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Showing 141 to 160 of 1453 Records
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2021 (3) TMI 1313 - SC ORDER
Cancellation of anticipatory bail granted - non-compliance with the condition within the time stipulated by this Court - HELD THAT:- Issue notice.
There shall be interim stay of the impugned order(s) and the amount already recovered shall remain with the respondent(s) in the meanwhile.
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2021 (3) TMI 1312 - CESTAT CHANDIGARH
Refund of service tax - time limitation - adjudication order was passed on 18-12-2014 and the same was reviewed by the reviewing authority on 13-3-2015, thereafter on 8-4-2015, the appeal was filed before the Ld. Commissioner (Appeals) - Section 85(3) of the Finance Act, 1994 - HELD THAT:- As the time limit prescribed under Section 85(3) of the Finance Act, 1994 is that any person aggrieved from adjudication order is required to file the appeal before the Ld. Commissioner (Appeals) within 60 days of the receipt of the adjudication order and the said period can be extended by another one month if reasons of causing delay has been explained satisfactorily.
Admittedly, in the case in hand the appeals have been filed beyond the extended period of time limit prescribed under Section 85(3) of the Finance Act, 1994 before the Ld. Commissioner (Appeals) and the said aspect has not been examined by the Ld. Commissioner (Appeals) while entertaining the appeal filed by the Revenue which is in gross negligence while entertaining the appeal.
Ld. Commissioner (Appeals) has gone beyond its jurisdiction to pass the impugned order, therefore, the impugned order is not sustainable in the eyes of law - Appeal allowed - decided in favor of appellant.
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2021 (3) TMI 1311 - MADRAS HIGH COURT
Demand of tax - validity of calling upon the petitioner to make available the interim order of stay obtained by the petitioner in respect of those demands - HELD THAT:- The petitioner has been advised to pay amounts in question, if he has not obtained any interim order of stay. Against such a communication, no writ petition can lie. The petitioner claims that in respect of the assessment year 2013-14, he had successfully challenged the same in a writ petition. If that be so, the petitioner can very well produce a copy of the same for consideration of the respondent. If the demand in respect of said assessment year has been set aside by this Court, certainly the respondent cannot enforce with the same.
The respondent is directed to serve copies of the assessment orders in the respect of the assessment years 2015-2016 and 2016-2017 - the respondent shall furnish the certified copies of the assessment orders in respect of the assessment years 2015-16 and 2016-17 within a period of two weeks from the date of receipt of a copy of this order - petition disposed off.
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2021 (3) TMI 1310 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
As per Bansi Lal Bhat, J. (Actg. Chairperson),
Acquisition of Unit No. 1 of Corporate Debtor - acquisition on 'as is where is basis, as is what is basis, whatever there is basis' - whether this acquisition implies acquisition of all the liabilities thereon? - It is contended that the impugned order is without jurisdiction and after issuance of Sale Certificate and delivery of possession to Appellant-auction purchaser the property in question no longer remained the property of the Corporate Debtor.
Whether the liability in respect of the workers and employees and other liabilities pertaining to Unit No. 1 of the Corporate Debtor sold under the Act, 2002 prior to commencement of CIRP are the liability of Corporate Debtor or the Appellant-auction purchaser? - HELD THAT:- The Appellant-auction purchaser had accepted the acquisition of Unit No. 1 subject to condition of 'as is where is basis, as is what is basis, whatever there is basis' and being fully aware of the nature of liabilities passing on to it in consequence of such sale besides being aware of the issuance of demand notice by Respondent No. 2-'Rashtriya Anil Steel Majdoor Sangh', thus the liabilities said to have been acquired by the Appellant in terms of the impugned order cannot be held to be an erroneous conclusion warranting interference.
The impugned order does not suffer from any legal infirmity and factual frailty. The appeal lacks merit and is dismissed.
As per V.P. Singh, Member (T),
Whether the Adjudicating Authority under the I & B Code 2016 has jurisdiction to determine a bona fide auction purchaser's liability under the SARFAESI Act's provision when the property had been sold, and sale certificate was issued before the commencement of CIRP of the Corporate Debtor? - Whether the Adjudicating Authority can decide the liabilities of a third party auction purchaser, which had no role in the Corporate Debtor's Resolution Process and did not fall under the ambit of avoidance transactions as outlined under Sec. 44 & 45, under Section 60(5) of the Code? - Whether the Sale of only Part of the Assets of the Corporate Debtor under the SARFAESI Act can be considered the Sale of a Company (or Part thereof) as a going concern to make the purchaser liable for workmen's dues? - HELD THAT:- It is pertinent to mention that based on the chronology of events, it is clear that the Allahabad Bank auctioned immovable property along with plant and machinery of Unit - 1 of the Corporate Debtor ASSIL under SARFAESI Act, 2002 and the Sale Certificate was issued on 9 February 2018. CIRP commenced against the Corporate Debtor ASSIL on 5 March 2018. The most important question that arises for our consideration is whether the Adjudicating Authority, while exercising its powers under the I & B Code, 2016 had any authority to fasten the liability of the Corporate Debtor on the auction purchaser whom the property was sold before the commencement of CIRP - Section 18(1)(f)(vi) have made the task of the Interim Resolution Professional in taking control and custody of an asset over which the Corporate Debtor has ownership rights, subject to the determination of ownership by a court or other authority. An asset owned by a third party but which is in possession of the Corporate Debtor under contractual arrangements is kept explicitly out of the definition of the term "assets" under the Explanation to Section 18. Insolvency and Bankruptcy Code is complete in itself. Section 18 deals with the duties of Interim Resolution Professional. Sub-section (f) to Section 18 of the Code provides that IRP can take control and custody of any asset; the Corporate Debtor has ownership and is recorded in the corporate debtor balance sheet. Sub-section (vi) to Section 18 authorises the IRP to take over assets, subject to the determination of ownership by a Court or Authority.
In the instant case on 5 March 2018, when CIRP commenced against the Corporate Debtor ASSIL, the IRP was authorised to take over its assets. But the property, which was already sold/auctioned before initiation of the CIRP and Sale Certificate dated 9 February 2018, was finally issued in pursuance of the Order of the Senior Civil Judge Court and Chief Metropolitan Magistrate Court Jaipur, was not the property of the Corporate Debtor. The auction purchaser was a third party which had no concern with the Corporate Insolvency Resolution Process of the Corporate Debtor, ASSIL. Thus, the corporate Debtor's liability can't be fastened on the third party, which happens to be a stranger to the CIRP of the Corporate Debtor and that too by exercising powers as an Adjudicating Authority u/s. 60(5) of the I & B Code 2016.
In the instant case, Allahabad Bank is a secured creditor of ASSIL which has auctioned the secured assets of the Corporate Debtor. There is not an iota of doubt that the alleged auction sale was under SARFAESI Act. Therefore, the Adjudicating Authority/National Company Law Tribunal had no authority to fasten the Corporate Debtors liability on the auction purchaser. In the case where the Sale is made under the SARFAESI Act, then after completing the sale process and issuance of the Sale Certificate, the Adjudicating Authority had no authority to pass an order U/s. 60(5) of the Code.
The Adjudicating Authority under the I & B Code 2016 had no jurisdiction to determine a bona fide auction purchaser's liability under the SARFAESI Act's provisions; the same has been purchased before the commencement of CIRP of the Corporate Debtor - while exercising its power u/s. 60(5) of the Code, the Adjudicating Authority has exceeded its jurisdiction in determining a third party's liabilities, which had no role in the Corporate Debtor's Insolvency Resolution Process.
Appeal allowed.
The majority view authored by separate judgment brother Hon'ble Acting Chairperson Justice B.L. Bhatt shall prevail.
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2021 (3) TMI 1309 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Seeking an exclusion of 17 days from the Corporate Insolvency Resolution Process - HELD THAT:- In view of second proviso of Section 12(3) of the IBC, since CIRP shall mandatorily be completed within a period 330 days from the date of commencement including an extension of the period of corporate insolvency resolution process granted under this section and the time taken in the legal proceedings in relation to such resolution process of the corporate debtor, we are not inclined to exclude the period as prayed for by the applicant.
The prayer to exclude the period of 17 days at this stage is hereby rejected - Application dismissed.
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2021 (3) TMI 1308 - CESTAT MUMBAI
Time Limitation - Recovery of differential duty - barred by being beyond the normal period of limitation prescribed in Section 28 of Customs Act, 1962? - HELD THAT:- Though in the valuation of the stock remaining after fulfilling the prescribed obligation, the appellant chose the most favourable from among ‘First In First Out (FIFO)’, ‘Last In First Out (LIFO)’, ‘average price’ and ‘weighted average price’ and which was sought to be substituted by that most favourable to Revenue, it is also beyond the pale of controversy that a ‘proper’ method was pinpointed only long after the duty liability had been discharged. It is also evident that, even in the absence of specific declaration of the method adopted, the computation sufficed as suitable indication. The finding in the impugned order that there has been no suppression, or intent to evade duty, is, consequently, unassailable.
The absence of any ingredient among those specified in Section 114A of Customs Act, 1962 would justify, to no lesser extent, the lack of recourse also to the extended period of limitation for recovery of differential duty and interest thereon.
The claim of the appellant cannot be discarded - Appeal is allowed on the finding of applicability of limitation without going into the correctness of the computation of duty liability.
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2021 (3) TMI 1307 - MADRAS HIGH COURT
Validity of assessment order - Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- A point raised in the order of assessment is that, with the resignation of the one of the two directors of the company, it stands automatically dissolved. Even assuming that this point was not put to the petitioner earlier, as the aforesaid observation is only incidental and merely to support the conclusion of the officer that the PG Renewables Pvt. Ltd. was not functioning or transacting during the period in question. The conclusion in the order of assessment is to the effect that has not produced any material in support of its contentions either by way of receipts or contemporaneous material. This is a question of fact.
There are no o legal flaw or fallacy in the impugned order warranting interference under Article 226 of the Constitution of India - petition dismissed.
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2021 (3) TMI 1306 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, NEW DELHI
Classification of imported goods - processed betel nut containing ingredients such as food starch, spices, mulethi, flavours, essence (food grade) etc. and not containing any lime or katha or tobacco - API supari - Chikni supari - unflavoured supari - goods imported by the applicant from the countries, East Timor, Bangladesh, Myanmar, Thailand, Indonesia, Vietnam, Sri Lanka & Laos - HELD THAT:- One set of processes are found to be intended for cleaning; the second set for enhancing preservation; and third set for enhancing appearance or presentation, which are clearly covered by the Chapter Note 3 to Chapter 8. Addition of starch would be included under such process. The applicant has contended that boiling of raw betel nut is more than moderate heat treatment. However, in view of the Chapter Note referring to moderate heating, HSN Note and common understanding of boiling, the contention of the applicant cannot be agreed and it is held that boiling of betel nut is akin to moderate heat treatment.
Thus, the processes to which raw betel nuts have been subjected to obtain API supari, Chikni supari and unflavoured supari are in the nature of processes referred to in the Chapter Note 3 to Chapter 8 and HSN Note. Therefore, at the end of the said processes, the betel nuts retain the character of betel nut and do not qualify to be considered as preparations of betel nut, classifiable under Chapter 21.
Flavoured supari - HELD THAT:- The judgment of the Hon’ble Supreme Court of India in the case of M/s. Crane Betel Nut Powder Works and of the CESTAT, Chennai in the case of AZAM LAMINATORS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, TRICHY (VICE-VERSA) [2019 (3) TMI 782 - CESTAT CHENNAI] [where scented betel nut was being manufactured by cracking of dried betel nut into small pieces, and thereafter, gently heating it with addition of vanaspati oil, sweetening and flavouring agents and marketed in small pouches as Nizam Pakku (in Tamil)/Betel Nut (in English), the Hon’ble CESTAT held the resultant product classifiable under sub-heading 0802 90 19 of Central Excise Tariff and not under 2106 90 30 as supari for period after 7-7-2009] are relevant. Put simply, these decisions clearly imply that addition of flavouring agents do not change the character of the good, meaning in the present case betel nut would continue to remain betel nut and not become preparations of betel nut.
All the four goods placed for consideration, i.e., API supari, chikni supari, unflavoured supari, flavoured supari merit classification under Chapter 8 of the First Schedule to the Customs Tariff Act, and more precisely, under the Heading 0802, and not under sub-heading 2106 90 30, as contended since they have not attained the character of “preparations of betel nut” despite the processes raw betel nuts have been subjected to and addition of starch (and flavouring agents in the case of flavoured supari).
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2021 (3) TMI 1305 - CESTAT MUMBAI
Levy of penalty - issue settled under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - valuation of excisable goods manufactured and cleared by the main appellant i.e. Vidyut Metallics Pvt. Ltd. - provisional assessment under Rule 7 of Central Excise Rules, 2002 - HELD THAT:- The case is of recurring nature; different adjudicating authorities have taken different stand vis-à-vis imposition of penalties and no evidence of personal gain that would have accrued to the appellants has been brought out either in the show cause notice or the impugned order. No case has been made by the department for imposition of penalty as against the appellant - Moreover, insistence of payment of penalty by a co-noticee when the main party has settled the issue under Sabka Vishwas (Legacy Dispute Resolution) Scheme defeats the spirit of the scheme itself. When the issue is of recurring nature and periodical show cause notices were being issued and adjudicated, no mala fides can be attributed to individuals and hence imposition of penalties is not justified.
Appeal allowed - decided in favor of appellant.
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2021 (3) TMI 1304 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- There is no dispute as to the financial debt was payable more than ₹ 1,00,000/- lacs and the Corporate Debtor committed default in paying the same. These are only two facts sufficient for considering the application under Section 7 of the Insolvency & Bankruptcy Code, 2016.
The Corporate Debtor raised technical defence that Proprietary concern cannot be filed an application under IBC 2016. However, now Hon’ble NCLAT in the case of Neeta Saha v. Ram Niwas Gupta [2020 (2) TMI 1442 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] has held that Proprietary concern being creditor can initiate Corporate Insolvency Resolution Process against the Corporate Debtor, so this technical defence is not maintainable.
Another defence taken was that the Certificate of Information Utility is not produced, however, law does not mandate to produce such Certificate, law requires from the Financial Creditor to produce evidence of the debt and default by the Corporate Debtor, where in this case evidence is produced.
Financial Creditor proved that the Corporate Debtor committed default in paying the financial debt of ₹ 37,10,972/-. hence, required to be admitted into Corporate Insolvency Resolution Process. The application is otherwise complete and defect free - Application allowed - moratorium declared.
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2021 (3) TMI 1303 - CALCUTTA HIGH COURT
Search and seizure operation carried out by officers of FEMA - seizure of certain gold jewellery - maintainability of appeal - As argued bullion or jewellery being stock-in-trade of the business cannot be seized by the authorities - HELD THAT:- With regard to the maintainability point, as part of the cause of action has arisen within the State of West Bengal, that is, the search and seizure has taken place in West Bengal and the petitioner is residing at West Bengal, in my view, there is no impediment in entertaining this writ petition before this High Court.
Clause (2) of Article 226 of the Constitution of India clearly allows this High Court to have jurisdiction in such cases wherein the cause of action has partly arisen notwithstanding the fact that the seat of the authority dealing with the issue is outside the jurisdiction.
Search and seizure of the excess jewellery that has been seized by the Enforcement Directorate, it is to be noted that in the writ petition, the petitioner has relied on several documents to indicate that this “excess jewellery” was duly accounted for and had been sent for job work. In my view, the Enforcement Directorate should look into the documents filed in the writ petition and pass a reasoned order on whether these goods are stock-in-trade or not.
Enforcement Directorate finds that the same are duly accounted for, the same should be released in favour of the petitioner in accordance with law. The above enquiry and the reasoned order should be passed within a period of eight weeks from date.The authorities are also directed to allow the petitioner to have a lawyer of his choice to be present during the summons at an inaudible distance as per the guidelines laid down by the Supreme Court.
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2021 (3) TMI 1302 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD BENCH
Request to direct the CoC to consider his revised plan - Section 29A(e) of IBC - HELD THAT:- Keeping open objection as taken by RP and directing CoC to take a call whether Applicant is really ineligible U/s. 29A(e) of IBC, the CoC and RP directed to consider the revised plan to be submitted by the Applicant within 7 days from today.
CoC is allowed to take call on all aspects including ineligibility and commercial viability of the plan.
Application disposed off.
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2021 (3) TMI 1301 - SUPREME COURT
Seeking grant of Default Bail - prosecution sanction from the State Government not obtained, for filing of charge sheet - submission of appellant is that the Chief Judicial Magistrate, Lucknow on 03.06.2017 could not have granted 180 days for filing of the charge sheet as the jurisdiction in respect of offences under the UAPA Act, which cases are entrusted to NIA, vests only with the special courts - HELD THAT:- Suffice to say that the situation in the State of Uttar Pradesh is different and it is not as if there were any notified special courts in existence.
Charge sheet/supplementary charge sheet under the UAPA Act was not filed even within 180 days giving cause to the Appellant to file the application for default bail on 03.10.2017, two days thereafter on 05.10.2017 after a lapse of 211 days that this charge sheet had been filed - HELD THAT:- The State cannot take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified Under Section 167 of the Code of Criminal Procedure beyond which default bail will be admissible, i.e., the period of 180 days. That period having expired and the charge sheet not having been filed qua those offences (albeit a supplementary charge sheet), we are of the view the Appellant would be entitled to default bail in the aforesaid facts and circumstances.
In fact in the majority judgment of this Court it has been held that an oral application for grant of default bail would suffice. The consequences of the UAPA Act are drastic in punishment and in that context, it has been held not to be a mere statutory right but part of the procedure established by law Under Article 21 of the Constitution of India.
The Appellant is entitled to default bail Under Section 167(2) of the Code of Criminal Procedure in the given facts of the case on the terms and conditions to the satisfaction of the trial Court - appeal allowed.
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2021 (3) TMI 1300 - ITAT MUMBAI
Vivad Se Vishwas Scheme - HELD THAT:- As assessee has filed a letter dated 25.02.2021 withdrawing the appeal as the assessee has opted for solution of dispute under the Vivad Se Vishwas Scheme. The learned Departmental Representative did not object to the same.
As relying on M/S. NANNUSAMY MOHAN (HUF) [2020 (11) TMI 484 - MADRAS HIGH COURT] as the assessee is opting for resolution of dispute under Vivad Se Vishwas Scheme in the present appeal, we treat the appeal as disposed off as withdrawn.
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2021 (3) TMI 1299 - ORISSA HIGH COURT
Reimbursement of service tax payable under the handling contract entered into between the parties - Cargo handling service - stand taken by the Petitioner was that in terms of the contract dated 15th February 2005, the liability to pay service tax was not of the Petitioner - HELD THAT:- It is the Petitioner as a service provider, which will have to bear the tax liability arising from the services provided under the contract. The amenability of the service provided by the Petitioner to service tax was not as a result of any change in the law after the date of entering into the contract but much prior thereto. Having entered into the contract with open eyes, the Petitioner should be understood as having undertaken to bear the liability of all taxes statutorily mandated arising from the performance of the service. The service tax being one such indirect tax levyable in terms of the Finance Act, 1996 with effect from 16th August 2002, the question of the Petitioner, in terms of the contract not being liable to bear the burden of service tax, did not arise.
The petition is dismissed.
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2021 (3) TMI 1298 - ITAT PUNE
Addition u/s. 40A(2)(b) - disallowance on accrued interest on NPA, contingent provision for standard assets and disallowance @ 50% on payment to Cosmos Foundation - HELD THAT:- There was no contrary order as on today against the order of this Tribunal in assessee’s own case. We note that as rightly pointed out by the ld. AR that there is no order placed on record to show that the order of this Tribunal in assessee’s own case involving the issue on hand is reversed or modified by the Hon’ble High Court of Bombay and the AO made 50% disallowance on payment made to Cosmos Foundation only on the ground that the appeal is pending for admission before the Hon’ble High Court of Bombay. CIT(A) clearly held since there was no order from the Hon’ble High Court, the order of this Tribunal is binding on the Revenue authorities involving the same issue. Therefore, we do not find any infirmity in the order of CIT(A) and it is justified. Accordingly, the ground raised by the Revenue is dismissed.
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2021 (3) TMI 1297 - ITAT DELHI
Addition of interest earned from foreign bank - income estimation to be @ 4% per annum as the assessee failed to provide any details in respect of foreign bank account and interest rates thereon - HELD THAT:- In the absence of any bank account statement of the said bank account and information of the status of its existence / closure, the balance as on March, 2007 was required to be worked-out as there must have been component of interest earned for the month of March, 2007 and thereafter. The A.O, therefore, presumed that assessee has earned interest @ 4% per annum and made the addition.
These facts clearly show that A.O. was not having any information/material so as to prove that assessee maintained the same HSBC account for the assessment year under appeal.
A.O. in the absence of bank statement and further details presumed that assessee must have earned interest on the same foreign bank account in assessment year under appeal. It was, therefore, clearly support the findings of fact recorded by the Ld. CIT(A) that there were no evidence available with the A.O. to compute the interest earned by the assessee in assessment year under appeal. In the absence of any evidence on record to the effect that assessee maintained any foreign bank account in assessment year under appeal or earned any interest thereon, the Ld. CIT(A) was justified in deleting the addition. We do not find any error in the Order of the Ld. CIT(A) in deleting the addition. The Departmental Appeal fails and is dismissed.
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2021 (3) TMI 1296 - KERALA HIGH COURT
Seeking withdrawal of petition - final order of confiscation has been passed - petitioner submits that the petition be closed with liberty to the petitioner to seek the remedy as is available in law - HELD THAT:- The writ petition is closed with liberty to the petitioner to seek the remedy of challenging the order of confiscation according to the provisions of law.
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2021 (3) TMI 1295 - TELENGANA HIGH COURT
Levy of Entertainment tax - tax slabs were fixed under GST Act - HELD THAT:- Having regard to the fact that lockdown imposed by the State and Central Government has now been lifted and inter-State travel is now possible, and since vaccination for Covid-19 virus is also being administered, and since personal appearance of the petitioner is not necessary having regard to sub-rule (2) of Rule 133, we dispose of this Writ Petition directing the petitioner to submit explanation to the notice dt.06-03-2020 to the 4th respondent within four (04) weeks from today.
The Writ Petition is disposed of.
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2021 (3) TMI 1294 - MADRAS HIGH COURT
Reversal of input tax credit - petitioner had been selling goods by offering quantity discount to their customers ultimately resulting in sale price being lessor than their purchase price - HELD THAT:- When this Court wanted to know the basis on which the pre-revision notices have been issued, Mr.Kumaresen, the present Commercial Tax Officer, Virudhungar read out from the statement given by the petitioner herein before the enforcement wing officials during inspection. While such a statement may not be binding on the petitioner herein, that can certainly furnish cause of action for initiating proceedings under Section 27 of the Tamil Nadu Value Added Tax Act - When the pre-revision notice does not contain the relevant particulars, it would be difficult for the assessee to appropriately respond. However, there is considerable merit in the stand of the respondent that at the stage of show cause notice, the Writ Court should be highly reluctant to interfere. Therefore, even while declining to interfere with the impugned notices, the respondent is directed to issue a supplemental notice enclosing the relevant particulars.
The petitioner has to necessarily offer his explanation in time without entangling the respondent in further litigation. The respondent will consider the objections of the petitioner in the light of the aforesaid circular dated 04.11.2013 and the relevant provisions of law. If the respondent is not satisfied, personal hearing will be granted and thereafter, orders in accordance with law will be passed - petition disposed off.
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