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2023 (8) TMI 1446 - SC ORDER
Money Laundering - grant of pre-arrest bail - HELD THAT:- The second supplementary complaint after investigation has already been filed. During the course of the investigation, the appellant was not arrested though his statement was recorded.
Hence, a case is made out to grant pre-arrest bail to the appellant. Accordingly, it is directed that in the event of arrest, the appellant shall be enlarged on bail on such terms and conditions as may be deemed proper by the competent court.
The warrant issued against the appellant shall not be executed - Appeal allowed.
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2023 (8) TMI 1445 - SUPREME COURT
Doctrine of merger and doctrine of res-judicata versus Law of precedents - Refund to Himanshu Dewan & Sonali Dewan and Ors, the amount collected towards excess sale area, and to execute supplementary correction deeds within six weeks from the date of the order - seeking a refund of the amounts paid by them towards the increased sale area alleging, inter alia, that there was neither increase in the carpet area nor in the built-up area, and that the demand towards increase in the sale area made by the Appellant was illegal - Arising of cause of action - HELD THAT:- The Appellant, as per the contractual terms, is well within their right to ask for enhanced sale consideration on increase in the sale area as defined. The Respondents have not questioned and challenged this right of the Appellant. They have challenged the computation and calculations. The Respondents have the right to ask for calculations and details, when the Appellant had stated that the sale area had increased. On being satisfied with the calculation, the Respondents could have accepted the increase in the sale area, if the same was in accordance with the agreement. The 'cause of action' arose when the Appellant insisted and compelled the Respondents/allottees to make payment, but did not furnish the details and particulars to enable the Respondents/allottees to ascertain the actual allocated sale area - In the context of the present case, it is an accepted position that the sale deeds were executed with the Respondents between the period from 13.04.2018 to as late as 09.01.2020. In view of the aforesaid, the complaints filed by the Respondents cannot be dismissed on the ground of being barred by limitation Under Section 69 of the Act.
Similar issues had arisen before this Court in ARIFUR RAHMAN KHAN AND ORS. VERSUS DLF SOUTHERN HOMES PVT. LTD. AND ORS. [2020 (8) TMI 852 - SUPREME COURT]. This Court accepted the argument by the consumers that execution of a deed of conveyance by a flat buyer would not preclude a consumer claim for compensation for delayed possession in a case where the allottees were not given an option, but were rather told that the possession would not be given and the conveyance deed would not be executed without the acceptance of the offer of possession terms.
The dismissal of the appeal in the case of PAWAN GUPTA VERSUS EXPERION DEVELOPERS PVT LTD DELHI [2020 (8) TMI 940 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI] without any reasons being recorded would not attract Article 141 of the Constitution of India as no law was declared by the Supreme Court, which will have a binding effect on all courts and tribunals in India. There is a clear distinction between the binding law of precedents in terms of Article 141 of the Constitution of India and the doctrine of merger and res judicata.
The order of this Court dismissing the appeal in the case of Pawan Gupta cannot be read as a precedent and applied to the cases in hand. In fact, precedents cannot decide questions of fact. The decision in the case of Pawan Gupta was based on evidence adduced by the Appellant/builder/developer, which in the said case was not found to be sufficient and cogent to justify and substantiate the demand raised in view of the increased sale area. No doubt, the architect's certificate and report dated 23.09.2020 was filed before this Court as additional documents, but a non-reasoned order passed by this Court dismissing the case cannot be read as accepting and considering the additional evidence, or as rejecting justification and reasons given therein for claiming additional/increased sale area - the order passed by this Court dismissing the appeal in the case of Pawan Gupta is confined to the facts of the said case, including the evidence led by the parties before the National Commission. The National Commission was therefore required to consider and examine the contentions of the Appellant and not overrule the same on the grounds of the principle of res judicata and on the Rule of binding precedent, which do not apply. An order of remand on the question of merits as to the stipulation and increase in the sale area is therefore required.
The impugned order and judgment passed by the National Commission is set aside and the appeal is disposed of with a direction of remand in terms of the observations and directions given herein.
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2023 (8) TMI 1444 - ITAT MUMBAI
Levy of penalty u/s. 271B - violation of Section 44AB - As alleged assessee has failed to submit the report of the auditors and has not got the accounts audited, therefore, there was a contravention of Section 44AB and accordingly, penalty u/s. 271 B was initiated - assessee submitted that he has done all the investment considering himself as an investor and not as a trader - HELD THAT:- For violation of non maintenance of books of account u/s 44AA, there is a separate penal provision for levying penalty for non-maintaining of books of accounts prescribed u/s. 271A and therefore if at all penalty should have been levied under this section.
The Hon’ble Allahabad High Court in the case of CIT vs. Bisauli Tractors [2007 (5) TMI 181 - ALLAHABAD HIGH COURT] had held that Section 271B of the Act is not attracted in the case where no account has been maintained and instead recourse u/s.271A can be taken. This principle has again been reiterated by the Hon’ble Allahabad High Court in the case of CIT vs. S.K Gupta [2009 (9) TMI 231 - ALLAHABAD HIGH COURT]. Similar view has been taken in the case of CIT vs. Surajmal Parsuram Todi [1996 (8) TMI 102 - GAUHATI HIGH COURT]. Accordingly, we hold that no penalty u/s.271B is leviable when assessee has not maintained the books of accounts. Accordingly, penalty is deleted. Decided in favour of assessee.
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2023 (8) TMI 1443 - CESTAT BANGALORE
Method of valuation - Clearance of physician samples by discharging duty @ 110% of the cost of production - to be valued under Rule 8 or Rule 4 of the Central Excise (Valuation) Rules, 2000? - HELD THAT:- The Hon’ble Supreme Court in MEDLEY PHARMACEUTICALS LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2011 (1) TMI 13 - SUPREME COURT] has held that This Court has upheld the conclusion of the Tribunal that the physician’s samples have to be valued on pro-rata basis.
Thus, the impugned order is upheld and the appeal being devoid of merit, accordingly is dismissed.
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2023 (8) TMI 1442 - ITAT AHMEDABAD
Rectification of mistake - computation of Disallowance u/s 14A r.w.s. 8D - contention of the assessee that AO has to confirm the disallowance of administrative expenses u/s14A and dismiss the appeal of the Revenue thereby contending that in earlier Assessment Year i.e. A.Y. 2010-11 the Hon’ble High Court [2019 (6) TMI 1006 - GUJARAT HIGH COURT] has deleted the disallowance made as observing that in a case where assessee was having sufficient funds available with it, more than amount invested for earning the dividend, the disallowance in respect of interest expenditure u/s 14A r.w.r. 8D of the Rules is not permissible - HELD THAT:- From the perusal of [2023 (4) TMI 334 - ITAT AHMEDABAD] the contentions of the Ld. AR that no satisfaction was recorded has been taken into account and after taking cognisance of the same, the Tribunal has come to the conclusion that the Assessing Officer has looked into the aspect of element of administrative expenses and directed the Assessing Officer to take 0.5% thereby invoking the said Rule i.e. Rule 8D.
The contentions of the AR that current liabilities and provisions should not be reduced from the opening and closing stock of current assets should have been taken into account by the AO. As an impact, simplicitor directing the AO to confirm the disallowance and administrative expenses u/s 14A to the tune of Rs.15 lakhs will not be appropriate in the present Assessment Year and, therefore, the Revenue’s appeal has been partly allowed for statistical purpose with direction to the Assessing Officer to take all the element into account as well as administrative expenses which has been incurred by the assessee should be taken into account while allowing the same in the actual amount of administrative expenses and not on the superficial basis.
At the time of hearing, the Ld. AR relied upon the decision of Saurashtra Kutch Stock Exchange Limited [2008 (9) TMI 11 - SUPREME COURT] but in the present case the same it will not be applicable as the earlier decisions of Hon’ble High Court in Assessee’s own case has been considered and each assessment year has to be looked independently on factual aspects especially expenses and interest earned. Therefore, there is no need to interfere with the order and there is no need to rectify the same. Decided against assessee.
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2023 (8) TMI 1441 - UTTARAKHAND HIGH COURT
Maintainability of an application for anticipatory bail after charge sheet has been filed in the Court - question placed for consideration by this Larger Bench.
As per Manoj Kumar Tiwari, J. - An application seeking anticipatory bail would be maintainable even after filing of charge sheet in the Court.
As per Ravindra Maithani, J - An application for anticipatory bail is not maintainable after the chargesheet has been filed in the court.
As per VIPIN SANGHI, C.J.
HELD THAT:- The view taken by Manoj Kumar Tiwari, J. that an application seeking anticipatory bail would be maintainable even after the filing of the charge- sheet in the court, agreed upon - Right to life and personal liberty is a valuable right available to a person, guaranteed under Article 21 of the Constitution of India, and it is one of the most precious and cherished rights. The said right to life and personal liberty cannot be curtained, or deprived, except without following the due process of law.
Section 438 of the Code of Criminal Procedure, which deals with what is popularly known as "anticipatory bail", seeks to prevent the apprehended infraction of this right to life and personal liberty of a person, by providing that where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court, or to the Court of Session, for a direction under the said provision and the Court may, if it thinks fit, direct that in the event of such an arrest, he shall be released on bail.
In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], the Supreme Court considered the issue - whether the operation of an order passed under Section 438(1) of the Code should be limited in point of time. While recognizing the power of the Court to limit the operation of such an order to a shorter period, for reasons to be recorded, the Supreme Court observed that the normal rule should be not to limit the operation of the order in relation to a period of time.
The Law Commission in its 41st report, while recommending pre-arrest bail, observed that - their seems to be no justification to require the accused to first submit to custody, remain in prison for some days, and then apply for bail.
The view of Manoj Kumar Tiwari, J. agreed upon that the legislation has not imposed any restriction as regards the stage upto which an application for anticipatory bail can be entertained.
That being the position, an interpretation of Section 438 Cr.P.C. which curtails the remedy available to an accused - to preserve his right to life and personal liberty, should be eschewed.
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2023 (8) TMI 1440 - ITAT KOLKATA
Addition u/s 68 - unexplained cash credit - Onus to prove - HELD THAT:- The assessee has filed the necessary evidences comprising names, addresses, PANs, bank statements, ITRs, balance sheet, profit and loss accounts, share allotment letter, share application with bank statement besides filing the bank statements of the assessee thereby evidencing the receipt of amounts of from these investors. We note that the assessee is a trading in shares and textiles and all the subscribers were also trader in textiles. We also note that it’s customary in the business of textiles to business dealings in cash and so deposit into the banks accounts out of sales proceeds is in the normal course of business.
Therefore mere fact that the cash has been deposited in the bank accounts of the subscribers immediately one or two days before issuance of cheques in favour of the assessee will not perse prove that these transactions were non-genuine.
As examined the evidences filed before us in respect of share subscriber companies. We note that these companies are in fact having business in textiles and their turnover justified the cash deposits. Therefore the reasoning given by authorities below without looking into the nature of business of the assessee and the subscribers qua the cash deposit in the account of the subscribers before the date of the payment to the assessee is not sustainable. Besides the mere fact that the assessee has failed to produce the principals / directors of the subscribing company due to which investment could not be verified cannot be a ground for making addition in the hands of the assessee.
As both the authorities have failed to point out any defects in the documents/evidences furnished by the assessee and simply relied on the theory principal officers/ directors of the assessee company were not produced. In our opinion, the addition is based upon conjecture and surmises and not on the records which were available before the authorities below. Decided in favour of assessee.
Addition u/s 14A r.w.r. 8D(2)(iii) - assessee has received exempt income and has suo motto disallowed a sum under Rule 8D(2)(i) - HELD THAT:- We find that the issue is squarely covered in favour of the assessee by a series of decisions wherein it was held that the disallowance of expenses has to be restricted to the amount of exempt income received by the assessee.
We note that the assessee has earned tax free income of Rs. 1,53,600/- and therefore the disallowance cannot exceed the said amount of exempt income. Accordingly we set aside the order of Ld. CIT(A) and direct the AO to restrict the addition - Appeal of the assessee is allowed.
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2023 (8) TMI 1439 - SC ORDER
TP Adjustment - characterization of infra group services transaction - ITAT deleted the addition made holding that the payment made for intra group services was for commercial expediency - As decided by HC [2022 (9) TMI 1567 - DELHI HIGH COURT] agreement between the Assessee and its AE was a composite one and could not be split up for the purposes of holding that some services are at arm’s length and some are not as on viewing the agreement as a whole. It was not within the purview of the TPO to determine if some of the services resulted in any actual benefit to the Assessee or not.
Not considering interest on outstanding receivables as an international transaction as per Section 92 (B) read with Section 92F(v) - Appellate Authorities below have accepted the contention of the assessee that the assessee was justified in not charging interest on the delayed payments by the AEs and in not levying any interest on delayed payments made by the non-AEs, as the debtor days given to the non-AEs were more than the debtor days given to the AEs.
HELD THAT:- This Court is of the opinion that the impugned order does not call for interference. The special leave petition is accordingly dismissed.
All pending applications are disposed of.
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2023 (8) TMI 1438 - ITAT AHMEDABAD
Addition u/s 115JB for disallowance u/s 14A - addition in the book profit by adding the amount of disallowance made u/s. 14A while calculating the taxable profit u/s. 115JB - HELD THAT:- As in the book profit by adding the amount of disallowance u/s 14A of the Act while calculating taxable profit u/s 115JB of the Act, whereupon, the Co-ordinate Bench in [2022 (12) TMI 1495 - ITAT AHMEDABAD] for A.Y. 2015-16 has been pleased to hold that disallowance made u/s 14A of the Act is not required to be added back to the book profit and relief accordingly was granted. However, the Ld. CIT(A) issued direction to the AO to include the dividend income while computing book profit. We, therefore, do not find any reason to deviate from the stand taken by the Coordinate Bench which has upheld such direction passed by the CIT(A). We, therefore, respectfully relying upon the same, do not find any reason to interfere with such order passed by the CIT(A). This ground of appeal appears to have been no merit and thus dismissed.
Nature of expenses - disallowance being guarantee fees paid to Government of Gujarat - HELD THAT:- We find that the Ld. CIT(A) following the order passed by his predecessor for A.Ys. 2008-09 [2016 (6) TMI 1391 - ITAT AHMEDABAD] wherein guarantee fees was directed to be allowed as revenue expenditure subject to verification of the certificate filed during the appellate proceedings that the loans on which guarantee fees was paid were duly utilized for construction of power plants at that time and there was no capital work-in-progress in respect of such loans during F.Y. 2014-15. Thus, we do not find any reason to interfere with the observations passed by the Ld. CIT(A). Hence, we uphold the same. This ground of appeal preferred by the Revenue is found to be devoid of any and thus, dismissed.
Addition being 15% of capital grants - HELD THAT:- As perused the order passed by the Co-ordinate Bench in [2023 (7) TMI 1378 - ITAT AHMEDABAD] in assessee’s own case, wherein issue has been discussed and decided in favour of the assessee upon deleting the addition made by the Ld. AO being addition of 15% of capital grant.
Correct head of income - Treatment of interest income and miscellaneous income - HELD THAT:- As relying on [2023 (7) TMI 1378 - ITAT AHMEDABAD] - Tribunal’s decision in assessee’s own case, we hereby held that the interest income and miscellaneous income earned by the assessee were directly related to the business of the assessee and assessable as “business income” only and not as “income from other sources”.
Disallowance u/s. 14A for the purpose of computation of book profit u/s. 115JB of the Act is hereby deleted.
Disallowance of prior period expenditure - whether such expenditure crystallized during the year? - CIT(A) deleted addition - HELD THAT:- It appears that the appellant had accounted for net prior period expenses of the impugned amount which is visible from the copy of computation of income placed at Annexure-III before the CIT(A). Considering which, the disallowance found to be not sustainable, which according to us, is just and proper so as to warrant interference. Thus, this ground of appeal is dismissed.
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2023 (8) TMI 1437 - MADRAS HIGH COURT
Demand duty - car imported by wrongly availing the exemption under Notification No.3/57- seized vehicle - Show Cause Notice issued - execute the bond and also to execute a bank guarantee - HELD THAT:- In case, the petitioner has sustained loss on account of the alleged fraud by the seller of the car and the dealer, the petitioner has to recover the loss from his seller and dealer who facilitated the sale of car to the petitioner. Considering the fact that the imported car is prone to depreciation, a direction is given to the respondents to finally assess the imported car to duty and pass final order in the Show Cause Notice dated 08.07.2022 as expedioustly as possible.
This writ petition stands disposed of with the above liberty. Consequently, connected writ miscellaneous petitions are closed.
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2023 (8) TMI 1436 - PUNJAB AND HARYANA HIGH COURT
Dishonour of cheque - condition has been imposed upon the petitioner to deposit 20% of the compensation/fine amount - Seeking quashing of condition imposed by Additional Sessions Judge, Gurugram while suspending the sentence of the petitioner - HELD THAT:- There is no doubt to the mind of this Court on perusal of the statement of object and reasons for introducing these provisions is to address the issue of undue delay in final resolution of the cheque dishonor cases and to provide interim relief to the holder of the cheque in due course, as well as, to discourage the frivolous and unnecessary litigation; besides strengthening the credibility of the cheques as mode of payment; so as to help the trade and commerce in general and the lending institutions and the banks in particular in extending financial facilities to productive sectors of economy.
In the case in hand, the compensation amount has been adjudicated to be half of the amount of cheque involved which by no means can be said to be un-reasonable or arbitrary.
Coming to the question of validity for imposing the restriction to deposit 20% of the amount of compensation as a pre-requisite for suspending the sentence, the Apex Court in the case of SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND OTHERS VERSUS VIRENDER GANDHI [2019 (5) TMI 1626 - SUPREME COURT], has observed that power of Appellate Court directing appellant original accused to deposit more than 20% of fine amount is mandatory in nature.
It is also well known to this Court that certain unscrupulous and notorious drawers of the dishonored cheque have been misusing the procedural delay to their advantage after obtaining stay on the proceedings which only frustrates the basic object and reason of incorporation of Section 138 of the Negotiable Instruments Act, 1881. The amendment in Section 148 of the said Act has been cautiously effected primarily having at the back of mind to expedite the disposal of proceedings under the Negotiable Instruments Act and by no stretch of discussion, it could be said that the substantive right of appeal of the accused-appellant has been taken away/or effected.
The petitioners-accused are directed to deposit the amount as ordered by the Lower Appellate Court within the stipulated time of 60 days, which may be further extended by 30 days - Petition dismissed.
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2023 (8) TMI 1435 - ITAT RAJKOT
Validity of Revision u/s 263 - case for selected for limited scrutiny - CIT made addition of income u/s. 2(24)(x) r.w.s. 36(1)(va) of the Act for EPF - as argued since the assessment was a limited scrutiny assessment and the error noted by the PCIT was beyond the scope of limited scrutiny of the AO - HELD THAT:- DR was unable to controvert both the factual contentions of the assessee that the assessment in the present case was a limited scrutiny assessment and the error noted by the PCIT in the assessment order was beyond the scope of limited scrutiny; nor was he able to controvert the proposition of law laid down by the various courts in this regard as pointed out by assessee before us that there cannot be any error in the assessment framed in limited scrutiny on issues which were beyond the scope of limited scrutiny. In view of the above, we are in complete agreement with assessee that the impugned order passed by the ld. PCIT u/s 263 is not sustainable in law, and it is, therefore, directed to be quashed. Appeal of the assessee is allowed.
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2023 (8) TMI 1434 - ITAT RAJKOT
Revision u/s 263 - eligibility for claim of deduction u/s 80P(2)(d) - HELD THAT:- In so far as this issue with respect eligibility for deduction u/s 80P(2)(d) in our view, the order passed by the Assessing Officer is not erroneous and prejudicial to the interests of the revenue for the reason that firstly, the Assessing Officer had examined this issue during the course of assessment proceedings and secondly, various judicial precedents as highlighted above have also adjudicated on this issue in favour of the assessee including the jurisdictional Gujarat High Court and the jurisdictional Rajkot ITAT.
Delay in deposit of PF - we observe that the Principal CIT has correctly observed that the Assessing Officer has not enquired into the evident delay in deposit of PF as is visible from the tax audit report. Though, the counsel for the assessee has submitted that this was owing to a mistake on part of the tax auditors, however, the Assessing Officer should have enquired into this apparent mistake which is coming from the tax audit report filed by the assessee, which clearly mentions that there has been a delay in deposit of PF on part of the assessee.
Interest on income tax refunds - We observe that the AO has not enquired into this aspect at all. Though, the counsel for the assessee has submitted that the aforesaid amounts have been offered to tax by the assessee in its return of income, however, in our considered view, the AO should have enquired into this aspect during the course of assessment proceedings.
Principal CIT has not erred in facts and in law in holding that the assessment order is erroneous and prejudicial to the interests of the Revenue with respect to the issue of late deposit of PF and enquiry into taxability of interest on tax refund. AO looking into the facts of the instant case, is directed to carry out the necessary enquiries and the assessee may also filed necessary documents in support of its aforesaid claim.
Appeal of the assessee is partly allowed.
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2023 (8) TMI 1433 - ALLAHABAD HIGH COURT
Property being pledged in a loan and then being sold after being undervalued - Civil dispute of not - difference of opinion between the members of the Division Bench and the matter has been referred under Chapter VIII Rule 3 of the Rules of the Court but in the referring order the point of difference is not noted - HELD THAT:- Looking to the nature of the incident being related to financial institutions of money lenders who were pursuing recovery proceedings of their enforceable debts and the proceedings thereof satisfy the same, it is a fit case for grant of interim protection to the petitioners. The argument of learned Additional Advocate General that the petitioners will not arrested and the proceedings, if any, will be taken up as per the directions of the Apex Court in the judgment in NIRAJ TYAGI AND ANOTHER VERSUS STATE OF U.P. AND 3 OTHERS [2023 (7) TMI 1368 - ALLAHABAD HIGH COURT] relied by him is concerned, the interim order as granted is not limited to merely protecting the arrest of the petitioners but is on other counts too. Since this Court has come to a conclusion that it is a fit case for grant of interim protection, the same is granted.
The present case is a fit case for grant of interim protection in terms of the order passed by another Division Bench of this Court in Niraj Tyagi - List this petition before the Division Bench on the date fixed therein for appropriate orders.
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2023 (8) TMI 1432 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Condonation of delay in refiling of the appeal - Sufficient reasons for delay or not - whether condonation has to be allowed only after assigning sufficient cause to the satisfaction of the Court? - HELD THAT:- The answer to the above question is no longer res integra in view of the Five Judge Bench decision of this Tribunal rendered in V.R.Ashok Rao [2022 (9) TMI 219 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] in which one of the question was "Whether the limitation prescribed for filing an appeal before this Appellate Tribunal under Section 61 of the Insolvency and Bankruptcy Code, 2016 or Section 421 of the Companies act, 2013 shall also govern the period under which a defect in the Appeal is to be cured and this Appellate Tribunal shall have no jurisdiction to condone the delay in refiling/re- presentation if it is beyond the limitation prescribed in Section 61 of the IBC or Section 421 of the Companies Act, 2013." - it was held by the Tribunal that The limitation prescribed in filing an appeal under Section 61 of the Code or Section 421 of the Companies Act, 2013 shall not govern the period taken in an appeal for removal of the defects in refiling/re-presentation. Even if, there is a delay in refiling/ re-presentation which is more than the period of limitation prescribed for filing an appeal under section 61 of the Code and Section 421 of the Companies Act, 2013, the same can be condoned on sufficient justification.
Thus, one thing is settled that in application for condonation of delay in refiling of appeal, the Applicant / Appellant has to give sufficient reason for not re-filing the appeal within the time prescribed - In the present case, the appellant has been totally casual in approaching this court time and again for the purpose of re-filing inasmuch as the defects have been shown for the first time on 01.02.2022 were not cured.
It is added that one of the objection was with regard to the cause title namely, Cause title is defective in whole appeal paper book write, "2022 instead of 2021". Even this was not corrected by the Appellant which speaks volumes about their act and conduct and disentitles them from seeking condonation of delay in the present application.
There is no sufficient cause assigned by the Appellant for the purpose of condonation of delay in re-filing of the appeal. Consequently, the application is hereby dismissed.
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2023 (8) TMI 1431 - PUNJAB AND HARYANA HIGH COURT
Levy of fine and penalty on petitioner - petitioner is ready to deposit 25% of the amount by way of cash and for the remaining amount, the petitioner can furnish the personal/surety bond - HELD THAT:- At this stage, Ms. Anu Pal, Senior DAG, Punjab, accepts notice on behalf of the respondents and seeks time to get instructions.
Copy of this petition be supplied to learned State counsel during the course of the day - Adjourned to 30.11.2023.
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2023 (8) TMI 1430 - PUNJAB AND HARYANA HIGH COURT
Levy of tax, penalty and fine - the petitioner is ready to deposit Rs.4 Lacs in cash and give surety with respect to the remaining amount out of Rs.19,42,692/- - HELD THAT:- A direction is being given to the petitioner to deposit Rs. 4 Lacs in cash and give bank guarantee for the remaining penalty amount and goods be released provisionally to the petitioner within 10 days - Respondents are directed to accept Rs.4 Lacs in cash pursuant to the GST MOV-10 where total tax, penalty and fine is Rs. 19,42,692/-.
Petition disposed off.
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2023 (8) TMI 1429 - NATIONAL COMPANY LAW TRIBUNAL CUTTACK
Restoration of name of applicant company which was struck off by the respondent - apparent mistake appeared in the dismissal order or not - HELD THAT:- The High court granted liberty to the applicant to file amendment application. The scope of amendment is to rectify the mistake if it is apparent on record. The applicant has not pointed out any apparent mistake appeared in the dismissal order of this Tribunal dated 21.08.2020 instead he prayed to receive additional documents on record and grant the relief prayed in dismissal C.P.No.70/CTB/2020. The prayer of the applicant is beyond the scope of amendment.
On the applicant side not brought to notice of this Tribunal any apparent mistake appeared in the dismissal order dated 21.08.2020. The High court granted permission to the applicant to file amendment petition. The applicant not filed an application for an amendment instead he filed the application to receive the additional documents, this prayer is beyond the scope of the permission granted by High court. The applicant cannot on its own expand the permission granted by High Court and labelled that this application is filed in pursuance of High Court order dated 14.10.2022. In the High Court order there is no whisper about production of additional documents and the revival of the company. In strict sense this application is not in consonance with the order of High court.
This application is DISMISSED.
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2023 (8) TMI 1428 - CESTAT CHENNAI
Classification of goods - Savoury Oats / Silk Oats - classifiable under CETH 1104 12 00 as contended by the appellant or whether classifiable under CETH 1904 20 00 as redetermined by the department - Muesli - classifiable under CETH 1904 10 90 as adopted by the appellant or whether classifiable under CETH 1904 20 00 as redetermined by the Department? - time limitation.
Classification of goods - Savoury Oats / Silk Oats - classifiable under CETH 1104 12 00 as contended by the appellant or whether classifiable under CETH 1904 20 00 as redetermined by the department - HELD THAT:- In the case of Mahavir Food Products Vs CCE Vadadora [2007 (3) TMI 9 - CESTAT, AHMEDABAD], the Larger Bench of the Tribunal had occasion to consider the classification of “Makai Poha” which was corn grains boiled and flattened between rollers, but not roasted. The assessee was of the view that as the product cannot be eaten as prepared food by itself or after soaking cannot be classified under 1904 and has to be classified under 1104. The Larger Bench held that the Heading 1904 covers prepared food obtained by swelling or roasting of cereals. If the flakes are processed beyond the extent covered under Heading 1104 so as to be ready for consumption it would fall under 1904 - The decision in the case of Miki Food Products Vs CCE Ahamedabad [2008 (3) TMI 588 - CESTAT, AHMEDABAD] was another case in which the issue was with regard to the classification of “Maize Pauva”. The Department had classified the said item under 1904 whereas the assessee had claimed classification under 1101 contending that the product is not ready to eat product. The Tribunal relying upon the decision in the case of Mahavir Food Products [2007 (3) TMI 9 - CESTAT, AHMEDABAD] held that the goods are classifiable under 1101.
The product Savoury Oats / Silk Oats merit classification under CETH 1104 12 00 and not under 1904 20 00 as determined by the authorities below.
Classification of “Muesli” - HELD THAT:- The adjudicating authority has redetermined the classification under 1904 20 00 by holding that assessee has not furnished any evidence to show that whole rolled oats are dry kilned (roasted). From the flow chart given, it can be seen that whole rolled oats have undergone the process of roasting for use in the manufacture of Muesli. Therefore, the said product (Muesli) merit classification under Chapter Heading 1904 10 90 as adopted by the appellant.
Time Limitation - HELD THAT:- The appellant had issued a letter to the department with regard to the manufacture of Savoury Oats. They had also informed the details of the process and the classification adopted by them. Further, the issue is purely interpretational in nature. For these reasons, the invocation of extended period is not proper and valid.
Appeal allowed.
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2023 (8) TMI 1427 - CALCUTTA HIGH COURT
Validity of reassessment order u/s 148A(Ad) - petitioner is not satisfied with the reasoning and finding of the assessing officer. There is a difference between non-consideration of the objection of petitioner/assessee and consideration of objection according to the petitioner is not being satisfactory - HELD THAT:- As in this case assessing officer has passed the impugned order by making detailed discussion and by a speaking order based on facts and evidence which cannot be substituted by this Court in exercise of constitutional writ jurisdiction though the same may not be satisfactory according to the petitioner but the same cannot be a ground for interference with the same in a writ proceeding.
This Court is well aware of the legal position that any order under Section 148A(d) of the Act is not an appealable order but this writ Court is refusing to entertain this writ petition for the reasons discussed hereinabove and not on the ground of availability of alternative remedy. WP dismissed.
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