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Showing 61 to 80 of 2053 Records
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2017 (11) TMI 1996
Dishonor of Cheque - insufficient funds - liability of signatory of firm as well as liability on the firm along with its partners - Section 141 of Negotiable Instruments Act - HELD THAT:- The Supreme Court in STANDARD CHARTERED BANK VERSUS STATE OF MAHARASHTRA AND ORS. ETC. [2016 (4) TMI 532 - SUPREME COURT] observed that an allegation in the complaint to the effect that the respondents being the Chairman, Managing Director, Executive Director and wholetime Director were and are the persons responsible and in charge of day-to-day business of Accused 1 viz. when the offence was committed is sufficient for prosecution of the respondents. However, in the present case, the allegation is that the firm along with its partners is responsible. Here there is no allegation that the applicants are in charge and responsible for day to day business of the firm.
The basic allegation required for prosecuting the applicants is missing in the complaint and the applicants cannot be prosecuted merely because they are the partners in the firm - the complaint filed against the applicants under Section 138 of Negotiable Instruments Act is liable to be dismissed as it lacks basic allegation against the applicants.
Application allowed.
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2017 (11) TMI 1995
Jurisdiction - power to issue SCN - officers of DRI are proper officer to issue SCN or not - HELD THAT:- The fact of the case regarding the issue of show-cause notices and adjudications are linked to preliminary objection with reference to jurisdiction to initiate proceedings, is admitted. As regards the objection of the Revenue, to list the appeals again for some other day, it is noted that in the face of the admitted facts as above, and the issue involved is one of preliminary legal point of issue, we note the appeal themselves can be disposed of, as there could be no submissions on merits of the case, from either side. In view of the admitted position and pending legal dispute before the Hon'ble Supreme Court, it is found that all these appeals are to be allowed by way of remand by setting aside the impugned orders.
Reliance can be placed in the case of ITC INFOTECH INDIA LTD. VERSUS CC, NEW DELHI [2017 (8) TMI 1639 - CESTAT NEW DELHI] where it was held that It has been ruled by Hon’ble Delhi High Court in the case of Mangali Impex Ltd. Vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT] that the D.R.I. Officers are not competent to issue the show cause notice for the period prior to 08.04.2011. In similar such cases, various Benches of the Tribunal such as, Delhi, Chennai & Calcutta have set aside the impugned orders and remanded the matter to the original authority for deciding the issue of jurisdiction and thereafter to decide on the merits of the case, upon pronouncement of the judgment by the Hon’ble Supreme Court in the case of Mangali Impex.
Appeal allowed by way of remand.
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2017 (11) TMI 1994
Validity of sale deed - it is stated that the petitioner by playing fraud got executed a registered sale deed in her favour from Ratanbai with respect to the suit property - plaintiffs were having knowledge of the sale deed or not - present suit filed nearly after lapse of 6 years - whether the suit is barred by time or not? - HELD THAT:- The undisputed facts reveal that plaintiff No. 1 himself was a witness to the sale deed in question. The wife of the plaintiff No. 1 was again witness to the sale deed in question which was executed on 23.1.2010. A certified copy was also obtained by them on 16.7.2010 and undisputedly, the civil suit has been filed on 3.2.2016.
This Court in the case of LEELADHAR, NARENDRA KUMAR, UMRAOBAI VERSUS ANWAR PATEL, SMT. RAMIBAI, DALIPSINGH, MOHANSINGH [2016 (3) TMI 1437 - MADHYA PRADESH HIGH COURT] held that It is also clear that the present suit filed in the year 2011 to challenge the sale deeds of the year 1995 i. e. after 16 years is clearly barred by time, while the period of limitation is only 3 years. It is also not in dispute that the petitioners' name in the revenue record were also recorded in the year 1995. Thus, the suit filed by the respondent No. 1 is clearly barred by limitation.
In light of the aforesaid judgment it can be safely gathered that the plaintiffs were having knowledge of the sale deed which was executed in the year 2010 and therefore, as the limitation provided is only three years for challenging the sale deed, the issue framed by the trial Court in respect of limitation has to be answered in favour of the defendants.
As civil suit was filed after six years from the date of execution of the sale deed praying declaration of sale deed as null and void, the suit was certainly barred by limitation in light of Article 59 of the Limitation Act - the revision stands allowed and the suit is dismissed as it is barred by limitation.
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2017 (11) TMI 1993
Wrongful transfer of Petitioners' shares in favour of the Respondents - Sections 111, 397, 398, 402, 403 & 406 of the Companies Act, 1956 r/w Section 59 of the Companies Act, 2013 - difference of opinion - HELD THAT:- The basic principle of Justice Delivery System is that a Court or a Tribunal, while passing an order is not only required to give reasonable opportunity of being heard to the parties but is also required to give good reasons based on record/evidence. It is also required to show that the order is passed after being satisfied itself on issues raised by the parties - In Indian Judiciary, Justice Delivery System including provisions of Companies Act, 2013, the Tribunal is required to give hearing in an open Court. Once such hearing is given in the open Court, the Court or the Tribunal, while passing an order is also required to pronounce order in the open Court.
Under sub-Section (3) of Section 421, the Tribunal is required to send the copy of every order passed under Section 420, which is also required to be followed in a petition filed under Section 241 of the Companies Act, 2013 and other petitions. The Principle of Natural Justice is also require that the parties should be informed of the order pronounced by the Court/Tribunal.
The Tribunal is required to pronounce its order or deliver its judgment on hearing the parties in the open Court - The case is remitted to the Hon'ble President, National Company Law Tribunal, Principal Bench, New Delhi, who in his turn will direct the Registry to provide free certified copies of the difference of opinion/order passed by two Hon'ble Members comprising Hon'ble Member (Judicial) and Hon'ble Member(Technical), both dated 30th September 2016, and the terms of reference framed by one of the Hon'ble Member dated 30th September, 2016. The Hon'ble President thereafter will refer the matter to a Third Hon'ble Member, other than the Third Hon'ble Member(Judicial), to whom it was earlier referred, who after notice to the parties will fix a date of hearing and on hearing the parties, will pass appropriate order in accordance with law.
Appeal allowed.
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2017 (11) TMI 1992
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate applicant - existence of debt and dispute or not - HELD THAT:- The Applicant Company itself can be a corporate applicant to lodge application with the adjudicating authority for initiation of Corporate Insolvency Resolution Process in respect of itself on account of default in payment. In the present case the director of the applicant company duly authorised to do so has filed the instant application under Section 10 of the Code on behalf of the applicant company - In compliance of Section 10 (3) (a) of the Code read with Annex-V of Form 6 of the Rules, the applicant company has filed copies of audited financial statements of the Applicant Company for the last two financial years i.e. 2015-16 and 2016-17. In addition, copy of provisional financial statement of the Applicant Company for the current financial year made up to a date not earlier than fourteen days from the date of the application, i.e. from 01.04.2017 to 10.10.2017 has also been filed.
It is the case of the applicant that the corporate applicant has availed the loan from Financial Creditor, i.e. Karnataka Bank which was renewed from time to time and finally ₹ 3,50,00,000/- in the form of cash credit and ₹ 2,50,00,000/- as Term loan facility were sanctioned. It is submitted that the applicant company has suffered a huge loss of ₹ 42,36,135/- in financial year 2015-2016, ₹ 60,68,254.98/- in the financial year 2016- 2017 and ₹ 15,006,394.78/- in the current financial year - A copy of notice dated 19.06.2017 issued by financial creditor under Section 13(2) of SARFAESI Act has also been placed on record. It is contended that the applicant company has failed to make payment of the bank dues because of which the Karnataka Bank Limited has declared the account of the applicant company as NPA on 25.01.2017.
The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the Corporate Debtor is delineated under Section 10 of Code, wherein the Corporate Debtor is required to furnish information in accordance with Form-6 of the Rules. Under Form-6, the Corporate Debtor is required to disclose as amongst others, the details of the Corporate Debtor including the date of incorporation as well as the details of financial creditor and operational creditors to whom the Corporate Debtor owes money including their address for correspondence - It is also pertinent to note that in relation to the debts owed by it the Corporate Debtor is required to furnish the total amount of debt and the amount in default and also in particular as to when the financial or operational debt was incurred including the details of the security held, if any, by the creditors and its estimated value. The Corporate Debtor, in addition, is also required to furnish the documents evidencing the existence of financial/operational debt and the amount in default.
The petitioner has disclosed the details required by Section 10 of the Code read with Rule-7 of Rules. The particulars of the corporate applicant and those of the financial debt have been disclosed in all material particulars. The name of the Interim Resolution Professional has also been proposed - the present application has been filed in requisite form-6 containing the required particulars in terms of sub-section 2 of Section 10 of the Code. The petitioner satisfies all the statutory requirements. Therefore, the application is admitted.
The present application is complete and that the applicant corporate debtor has committed a default. Therefore, as the application is complete the present application is admitted under section 10 (4) (a) of the Code. The corporate insolvency resolution process shall commence from the date of this order under sub-section 5 of section 10 of the Code - Application admitted - moratorium declared.
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2017 (11) TMI 1991
Addition u/s 41 of the Act or u/s 68 - outstanding liabilities due towards few parties - HELD THAT:- We are of a strong conviction that the year in which the benefit from cessation or remission of trading liabilities under consideration was obtained by the assessee had been lost sight of by the CIT(A) while justifying the addition under Sec. 41(1) in the hands of the assessee for the year under consideration. We have also deliberated on the judicial pronouncements relied upon by the ld. A.R and find that the same are distinguishable on facts.
We find that in the case of Sita Devi Juneja [2009 (12) TMI 34 - PUNJAB AND HARYANA HIGH COURT] the sundry creditors had confirmed the outstanding liabilities. However, unlike the facts involved in the aforesaid case before the Hon’ble High Court, in the present case the sundry creditors had themselves stated that nothing was due to them by the assessee. That in the case of Sugauli Sugar Works Pvt. Ltd. [1999 (2) TMI 5 - SUPREME COURT] the debt had become unenforceable in view of the A.O and though the assessee had unilaterally made an entry in its books of accounts, however, there was no such act on the part of the creditors. We thus are of the considered view that the case laws relied upon by the ld. A.R, being distinguishable on facts, would thus not be of any assistance to him in the backdrop of the facts of the case before us.
We thus restore the matter to the file of the A.O, with a direction to readjudicate the issue after making necessary verifications as to when the aforementioned amounts had been written off by the abovementioned parties in their books of accounts, and the consequential benefit had been obtained by the assessee in terms of Sec. 41(1) - Appeal of the assessee is allowed for statistical purposes.
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2017 (11) TMI 1990
Maintainability of interlocutory application for modification - HELD THAT:- The appeal was heard on merit and disposed off on 20.2.2017. In the circumstances, interlocutory application for modification of the said order at this belated stage does not arise.
Interlocutory application otherwise is also not maintainable.
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2017 (11) TMI 1989
Validity of assessment u/s 143(3) - Question to be raised for the first time - issue the notice u/s 143(2) within 6 months from the end of the financial year in which the return is furnished - as argued notice u/s 143(2) issued by the AO is barred by limitation under proviso to section 143(2) - HELD THAT:- Normally a question of fact may not be allowed to be raised for the first time as it may prejudice the other side. But as per the ratio laid down in NTPC case [1996 (12) TMI 7 - SUPREME COURT], the question of law can be raised at any stage. In the given case, it is not the issue of serving of notice but issue of notice to acquire jurisdiction to complete the assessment u/s 143(3). Hence, it is the question of law and not fact.
Moreover, section 292BB cannot be applied in the given case because the issue is not serving of notice but issue of notice to acquire the jurisdiction to complete the assessment u/s 143(3). Therefore, in the given case, issue is not serving of notice but issue of notice within the period of limitation prescribed in proviso to section 143(2) to complete the assessment u/s 143(3).
It is clear from the record that AO has issued the notice u/s 143(2) only on 20/10/2009 instead of issuing the notice on or before 30/09/2009. It clearly shows that the AO has no jurisdiction to complete the assessment u/s 143(3). Hence, the assessment completed u/s 143(3) cannot be passed without compliance with the mandatory requirement of notice being issued u/s 143(2), therefore, the assessment order in question is legally unsustainable and the same is hereby quashed. Appeal of assessee allowed.
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2017 (11) TMI 1988
Waiver of demand of duty with interest and penalty - HELD THAT:- Both sides have agreed that against the impugned order, the assessee-Respondents have filed the case before the Tribunal in M/S SHREE POUCHES VERSUS CCE, JAIPUR-I [2017 (11) TMI 701 - CESTAT NEW DELHI] and the Tribunal by modifying the impugned order remanded the matter to the original authority.
When it is so, then we remand this matter also pertaining to the dropping of the demand to the original authority. Thus, the original authority is directed to decide the issue de novo, but by providing a reasonable opportunity to the assessee-Respondents to present their case. Fresh evidence, if any, may be admitted as per law.
The appeal filed by the Department is allowed by way of remand.
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2017 (11) TMI 1987
Seeking a decree of permanent injunction restraining Doosan India and its representatives, agents etc. from instituting or continuing or proceeding with arbitration proceeding against GMR Energy before the Singapore International Arbitral Centre - Order XXXIX Rule 1 and 2 CPC - Order XXXIX Rule 4 CPC - Section 45 of the Arbitration and Conciliation Act, 1996 - Whether the arbitration that commenced at Singapore pursuant to Arb.316/16/ACU would fall under Part-I or Part-II of the Arbitration Act? - HELD THAT:- An arbitration agreement is an independent self-contained agreement not dependant on the substantive agreement, therefore irrespective of the contractual rights and obligations parties can opt for an international arbitration - argument raised by learned counsel for Doosan India which deserves to be accepted is that in case the contention of learned counsel for GMR Energy that the present arbitration is covered by Part-I is to be accepted then this Court will have no territorial jurisdiction to entertain the present suit for the reason in the jurisdictional para mentioned in the plaint GMR Energy submits that the closest connect of the parties to the present case is Chhattisgarh in India, thus the Court at Delhi is ousted of the territorial jurisdiction to try the suit and pass orders - the arbitration that commenced at Singapore pursuant to Arb.316/16/ACU would fall under Part-II of the Arbitration Act and not Part-I.
Whether on the basis of pleas in the notice of arbitration issued by Doosan India a case is made out by Doosan India to subject GMR Energy to arbitration with GCEL and GIL? - HELD THAT:- It is evident that though Doosan India stated that the tripartite agreement between GCEL and GMR Energy and Doosan India became null and void on 31st December, 2015 and that the payment obligation was now on the GCEL and GIL by invocation of the corporate guarantee however, the said letter was without prejudice to the rights and remedies available to Doosan India in respect of any breach of agreements, MOUs, Corporate Guarantee and related documentation and agreements. Further whether a tripartite agreement resulting in the two MOUs between Doosan India, GCEL and GMR Energy could be novated by a unilateral letter is a question to be decided on merits during the arbitration and not in the present suit.
Considering the fact that firstly, GCEL was a joint venture of GMR Group, secondly, the group companies did not observe separate corporate formalities and commingled corporate funds, thirdly, by the two MOUs entered into between Doosan India, GMR Energy and GCIL, GMR Energy undertook to discharge liability and made part payments in discharge of GCEL's liability also, fourthly, when the two MOUs were entered into, GMR Energy had acquired GCEL and fifthly, whether the two MOUs being the tripartite agreement between Doosan India, GCEL and GMR Energy could or could not be novated by letter dated 31st December, 2015 being an issue to be decided on merits, it is held that from the notice of arbitration Doosan India has made out a case for proceeding against GMR Energy to subject GMR Energy to arbitration with GCEL and GIL.
Whether the Arbitral Tribunal has no jurisdiction to pierce the corporate veil? - HELD THAT:- In CHLORO CONTROLS (I) P. LTD. VERSUS SEVERN TRENT WATER PURIFICATION INC. & ORS. [2014 (1) TMI 830 - SUPREME COURT] Supreme Court reiterated the decision in NATIONAL INSURANCE CO. LTD. VERSUS M/S. BOGHARA POLYFAB PVT. LTD. [2008 (9) TMI 864 - SUPREME COURT] wherein a distinction was carved out between a court referred arbitration and an arbitration without the intervention of the Court. In Chloro Controls, Supreme Court was dealing with an application under Section 45 of the Arbitration Act seeking reference to arbitration. In the present case the arbitration was initiated without the intervention of the Court and only after initiation of the arbitration, GMR Energy filed the present suit invoking the jurisdiction of this Court seeking an injunction against arbitration to proceed against it on the basis of issue of alter ego - the issue of alter ego based on the facts as noted in the present case and not on fraud can be decided by the Court as well as the Arbitral Tribunal.
In the present suit whether this Court will form a prima facie opinion on the issue of alter ego or return a finding? - HELD THAT:- The present arbitration not being a court referred arbitration and the application under Section 45 of the Arbitration Act filed by Doosan India without prejudice to its rights and contentions, for the reason this Court passed an interim injunction on the facts of this case it would be sufficient if this Court returns a finding based on the pleadings supported by affidavits by the parties without going into a full-fledged trial.
Whether the arbitration against GMR Energy is contrary to Rule 7 of SIAC Rules? - HELD THAT:- There being a distinction between invoking arbitration against a non-signatory and joinder of a non-party during arbitration, the contention of learned counsel for GMR Energy that the invocation of arbitration against GMR Energy is contrary to Rule 7 of the SIAC Rules is rejected. In any case GMR Energy would be at liberty to raise the plea before the arbitral tribunal - This Court having held that the arbitration that has commenced at Singapore would fall under Part-II of the Arbitration Act and not Part-I; the arbitration pending in Singapore pursuant to Arb.316/16/ACU not on a reference by Court, the issue of piercing the corporate veil, in the facts the present case, can be decided both by the Court as well as the Arbitral Tribunal; and this Court having formed an opinion based on the pleadings on affidavit that from the notice of arbitration Doosan India has made out a case for proceeding against GMR Energy to arbitration with GCEL and GIL.
It is clarified that the finding of this Court on the issue of alter ego is for subjecting GMR Energy to arbitration and not a final determination on merits to pass an award against GMR Energy which would be in the domain of the Arbitral Tribunal.
Application disposed off.
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2017 (11) TMI 1986
Denial of exemption under section 11 - AO treating the assessee as a mutual concern - proof of charitable purposes u/s 2(15) - HELD THAT:- As decided in own case [2017 (5) TMI 295 - ITAT MUMBAI] neither the Assessing Officer in the assessment order nor the learned Departmental Representative at the time of hearing has brought any material to demonstrate that there is any change in the object of the trust in the impugned assessment year as compared to earlier assessment years, wherein, the issue has been decided in favour of the assessee.
For invoking the first proviso to section 2(15), it is necessary and incumbent on the part of the Assessing Officer to give a factual finding that the assessee has derived income by engaging itself in trade, business or commercial activity. In the absence of any such finding the first proviso to section 2(15) cannot be attracted. More so, when the Tribunal and the Hon'ble Jurisdictional High Court in the preceding assessment years have held that the objects of the assessee qualify the object of general public utility, hence, is existing for charitable purpose as per section 2(15) - Decided in favour of assessee.
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2017 (11) TMI 1985
TDS u/s 195 - deduct tax for making payment to a foreign entity - AO holding that the payment by the assessee to ISL was in the nature of royalty within the meaning of Article-12 of India Israel Tax Treaty - HELD THAT:- The assessee did not have any right to exploit the copyright of the software and that ISL had the copyright over the software. In other words the assessee was using a copyrighted article. ISL had sold copyrighted Article and not the copyright itself.
We find that in the case of Alcatel Lucent, USA[2017 (5) TMI 1605 - ITAT MUMBAI] the Tribunal has dealt with the issue of sale of copyrighted Article and sale of copyright as held that provisions of the DTAA would prevail over the Act unless the Act is more beneficial to the assessee. Therefore, except to the extent a provision of the Act is more beneficial to it, the DTAA will override the Act. This is irrespective of whether the Act contains a provision that corresponds to the treaty provision. In our opinion, international taxation issues have to be decided keeping in mind the above broad principles. - the impugned payment made by the Branch to the H. O. towards reimbursement of cost of data processing cannot be held to be covered within the scope of expression “royalty” under Article 12(3)(a) of the India Belgium DTAA - data processing cost paid by the assessee does not amount to royalty, consequently, there is no requirement for deducting tax at source on such payment. Therefore, the provisions of section 40(a)(i) will not apply. - Decided in favour of assessee.
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2017 (11) TMI 1984
Smuggling - Proclaimed Offenders - jurisdiction to summon additional accused persons - authenticity of the evidence in terms of Section 65-B of the Evidence Act - HELD THAT:- The petitioners are not the complainants in the present case who have been summoned but they are additional proposed accused - It would be appropriate to find out the ratio decidendi laid down in the decision in RAVINDER SINGH VERSUS STATE OF PUNJAB AND ANOTHER [2017 (3) TMI 1883 - PUNJAB AND HARYANA HIGH COURT]. The question framed clearly shows that what was considered by this Court was as to whether the complainant in the FIR case himself can be summoned as an accused, based on the deposition of defence witnesses before the trial Court as the proposed accused is required to be tried together with the accused already on trial - In the present case, the above said position on the basis of the aforesaid question is not relevant and, therefore, the said decision has no application in the present case. The petitioners are not the complainants in the present case who have been summoned but they are additional proposed accused.
The next submission of the learned senior counsel for the petitioners is that the trial Court became functus officio on the date of judgment i.e. 31.10.2017 - HELD THAT:- The power under Section 319, Code of Criminal Procedure, can be exercised even after the judgment is concluded. In that case, the accused persons were acquitted by the trial Court and after four months of the conclusion of the trial, the trial Court exercised the power under Section 319, Code of Criminal Procedure, for summoning the additional accused - The present case stands on a better footing inasmuch as the order was passed under Section 319, Code of Criminal Procedure, simultaneously with the judgment and order of conviction of the original accused persons. The contention raised by the learned counsel for the petitioners, thus, stands disposed of.
A look at the evidence of PW-4 Ajmer Singh, PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh, which has been relied upon by the trial Court, for exercising power under Section 319, Code of Criminal Procedure, shows that some part of the evidence is admissible while some part of the evidence is inadmissible. But then, as earlier stated, the same can be subject matter of objection in de novo trial - whether Exhibit DX and its documents, and the call records, filed along with the writ petition are admissible or not is a matter of proof before the trial Court and certainly the petitioners are entitled to object to the admissibility of the documents for want of legal proof in the de novo trial. To say that Exhibit DX or the certified copy of the writ petition could not be looked into by the trial Court would be to prohibit the prosecution from effectively participating in the de novo trial. That would not serve the interest of justice.
The next submission made by the learned senior counsel for the petitioners is that the trial Court could not have directed filing of supplementary charge-sheet as the trial Court does not have such power, as held by the Apex Court in some decisions. There are no doubt that the law is trite that the Court does not have power to order filing of supplementary charge-sheet. But then, there are peculiar facts in the present case - It is a settled legal position that filing of supplementary challan, one or in multiples, is permissible under Section 173, Code of Criminal Procedure. To contend that first supplementary challan was filed and in that the petitioners were not named would be no answer because the authority to file one more supplementary charge-sheet of the investigating machinery has not been taken away. Therefore, the investigating agency is entitled to file supplementary charge-sheet.
The next submission made by the learned senior counsel for the petitioners that the trial Court should not have issued non-bailable warrants against the accused, must be upheld - HELD THAT:- It is a well settled legal position that such a course of action should not be pressed into service. The trial Court has not recorded a single reason as to why instead of issuing summons, straightway warrants have been issued. The trial Court has overdone it. The trial Court was not at all justified in doing so. Hence, the said part of the order issuing non-bailable warrants for securing the presence of the petitioners, must be set aside.
The impugned order under Section 319, Code of Criminal Procedure, will have to be upheld - revision dismissed.
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2017 (11) TMI 1983
Jurisdiction - Customs authorities have jurisdiction over the SEZ irrespective of any provision in SEZ Act or not - HELD THAT:- On the previous occasion it was observed that necessary rule under Section 21 of the SEZ Act, 2005 was framed and notified in Gazette of India on 5-8-2016 to take cognizance the offence committed under Section 111 of the Customs Act, 1962 to be an offence committed under SEZ Act, 2005. It is well-settled position of law that no penalty can be imposed on commitment of an alleged offence under Customs Act, 1962 without authority of law prior to 5-8-2016 to take cognizance thereof under SEZ Act - If contention of the Revenue is accepted that shall bring chaos to the implementation provisions of the SEZ Act prior to coming into force thereof. While notification is part of statute, it cannot be said that without such notification there was power vested on Customs authorities to penalize an action not cognizable under SEZ Act, 2005. On such legal premise, all appeals are allowed.
It is also settled principle of law that the Gazette being an official document of the Government to convey its intention and decision, without such decision, it cannot be presumed that the authorities were vested with the power before the date of issuance of such notification - Appeal allowed.
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2017 (11) TMI 1982
Jurisdiction - Validity of assessment - power of respondent no. 4, to make a fresh assessment in pursuance of the remand order - suo motu revisional proceedings are pending before respondent No. 2 - HELD THAT:- When this case came up for admission on 10-11-2017, learned Special Standing Counsel for Commercial Taxes (A.P.) requested for an adjournment for instructions. Today, on instructions, he has not disputed the fact that the suo motu revisional proceedings initiated by respondent No. 2 are still pending. When the suo motu revisional proceedings of respondent No. 2 are pending with reference to the remand order of respondent No. 3 against the order dated 25-07-2012 of respondent No. 4, respondent No. 4 is denuded of jurisdiction to pass a fresh assessment order purporting to comply with the remand order of respondent No. 3.
It is found from the impugned proceedings of respondent No. 4 that the specific objection raised by the petitioner in this regard has not been dealt with.
The impugned assessment order of respondent No. 4 cannot be sustained - Petition allowed.
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2017 (11) TMI 1981
Direction to supersede the Board of Directors of the said Company by appointing an Administrator and/or Special Officer to take over its management and affairs, as well as its assets and properties - constitution of Committee consisting of representatives of the appellants to function as such Administrator and/or Special Officer - HELD THAT:- The resignation of the Director respondent no.5 in writing came into effect immediately and did not require acceptance.
There is a series of illegal acts by respondent No.5 ( as will be explained more in detail later) , which are part of the same transaction to cause oppression on appellant No.1 and show his malafide intention. These violations by him are burdensome, harsh and wrongful to appellant No.1 - there is no valid withdrawal of resignation of respondent no.5 in law and consequently the Board meeting held on 9.4.2013 is non-est in the eye of law.
The view taken by the CLB that the issuance of the said letter by appellant No.1, notwithstanding the filing of CP No.1 of 2013 by her questioning the decisions taken therein, amounts to acquiescence on her part and that she recognized the Board by addressing letters dt.22-08-2013, 25-09-2013, 07-10-2013, 08-102013 and 20-10-2013, is perverse and unsustainable.
It is declared that:
(i) acts of respondent Nos. 2 to 7 are oppressive;
(ii) the meetings of the Board of Directors held on 09-04-2013, 10-04-2013 and 11-04-2013 are null and void and all resolutions passed therein as well as forms/returns filed therein are set aside;
(iii) resolutions passed at the Annual General Meeting of the Company held on 18-12-2013 are null and void and forms filed by respondents with regard to resolutions passed at the said AGM are set aside;
(iv) the Board of Directors of the Company as existing as on today shall stand superseded and respondent Nos.2 to 7 are removed from the Directorship of the Company, and all forms-32 filed for their appointment as Managing Director/Director/Whole Time Director of the Company are declared as null and void ab initio;
(v) the transmission of 4,00,691 equity shares held by late Dr.Vijaykumar Datla to respondent No.2 is illegal, null and void;
(vi) consequently, that the register of members shall stand rectified by transmission of 1/4th of the 4,00,691 equity shares to appellant No.1, pending decision on the validity of the Will dt.04-12-1987 propounded by appellant No.1 and Will dt.14-2-2005 propounded by respondent No.2 by the competent Civil Court and subject to its decision;
(vii) respondent Nos.2 to 4 and 6 and 7 have no authority to deal with the movable or immovable assets of the Company including the various Bank accounts of the Company in Bank of Baroda, ICICI Bank, State Bank of India or in any other Bank hereafter;
(viii) the Board Meetings held on or after 20-3-2013 as null and void and all resolutions passed therein are set aside; and
(ix) All Forms, documents, returns filed by respondent no.s 2-7 on behalf of the Company with/before any Government authorities on or after 20-3-2013 are declared as null and void.
The appeal is accordingly allowed with costs of ₹ 25,000/- to be paid by respondent Nos.2 to 4 to the appellant No.1 within 4 weeks.
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2017 (11) TMI 1980
Cheating - real grievance of the second respondent commences after dropping the idea of construction of the proposed property and when the petitioners failed to return the advance amount of ₹ 1.5 Crores - whether the ingredients of Section 420 have been made out or not? - HELD THAT:- The Hon'ble Apex Court in a judgment in HRIDAYA RANGAN PD. VERMA AND ORS. VERSUS STATE OF BIHAR AND ANR. [2000 (3) TMI 1105 - SUPREME COURT OF INDIA] had laid down the ingredients to constitute an offence under Section 420 to include deception of any persons; fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property; and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
It is clear from various judgements. whenever there are sufficient materials to indicate that a complaint manifestly discloses a civil dispute, the inherent powers of this Court under Section 482 Cr.P.C., can be invoked. Likewise, when the complaint prima-facie discloses that the transaction is for recovery of money due on a commercial transaction, the police cannot be transformed into a collection agent by spicing a criminal colour to the complaint.
There are no justification to permit the first respondent police to continue with the investigation - petition allowed.
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2017 (11) TMI 1979
Acceptance of highest bid in respect of sale of the assets - auction of the assets - HELD THAT:- Considering the fact that nobody has come forward to object to the sale of the assets of Lot No.3 to M/s Satguru Cement Pvt. Ltd. and also taking note of the circumstances which are disclosed in the aforesaid OLR, I am of the opinion that prayer made in the OLR deserves to be allowed.
Application are disposed of by confirming the sale of the assets of Lot. No.3 in favour of Satguru Cement Pvt. Ltd. with a direction to the said auction purchaser to deposit the balance sale consideration of ₹ 73,37,000/- after adjustment of AMD of ₹ 12 Lacs within a period of 30 days from today. On deposit of the said amount the O.L. will handover the assets of Lot No.3 to M/s Satguru Cement Pvt. Ltd. - application disposed off.
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2017 (11) TMI 1978
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - settlement of arrears of salary - time limitation - HELD THAT:- The defence taken by the Respondent/ Corporate Debtor is highly contradictory, if the dues of the employee have been settled, and there is nothing outstanding, then, the argument that the claim is barred by lirnitation does not carry any weight. The other defence that has been taken by the Respondent/ Corporate Debtor is that it has paid on 31.07.2015 as arrear of salary. In support of the same, they placed on record 'payment voucher' filed with the Written Arguments which goes to show that the entry 'pay to' is filled with name "N. Subramanian"; entry 'Rupees' is filled with words "Two Lakh and Ten Thousands only" and entry 'Rs. ' is filled with amount, "2, 10,000/-". These are being written in one hand writing. However, entry 'debt' is filled with the words "salary arrears" and entry '(particulars)' is filled with the words "full & final settlement of salary as on date" which are in different hand writing. The 'payment voucher' per se reflects that a fraud is being played on the Petitioner/ Operational Creditor, which can easily be identified with the naked eyes. Therefore, the entries relating to the "salary arrears" and "full & final settlement of salary as on date" seem to have been entered with mala fide intention to show that the amount paid is full and final settlement of the arrears of salary, which in no circumstances could be relied upon.
The Corporate Debtor defaulted in making payment arrears of the salary to the Petitioner/ Operational Creditor. The Operational Creditor has complied with requirements under Sections 8, 9 (3) (b) (c) of I&B Code, 2016 and has made out a case for admission of the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016.
Application admitted - moratorium declared.
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2017 (11) TMI 1977
Validity of assessment framed u/s 143(3) r.w.s. 153C - assessee has submitted that the search was conducted on 6.2.2012 and in pursuant to the search the AO issued a Notice u/s 153C for the AY 2012-13 which is not valid as this assessment year is the current year in which the search itself was carried out - HELD THAT:- Undisputedly when the search was carried out on 6.3.2012 then the provisions of Section 153C are not applicable for the assessment year under consideration i.e. 2012-13 therefore, the assessment framed in question for the assessment year under consideration will be treated only u/s 143(3) and mere mention of section 153C in the assessment order will not render the assessment invalid or void ab-initio. It is apparent that this is a case of only a mistake of mentioning the assessment framed under Section 143(3) r.w.s 153C and no other material or procedural defect either pointed out or found on the record to suggest that the Assessing Officer has not followed the procedure for framing the assessment u/s 143(3). Hence, this ground raised by the assessee is devoid of any merit and accordingly we dismiss the Ground No.1 of the additional ground.
Validity of Notice issued u/s 142(1) - as contended that when the assessee has already filed the return of income on 26.9.2012 then the Notice issued by the Assessing Officer under Section 142(1) on 12.9.2013 is not valid - HELD THAT:- We are of the view that even if the assessee filed the return of income on 26.9.2012 and the AO has subsequently issued a Notice under Section 142(1), the same will not effect the validity of the assessment in question framed u/s 143(3) of the Act. Accordingly, we do not find any merit or substance in additional ground No.2 and the same is dismissed.
Validity of assessment due to the reason that the Notice issued u/s 143(2) on 21.10.2013 is beyond the limitation provided under law and consequently the assessment framed on the basis of the said time barred Notice - We find that the assessee filed its return of income by efiling on 26.9.2012. This fact of e-filing of return has not been disputed by the AO and it is also matter of record as a copy of the said return has been now filed by the Assessing Officer along with the record. There is no dispute that the return of income was filed by the assessee under Section 139 of the Act and it was not filed in response to the Notice under Section 142(1). The assessee only intimated the Assessing Officer vide its letter dt.8.10.2013 that he has also filed its return of income and a copy of which was also filed before the Assessing Officer. The fact of filing the return of income by the assessee on 26.9.2012 is not in dispute and therefore, the limitation for issuing the Notice under Section 143(2) would expire by six months from 31.3.2013 which would be on 30.9.2013.
Notice issued under Section 143(2) was beyond the period of limitation then consequent assessment is not valid and liable to be quashed. - Appeal of assessee allowed.
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