIONAL SMALL INDUSTRIES CORPN. LTD. VERSUS HARMEET SINGH PAINTAL [2010 (2) TMI 590 - SUPREME COURT] made the observations with regard to fastening vicarious liability on Directors who are not in charge of day-to-day affairs of the company.
Coming to the facts of the present case, a reading of the complaint would show that the same is bereft of any specific allegations as to how being an Additional Independent Non-Executive Director, the petitioner (arrayed as accused No.4 in the complaint) was incharge of day-to-day affairs and conduct of the business of the accused company. The complaint itself is accompanied by the Master Data of the company, which did not reflect the name of the petitioner as a Director. Even if the Annual Report for the Financial Year 2020-21 of respondent No. 3 is to be considered, it brings to the notice the fact that during all the Nine (9) Board Meetings held during the Financial Year 2020-21 and of the Annual General Meeting held on 31.12.2020, none of it were attended by the petitioner which goes to show that he was not involved in day-to-day affairs of the accused Company.
Thus, it is the conceded case of the complainant that the petitioner was not the Director on the relevant date. The case of the petitioner squarely falls in the ratio of the aforenoted binding precedents. In the totality of the facts and circumstances, the petitioner cannot be made responsible for the dishonour of cheques, and the continuation of the criminal complaint against him would be nothing but an abuse of the process of law.
The criminal complaint filed against the petitioner is quashed - Petition allowed.
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2024 (9) TMI 1241
Dishonour of Cheque - liability of petitioner and legality of proceedings against him - HELD THAT:- Admittedly the petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question and therefore proceedings initiated under Section 138 of the Negotiable Instruments Act against the petitioners are nothing but sheer abuse of process of the Court and while passing the order of issuance of process against the petitioners, the learned Court concerned has committed an error, which warrants interference by this Court.
It is also pertinent to note that respondent No.2 and his wife have also filed one suit before the concerned Court against the present petitioners and others and in the said suit original accused Nos. 1 to 8 are not impleaded as party and no relief is sought against them. It is not in dispute that original accused No.6 is the authorized signatory of accused No.1 - partnership firm i.e. Shri Siddhivinayak Associates and accused nos. 2 to 8 are the partners of the said partnership firm.
If the allegations levelled against the petitioners in the complaints filed under Section 138 of the Negotiable Instruments Act are taken at its face value and accepted in their entirety, they do not constitute the offence alleged, insofar as the present petitioners are concerned. It is well settled that when the instrument is signed by the authorized signatory of a partnership firm, the prosecution under Section 138 of the Negotiable Instruments Act can be instituted against the persons, who were in-charge and responsible for the conduct of the business of the partnership firm at the relevant time when the offence was committed - without going into the further details of the matter, only on the ground that petitioners are neither the partners of the partnership firm nor the signatories of the instruments in question, the present petitions are required to be allowed.
The proceedings pending in the Court of Additional Chief Judicial Magistrate, Ahmedabad (Rural) are quashed qua the petitioners - Petition allowed.
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2024 (9) TMI 1240
Dishonour of Cheque - security cheques - seeking quashing of the Summoning Order - HELD THAT:- From the bare perusal of the Complaint under Section 138 of NI Act, 1881 and the submissions made by the petitioner in the present petition, it is evident that admittedly the aforementioned two cheques were given by the petitioner, which on presentation got dishonoured for insufficiency of funds.
It is the defence of the petitioner that the said two cheques were given as a security cheques which were to be encashed only if the pledged goods were not delivered. However, the pledged goods i.e., Sarso Seeds got stolen and the FIR bearing No. 710/2018 under Section 188 of the Indian Penal Code, 1860. It is further the defence of the petitioner that the ledger accounts on which the respondent No. 2-complainant has relied, are not correct.
It is quite evident from the submissions made that there is no denial to the issuance of the cheques and its subsequent dishonour on the ground of insufficiency of funds - All the contentions raised by way of present petition are, in fact, the defence of the petitioner which are required to be proved during the trial.
There is no infirmity in the impugned Summoning Order dated 29.11.2018 passed by the learned Metropolitan Magistrate - Petition dismissed.
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2024 (9) TMI 1239
Dishonour of Cheque - Vicarious liability of non-executive director in a company - HELD THAT:- It is not disputed that the Petitioner herein is a Non-Executive Director of ATT. While dealing with the nature of averments that are required against a Non-Executive Director while filing a complaint under Section 138 NI Act, the Apex Court in POOJA RAVINDER DEVIDASANI VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (12) TMI 1070 - SUPREME COURT] has observed 'the law laid down by this Court is that for making a Director of a company liable for the offences committed by the company under Section 141 of the NI Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the company.'
The Coordinate Bench of this Court while dealing with the case of Ms. Poonam Singh, who is accused No. 4 in the complaint filed by the Respondent, has not seen as to whether Ms. Poonam Singh is a Non-Executive Director or a regular Director. There is no discussion in the judgment of the Coordinate Bench regarding this aspect - In the present case it was specifically pleaded that the Petitioner is a non-executive Director and is not responsible for the day-to-day affairs of the company. Form DIR-12, which has been placed and the veracity of which has not been denied, shows that the Petitioner is a non-executive director. In the entire complaint there is no averment as to whether the Petitioner herein was involved in the loan transaction or not and as to whether the Complainant has dealt with the Petitioner at any point of time or not.
This Court is of the opinion that the case of the Petitioner herein is distinguishable from that of Ms. Poonam Singh inasmuch as the Petitioner herein is a Non-Executive Director and without any specific averment against the Petitioner herein in the complaint filed by the Respondent herein as to whether the Petitioner herein is involved in the loan transaction or not and as to whether the Complainant has dealt with the Petitioner at any point of time or not, the complaint against the Petitioner herein cannot be permitted to continue.
Petition disposed off.
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2024 (9) TMI 1238
Dishonour of Cheque - acquittal of the sole respondent - discharge of burden under Section 139 of the Negotiable Instruments Act - HELD THAT:- Evidently, in the case on hand, the prosecution discharged its burden to prove the requirement of Section 138 of the Negotiable Instruments Act. The sole respondent admitted that his signed cheques were misused. However, no evidence was led to prove this fact, therefore, presumption would be there in favour of the complainant that the cheque was issued by the accused for payment of the existing dues.
The trial court has wrongly relied on some of the lapses on the part of the complainant to disbelieve that the complainant proved the cheque under Section 138 of the Negotiable Instruments Act and wrongly held that the accused has already discharged its burden under Section 139 of the Negotiable Instruments Act only for certain lapses of the complainant. This case is squarely covered by the dictum in RAJESH JAIN VERSUS AJAY SINGH [2023 (10) TMI 418 - SUPREME COURT]. Hence, judgment relied upon by the learned counsel for the respondent is not applicable in the facts and circumstances of this case.
The judgment of acquittal dated 24.8.2022 passed in Criminal Case No. 258/2016 by learned Special Metropolitan Magistrate, NI Act, Jodhpur stands hereby set aside and the sole respondent is convicted for the offence under Section 138 of the Negotiable Instruments Act - Considering the mitigating and aggravating circumstances appearing in this case as well as the fact that no previous conviction is there against the sole respondent, 2 months simple imprisonment is awarded alongwith fine of the cheque amount plus 30% of the same as compensation to be payable within a month, failing which, the said amount would be recoverable according to law prescribed for recovery of fine.
Criminal appeal allowed.
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2024 (9) TMI 1237
Correctness and legality of the order passed by the Jaipur Bench of the Rajasthan High Court - absence of the appellant's counsel during the proceedings - violation of principles of natural justice - HELD THAT:- No doubt, the High Court has noted that the counsel for the appellant did not appear before the High Court on certain dates. However, when the matter was called and reserved on 29.04.2024 and the judgment has been pronounced on 25.072024, in between the matter was taken up on 18.07.2024 on which date the counsel for the appellant herein did not appear as such. It is not known as to why after the case was reserved for orders on 29.04.2024 it was once again listed on 18.07.2024. On that day at least, the counsel for the appellant could have been heard. If he was absent on that day, an opportunity ought to have been given with possibly a warning to the appellant to ensure that his counsel was present on the next date of hearing. However, we find that on 18.07.2024, possibly the matter was again reserved and on 25.07.2024, the impugned order has been passed.
The fact remains that the counsel for the appellant herein who had the advantage of an order of bail in his favour granted by the trial Court, was not heard in the matter and the impugned order of cancellation of bail was passed without hearing the counsel for the appellant herein.
The impugned order is set aside, the matter is remanded to the High Court. The High Court to re-consider the application filed by the respondent herein with regard to the cancellation of bail granted to the appellant herein. It is needless to observe that reasonable opportunity would be given to both sides for advancing their arguments on the said application. The appellant shall ensure that his counsel is present on the next date of hearing and not procrastinate the matter all over again.
Appeal allowed.
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2024 (9) TMI 1236
Supervisory jurisdiction or under the original jurisdiction under the Constitution of India - Concurrent jurisdiction of State and Central GST authorities - violation of Article 14 of the Constitution of India - blocking of Input Tax Credit - HELD THAT:- Section 6 (2) (b) of the Act treats the empowered officers under the SGTS/UGST Act at the central level to be at par and does not prescribe for transfer of investigation of the proceedings from State authority to the Central authority or vice-versa - The object of Section 6(2)(b) of the Act is to avoid multiple proceedings by the Sales Tax Officer and Central Tax Officer on the same subject matter and the Rules of purposive interpretation requires Section 6(2)(b) of the Act to be read in light of this object.
It would be evident from the Circular issued by the Ministry of Finance/ Department of Revenue, dated 05.10.2018 that central government itself has acknowledged that once the officer of the State authority has initiated action, it would be the proper officer who would then conduct further proceedings under the Act. The import of the aforesaid Circular dated 5.10.2018 is to be understood to mean that when an inquiry is conducted by a proper officer of the State, an investigation is required to be done by the Central Tax Officer, the Central Tax Officer would exercise the said power for the purpose of investigation. However, it would not mean that the proceedings being conducted by the State Tax Officer would also be transferred to the Central Tax Officer and the proceedings as initiated earlier point of time would rather continue with that authority that initially commence the proceedings.
Thus, it would be evidently clear from the aforesaid circular(s) that the State and Central Governments have been extended the same powers under the CGST and SGST Act and if one of the officers has already initiated proceedings, the same cannot be transferred to another and he alone is to issue process under the Act and take it to its logical end.
The word “subject-matter” used in Section 6(2)(b) of the Act would mean, “the nature of proceedings”. In the present case, it would thus mean the proceedings initiated prior at any point of time vide Annexure P-1 by respondent No. 1 and, therefore, for the same subject matter, respondent No. 2 cannot be allowed to initiate proceedings. Such action, if allowed, would be contrary to the provisions contained in Section 6(2)(b) of the Act.
There are merit in this petition and the same is accordingly allowed and the Blocked Credit Ledger dated 16.05.2024, popped up on the online web portal on 20.05.2024, passed by respondent No. 2 and the summons dated 16.03.2024 issued by respondent No. 2, are accordingly quashed and set aside - petition allowed.
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2024 (9) TMI 1235
Cancellation of GST registration of petitioner - no opportunity of hearing was given to the petitioner - violation of principles of natural justice - HELD THAT:- On perusal of the order, it shows that no reason has been assigned while passing the impugned order.
The Division Bench of this Court in the case of SURENDRA BAHADUR SINGH VERSUS STATE OF U.P. THRU. PRIN. SECY. COMMERCIAL TAX (GST) LKO. AND 2 OTHERS [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT] has held 'In the present case from the perusal of the order dated 07.01.2023, clearly there is no reason ascribed to take such a harsh action of cancellation of registration. In view of the order being without any application of mind, the same does not satisfy the test of Article 14 of the Constitution of India, as such, the impugned order dated 07.01.2023 (Annexure - 2) is set aside. The petition is accordingly allowed.'
In view of the facts and circumstances of the case as well as law laid down by this Court, the impugned orders cannot be sustained in the eyes of law and same are hereby quashed.
The writ petition succeeds and is allowed.
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2024 (9) TMI 1234
Appeal dismissed on the ground of limitation - original order confirming the demand u/s 74 of the GST Act was passed without providing any opportunity of hearing to the petitioner - HELD THAT:- It is admitted fact that the appeal has been dismissed on the ground of limitation. Learned counsel for the petitioner has relied upon the notification dated 02.11.2023 (Annexure No. 1 to the supplementary affidavit. On close scrutiny of the said notification, it is clear that if taxable person could not file appeal against the order passed by the Proper Officer on or before 31.03.2023 under sections 73 or 74 of the GST Act and if the appeal is preferred on or before 31.01.2024, the same will be considered on merit without taking recourse to the limitation. In the case in hand, the impugned order has been passed on 20.07.2023, much after the date mentioned in the aforesaid notification, i.e., 31.03.2023. Therefore, the said notification is of no aid to the petitioner.
Further, the judgement cited by the learned counsel for the petitioner in the case of M/S SUMIT ENTERPRISES OFFICE AT BADEL NAWABGANJ BARABANKI THRU. PROPRIETOR ATUL KUMAR VERSUS STATE OF U.P. THRU. PRIN. SECY. MINISTRY OF FINANCE LKO. AND 2 OTHERS [2023 (10) TMI 342 - ALLAHABAD HIGH COURT] nowhere deals with condoning the delay; whereby the appeal has been dismissed on the ground of limitation and therefore, the same is also of no aid to the petitioner.
In the above judgement, it has been specifically held that delay in filing the appeal cannot be condoned beyond the prescribed period of limitation in the Act.
This Court does not find any merit in these writ petitions - Petition dismissed.
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2024 (9) TMI 1233
Default committed by the petitioner in relation to the filing of returns beyond the prescribed period - benefit of insertion of sub-Section (5) to Section 16 of the CGST Act, 2017 - HELD THAT:- Having considered the materials on record and taking note of the provisions contained in Section 16(5) of the CGST Act, 2017 which has been inserted vide notification dated 16th August 2024, the present writ petition is required to be heard.
Since, the petitioner has been able to make out a prima facie case, the order dated 26th April 2024 for the tax period 2018-19 forming subject matter of challenge in the instant writ petition, shall remain stayed till the next date of hearing - List this matter under the same heading in the combined monthly list of December 2024.
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2024 (9) TMI 1232
Cancellation of GST registration of Petitioner’s firm - time limitation - HELD THAT:- This is quite well known a fact that the object behind enacting the CGST/RGST Act, 2017 is to levy taxes on manufacture of certain goods in the form of Central Excise Duty and to levy tax by the State Governments on retail sales in the form of Value-added Tax, Entry Tax, Luxury Tax etc. The legislative intention to facilitate commercial and business activities is reflected in the several provisions under the CGST/RGST Act; one of such provisions is contained under Section 30. May be the statutory provisions of limitation under Section 107 of the CGST/RGST would bind the statutory authorities which cannot condone the delay except the circumstances envisaged thereunder, but then, such limitations are not binding on the writ Court.
The writ Court having regard to the facts and circumstances in the case and keeping in mind that a right to appeal provided under the statute should normally be decided on merits may condone the delay and direct the statutory authority to entertain the appeal beyond the period of limitation.
The present writ petition is entertained and the appeal preferred by the petitioner-firm vide Reference Number: ZA080323041640Y is restored to its original records.
Petition allowed.
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2024 (9) TMI 1231
Violation of the principles of natural justice - petitioner did not receive the SCN pursuant to which the impugned order was passed - petitioner states that the impugned SCNs were projected on the portal under the tab ‘Additional Notices and Orders’ and therefore, the petitioner had no reason to access the same - HELD THAT:- The present petition is allowed and the impugned order is set aside. The petitioner may file reply to the impugned SCNs along with all relevant documents relied upon by it within a period of two weeks from date. The adjudicating authority shall consider the same and pass an appropriate order after affording the petitioner an opportunity to be heard.
Petition disposed off.
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2024 (9) TMI 1230
Imposition of time limit for availment of Input Tax Credit - violative of Article 14, Article 19 (1) (g) and Article 300A of the Constitution of India - HELD THAT:- It is evident that the insertion of the aforesaid provision has been made effective from the 1st day of July, 2017, whereby and whereunder, it has been provided that “Notwithstanding anything contained in sub-section (4), in respect of an invoice or debit note for supply of goods or services or both pertaining to the Financial Years 2017-18, 2018-19, 2019-20 and 2020-21, the registered person shall be entitled to take input tax credit in any return under section 39 which is filed upto the thirtieth day of November, 2021”.
It is, thus, evident that the decision which has been taken as impugned in the present writ petition was in absence of the consideration by following the stipulation made in sub-section (5) of Section 16 which has been made effective w.e.f. 1st day of July, 2017.
Considering the implication of insertion of sub-section (5) under Section 16 of the CGST Act, this Court is of the view that the matter needs to be considered afresh - the matter is remitted before the authority to pass afresh order taking into consideration the implication of sub-section (5) of Section 16 of the CGST Act.
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2024 (9) TMI 1229
Permission to withdraw writ petition - discrepancy in tax period mentioned in the show cause notice and the impugned order - HELD THAT:- The writ petitioner seeks leave of this Court to withdraw the instant petition with a liberty to file an appeal as provided under Section 107 of the CGST. It has been submitted that the appeal will be filed within a period of two weeks.
The instant writ petition is being disposed of by giving liberty to the petitioner to file the appeal within a period of two weeks.
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2024 (9) TMI 1228
Violation of principles of natural justice - unreasoned impugned order - certain discrepancies in the input tax credit - HELD THAT:- Undisputedly, the impugned order does not deal with the petitioner’s contentions. The petitioner’s reply was rejected summarily by stating that it was found to be devoid of merits. The impugned order is ex facie unreasoned and, therefore, is liable to be set aside.
The respondents fairly states that the impugned order may be set aside and the matter be remanded to the Adjudicating Authority to consider afresh.
The matter is remanded to the Adjudicating Authority to consider afresh. The Adjudicating Authority shall pass a speaking order after affording the petitioner an opportunity of hearing - Petition disposed off by way of remand.
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2024 (9) TMI 1227
Cancellation of petitioner’s GST registration with retrospective effect from 07.02.2022 - petitioner did not respond to the show cause notice or appear before the officer - HELD THAT:- The petitioner neither responded to the SCN dated 08.11.2023, nor appeared before the concerned officer on 14.11.2023 - the proper officer had issued the impugned order.
The petitioner has an equally efficacious appellate remedy against the impugned order and therefore, it is not considered apposite to entertain the said petition - petition disposed off.
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2024 (9) TMI 1226
Seeking grant of bail - no direct evidence of being in any way connected with the fake GST firms - Validity of FIRs under Sections 420, 467, 468, 471, and 120B IPC - HELD THAT:- In the facts of the present case, the involvement, knowledge and actions following the deposit determines that the applicants were well connected with Sanjay Dhingra in respect of transactions which he had with GST firms which were registered by using PAN Card and Aadhaar Card of the informant.
Money trail/ financial transaction and the records that have been traced to track the flow of funds, detect illegal activity which can be analyzed from the bank account of the applicants wherein it is not clear as to from where such huge amount of money came into accounts of the alleged accused persons and have been deposited in other accounts. The Investigating Officer has, while submitting the charge sheet, found unusual and unexplained transactions which indicate some illegal activity as showing involvement of the applicants in the criminal offence.
Fraudsters, like all the alleged accused in the present case set up companies only on paper to generate fake transactions and claim ITC. Such companies are abandoned or shutdown after a short period.
The present case relates to economic offences. Such offence like large scale fraud, money laundering and corruption, are often viewed seriously because they affect the economic fabric of the society. The Courts may deny bail in such cases especially if the accused holds a position of influence or power. In the present case, money trail of crores, which affects the society at large scale, is involved which started from registration of fake firms by using Aadhaar and PAN Cards of the informant who had not applied for such registration.
The Apex Court in the case of Prahlad Singh Bhati v. NCT, Delhi and another [2001 (3) TMI 1053 - SUPREME COURT], has held that while granting bail, the court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, larger interest of the public or State and similar other considerations.
The Apex Court has, in the case of P. Chidambaram v. Directorate of Enforcement [2019 (12) TMI 186 - SUPREME COURT], held that precedent of another case alone will not be the basis for either grant or refusal of bail though it may have bearing on principle and the consideration will have to be on case-to-case basis on facts involved therein and securing the presence of the accused to stand trial.
Having gone through the submissions of learned counsel for the parties, nature of accusation of offence, role of the applicants as well as reasons given in judgement, it is found that this is not a fit case for granting bail.
Bail application dismissed.
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2024 (9) TMI 1225
Levy of penalty u/s 129 of CGST Act - Detention of goods - alleged tax evasion and under-valuation - HELD THAT:- The petitioners are permitted to make payment of tax and penalty under Section 129 (1) (a) of the CGST Act 2017, calculated on the market value as determined by the authorities within a period of one week from today. On receipt of the said amounts, the respondent No. 1 is directed to release the vehicle bearing No.MH-40-CM-9089 along with the goods which have been retained by respondent No. 1-authority under the impugned order within a period of seven days thereafter.
The Writ Petition is partly allowed.
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2024 (9) TMI 1224
Provisional attachment of bank account under Section 83 of the CGST Act, 2017 and Rule 159 of the CGST Rules, 2017 - objection to the provisional attachment is kept pending indefinitely - HELD THAT:- There is an inbuilt scheme of consideration of objection against provisional attachment of the property. The provision, in terms, does not provide any time limit within which such objection should be decided. However, the objection to the provisional attachment is required to be decided within a reasonable time and it cannot be kept pending indefinitely. Two months have already passed from the date of objection filed by the petitioner. The objections are required to be decided within a reasonable time and if the objections are kept pending for a long time without decision, it would frustrate the very object of consideration of objection as engrafted under Rule 159 (5) of the CGST Rules, 2017.
The objections must be decided within a reasonable time limit. In the absence of any express provision, the objections, in such cases, are required to be decided within an outer limit of three months from the date of submission of the objections.
Respondent No. 2 is, therefore, directed to decide the objection filed by the petitioner by affording him an opportunity of being heard within a period of one month from today - Petition disposed off.
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2024 (9) TMI 1223
Retrospective cancellation of petitioner’s GST registration - petitioner had not filed its returns for a continuous period of six months - impugned cancellation order does not set out any reasons for any such retrospective cancellation of petitioner’s GST registration - Violation of principles of natural justice - HELD THAT:- It is considered apposite to set aside the impugned cancellation order and direct that the petitioner’s GST registration be restored forthwith.
The petitioner is bound down to his statement that he will file his returns up to date and pay the taxes due along with interest and penalty, if any, within the stipulated period of thirty days - petition disposed off.
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