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p strong Reopening of assessment u/s 147 /strong - reopening on the basis of retrospective insertion of clause (i) to explanation 1 to Section 115-JB of the Act whereby provisions for diminution in the value of any asset is required to be added to the book profit for the purposes of Section 115-JB - following Jurisdiction High Court CIT(A) held that retrospective amendment in law does not give to any failure to disclose material facts as contemplated in the first proviso - HELD THAT - The question of law as proposed by the Revenue is squarely covered by the two decisions which have been referred to by the Tribunal in its impugned order. The ....... + More p strong Unexplained cash credit u/s 68 /strong - strong Addition of bogus expenses /strong - identity, genuineness and creditworthiness of the unsecured loan lender parties not proved by the assessee to he satisfaction of the AO - HELD THAT - Having gone through the materials on record, we are of the opinion that both the two questions as proposed by the Revenue cannot be termed as substantial questions of law involved in the present Tax Appeal. The Tribunal has concurred with the findings of fact recorded by the CIT (A). We do not find any perversity in the findings of fact recorded by the two Revenue authorities. - Appeal fails and is hereby dismissed /p p strong Addition u/s 195 /strong - disallowance u/s 40(a)(ia) of commission paid to foreign client - HELD THAT - The question as proposed by the Revenue is no longer em res integra /em in view of the decision of this Court in the case of strong PR CIT vs. MGM Exports /strong a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 360676 target blank 2018 (5) TMI 1240 - GUJARAT HIGH COURT /a . The ratio of the decision of this Court referred to above is that a person paying interest or any other sum to a nonresident is not liable to deduct tax if such sum is not chargeable to tax under the Act. Thus, the first question prop....... + More p strong Disallowance of expenses u/s 37(1) - disallowance of depreciation u/s 32 /strong - proof of commencement of business - ITAT stated that the nature of business of the assessee company was to develop various common facilities and the material facts as elaborated in the order substantiate that the business of the assessee company was set up during the year under consideration - ITAT further held that assessee company was entitled to depreciation on plant and machinery which includes office equipment and vehicle, computer, computer software and furniture, fixture used for the purpose of business /p p HELD THAT - Tribunal, while concurri....... + More p strong Disallowance u/s 14A on ground of eligibility of deduction u/s. 80P(2)(d) /strong - as per AO Sec. 14A is applicable in such cases where part of the income is not included in the total income - alleged that borrowed funds were used for interest income and dividend income earned - share capital / reserve of the assessee are less than such investment to prove which assessee has used borrowed funds for such investment / FDs - HELD THAT - The two questions proposed by the Revenue are no longer res integra in view of the two decisions of this Court in CIT vs. Surat District Co. Op. Milk Producer Union Ltd a href https //www.taxmanagement....... + More p strong Employee's contribution to PF and ESI funds beyond the due dates /strong - Addition u/s 36(va) read with Section 2(24)(x) - HELD THAT - A Division Bench of the Kerala High Court in the case of CIT Vs. M/s.Merchem Lt a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 263892 target blank 2015 (9) TMI 560 - KERALA HIGH COURT /a held in favour of the Revenue. Similarly, another Division Bench of the Kerala High Court in the case of Popular Vehicles & Services Private Limited Vs. CIT, Ernakulam a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 364661 target blank 2018 (8) TMI 133 - K....... + More p strong TDS u/s 194C /strong - purchase and sale transaction - AO observed that the activity given by the assessee company to the organizers was in the nature of work contract / job - organizers purchase seeds from farmers on behalf of company - HELD THAT - It is established that the company has not made any payment to the organizers for the services rendered and the company has also charged the interest for the advances and made only payment for the seed purchased from the organizers. It appears that the organizers have made the profit out of the seeds procured from the farmers for the services rendered which required to be brought to tax........ + More p strong Deduction u/sec. 80IB denied /strong - no project completion certificate submitted - HELD THAT - In the instant case, the assessee has filed the municipal tax assessment receipts in respect of flat buyers. The assessee has not furnished any evidence to establish that the project was completed in all respects as per the plan. The assessee not even made any effort to obtain the completion certificate from the GVMC for the reasons better known to him. The assessee has not made application before the GVMC with the check list as mentioned in the VUDA approval dated 07/11/2005 for the purpose of claiming deduction u/sec. 80IB(10). Without....... + More p strong Income accrued in India - attribution of profit /strong - PE in India - liability to tax in India in respect of fees received from Airlines relating to segments booked from India through the appellant computer reservation system - Indo-Spain DTAA - AO in alternatively holding that the fees received was taxable in India as royalty under the Indian Income Tax Act and Article 12 of the treaty - HELD THAT - The issues are squarely covered by the decision in assessee‟s own case up to AY 2005-06. /p p There is a continuous seamless process involved, at least part of which is in India and hence, there is a business connection in Indi....... + More p strong Computation of long term capital gain /strong - sale of controlling stake - deduction being payment made to DSP Merill Lynch Limited (DSPML), towards non-compete and non-solicitation payment - assess contend that part payment relaes to business income - HELD THAT - This invoice dated 23-08-2002 clearly mentions that the said sum of ₹ 1.74 crore and odd is towards “Advisory fee for controlling stake in REL” along with the amount of service tax and offered for taxation. The assessee bifurcated ₹ 1.74 crore into two components. Whereas a sum of ₹ 74.92 lakh was considered as deduction in the computation of....... + More p strong Disallowance u/s 14 A /strong - non recording of dissatisfaction by AO - HELD THAT - In the present case the learned assessing officer has failed to record his satisfaction u/s 14 A of the income tax act that assessee has incurred any expenditure for the purpose of earning of the exempt income. It is mandatory for learned assessing officer to first record his satisfaction with reference to the books of accounts of the assessee that explanation of the assessee, that it has not incurred any expenditure for the purpose of earning of the exempt income of the income or Quantified disallowance by assessee under the provisions of section 1....... + More p strong Rectification u/s 254 /strong - TPA - comparability selection - HELD THAT - We notice that similar to assessee, Celestial Bio Labs also offers several services to its AEs and since we are determining with ALP based on TNMM, we consider the average margin of all the several activities carried on by the assessee. On a compartmentalizing two profit making companies with several activities, we can compare the end result, unless they are into product or highly diversified or some activities which will modify the profit making ability of the organization. In this case, we do not see any reason to interfere with the selection process. Ther....... + More p strong Chargeablity of corresponding receipts in 26AS as income to tax as per Sec. 199 - /strong TDS deducted on advance subsequently returned due to cancellation of the agreement - TDS claimed - difference in gross receipt, as per Form 26AS and the profit & loss account - HELD THAT - AO did not verify the work order given by the company to ascertain the factual position. The assessee also did not keep the amount idle and spent the same, which shows that the assessee spent the amount for the work done. The AO did not examine M/s.Varsity Education Management Pvt. Ltd., and the works carried on to the company during the period of operati....... + More p strong Revision u/s 263 /strong - deduction u/s 80P - allegation that AO has allowed exemption without calling for any documentary evidence in support of the assessee’s claim that the Trust is a member of the society - interest received from advance to trust - HELD THAT -The assessee also furnished copy of the admission register, wherein, it is seen that the Trust is a member of the society. There is sufficient material available in paper book to show that the Trust became member of the society and the society is permitted to give loan to its members. The society had advanced the amounts to the Trust and collected the interest. /p p ....... + More p strong TP Adjustment /strong - CIT(Appeals) had directed to include the company “Maveric Systems Ltd” in the final list of comparables with that of the assessee - TPO had rejected on account of extraordinary cost/events and also failed the filter export to sales filter of 75% - HELD THAT - On perusal of the Director”s Report of the said company, no categorical/specific finding is there that extra ordinary cost has been incurred by this company. The Ld. CIT(Appeals) also has given findings perusing all the relevant factors/criterias and we do not find any infirmity in his order. Therefore, relief provided to the assessee r....... + More p strong Applicable Rate of tax (including surcharge) - /strong domestic companies and Co-operative Societies OR foreign company strong - /strong India-France Double Taxation Avoidance Agreement (DTAA) - assessee is Indian Branch of foreign Bank - HELD THAT - Tribunal has consistently decided the issue against the assessee in the preceding assessment years. In the latest order passed for the assessment year 2011-12 a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 282101 target blank 2018 (8) TMI 1856 - ITAT MUMBAI /a the Tribunal following its earlier decision decided the issue against the assessee. Of course, it is ....... + More p strong Computation of ‘Cost of Sales’ and closing value of land /strong - transfer of co-development rights strong /strong - cost on the basis of FSI sold OR geographical area - allocation of AUDA charges for co-development, FCCD interest - HELD THAT - FSI entitled to the assessee and attached to the global land that sold thereafter has to be assigned cost incurred in proportion to the quantity of FSI sold. The doctrine of matching concept for determination of true profits arising from a transaction is one of the rudimentary principles of accountancy. The ‘Cost of Sales’ has to be determined in the same manner as ap....... + More p strong Taxability of shares premiums u/s 56(2)(viib) r.w. Rule 11UA /strong - Income from other sources - computing fair market value of the shares - valuation not in accordance with the Rule11UA(2) - valuation based on balance sheet of which period is relevant - whether provisions of section 56(2)(viib) should be applicable only when there is investment of unaccounted money? - HELD THAT - We do not find any merit in the argument of the ld. counsel for the assessee. /p p A perusal of the Rule 11U(b) as reproduced by CIT(A) makes it clear that the balance sheet means the balance sheet as drawn up on the balance sheet date which has been aud....... + More p strong Unutilized capital gain to tax as per Section 54 F(4) /strong - Withdrawal of unutilized amount from the Capital Gain Account Scheme after 3 years - interpretation of the phrase ‘wholly or partly’ employed in the proviso - unutilized capital gain amount under Section 54 F 4 has to be charged under Section 45 as income of the previous year - entitlement to the withdrawal of the amount deposited under Sub-Section (4) of Section 54F of the Act under the capital gain account subject to deduction of tax - HELD THAT - Proviso appended to Section 58 4 f has to be read as a whole along with the Clauses a and b therein which woul....... + More p strong Selection of Members of the Income Tax Appellate Tribunal /strong - Applications for appointment to the posts of Member (Judicial/Accountant), Income Tax Appellate Tribunal (ITAT) - After first round of interviews, the Search-Cum-Selection Committee decided to call the candidates with 19 years of experience in the second round of interview, which is under challenge in these petitions. - HELD THAT - This Court is of the view that Rule 4A of the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963 empowers the Search-Cum-Selection Committee to evolve its own procedure. It is not in dispute that on ....... + More p strong Estimation rate (for the additions with respect to the partially disclosed bank accounts in connection with the non-operative finance) /strong - HELD THAT - Ends of justice would be met if the matters are remitted to the Tribunal for deciding the issue as regards the uniformity of the estimation rates for addition regarding the partially disclosed bank account in connection with the non-operative finance afresh. /p p In view of the aforesaid, the Appeals are allowed in part. The impugned orders passed by the ITAT are hereby quashed and set-aside. The matter is remitted to the ITAT for fresh consideration of the issue as discussed ab....... + More p strong Non-issuance of notice u/s 143(2) /strong - strong scrutiny assessment u/s 143(2) /strong strong r.w.s. 158BC /strong - validity of assessment - HELD THAT - In the present case, admittedly, no notice under Section 143(2) of the said Act was ever issued to the Assessee. By applying the law laid down by the Hon'ble Apex Court in strong em Hotel Blue Moon /em /strong a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 35251 target blank 2010 (2) TMI 1 - SUPREME COURT /a we will have to hold that the assessment made in the present case stands vitiated. Therefore, even if we were to hold in favour of the Revenue....... + More p strong Addition on account of loss shown in the Gross Profit /strong - Tribunal upholding the order of CIT(A) in deleting the addition - HELD THAT - It appears from the materials on record that the Appellate Tribunal concurred with the findings recorded by the CIT(A) and took the view that there was evidence to substantiate the claim of the assessee that he had to sell his goods at the agreed price which was lesser than the cost of purchase. There is a finding of fact arrived at by the two Revenue authorities that the assessee was able to furnish copies of the sales bill and nothing was found suspicious about the transaction. /p p There is....... + More p strong Reopening of assessment u/s 147 - assessment proceedings initiated under Section 142(1) - /strong unexplained expenditure u/s 69C - as per assessee assessment order u/s 143(3) r.w.s. 147 was illegal and erroneous in law as the assessment proceedings initiated under Section 142(1) of the Act were pending on the date of the issue of the notice u/s 148 - revenue submitted that the assessee could not have questioned the jurisdiction of the Assessing Officer having failed to file his return allowed by the notice under sub-section (1) of Section 142 or under Section 148 or under the first proviso to Section 144 of the Act - HELD THAT - It....... + More p strong Penalty u/s 271AAA /strong - assessee failed to substantiate the manner in which undisclosed income was derived - Tribunal deleted the addition - HELD THAT - The findings of fact recorded by the two revenue authorities is that the assessee offered the total unaccounted income of ₹ 9.29 Crores for the assessment year 2011-12 in his statement recorded during the search and seizure operation u/s. 132(4) of the Act. The Tribunal, by placing reliance on the decision of this Court in the case of strong CIT vs. Mahendra C. Shah /strong a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 3705 target blank 2008 (2....... + More p Classification of goods - Instruments Cluster - whether Fall Under 8708 or 9026/9029? - applicable rate of GST - HELD THAT - The applicant supply ‘clusters’ in which several instruments are clustered. Thus, there is no supply of individual instrument - Electronic cluster is the distinct product having distinct name, use from its component. It is manufactured by using various component such as Speedometer, Fuel Gauge, Pointer, Illumination And Warning Indicators-lamps, Temperature Gauge, clock (12hr 24hr), Battery Voltage Level Indicator, Service or Maintenance Indication, Mean & Maximum speed, Warning Indicators-LEDs; etc. ....... + More p Classification of supply - Supply of Goods or Supply of Services - online tendering - offline tendering - HSN classification - administrative service or specific service? /p p Whether online tendering to be considered as Supply of Goods or Supply of Services? - HELD THAT - Online Tendering does not satisfy the definition of ‘goods’. The definition of ‘services’ as mentioned in the Business Dictionary “Intangible products such as accounting, banking, cleaning, consultancy, education, insurance, expertise, medical treatment, or transportation. Sometimes services are difficult to identify because they are closely....... + More p Maintainability of Advance Ruling application - Levy of GST - Individuals who own flat/s in a society but have opted not to become the member of the society - eligibility for GST exemption of ₹ 7500/- - whether members of the society will be at par with the other individual flat owners who are not members. /p p HELD THAT - Section 97(2), which encompasses the questions, for the ruling by the AAR does not cover the question raised by the applicant. It is therefore felt that this authority does not have jurisdiction to pass any ruling on such matters/questions. /p p The impugned application is not maintainable - No proceeding of Advance Ruling under the GST Act lies in the instant case /p p Classification of services - intermediary service or not - Marketing services to be supplied by the Applicant under the Foreign Immigration Advisor to the Consultant Manager - Handholding services to be supplied by the Applicant under the Foreign Immigration Advisor Agreement - export of services or not? /p p Whether the Marketing services to be supplied by the Applicant under the Foreign Immigration Advisor to the Consultant Manager constitutes a supply of “Support services” classified under SAC 9985 or “Intermediary service” classifiable under SAC 9961/ 9962 or any other heading? - HELD THAT - For the FB-5 program....... + More p Rectification of TRAN-I - Inadvertent error in filing of TRAN-1 Form - HELD THAT - The Court is unable to find any distinguishing feature that should deny the Petitioner a relief similar to the one granted in those cases - In those cases also, there was some error committed by the Petitioners which they were unable to rectify in the TRAN-1 Form and as a result of which, they could not file the returns in TRAN-2 Form and avail of the credit which they were entitled to. /p p In the present case also the Court is satisfied that the Petitioner's difficulty in filling up a correct credit amount in the TRAN-1 form is a genuine one which shou....... + More p Constitution of GST tribunal - jurisdiction to decide the location of bench - Section 109 (6) of Central Goods & Services Tax Act, 2017 - non-consideration of various provisions - principles of natural justice - HELD THAT - From a bare reading of the provision of the Act itself it is clear that it is not in the domain of the State Government to make a recommendation for deciding the place of the State Bench of the Tribunal. The role of the State is confined to determine the place of area benches. /p p Insofar as the determination of location of the State Bench is concerned, it remains in the domain of the Central Government for which t....... + More p Transitional credit - Vires of Rules 117 and 120A of CGST Rules - Input Tax Credit - submission of declaration electronically in FORM GST TRAN-1 - HELD THAT - Learned counsel for the respondents pray for and are allowed one month's time to file a counter affidavit. /p p In the meantime, we allow the petitioner 15 days' time to file the revised return manually. If the petitioner does so, his revised return may be considered in accordance with law - List this matter on 20.08.2019. /p p Entitlement of having GST registration - deemed registration - power of the officers to seek additional details or clarifications - Rule 9(2) of the Central Goods and Services Tax Rules, 2017 - Furnishing of clarification, information and documents in relation to an application for registration made u/s 25 of the CGST Act, 2017 - benefit of deemed registration. /p p It is contended by the senior counsel for the appellants that, a close scrutiny of the provision contained in Rule 9(2) would show that, neither under the first limb nor under the second limb of Rule 9(2), the proper officer had power to require the first respondent to produce ....... + More p Cancellation of registration certificate - Grant of relief - HELD THAT - The writ applicants have been able to make out a strong em prima facie /em case to have an adinterim order in terms of para 7.0 (B) (iii). We, accordingly, grant such relief. /p p The respondents are directed to file their reply by the next returnable date and make their stance clear. In the meantime, the respondents shall not take any action as regards cancelling the GST registration of the writ applicants. /p p Let strong Notice /strong be issued to the respondents, returnable on 28th August 2019. /p p Seizure of truck alongwith goods - sections 129 and 130 of the GST Act - HELD THAT - The larger issue as regards the sections 129 and 130 of the GST Act is being looked into by this Court. However, taking into consideration the fact that the amount towards the tax and penalty has been deposited, we direct the authorities to immediately release the goods in question owned by the writ applicant at the earliest. /p p Maintainability of petition - Detention order - compliance with the mandate of Section 129 of the Act - HELD THAT - The issues raised are at preliminary stage and this Court is not convinced to entertain the writ petition and adjudicate upon merits at this stage. To confirm to the scheme under the Act, the writ petition is disposed of by directing that the petitioner submits bank guarantee for the tax and penalty as shown in Ext.P8 and applies for release of goods by enclosing a copy of this order within two days from today. The respondent shall release the goods detained under Ext.P7 and subjected to enquiry in Ext.P8 within twelve hours from the date and time of receipt of bank guarantee. /p p Petition disposed off. /p p Liability of GST - Profit Sharing Agreement between the applicant as an employee and the shareholders - actionable claims - scope of supply - HELD THAT - In this case, the profit sharing agreement gives the applicant a claim to the beneficial interest in the profits on the event of a strategic sale where at least 51% of paid up Equity share capital of the company is sold at a price not less than ₹ 75 or an initial public offering where the mid point of the price band as per red-herring prospeectus is not less than ₹ 75 per equity share and subsequent listing on the stock exchange - either of these events may occur or both may n....... + More p Jurisdiction on assessee - State Gov. OR Central Gov. - as per the decision of State Level Committee, the administrative control for all purposes over the petitioner has been entrusted to the Center, which is evident from the list of tax payers of Alwar district having turnover of more than 1.5 crore - validity of SCN issued by state official - Scope of division of tax payer base dated 20.09.2017 (Annexure-3) contained in Circular No.01/2017 dated 20.09.2017 - HELD THAT - Issue notice to the respondents. Rule is made returnable by six weeks. /p p Permission for withdrawal of Advance Ruling Application - Classification of supply - supply of services or not - supply of repairing and replacement service - principal supply or composite supply - requirement of registration u/s 22 and section 25 of CGST Act, 2017 for the use of warehouses of ASP (the sub-contractor) - HELD THAT - The applicant did not furnish the documents undertook to be submitted. However, the applicant was extended an opportunity to be heard finally on 21-05-2019. The authorised representatives of the applicant appeared and submitted a written letter requesting withdrawal of the application for Advance Ruling before t....... + More p Collective failure to constitute the GST Tribunal which was their solemn duty under the GST Act, 2017 - HELD THAT - Since the matter is engaging the attention of the Division Bench of this Court at Allahabad as well and since the stand of the Union is still not clear, list this matter after two weeks. /p p The writ applicant has been able to make out a strong prima facie case to have some interim order in his favour. /p p Till the next returnable date, no coercive action or any coercive steps shall be taken by the authorities against the writ applicant - Let NOTICE be issued to the respondents returnable on 24/07/2019. /p p Filing of the TRAN-1 Form - Carry forward credit of eligible duties, both CGST and the GST - glitches in the online system - HELD THAT - In similar circumstances, this em Court in /em BHARGAVA MOTORS VERSUS UNION OF INDIA & ORS. a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 380171 target blank 2019 (5) TMI 899 - DELHI HIGH COURT /a permitted the filing of the TRAN-1 Form manually - Learned counsel for the Respondents has no objection if similar directions are issued in the present petitions as well. /p p A direction is accordingly issued to the Respondents to either open the portal so as to enable the Petiti....... + More p Maintainability of appeal - availability of alternative remedy - whether the relegation made by the learned single Judge to avail the alternative remedy, was justified or not? - requirement of e-way bill for movement of new vehicle - Release of seized vehicle alongwith the goods - Section 129(3) of the Central Goods and Services Tax Act, 2017 - HELD THAT - Contention of the appellant is that the appellate authority may not be able to look into the grounds raised, being a question of law to be decided - We cannot accept such a contention because the appellate authority can very well decide as to whether there existed any statutory obligatio....... + More p Constitution of the Authority for Advance Ruling - Constitutional validity of Section 96(2) of the Rajasthan Goods and Service Tax Act, 2017 and Section 96 of the Central Goods and Services Tax Act, 2017 - Levy of IGST on transportation services - import of goods on FOB basis - reverse charge mechanism - vires of notification dated 28.6.2017 - It is submitted that, the impugned notification has been illegally shifted the liability to pay IGST on the ‘importer’ who is not the recipient of the services in case of import on CIF basis. /p p Held that - Issue notice, returnable by 10th July, 2019. /p p Levy of IGST - Job-work - import of iron ore for conversion into pellets and export the resultant product (Iron ore pellets) back to the same supplier - import duty is not applicable in view of the exemption under General Exemption No. 66 (Exemption Notification No. 32/97-Cus dated 01 sup st /sup April, 1997) - HELD THAT - In the instant case, goods are temporarily imported into India for the process of conversion into pellets and arc exported after such process, the exclusion clause provided under Section 13(3) of the IGST Act, 2017 is applicable. Hence the place of supply of service is determined as per Section 13(2) of the IGST Act, 201....... + More p Valuation of imported goods - inclusion of value of know-how license and rights in the assessable value of the goods imported under EPCG scheme - HELD THAT - Issue notice on the civil appeal and on the application for stay. /p p Imposition of penalty - abetting and aiding in the smuggling of Gold - no opportunity of personal hearing was provided as per Section 122-A of Customs Act, 1962 - Principles of Natural Justice - HELD THAT - No acknowledgment has been placed on record in support of the claim that the request of the petitioners for providing an opportunity of hearing was received by the respondent. The receipt of show-cause notice is not disputed by the petitioners. Except seeking for personal hearing, no further objections have been filed by the petitioners. It is ex-facie apparent that the petitioners have failed to avail the opportunity provided by the re....... + More p Re-export of goods - extension of time limit for re-export of goods - labeling defects - HELD THAT - The defects in labeling, as pointed out by the adjudicating authority, were of non-rectifiable character and therefore, the goods in question could not be allowed to be imported into India and therefore re-export was directed. We also note that despite there being no interim order in the present appeal, which is pending since 2013, the directions of the Tribunal to re-export the goods in question before 31.10.2013, have not been complied with by the appellant Assessee. /p p By the lapse of time, the uselessness and devaluation of these good....... + More p Principles of Natural Justice - petitioner was denied of an opportunity to cross examine the witnesses from whom statements have been recorded by the authority - existence or not of conspiracy agreement with certain named and unknown persons for the purpose of procuring smuggled gold - HELD THAT - The Court in case of DEEPAK KUMAR VERSUS THE PRINCIPAL COMMISSIONER OF CUSTOMS a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 345770 target blank 2017 (7) TMI 882 - MADRAS HIGH COURT /a had come to the conclusion that there was no violation of principles of natural justice, since the petitioner therein had not challenge....... + More p Whether in the facts and circumstances of the case M/s. Khanbhai Esoofbhai in whose hands the vessel was actually broken up is liable to pay customs duty that became leviable in accordance with proviso to N/N. 163/65Cus dated 16.10.1965, or otherwise? - HELD THAT - Following the judgment of this Court in a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 326376 target blank 2016 (4) TMI 490 - SUPREME COURT /a , the appeal is allowed. - when excise duty is exempted, there is no question of payment of additional duty. /p p Consequent to the appeal being allowed it shall be open for the appellant to request for refund of the custom duty paid by the appellant. /p p Extension of ADD - Initiation of sunset review - HELD THAT - As the notification in question is expiring on 23.7.2019, no harm is envisaged if it is kept on 19.7.2019, with a specific observation that the authorities shall not overlook the fact that mere passage of time may not render the petition and now the order infructuous in any manner without there being any contest on merits as it is submitted by learned counsel for the other side that as per his information order in question has so far not been challenged in the Supreme Court. /p p Put up on 19.7.2019. /p p Interest on delayed refund - Section 27-A of the Customs Act, 1962 - HELD THAT - The Court is of the view that when the interest prayer is covered by the statutory provision and when the refund is also processed and paid, we need not advert to the facts for avoiding the consumption of time and save it for dealing with other matters, but suffice it to say that the provisions of Section 27-A of the Customs Act, 1962 does provide for interest on delayed payment and even the rate is provided. /p p On the refund which was otherwise admissible from 29.12.2009, appropriate interest deserves to be awarded so as the interest to start running from 1....... + More p Imposition of Safeguard Duty - N/N. 1/2018 dated 30th July, 2018 - Import of solar panels and solar cells - provisional release of goods - HELD THAT - The goods covered by the two bills of entries dated 1st July, 2019 being Bills of Entry Nos. 3863778 and 3863813 be cleared on payment of 50% safeguard duty and balance 50% being secured by a bond. It is made clear that at this stage, we have not independently examined the grievance of the petitioners in view of the fact that the respondent nos. 1 and 2 are not represented at this stage and nor are the parties in whose favour the impugned Notification has been issued made parties to this petition. /p p Petition is adjourned to 29th July, 2019. /p p Imposition of penalties on CHA - appellant allowed another person to file export documents on their behalf - Duty Drawback - alleged overvaluation of export goods with intention to avail excess drawback - claim of the appellant is that they had nothing to do with the exporter and that there was no evidence of any involvement in abetment of fraud. /p p Whether a custom house agent, who, under the statute as well as under the Regulations framed for implementation of the statute, are required to be associated with the goods can, independently, be proceeded against, for imposition of penalties under some other provisions? /p p HELD THAT - It i....... + More p Maintainability of appeal - refund claim - appropriate forum - importer sought recall of bill of entry and amend the same and allow refund - HELD THAT - In the regime of self-assessment, reassessment by an assessing officer requires issue of order of justification which may be challenged in appeal. However, duty paid in excess of that prescribed by law cannot be retained by the exchequer and eligibility to the benefit of notification no. 21/2002- Cus dated 1st March 2002 is not in question here. /p p It would appear that the letter dated 9th September 2011 sought for recall of the bills of entry to make the necessary emendations therein to....... + More p Smuggling - illegal export of Red Sanders - absolute confiscation - imposition of penalties - HELD THAT - In the present case, while imposing penalty on the Appellants more or less similar role of the Appellants has been recorded by the adjudicating authority in the impugned order. In these circumstances following the aforesaid observation of the Tribunal and considering that the present Appellants are situated at the same plane, the penalty on M/s Perma Shipping Line India Pvt Ltd is reduced from ₹ 130.00 lakh to 1.00 lakh and penalty on the director of the company is set aside. /p p Appeal disposed off. /p p Valuation of imported goods - Acetonitrile - undervaluation - rejection of declared value - provisional release of goods - Appellants have raised the issue in respect of two bill of entries i.e. B/E No 702642 dated 1.10.2009 and 704506 dated 3.10.2009 the assessments are provisional and hence the proceedings for seizure, confiscation and demand of duty premature - HELD THAT - We are not able to appreciate the argument advanced by the appellant. The Bond executed by the appellant on 20.11.2009 is titled “Bond With Security to be executed by the person seeking release of goods seized pending investigation.” - the case in hand is ....... + More p Refund application - provisional release of machinery - HELD THAT - The proceedings regarding clearance of machinery were perused and the same culminated in an order made by CESTAT, South Zonal Bench, Chennai - There is no disputation before this Court that the aforesaid order of CESTAT has become final and it has been given legal quietus. /p p The learned counsel made a simple and innocuous prayer requesting to mandamus the second respondent to consider the refund application dated 05.10.2018 made by the writ petitioner and take a decision on the same within a time frame - the second respondent is directed to consider the refund applicati....... + More p Imposition of penalties u/s 114 of the Customs Act - Smuggling - Red Sanders - request for cross-examination - HELD THAT - From the facts on record and the statements of the responsible officers of the customs Department it appears that the appellant have not done any deliberate action or misdeed in the alleged smuggling of red sanders. Appellant have only unknowingly in good faith, allowed the use of their IE code. Thus, there is no case of imposition of penalty under Section 114 of the Customs Act made out. /p p Penalty set aside - appeal allowed - decided in favor of appellant. /p p 100% EOU - Imposition of penalty u/s 112(a) of Customs Act, 1962 - violation of import conditions - diversion of goods to local market instead of being used for the purpose for which it was imported - HELD THAT - The evidences brought on record i.e. statements of various transporters, who had been approached by the CHA, in their statements before the authorities had categorically stated that the Appellant was fully aware of the fact that the goods were to be delivered at Surat instead of Mathura. The Commissioner in his findings has analyzed all the evidences and concluded that the Appellant was fully aware of diversion of the goods at Sur....... + More p Initiation of proceedings for assessment and adjudication of the consignments in question - HELD THAT - Expressing any opinion on the merits of the case may prejudice the rights of the parties at this stage, since the case has admittedly been remitted back to the adjudicating authority for adjudication of various issues. /p p Appeal disposed off. /p p Confiscation - Drill Bits - classification and valuation - non-declared goods - HELD THAT - The goods, admittedly, were not declared as such but subsequently found to be usable and serviceable. It is seen from the orders of the lower authorities that, despite the quantities being in excess of declaration and the appellant herein having been placed on notice about its capability of being used, no steps were taken by the importer to seek a technical or expert opinion. In these circumstances, examination report to the effect that the undeclared drill bits were new and serviceable must be accepted - There is no evidence on record to show that ....... + More p Time Limitation - invocation of proviso to section 28(1) of Customs Act, 1962 - service of notice - classification of goods - HELD THAT - On a perusal of the ‘notice’ that the first appellate authority found to be sufficient, we observe that this is a summons for document to complete the process of ‘post clearance’ audit and, that instead of enumerating the documents, an order for recovery was included. This clearly, therefore, is not a notice to show cause as to why the duty allegedly short-paid should not be recovered but is a demand itself. Demand without a notice is legal unsustainable. /p p The show cause notic....... + More p Jurisdiction - Mis-declaration of the countries of destination - HELD THAT - At the time of hearing, counsel for the petitioner states that during the pendency of the present writ petition, the investigations have been transferred to the DRI Zonal Office, Ludhiana where the unit of the private company is situated and engaged in its business. It is submitted that in view of the conceded cooperation by the officers of the aforesaid private company in the pending investigations, the impugned complaint and summoning order are required to be set aside as concededly the documents were furnished before the officials at Ahemdabad, however, it was ....... + More p Maintainability of appeal - valuation dispute between the parties - whether the imported goods can only be allowed to be imported duty free if the CIF value is declared to be ₹ 110/- or more or can be imported irrespective of the value declared by the importer both subject to assessment and payment of duty? /p p HELD THAT - This is clearly a valuation dispute between the parties - This Court has no jurisdiction over the matter. /p p The appellants have proceeded bonafide in a Court not having jurisdiction which may be taken into account for the purpose of limitation under Section 14 of the Limitation Act. /p p Maintainability of application - Rule 9 of the Company (Court) Rules - approval of the scheme of amalgamation under Section 391 of the Act and not Section 394 of the Act - whether the present appeal, directed against an order dismissing a review petition is maintainable? - HELD THAT - The approval of the scheme of amalgamation was under Section 391 of the Act and not Section 394 of the Act. The corresponding provision in the Companies Act, 2013 (‘2013 Act’) is Section 230. However, at the relevant time when the appeal was filed, the provision relevant for that purpose was Section 391(7) of the Act. Although in terms of the Comp....... + More p Recall of order - sufficient reason for recall of order present or not - delay in filing the application - HELD THAT - The reasons are heart and soul of any judicial determination, in absence of which the order cannot survive. A Judge, who decides an issue in one or the other way, is required to disclose his mind and give the reasons to enable not only the superior court but also the litigating parties as what weighed with him in deciding the matter the way he did, otherwise they would remain unaware of the premise on which decision of the Court is founded. Therefore, it is always necessary for the learned Presiding Judge to disclose his m....... + More p Transfer of Pending Proceedings - Section 434(1)(c) of the Companies Act, 2013 - HELD THAT - These proceedings be transferred to the National Company Law Tribunal Kolkata Bench, by the Registry of this court, observing all formalities within four weeks of communication of this order. /p p Application disposed off. /p p Initiation of Contempt Proceedings - Violation of order of ‘ em status quo’ /em dated 29th November, 2017 - Section 421 of the Companies Act, 2013 - HELD THAT - Section 420 of the Companies Act, 2013 empowers the Tribunal to pass order after giving the parties to any proceedings before it, a reasonable opportunity of being heard. The order passed under Section 420 of the Companies Act, 2013 is appealable under Section 421 of the Companies Act, 2013. /p p For the purpose of initiation of contempt proceedings the Tribunal is empowered with the same power as that of High Court and for the purpose power under the provisions of the ....... + More p Oppression and Mismanagement - Continuation of petition by the legal heir of deceased petitioner - Whether the acts of oppression and mismanagement is still maintainable, at the instant of the son of the petitioner, as legal heir since he is not part of those acts and oppression and mismanagement alleged to have been made by the original petitioner? /p p HELD THAT - It is a settled position of law that the acts of oppression and mismanagement should not only be existing at the time of filing company petition, they should also being continuous harsh and burdensome leading to the conclusion that the directors action lack in probity and those....... + More p Restoration of name of company on the Register of Companies - failure to file the returns with the ROC from financial year 2009 onwards - jurisdiction of Registrar of Companies under Section 248 of the Companies Act, 2013 - failure to notice that the parameters set out in Section 252(3) of the Act - HELD THAT - ‘Matrix Power’ has been struck off the Register of Companies on the ground of non-filing of financial statements and annual returns for the financial years 2009-10 to 2017-18, though it is not disputed that the company has filed Income Tax Returns and Bank Statements for Assessment Years 2008-09 to 2017-18, which demonst....... + More p Oppression and mismanagement - Termination of services of 1st appellant as an “employee” - HELD THAT - Due to internal disputes within the Management, the bank account being suspended for operation, the company was in financial crises. In these circumstances the need for raising funds through issue of equity shares cannot be held to be unreasonable. There is also force in the argument of the Learned counsel for the Respondent that these shares have been issued to the appellant himself and his supporters. It cannot said that it is fair allotment of shares. We observe that even if the company was in need of funds, the new equity ....... + More p Sanction of scheme of demerger - compromise or make arrangements with creditors and members - Section 230 and 232 of the Companies Act, 2013 r/w Rule 3 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. /p p HELD THAT - The Tribunal, while dealing with an application under Section 230 of the Act, on being satisfied that the compromise or arrangement has been proposed in connection with a scheme for the reconstruction of the company or companies involving merger/ amalgamation of two or more companies and under the scheme property or liabilities of the transferor company is required to be transferred to transferee co....... + More p Rectification in the Register of Members of Respondent No.2 - scope of Section 59 of the Companies Act, 2013 - conversion of 906599 CCDs into equity shares - “sufficient cause” stipulated under Section 59 of the Act - HELD THAT - With change of law now under Section 59 of the Act, NCLT can deal with rectification and all questions including incidental and peripheral questions raised with regard to rectification for the purpose of deciding legality of the rectification. NCLT which exercises widest possible powers in a matter under Section 241, 242 of the Act; which even otherwise is expected to always keep interest of the Compan....... + More p Difficulty in obtaining no objection certificate - Ex-parte hearing - HELD THAT - A law point has been urged on behalf of the company, prevented by on technicalities on seeking adjudication of it. One last opportunity is granted by adjournment on reiteration of notice in order dated 17th June, 2019. /p p List on 15th July, 2019 as prayed for by Mr.Chakraborty. /p p Release of amount received as sale consideration from the sale of Lot No.1 along with interest accrued on the said amount - company under liquidation - requirement on the part of applicant that the applicant deposits the workmen dues as computed under Section 529-A of the Companies Act, 1956 - HELD THAT - The only impediment for releasing the amount is that the appellant has not made a fresh claim as directed by this Court in Company Appeal No.9 of 2015, dated 06.10.2015. /p p A perusal of the order dated 06.10.2015 passed in Company Appeal No.9 of 2015 does not indicate that the intention of the Court in directing the Official Liquidator ....... + More p Declaration of Dividend - authorisation to the Official Liquidator to open a separate dividend account - dispensation with the publication of notice of declaration of dividend in newspapers - HELD THAT - Since the unsecured creditors have filed individual claims and their claims were adjudicated issuing respective Form No. 69/70, the Official Liquidator is directed to issue individual notices of dividend in Form No. 138 in the name of one preferential creditor and 43 unsecured creditors of the company in liquidation, dispensing with publication of notice of dividend in newspapers as required under Rule 276 of the Companies (Court) Rules, 1....... + More p Jurisdiction to entertain an application from a creditor of the company - scope of Insolvency and Bankruptcy Code - HELD THAT - Mr. Sakya Sen, learned Advocate appearing in support of the application being CA 103 of 2019, which is essentially an application for leave under Section 446 of the Companies Act, 1956, intends to move the said application. The final orders in the application being CA 92 of 2019, which relates to the jurisdiction of this Court to proceed with the CP 1 of 2016 is not yet passed. /p p C.A. No. 103 of 2019 is adjourned till CA 92 of 2019 is heard and finally disposed of - Let all these applications along with CP 1 of 2016 appear on 21st June, 2019. /p p Winding up - proof of debt - Evidence Act - HELD THAT - Where the company (in liquidation) is said to have admitted a debt owing to applicant, Official Liquidator is not included as a person with regard to such admission made a by party in the winding up action. Official Liquidator came in upon order of winding up. Admission by the company (in liquidation), relied upon by Court to direct winding up, therefore, is not available as proof required by the office. This is so because the office, not being a party, had not made the admission but is requiring proof of debt. The office, if can be said to be a person, has derived interest from a par....... + More p Disqualification of Directors. - Vires of Section 164(2)(a) of the Companies Act, 2013 as well as Section 54 of the Companies (Amendment) Act, 2017 - proviso has been inserted to clause (a) of sub-section (1) of Section 167 of the Act as well as Section 167(1)(a) itself. /p p Whether Section 164(2)(a) of the Act is ultra vires Articles 14 and/or 19(1)(g) of the Constitution being manifestly arbitrary or on the principle of proportionality? - HELD THAT - On perusal of Section 164(2) of the Act, in light of the above references, it is noted that a twofold consequence is prescribed if there is an infraction of either Section 164(2)(a) or (b),....... + More p Oppression and Mismanagement - allegation of renting the premises on rent which would fetch higher rent if used as banquet hall - Interlocutory Application for vacating the interim order - HELD THAT - The Respondents have filed the Report of the Chartered Accountant (G L Harlalka & Co.) dated 8th May, 2019 from which we find that income on account of hire charges for Banquet Hall (Special Event) in ground and Mezzanine Floor in respect of premises No. RAA-36, V.I.P. Road, Kolkata- 700059 is ₹ 4,75,000/- for the period from 1st April, 2017 to 31st March, 2018 - we find that for the said premises, the Company received a Term Sheet-....... + More p Restoration of the name of the company in the Register of Companies - default in submitting the returns from the financial year ending March 31, 2014 onwards - HELD THAT - It can be seen from the financial statements, the bank statements and other documents brought on record by the appellant-company that it was neither carrying on any business nor in operation when its name was struck off by the Register of Companies, West Bengal. /p p There is no just reason to restore the company's name on the Register of Companies. Since the company seems to be not an active company and not carrying on the business for which it was incorporated, the appeal is liable to be dismissed. /p p Direction to the 2nd Respondent Registrar of Companies, Mumbai not to act upon the extract, a copy of which is Exhibit “A” to the Petition - scope of Section 164 (2)(a) of the Companies Act 2013 - HELD THAT - he issue whether this provision can be invoked and applied despite the amendment to the Companies Act 2013 been brought into efect from 1st April 2014, can it afect the position of a director who was appointed prior to this provision being brought into efect, is very vital. Secondly, we will have to consider the impact of this provision on a person who is or has been a director of a company which has defaulted in complying....... + More p Restoration of the name of the Company - Shree Narayan Developers Pvt. Ltd. in the Registrar of Companies, Uttar Pradesh - serious allegations of financial mismanagement and fraud - extension of time for filing documents - HELD THAT - Before us, there is no dispute that the Appellant did deposit ₹ 50,000/- in August, 2018 itself with ROC. Apart from this, although NCLT had directed filing of the Statutory Returns within 30 days in para - 7, in view of existence of specific provision in the form of Rule 153 of the National Company Law Tribunal Rules, 2016, the NCLT had sufficient powers to extend time - Rule 11 of the Rules gives Inhe....... + More p Recasting and re opening of the accounts of IL&FS - suspension of Board of Directors of IL&FS - Whether in the facts and circumstances of the case, can it be said that the order passed by the learned Tribunal is illegal and/or contrary to Section 130 of the Companies Act? /p p HELD THAT - In the present case, the Central Government has already constituted SFIO and has also ordered investigation into the affairs of IL&FS and other group of companies and the investigation by the SFIO is under progress. It is also required to be noted that SFIO had also submitted its preliminary report. In the preliminary SFIO report, th....... + More p Admissibility of petition - initiation of Corporate Insolvency Resolution Process - Section 9 of the Insolvency and Bankruptcy Code, 2016 - default in repayment of operational debt - Existence of debt and default or not - HELD THAT - On perusal of the documents it is found that operational debt is due to the Applicant and in support of that operational creditor has annexed invoices as per the details given in preceding para No. 5. Therefore, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as we....... + More p Admissibility of petition - initiation of Corporate Insolvency Resolution Process (CIRP) - default in repayment of loan amount by the corporate debtor to the applicant - section 7 of the Insolvency and Bankruptcy Code, 2016 read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT - The corporate debtor has neither denied nor disputed the loan facilities given by the Reliance Capital Ltd. The corporate debtor has not brought forward any record with respect to the payment being made of the "debt" as claimed in the application. The only defence raised by the corporate debtor i....... + More p Condonation of delay in filing claims before Resolution Professional - power of Tribunal to condone delay - Rule 11 of NCLT Rules, 2016 - Resolution Professional rejected the claim of the Applicant only on the ground the claim was not submitted within 90 days of the insolvency commencement date - HELD THAT - The Applicant stated reasons for non-submission of claims within time. The Applicant is not aware of submitting Form -C to the Resolution Professional. The CIRP of Corporate Debtor is still pending. The Applicant claiming that it will come under the ambit of Financial Creditor, even if the claim of the Applicant is accepted by the RP t....... + More p Change of supply of power from High Transmission category to Low Transmission category for lighting purpose alone to safeguard the assets of the Company - It is the case of Applicant / Liquidator that electricity connection to the Corporate Debtor is only for lighting purpose to safeguard the assets of the Corporate Debtor for which HT Power Service Line is not necessary and thus, prayed this Tribunal to direct the Respondent to change the supply of power from High Transmission Category to Low Transmission Category - HELD THAT - This Application is filed by Liquidator for a direction to Eastern Power Distribution Company of A.P Limited (AP....... + More p Admissibility of petition - Voluntary liquidation - Section 59 of Insolvency and Bankruptcy Code, 2016 - HELD THAT - The Board of Directors of the Company has taken a conscious decision to close down the company due to non-availability of business prospects and non-availability of long-term financial resources, thus, as per them, it would not be a wise decision to carry on the business activities of the company from the economic point of view. Therefore, Company’s Board of Directors proposed to liquidate the company voluntarily by invoking the provisions of Section 59 of the IBC. /p p It is also made clear through the present petitio....... + More p Admissibility of petition - Initiation of Corporate Insolvency Resolution Process (CIRP) - Corporate Debtor - default in repayment of outstanding amount - HELD THAT - There are several questions of facts and law are involved in the instant case. Even the amount claimed itself is not terms of Settlement Agreement in question, in which interest issue did not mention and part payment of ₹ 5 Lakhs was received, after issue of demand notice. Therefore, there is a serious disputes exists with reference to the claim made by the Petitioner. /p p The application is not only defective as rightly claimed by the Respondent, but it is instituted ....... + More p Admissibility of petition - initiation of Corporate Insolvency Resolution Process (CIRP) - Corporate Debtor - HELD THAT - The Resolution Professional has not received any viable and feasible Resolution Plan from the Resolution Applicants in respect of the Corporate Debtor and therefore, the CoC has decided to recommend for liquidation of the Corporate Debtor - the CoC vide electronic voting conducted between 22.02.2019 10.30 A.M and 23.02.2019 10.30 A.M., decided to liquidate the business of the Corporate Debtor with a vote of 95.90%. /p p The Resolution Professional has filed the instant MA/232/2019 in CP/472/IB/2017 for seeking order for....... + More p Admissibility of petition - Initiation of Corporate Insolvency Resolution Process - corporate debtor - matter is heard ex-parte - service of notice - HELD THAT - On perusal of the material available on record it is found that, the notice issued through the Registry has been served upon respondent on 11.02.2019 and notice issued by the petitioner to the respondent is served on 23.02.2019. Therefore, the service of notice is complete. Since no representation is received from the side of the corporate debtor/respondent, the matter is heard in absence of the respondent. /p p Section 13 of the Code enjoins upon the Adjudicating Authority to exe....... + More p Validity of Resolution Plan - time limitation - Resolution Professional moved application under Section 60(5) for exclusion of certain period for counting the statutory period for computation of Corporate Insolvency Resolution Process period, wherein only three days has been excluded - HELD THAT - The resolution process is made successful and not to allow the Corporate Debtor to be liquidated, the delay which took place during the pendency of the application for replacement of the Interim Resolution Professional before the Adjudicating Authority should be excluded for the purpose of counting 270 days of Corporate Insolvency Resolution Proc....... + More p Admissibility of petition - initiation of Corporate Insolvency Resolution Process - Corporate-Debtor - Section 9 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - The Corporate-Debtor did not deny its loan liability which is more than of rupees one lakh i.e. ₹ 12,13,360/- but has offered for settlement. Thus the debt-due is admitted and the default is duly established. The present IB. Petition is filed by the duly authorised signatory and it is filed well within limitation. Its filing is in order. /p p The present IB petition filed under Section 9 of the code is found complete for the purpose of initiation of Corporate-Interi....... + More p Initiation of Corporate Insolvency Resolution Process - Section 10 of the I&B Code - cost of payment of fees in relation to the Authorised Representatives appointed, as well as to defray the costs of ‘Resolution Professional’ - who is liable to pay - HELD THAT - There have been ‘default’ against the purchasers of the Plans, who otherwise do not come within the meaning of ‘Financial Creditors’ or ‘Operational Creditors’. However, the Adjudicating Authority having seen some discrepancies raised doubt about the genuineness of the ‘Corporate Debtor’ and the application as has been....... + More p Permission for withdrawal of application filed under section 7 of the ‘I&B Code - HELD THAT - Learned counsel appearing on behalf of ‘Mr. Satyendra Jain’ - ‘Financial Creditor’, who filed the application u/s 7 of the I&B Code, also accepts the aforesaid fact and also agrees for withdrawal of the petition. /p p We allow the Respondent - ‘Mr. Satyendra Jain’ to withdraw the application filed u/s 7 of the ‘I&B Code’ and the impugned order dated 12th February, 2019 is set aside passed by the Adjudicating Authority, New Delhi Bench - Matter closed as withdrawn. /p p Winding up of Company - Applicability of provisions of the I&B Code - consent of the Central Government to start the ‘Corporate Insolvency Resolution Process’ of the ‘Corporate Debtor’ in view of Section 16G(1)(c) of the ‘Tea Act, 1953’ - case of the Appellant is that out of these 7 gardens, the ‘Operational Creditor’ supplied from the garden ‘Birpara Tea Estate’ and therefore it is not in dispute that the supplies made to the ‘Corporate Debtor’ is under the management and control of the Tea Board. /p p HELD THAT - From plain reading of Section 16(1)(c) of the Tea ....... + More p Admissibility of petition - initiation of Corporate Insolvency Resolution Process - default in repayment of debt - HELD THAT - There is a clear default on the part of the Corporate Debtor in making payment against the goods supplied by the Petitioner, and there is no existing dispute regarding the same. /p p The petition filed under Section 9 of I&B Code, 2016 is admitted - Moratorium declared. /p p Maintainability of application - Interpretation of statute - Scope of I&B Code - non-banking financial institution rendering ‘financial service’ - whether out of the purview of the I&B Code or not? - HELD THAT - The definition of ‘financial services’ as defined in Section 3(16) of I&B Code is not limited to the 9 activities as shown at Clause (a) to (i) of Section 3(16). The Clauses (a) to (i) are inclusive which means there are other services means there are other services which come within the meaning of “financial services” - The Registration of Certificate issue by RBI shows that it has g....... + More p Admissibility of petition - Initiation of the Corporate Insolvency Resolution Process - Corporate Applicant/Corporate Debtor - existence of debt/default - Section 10 of the Insolvency and Bankruptcy Code, 2016 read with Rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT - The corporate applicant is having its outstanding debts due to its Financial and Operational Creditors, but is unable to pay the same, which amounts approximately to ₹ 4,25,17,532.01 to the Financial Creditors. That apart, there is some disputed dues of newly impleaded respondent/objector IFFCO-TOKIO General Insur....... + More p Extension of mining lease - initiation of Corporate Insolvency Resolution Process - Corporate Debtor - It is alleged by the Corporate Debtor/Applicant that that the order dated 26.09.2018 passed by the 1st Respondent, rejecting the request of the Applicant for deemed extension of the Mining lease, is in violation of Section 14 of the Insolvency and Bankruptcy Code, 2016. /p p Whether the order dated, 26.09.2018 passed by the Respondents No.1 to 3 by which Mining Lease bearing No. ML-2293 is terminated and the request for Deemed Extension of the said Mining Lease is rejected, violates the Moratorium declared by this Authority on 12.03.2018 ....... + More p Admissibility of petition - Initiation of Corporate Insolvency Resolution Process - Section 9 of the Insolvency and Bankruptcy Code, 2016 - Existence of default or not? - HELD THAT - The respondent has admitted its inability to clear the overdue payment. That, during the course of hearing also Learned lawyer appearing on behalf of the respondent fairly admitted that the respondent company is not in a position to pay the debt amount. The operational debt is due to the Applicant. Therefore, Applicant is an Operational Creditor within the meaning of (sub-section (20) of Section 5) of the Code. From the aforesaid material on record, petitioner....... + More p Admissibility of petition - Appellant submitted that ‘Securities and Exchange Board of India’ having already taken action against the ‘Corporate Debtor’, the application under Section 7 was not maintainable - whether contesting Respondent is ‘Financial Creditor’ or not - Section 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - The application under Section 7 is maintainable and till the period of ‘Moratorium’ continues, the ‘Securities and Exchange Board of India’ cannot recover any amount nor can sell the assets of the ‘Corporate Debtor’ during the ‘Moratorium’ period. /p p Admissibility of petition - initiation of Corporate Insolvency Resolution Process - Section 7 of Insolvency and Bankruptcy Code, 2016, R/w Rule 4 of Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 - default in repayment of loan - HELD THAT - It is admitted fact that the Financial Creditor sanctioned the loan and the Corporate failed to repay the loan with in time stipulated. In effect the Corporate Debtor admitted the default. The Financial Creditor is no way responsible for happening of certain events which causes delay in implementation of the Project. Thus, there is no valid objection raised for admis....... + More p Supply of deficient/illegible documents - alleged contravention of Section 120-B r/w Section 420 IPC and Section 13(i)(d) of the Prevention of Corruption Act - HELD THAT - The impugned order has come to be passed by the ld. Special Judge (PC Act) in the proceedings initiated under a special Act i.e. PMLA. The complaint made by the Directorate of Enforcement under Section 3/4 of the PMLA Act is the foundation thereof. On the complaint so made, the offence(s) are to be tried by the Special Court as provided for under subclause (d) of sub-Section (1) of Section 44 PMLA. Provision so made under the PMLA-a special enactment, is an exception cre....... + More p Money Laundering - retention of documents and jewellery recovered during the search - Section 17(4) of the Prevention Money Laundering Act, 2002 - HELD THAT - Sub-section (1) of Section 17 provides that the authorised officer has to record the reason to believe in writing. In the such reason to believe, he has also to record the basis of information which is in his possession before conducting the search and seizure. /p p It stipulates that if person concerned has committed any act which constitutes money-laundering, or is in possession of any proceeds of crime involved in money-laundering, or is in possession of any records relating to mo....... + More p Prevention of money laundering - Section 35(2)(f) of the Prevention of Money Laundering Act, 2002 - valid “reasons to believe” present or not - HELD THAT - The main reason for filing the present review petition is that in the present case, the ED’s ECIR was registered solely on the basis of registration of FIR by the CBI. However, the CBI having now filed a Closure Report, the direction to the Petitioner herein to secure the amount of ₹ 115 crores, alleged to be the proceeds of crime by the ED, is clearly an error apparent on the face of the record. It is submitted that closure report having been filed, the same wou....... + More p Money Laundering - proceeds of crime - alleged purchase of fleet of cars out of the ill-gotten money and received about ₹16 crores in one year from Shell companies for bribing/ fixing cases in income-tax department - Section 120B/420 IPC and Section 13(2) read with 13(1) PC Act - Grant of Regular Bail - HELD THAT - A bare perusal of the amended Section 45 would reveal that the introduction of the words “under this Act” would not revive the twin conditions as imposed in Section 45(1) PMLA which view has also been expressed by two other High Courts. /p p A bare perusal of Section 24 reveals that in the case of a person char....... + More p Money Laundering - Provisional attachment order - reason to believe - nexus with the allegation of crime committed by the defendants/respondent no. 2 Bharat Bomb and other persons concerned involved for the offences of money-laundering - HELD THAT - From the facts of the present, it is evident that legal issues of the Appellant case are similar to the judgement rendered by Hon’ble Delhi High Court in Directorate of Enforcement vs. Axis Bank & Ors. a href https //www.taxmanagementindia.com/records/View case laws1.asp?ID 377806 strong 2019 (4) TMI 250 - DELHI HIGH COURT /strong /a as (a) The Appellant is not an accused and is em bo....... + More p Validity of lookout circular issued by the second respondent - return of appellant passport - challenge to the LOC is primarily on the ground that the appellant has been cooperating with the on going investigation done by the respondents and there is absolutely no cause for issuance of LOC - correctness of the order passed by the learned Writ Court rejecting the challenge to the LOC issued against the appellant - HELD THAT - The Writ Court, in our considered view, rightly noted that Section 41A of the Code of Criminal Procedure gives inherent power to the Investigating Authority to take necessary steps to see that the accused in the case d....... + More p Attachment of property under PMLA - scheduled offences - main allegation against the appellant is that alienation of the land to the extent of 231.09 acres was done in favour of the appellant and the M/s Pioneer Infrastructure Holding Ltd, in lieu of the aforesaid alienation, made quid pro quo investment ₹ 53,00,00,000/- in M/s Caramel Asia Holding Pvt. Ltd. and M/s Jagati Publication Pvt. Ltd., which are the companies of Sh. Y.S. Jagan Mohan Reddy - HELD THAT - In view of the amendment inserted by Act of 13/2018, which is applicable w.e.f. 19.4.2018 where in the 2nd proviso, it is allowed to party to claim the restoration of the sai....... + More p Offence under PMLA - attachment of property involved in “money laundering” - connection with the allegation of crime committed by the borrowers and other persons concerned involved for the offences of money-laundering - commission of offence under Section 420, 467, 468, 471 r/w 120-B of IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 - HELD THAT - Since the action taken by the Bank of India was in accordance with law and was prior to the proceedings initiated under PMLA Act, the proceedings initiated by the Bank of India under the Code is ought to be given precedence over the proceedin....... + More p Provisional attachment of Bank Accounts - there is a reasonable belief that certain properties are derived out of “proceeds of crime” - invocation of provisions of sections 120-B read with sections 420, 467, 468 and 471 of IPC - scheduled offence or not - section 3 of the Prevention of Money Laundering Act, 2002 - HELD THAT - It is evident that the fraud is perpetrated on the Wakf Board by the Bank by transferring the funds credited to its account for the purpose of securing a Fixed Deposit in the name of CEO, Wakf Board. The funds credited to the account of Vijaya Bank, Chintamani Branch could not have been transferred by the ....... + More p Provisional order of attachment of properties mortgaged with the Appellant RIICO - Nexus with the crime committed by the borrowers - reasons to believe - offences under section 120 B, 420, 467, 468, 471, 472 and 474 of IPC and section 13(2) r/w 13(1) (d) of PC Act by CBI, BS & FC - HELD THAT - This Tribunal possesses the requisite jurisdiction in terms with the Act as the court of first appeal, to adjudicate upon the pleas of the Appellant and determine the bonafides and legitimacy of its claims as well as the legality of the Provisional Attachment Order. Upon an argument being raised by the Enforcement Directorate that claims of third....... + More p Attachment of Bank Accounts - reasonable belief - proceeds of crime - It is alleged on behalf of respondents that despite of several follow-ups, the Respondent received a reply from HDFC Bank after eight months on 06.03.2019 that the release of the properties of the Respondent had been declined based on the directions of the Appellant to not release the attached bank accounts of the Respondent - HELD THAT - No reasonable belief was formed by the Appellant against the Respondent in the Provisional Attachment Order dated 03.01.2018 passed under section 5(1) of the Prevention of Money Laundering Act, 2002 - No criminal liability of the transf....... + More p Offence under PMLA - retention of the seized cash from the appellant’s office - HELD THAT - Reading of Sections 17 to 21 that outer limit upto the date for deciding the application for retention of property within the meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records. The said period is not extendable. /p p The person concerned/aggrieved party of such order, is entitled to file the appeal under Section 26 of the Act. The same shall be heard and after giving an opportunity of being heard, the appellant Tribunal shall pass the order either to confirm the order of retention or to modi....... + More p Offence under PMLA - provisional attachment orders - whether no nexus whatsoever between the alleged crime and the PNB Consortium who is the mortgagee of the properties in question and purchased prior to the sanctioning of the loan and bank is a victim of fraud and it is an innocent bonafide claimant and not involved in the money laundering activity and bank is at liberty to move its claim before the Special Court for disposal of the properties in order to recover its dues pending in the loan accounts? - HELD THAT - Admittedly, the mortgaged properties in question were purchased much prior to the commission of Offence of Money Laundering a....... + More p Offence under PMLA - attachment orders - HELD THAT - There shall be interim direction as prayed for. /p p Offence under PMLA - attachment orders - freezing the Appellant's bank accounts - HELD THAT - PMLA is a Special Act. The provisions of the said Act are mandatory. They have to be applied as it. Being an independent Act, no different meaning can be given. They have to be interpreted as it is. /p p The power to attach or seize or freeze a property can be exercised only if the officer concerned has material in his possession who has a reason to believe that property sought to be attached or seized is proceed of crime or related to the crime irrespective as to whether complaint under the schedule offence and prosecution complaint under PML....... + More p Offence under PMLA - Provisional Attachment Order - HELD THAT - This tribunal is of the view that the adjudicating authority is duly bound to specifically come to the final conclusion as to whether the property attached was involved in money laundering or not and it was acquired from the proceed of crime or not. No doubt, if the property which was acquired is not traceable or disposed of due to misconduct of the accused party, only then other property can be attached in lieu of value thereof, in order to secure the proceeds of crime. However, in the present appeal, the hearing officer was unsure about the same, he had adopted ‘obliqu....... + More p Offence under PMLA - provisional attachment - HELD THAT - It is not an appropriate case where the discretion, extraordinary in nature available to this Court should be exercised in favour of persons against whom there are serious allegations of money laundering and who are prima facie found to be not co-operating in the matter of investigation and enquiry into the matter. /p p Even though Shri Vikram Chaudhary, learned Senior Counsel had tried to indicate before us that all these allegations are false, in the peculiar facts and circumstances of this case, we are of the considered view that it is not appropriate for us to interfere into the....... + More p Offence under PMLA - Non compliance of mandatory Sections and Rules - seizure of documents - validity of recording the reasons to believe, issuance of notice under Section 8(1) of the Act and seizure memos - HELD THAT - It is evident that the appeal under section 26 may be maintainable. This Tribunal is of the view that the same may only be maintainable in exceptional circumstances where there is a great hardship and is case of abuse of law, injustice, irreparable loss and great prejudice if (party concerned) would suffer on the face of the record and material available and if the appeal is not entertained, it does not mean that the appeal....... + More p Freezing bank account of appellants - scheduled offence bearing Sections 120B r/w 420 of IPC and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act against the appellants and other persons - HELD THAT - Having gone through the earlier two appeals, the present appeals are disposed of with the direction that all four accounts are de-freezed. /p p We also direct the appellants that they shall not deal with the balance amount lying with the said accounts. Only to this aspect, the impugned order is modified with regard to appellants. All four appeals are disposed of along with pending applications. /p p Offence under PMLA - prosecution complaint against the dead person - release the property seized - HELD THAT - There is no force for the respondent, the intent of the said provision is that in case the trial cannot be conducted by the reason of death of the accused or otherwise, the Special Court shall on an application moved by any party claiming to be entitled to the possession of a property in respect of which an order has been passed under sub-section (3) of section 8 of the Act in the offence of moneylaundering. /p p Late Amlendu Pandey was not convicted in the matter. He was not charge-sheeted. /p p As far as the mandate of sub-secti....... + More p Offence under FEMA - unauthorized dealing of foreign exchange - recovery of US 3,30,400 at Aizwal Airport on 27.10.2006 from a person by name Shri Thlabik and subsequent recording of statement of Shri Thlabik, who had taken the name of the appellant in his statement - HELD THAT - From the record, it is evident that there is no clear and cogent evidence against the appellant that he had been dealing in illegal foreign exchange trade or if he had dealt with foreign exchange without the permission of the RBI. No doubt, there are allegation against him that he had received a sum of ₹ 35,00,000/- (Rupee Thirty five lakhs only) from Shri T....... + More p Violation of FERA - penalty imposed against dead person - both alleged accused and abettor have already expired long ago - HELD THAT - Rendering the order against Sh. Bharat Hansraj Thakkar without any valid findings pertaining to penalties is not sustainable in law. As far as Hansraj Thakkar is concerned, the penalty was imposed against the dead party despite of having the knowledge about his death. /p p Appeal is allowed in the case of Sh. Bharat Hansraj Thakkar of a penalty of ₹ 5.00 crores and the impugned order against him is quashed as there is no reasoning in the Adjudication Order. /p p The show cause notice seeks to hold the....... + More p Non-realization/short of foreign exchange received - Failure to realize export proceeds on exported goods - FEMA v/s FERA proceedings - contravention of provisions of section 7 & 8 of FEMA, 1999 read with regulation Nos. 8,9 & 13 of Foreign Exchange Management (Export o Goods and Services) Regulations, 2002 - Penalty imposed - HELD THAT - Foreign Exchange Management Act, 1999 (‘FEMA’) was brought in to keep pace with the changing dynamics of the Indian economic polity repealed the Foreign Exchange Regulation Act, 1973 (‘FERA’) and came into force on 1-6-2000. Apart from removing criminal prosecution for non-....... + More p Review petition - HELD THAT - There is no provision in law to file review petitions again and again and again against review orders. Review petitions can be filed against an order only for errors apparent on the face of it. This is not the case here. The review order dated 24.06.2015 has attained finality in as much as it has not been challenged in any High Court by these appellants. /p p The review order dated 24.06.2015 is a speaking order which also has reflected as to how the appellants have tried to mislead the Bench. As discussed in the brief facts, the sequence of this case only points towards the appellants trying to take the Bench....... + More p Release of property seized - Proceedings instituted pursuant to a complaint u/s 16(3) of the Foreign Exchange Management Act, 1999 (FEMA) - as alleged show cause notice issued by the concerned officer alleging contravention of the provisions of Section 3(b) of FEMA, read with Regulation 5(2)(c) of the Foreign Exchange Management (Manner of Receipt and Payment) Regulation, 2000 - HELD THAT - Insofar as Indian currency is concerned, the same was transferred to the Income Tax Authority. /p p Silver and silver articles, which were seized by the respondent. The petitioner claims that he has submitted all the requisite details as called upon to ....... + More p Stay petition - whether the appellants have been able to make out a prima facie case in their favour? - claim taken up with RBI for compounding - received inward foreign remittances from M/s. Infinity Financial Limited, Mauritius but failed to either intimate the Reserve Bank of India within 30 days of the inward remittance, or failed to issue shares to the foreign investors within the stipulated 180 days of the inward remittances - HELD THAT - In this case, the appellants have not denied that they did not inform the RBI within the stipulated period as mandated by RBI, nor did they issue shares to the foreign investor within 180 days as ag....... + More p Monetary limit for prosecution of FERA issues - Petitioner on trial for the offences under Section 18(2) r/w Section 18(3) of Foreign Exchange Regulation Act, 1973 and under Section 56 of Foreign Exchange Regulation Act, 1973 - Quashing of revisional court’s order - pleas urged in this petition are that in view of the Circular of 5th July, 2001 issued under Section 56 of FERA, there can be no prosecution if the amount involved is less than ₹2 crores - HELD THAT - Since evidence of three witnesses out of six, has been already recorded and the case is now fixed in this month before the trial court for recording of the remaining e....... + More p Status of BCCI as a ‘company’ - Adjudication proceedings against BCCI - Transactions done in violations of the provisions of FEMA 1999 - illegal funds were transferred between BCCI and CSA - HELD THAT - BCCI was neither a Body Corporate nor a firm nor an association of individuals, but only an Association of Associations, registered as a society under the Tamil Nadu Societies Registration Act and therefore, BCCI could not be qualified to be treated as’ company’ as per the explanation for a company provided under section 42 of FEMA 1999. /p p BCCI is not a company as admitted by all parties, but only an Association r....... + More p Maintainability of appeal - alternative statutory remedy - Penalty for contravention of Section 7 (1)(a) of the FEM 1999 read with Regulation 16(1) (i) & (iii) of Foreign Exchange Management (Exports of Goods and Services) Regulations, 2000 - HELD THAT - An appeal against the order impugned herein is maintainable before the Special Director (Appeals), O/o the Commissioner of Income Tax (Appeals), Aayakar Bhawan, Delhi. /p p In view of the above, we are not inclined to entertain the present writ petition and dispose of the same by relegating the petitioner to avail alternative statutory remedy in accordance with law. /p p Foreign Direct Investments (FDI) - Non-compliance of the condition of minimum capitalization - requirement of prior permission and allowing automatic route for FDI by foreign companies in township development - Guilty of the charge in respect of the transaction of transfer of shares - liability of director - guilty of the provisions of Reg. 3 & Reg. 5(1) r/w Schedule 1 of FEMA 20/2000 - Restriction on issue or transfer of security by a person resident outside India - HELD THAT - The minimum amount of FDI is required to be brought in “within a period of six months of commencement of business of the company”. It is evident fr....... + More p Contravention of Section 3(a) and (b) of FEMA, 1999, contravention of Section 6(3)(g) of FEMA, 1999 and Section 10(6) of FEMA, 1999 - HELD THAT - There is no statement or document or admission on record to substantiate the said allegations. In this regard, no investigation was done by the department in India or abroad. No show cause notice has been issued for alleged under valuation by the customs authorities and there is no dispute on this aspect. If department wished to prove the aforesaid allegations. As per department they had all information in this regard, which fact is apparent from the impugned complaint however department did not ....... + More p Levy of service tax - reverse charge - foreign remittances - sponsorship services or not - Appellant claims that the amounts paid by them to UKEIRI were towards donations made by them to UKEIRI - HELD THAT - The invoice has been indicating “British Council Trading” and is issued against the contract number UKIERI for an amount of GBP 100,000/- towards em “payment of the fourth year re sponsorship fee for UKIERI.” /em In our view the invoice itself justifies the correctness of the stand taken by revenue. If the invoice has been issued against a contract, appellant could have easily contradicted the stand taken by the....... + More p Reversal of CENVAT Credit - input service - maintenance of separate records for providing taxable service and exempted service - Rule 6(3) of the CCR, 2004 - HELD THAT - The ratio of the decision of this Court in THE PRINCIPAL COMMISSIONER VERSUS M/S ALEMBIC LTD. a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 383212 target blank 2019 (7) TMI 908 - GUJARAT HIGH COURT /a is that once the assessee is not required to reverse any credit availed by him on valid input services availed during the period 2010 till obtaining of completion certificate, the said amounts reversed by the assessee under protest cannot be retained by the Revenue authorities and those have been refunded to him. /p p Appeal dismissed. /p p Classification of services - GTA Service or not - transporters have not issued any consignment note to the effect of providing all the transportation service to their clients - reverse charge mechanism - HELD THAT - The appellant is not issuing any consignment note for providing all the transport service and only raising bills for the transportation charges for various trucks hired by them from the independent owners and use them for providing the services to their clients. Hence, they would not be covered under the GTA service. /p p From perusal of the above definition regarding GTA as contained in the Act, it is apparent that the issue o....... + More p Non-payment of service tax - ‘Manpower Recruitment Service’ and ‘Commercial and Industrial Construction Service’ - service tax collected but had not deposited to Department which is also accepted by the proprietor of the appellant - suppression of facts nor not - demand of interest and penalty - waiver to penalty in terms of Section 80 of the Act - HELD THAT - This is the case where the service tax amount has been collected by the appellant but had not deposited to Department which is also accepted by the proprietor of the appellant. The appellant has paid substantial amount of service tax during the investigation a....... + More p Classification of services - works contract service or not - the works undertaken by the appellant was for fabrication, supply of material, installation and commissioning of various items as per the contract entered between the parties - HELD THAT - In the present case, there is no dispute that the works undertaken by the appellant was for fabrication, supply of material, installation and commissioning of various items as per the contract entered between the parties. Further, in the impugned order Commissioner has given a finding that there was a supply of material and provision of labour and therefore there is no dispute that the works co....... + More p Business Auxiliary Services - business of brewing and bottling of beer at its plant in Aurangabad - non-payment of service tax - manufacture and sale of alcoholic beverages to the customers/indenters of UBL as per the instruction of UBL - demand alongwith interest and penalty - Date of amalgamation/transfer of Appellant’s brewery unit with M/s Skol Breweries Ltd. In the scheme of arrangement - Time Limitation - HELD THAT - The arrangement/agreement for manufacture and sale of branded alcoholic beverages between the appellant and M/s Skol is a complex one; even though the appellant is authorised to sale the manufactured branded beer i....... + More p strong Classification of services - Business Auxiliary services or not - manufacture and sale of alcoholic beverages to the customers/indenters of UBL as per the instruction of UBL /strong - demand alongwith interest and penalty - Date of amalgamation/ merger of the Appellant’s unit with M/s United Breweries Ltd. - Time Limitation - HELD THAT - After the amendment to the definition of Business Auxiliary Service with effect from 1/9/2009, the activity of manufacture of non-excisable goods, that is alcoholic beverages, would fall within the scope of Business Auxiliary Service - the activity of manufacture of alcoholic beverages, being ....... + More p Levy of Service tax - collection of toll - SCN is challenged on the ground that the respondent No.3 has no authority to collect the service tax which has already been abolished/repealed with effect from 1-7-2017 - HELD THAT - The learned counsel for the petitioner has invited our attention to the communications from the Ministry of Finance dated 22-2-2012 and 21-5-2019 clarifying that the service by way of access to a road or a bridge on payment of toll charges is included in the Negative List, which means that no service tax can be levied on the service. /p p The petitioner shall be at liberty to file the reply to the show cause notice. T....... + More p Waiver of penalty - benefit of section 80 of FA - Taxability - amount received by the petitioner as a Subcontractor - amount received by the petitioner as a Subcontractor - bonafide belief - HELD THAT - Section 80 as it stood then provides that no penalty shall be imposed on the assessee for any failure referred in the said provisions. If the assessee proves that there was reasonable cause for the said failure. For an assessee to bring his case within the ambit and purview of a reasonable cause, the assessee will have to demonstrate that there are reasonable grounds to suggest that the amount received as a Subcontractor is not liable for t....... + More p Maintainability of appeal - monetary amount involved in the appeal - Refund claim of un-utilized cenvat credit - cenvat credit on Professional Indemnity Insurance (PII) - no proceedings were initiated against the respondent for denial of cenvat credit on Professional Indemnity Insurance (PII) - whether at the stage of filing refund claim of un-utilized cenvat credit in their cenvat credit account could be challenged? /p p HELD THAT - The appellant admits that in view of instructions dated 11.7.2018 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal is not mai....... + More p Refund of Service tax - period of limitation due to retrospective exemption - main crux of the arguments of the assessee through its Ld. Advocate is that Section 104 is under Chapter VA of the Finance Act, 1994, whereas Section 83 falls under Chapter V of the Finance Act, 1994, and therefore, the right of the service recipient to claim refund is governed by Section 83 read with Section 11B of the Central Excise Act, 1944 and not by Section 104 (3) ibid. - HELD THAT - A harmonious reading of the provisions points to one and only conclusion that though Section 104 is a special provision, it is practically dependent on Section 11B and Section....... + More p 100% EOU - Refund of CENVAT Credit - export of services or not - services of identification and evaluation of potential investment opportunities in Indian real estate companies - Para 2 of CBEC Circular No.141/10/2011 dated 13.05.2011 - reverse charge mechanism - rule 5 of CENVAT Credit Rules read with Notification No.27/2012-CE dated 18.06.2012 - period April 2012 to June 2012, July 2012 to Sept 2012 and Oct. 2012 to Dec. 2012 - HELD THAT - It has already been held by the court below that the Appellant have exported the services. Further under the scheme of the refund, there is no requirement of one-to-one co-relation of the input service....... + More p GTA Service - Benefit of N/N. 32/2004 ST dated 03.12.2004 - abatement of 75% from the gross freight value - denial of benefit in the absence of any declaration furnished by the transport agencies from whom the services in question were availed by the assessee, to the effect that the transport agents had not taken CENVAT credit on inputs / capital goods - Circular No.5/1/2007 -S.T. dated 12.03.2007 - HELD THAT - It is very clear that for availing the exemption in terms of the said notification No.32/2004, satisfying the conditions stipulated in the said proviso with the help of the declaration of the service provider viz., transport agency ....... + More p Construction services - works contract service - appellant was not rendering any service to their clients but they had collected the amount representing as service tax HELD THAT - Issue notice on the appeals as well as on the application for stay. /p p Validity of rectification application - Recovery of service tax - proviso to Section 73(1) of the Finance Act, 1994 - grounds urged by the petitioners in these writ petitions would not absolve the clear admission of tax liability by the petitioners to the show cause notice issued by the Adjudicating Authority - period December 2012 to March 2016 - in the rectification application it is pleaded that opportunity was prayed but the same was denied but the same is not supported by any material evidence - HELD THAT - In the rectification application a reference is also made to the circular dated 10.03.2017 issued by the Central Board of Excise ....... + More p Health and fitness services - appellant is providing taxable service of health club and fitness services without getting registered, without payment of Service Tax, without filing the returns - demand of service tax alongwith interest and penalty - HELD THAT - The appellant was liable to pay Service Tax for providing taxable service of health club and fitness service but did not get himself registered with the Service Tax Department and did not file the Returns and when the records of the appellant were verified and a SCN was issued demanding Service Tax of ₹ 20,27,851/- for the period 01.04.2011 to 30.09.2014, the appellant paid onl....... + More p Classification of services - Franchise Service or not - sharing of profit - Management fee and Warranty fee - Revenue entertained a view that the Management fee and Warranty fee are chargeable to service tax under the category of ‘Franchise Service’ - HELD THAT - In this case the franchise is providing infrastructure for refurbished the car and also provide facility to the employees and franchise also making efforts to marketing to MTV cars on the basis of market support and guidance provided by the appellant. The appellant only provide guideline how to ascertain the value of car and how to refurbish the car and after the sale ....... + More p Construction of Residential complex service - appellant has received payment from the prospective buyers before the grant of completion certificate - period 2007-2011 - HELD THAT - In the present case, the appellants were constructing residential flats on their own land as the building permit was granted to the appellant. Further, the completion and occupancy certificate were also given to the appellant and the initial building tax was also paid by the appellant. /p p This issue is no more res integra and has been settled by this Tribunal in the case of C.C.E & C.S.T. -BANGALORE SERVICE TAX- I VERSUS KEERTHI ESTATES PVT. LTD. a href ht....... + More p Taxability - Business Advertising Agency - Business Auxiliary Service - Mandap Keeper Service - HELD THAT - We find that perusal of the “Instadia Advertisement Agreement” entered into with M/s. Sporting Frontiers (India) Pvt. Ltd., the appellant has granted them the right to use the advertising sites, right to exhibit advertising of any kind and right to use advertising signs during the cricket matches and extra matches but the appellant is not providing any service connected with the making, preparation, display or exhibition of advertisement activity thereby appellant does not fit into ‘Advertising Agency’ as defi....... + More p Abatement claim - short term accommodation services - restaurant services - appellant was alleged to have evaded an amount of ₹ 83,59,428/- during the period from October, 2013 to March, 2014 on the ground that since the appellant has availed the cenvat credit on input services, the benefit of abatement to Notification No. 26/2012-ST dated 20.06.2012 is not available to them - benefit was also denied on the basis of Rule 2C of Service Tax (Determination of Value) Rules, 2006 - HELD THAT - The condition for availment of abatement qua the services of short term residence/ lodging the credit on strong inputs /strong and strong capital g....... + More p Classification of goods - rice bucket elevator - rice conveyor - HELD THAT - There is no legal infirmity in the impugned judgment and order warranting our interference under Section 35(L)(1)(b) of the Central Excise Act, 1944. /p p Appeal dismissed. /p p Classification of the imported machine - Cyclotron - whether it falls under CETH 28444000 of the said Act attracting Excise Duty at a higher rate or whether it will fall under CETH 30063000 as 'diagnostic reagent' attracting a lower rate of duty? - HELD THAT - We do not find any merit in the contention raised by the learned counsel for the appellant that the Commissioner (Appeals), while dealing with the first appeal of the appellant, had no power to assess the duty on the machine "Cyclotron" imported in terms of the Show Cause Notice issued by the Adjudicating Authority himself, but assessed the duty at a lesser rate whi....... + More p Effect of amendment/substitution in the Rule 6(6)(i) of CENVAT Credit Rules, 2004 - substitution/supersession of the rule - substitution of Rule 6(6)(i) of CENVAT Credit Rules, 2004 by the Notification No.50/2008-C.E.(N.T.) dated 31.12.2008 - retrospective effect or not - HELD THAT - The present appeal filed by the Revenue is without any merit and is liable to be dismissed. /p p Appeal dismissed - decided against Revenue. /p p CENVAT Credit - time limit - invoices beyond six months - Rule 4 (7) of Cenvat Credit Rules, 2004 - principles of natural justice - HELD THAT - The appellant has referred to and relied upon various precedent decisions of the Tribunal laying down that the time restriction of six months would not apply to the invoices issued prior to 01/09/2014. The Appellate Authority, very religiously, mentioned all these decisions in the order but sad enough, did not refer to the same in the operative portion of his order - We really fail to appreciate the above conclusion drawn by Commissioner (Appeals) without even whispering about the applicability of ....... + More p Reversal of CENVAT credit - inputs/capital goods - M.S. Angles, M.S. Plates, Foundation bolts and Channels, etc., which were used in their factory - period January 2012 to January 2014 - credit was reversed but there was short reversal - HELD THAT - As per the stand of the appellant, he has reversed CENVAT credit of ₹ 16,60,408/- in CENVAT account vide Entry 66 and 419 but as per the verification done by the Superintendent of Bijapur, the appellant has reversed only an amount of ₹ 16,55,919/- and balance of ₹ 10,329/- is yet to be paid by the appellant along with interest and penalty. Since there is discrepancy in the rev....... + More p Process amounting to manufacture - printing of glass bottles - provisional release of detained goods - HELD THAT - On provisional release the goods were placed at the disposal of the appellant and as per the submissions during hearing appellant has cleared the said goods on payment of duty whenever the occasion for clearance arose. Therefore, it is not established that the goods which were confiscated were cleared without payment of duty and therefore, there was no occasion to demand central excise duty on the same. /p p There was no occasion for invocation of provisions of Section 11AC of Central Excise Act, 1944 in respect of the confisc....... + More p Levy of interest and penalty - penalty and interest has been levied/upheld in the present matter by reference to the Rule 96ZO(3) of the Central Excise Rules,1944 - Valuation - annual capacity of production - main contentions raised by the Petitioner was that the annual capacity of production ought to have been determined on the basis of actual power supply position and not merely the sanctioned power supply position - HELD THAT - In M/S. SHREE BHAGWATI STEEL ROLLING MILLS VERSUS COMMISSIONER OF CENTRAL EXCISE & ANOTHER a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 268363 target blank 2015 (11) TMI 1172 - SU....... + More p Reversal of CENVAT Credit - common inputs - Appellant was clearing their final product to Mega Power Project under the claim of exemption in terms of Notification Number 6/2006-CE dated 01/03/2006 - Revenue entertained a view that they are required to pay 6% of the value of the said goods in terms of Rule 6(3) of the Cenvat Credit Rules, 2004, as they were availing Cenvat Credit on common inputs - HELD THAT - Admittedly, the N/N. 6/2006 continued to cause appearance in Sub-Rule 6(6)(vii) even though the same was not in force during the relevant period and it seems that the said mistake was realized by the legislature only on 08/05/2012 and....... + More p Clandestine manufacture and removal - shortage of goods - shortage of 5.060 MTs of Sodium Bichromate Mother Liquor (SBML) - period March, 1997 to June, 1998 - demand based on statements, private records etc - HELD THAT - The demand was raised based on the Panchanama, statements and the private records seized from the premises of the appellant as well as statements of the alleged buyers of the clandestinely removed products. All these have been summarized into Annexures-A to E enclosed to the SCN giving cross reference to Pg.Nos., File Nos. and Note book Nos., etc. As far as Annexure-A, B & C are concerned, learned counsel for the appel....... + More p Job-work - failure on the part of principal to pay the duty - manufacture of railway wagons classifiable under Central Excise Tariff Heading 8606 - Benefit of N/N. 10/97-CE dated 1 March 1997 - HTC wagons were cleared by the principal manufacture for Research and Development Establishment of Indian Defence, availing the exemption Notification No. 10/97-CE dated 1 March 1997 - HELD THAT - The appellant have manufactured HTC wagons for M/s Titagarh wagons Ltd. on job work basis availing the exemption benefit under N/N. 214/86-CE dated 25 March 1986. It is also a fact that the appellants have cleared two HTC wagons to M/s TWL under their invo....... + More p Manufacture of Gutkha - duty discharged under the provisions of Pan Masala Packing Machines (Capacity Determination and collection of duty) Rules, 2008 as amended - Mis-declaration of the value of production - case of assessee is that In the present case the highest MRP Goods i.e. ₹ 3 MRP were not manufactured for whole month but only for a day - Section 3A and PMPM Rules, 2008 - imposition of penalties - HELD THAT - The Unit had filed declaration on 01.04.2011 in terms of Rule 6 of PMPM Rules wherein they declared the details of packing machines to be used for packing of Gutkha along with specific MRP of the pouches. However the uni....... + More p CENVAT Credit - input - High Speed Diesel (HSD) - period October 2011 to March 2015 - input services - garden maintenance service - HELD THAT - As per the definition of input, the credit on HSD is not eligible. It is brought out from the records that the appellant has availed credit only on two invoices. When they have purchased huge quantities of HSD and have availed credit only on two invoices, it can be presumed that the said availment of credit to be an inadvertent error - Credit not allowed - however, the penalty imposed is unwarranted and requires to be set aside. /p p CENVAT credit - garden maintenance service - HELD THAT - The Hon&....... + More p Irregular reversal of CENVAT Credit - the bone of contention between the appellant and the Department is the quantum of the amount to be reversed under Rule 6(3A) of CENVAT Credit Rules - reversal as per formula as specified in Clause (c) of sub rule (3A) of Rule 6 of Cenvat Credit Rules, 2004 or not - HELD THAT - The Commissioner (Appeals) has observed that the appellants have not produced sufficient document to verify the reversal but the appellant has given full details of reversal in the appeal memorandum with detailed worksheets but the same was not allegedly produced before the Commissioner (Appeals). /p p As per the Department the a....... + More p Clandestine removal - SSI denied on the ground that the units have suppressed the production / clearances with an intent to evade payment of excise duty - ex-parte order - principles of natural justice - HELD THAT - Even though the appellants have challenged the demand on the ground that the author of these papers was not investigated but the fact remains that the clearances mentioned in the said papers stand accepted by Shri Mashrubhai Bharwad, tempo driver, who had transported these goods to M/s SCEL. Further Shri Yogeshbhai Shah who is Managing Director of M/s SECL and partner of M/s Mili Detergent Industries himself has accepted that t....... + More p 100% EOU - Valuation - material found unaccounted in the premises - raw materials procured by the appellant duty free from others - demand of duty at rates applicable to goods manufactured by 100% EOU - applicability of proviso to section 3 of CEA - HELD THAT - In the instant case, the appellant are failed to account for a certain quantity of raw material procured by them and consequently, they are liable to pay duty. It is seen that the proviso to section 3 applies only to goods manufactured or produced by a 100% EOU. It therefore cannot be applied to the said goods which were clearly not produced by the appellant. In these circumstances,....... + More p CENVAT Credit - appellant have cleared the goods under exemption N/N. 30/2004-CE dated 09.07.2004 - case of the department is that, since the appellant have claimed Cenvat credit, they have violated the condition of N/N. 30/2004-CE dated 09.07.2004 which stipulates that “no credit of such excise duty or additional duty of customs on inputs has been taken by the manufacturer of such goods” - HELD THAT - Though the appellant have availed Cenvat credit in respect of inputs used in the manufacture of Polyester Texturised Yarn and cleared under nil rate of duty but it is also a fact that appellant have reversed the amount equal to 6....... + More p CENVAT Credit - appellant have utilized the balance of Education Cess and secondary and Higher Secondary Education Cess - proviso 6 to Rule 16 of Chewing Tobacco and unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules 2010 - HELD THAT - Reliance placed in the case of CELLULAR OPERATORS ASSOCIATION OF INDIA AND OTHERS VERSUS UNION OF INDIA AND ANOTHER a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 355843 target blank 2018 (2) TMI 1264 - DELHI HIGH COURT /a where it was held that Prior to 01.07.2010 builders/developers are not liable to pay service tax for the Construction o....... + More p CENVAT Credit - use of intermediate goods (Neutral Filter Cake) as inputs - Rule 57CC of the Central Excise Rules, 1944 - HELD THAT - The finding of fact that the input used is only minimal is not controverted. At this stage, when we are hearing the appeal on a substantial question of law, we are not minded to reopen that finding of fact, no matter how compelling may be the argument of Mr. Maity. It is also beyond controversy that the said input has been treated as a separate final product and the duty thereon has been paid adjusting the duty paid as input. /p p The learned tribunal has taken a very realistic and plausible view of the matt....... + More p Applicability of Rule 8 (3A) of the Central Excise Rules, 2002 - whether the operation of this Rule was prospective or retrospective? - whether the CESTAT substantially erred in law in reversing decision of the Commissioner, who in its turn affirmed the order of the Deputy Commissioner passed invoking provisions of Rule 8 (3A) of the Central Excise Rules, 2002? - HELD THAT - The tribunal proceeded on correct principles of law. The said rule is substantive in character since it relates to payment terms regarding duty and the effects of default in payment thereof. It is not at all procedural. Therefore, this Rule had to have only prospective....... + More p Valuation - goods valued on the ex-factory value whereas their contract for supply of goods was on FOR basis - inclusion of cost of freight and insurance in assessable value - Place of removal - Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 read with Section 4 of Central Excise Act, 1944 - HELD THAT - Whether the FOR prices are inclusive or not at the time of clearances is not the criteria for assessing the transaction value. The only possible criteria for the purpose is as to whether the property in goods stands transferred to the buyer at the time when the goods are cleared whether from the fa....... + More p Issuance of C-form - purchase of High Speed Diesel Oil for use in generation and distribution of electricity and other forms of power - concessional rate of tax - HELD THAT - The issue decided in the case of M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 369563 target blank 2018 (10) TMI 1529 - MADRAS HIGH COURT /a where this Court allowed the writ petitions filed by the assessees and directed the Revenue to permit the petitioners assessees to download 'C' forms. It is not in dispute (as submitted by ....... + More p Principles of natural justice - Validity of assessments - main contentions raised were that, the appellant was not actually heard on 06.06.2019, as stated in the impugned orders - condition for payment of 20% of the demands - HELD THAT - The impugned order does not reflect any reasons for imposition of the condition. Nor it reflects any advertence to the contentions raised in the appeal - At any rate, we do not find that the insistence for payment of 20% of the demand, is in any manner unreasonable or arbitrary, especially in view of Section 55(4) of the Kerala Value Added Tax Act, 2003. But, it is only just and proper in the interest of j....... + More p Issuance of C-forms - purchase of High Speed Diesel Oil for use in generation and distribution of electricity and other forms of power - concessional rate of tax - HELD THAT - The issue decided in the case of M/S. SOUTHERN COTSPINNERS COIMBATORE PRIVATE LIMITED REPRESENTED BY ITS MANAGING DIRECTOR, MR. S.V. DEVARAJAN VERSUS THE STATE OF TAMIL NADU, REPRESENTED BY THE SECRETARY TO GOVERNMENT COMMERCIAL TAXES DEPARTMENT, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) , CHENNAI a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 381413 targ....... + More p Validity of re-assessment order - Section 39(1) of the KVAT Act - power of rectification of assessment or re-assessment - HELD THAT - Section 41(1) of the KVAT Act is applicable where the order of re-assessment is found to be erroneous insofar it is prejudicial to the interest of the public revenue by the judgment or order of any Court - the re-assessment orders impugned dated 08.08.2017 at Annexure - A to the writ petitions passed under Section 39(2) of the KVAT Act as well as the consequent notices of demand at Annexure-B to the writ petitions are quashed reserving liberty to the Department to initiate appropriate proceedings in accordance with law. /p p Petition disposed off. /p p Compounded rate of tax - cancellation of permission to pay tax at compounded rate by the petitioner u/s 8(f) of the KVAT Act, 2003 - HELD THAT - By referring to Ext.P8 this Court while directing the appeal to be disposed of within time frame ought not to either keep in abeyance or stay Ext.P5 notice issued under Section 25 of the Act. Sri.Tomson T. Emmanuel insists for consideration of his alternate prayer direct the Tribunal to dispose of Ext.P6 appeal on 24.07.2019. /p p The Kerala Value Added Tax Appellate Tribunal, Kochi/ second respondent considers completing argument on 24.07.2019 or on a shorter date to which the appeal stands posted to and disposes of the appeal not later than 09.08.2019 - Petition disposed off. /p p Maintainability of appeal - availability of alternative remedy - Validity of revised Assessment Order - Section 51 of TNVAT Act - It is the specific and pointed case of the learned counsel for writ petitioner that the directions of the Appellate Authority have not been adhered to - principles of natural justice - HELD THAT - This Court is convinced that directions of the Appellate Authority and principle of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 340033 target blank 2017 (3) TMI 536 - MADRAS HIGH COURT /a , have not been violated....... + More p Time limitation of impugned order - TNVAT Act - the impugned order-I made and served on writ petitioner in June of 2017 has been assailed in the instant writ petition, which has been filed more than two years later i.e., in July of 2019 i.e., 01.07.2019 - HELD THAT - In the instant case, the impugned order itself makes it clear that an appeal lies to the jurisdictional Deputy Commissioner within 30 days from the date of receipt of a copy of the order, but writ petitioner has not chosen to file a statutory appeal - There is no disputation before this Court that a statutory appeal lies to jurisdictional Appellate Deputy Commissioner under Se....... + More p Period of limitation in passing the orders - Rectification of mistakes - Section 25A of the Karnataka Sales Tax Act, 1957 - assessment years 1989-90 and 1991-92 to 2002-2003 - HELD THAT - This provision makes it clear that the ‘Assessing Authority’ for the purpose of the present cases , is empowered to rectify any mistake apparent from the record, at any time, within a period of five years from the date of the order passed by the said authority. Indisputably, all the impugned orders herein are passed beyond the period of five years from the date of the original assessment order/original rectification order. /p p Section 25-A of....... + More p Maintainability of application - issue already attained finality - Refusal to issue Form-C - natural gas purchased by petiitoner in the course of inter- state trade or commerce and used by it for the generation of electricity - HELD THAT - The writ application merits acceptance, keeping in view the fact that adjudication in the case of Carpo Power Limited a href https //www.taxmanagementindia.com/records/View case laws1.asp?ID 358035 2018 (4) TMI 146 - PUNJAB AND HARYANA HIGH COURT /a , which has already attained finality for the Special Leave to Appeal (supra), already declined on 13th August, 2018. /p p The respondents are directed to issue ‘C’ form to the petitioner - Application allowed. /p p Concessional rate of tax - genuineness of the 'C' Forms produced by the revision petitioner - validity of assessment order - powers vested under Section 35 of the Kerala General Sales Tax Act on Deputy Commissioner - years 2003-04 and 2004-05 - HELD THAT - Section 35 of the KGST Act enables the Deputy Commissioner to pass an order directing to make such enquiry as he deem fit. The re-assessment on the basis of such an order has to be made only based on an enquiry and only based on convincing materials. As pointed out in the order of the first appellate authority, the Department, under special instructions from the Commissioner, had....... + More p Reversal of assessment - excess of purchase turnover - Section 25 of the Kerala Value Added Tax Act, 2003 - annual return rejected for the reason that, discrepancy was noted in the amount of total purchase reflected in the annual return with that of the audited statement - the authorities have not found any discrepancy in the sales figures returned, it cannot be found that there occurred any escapement of sales turnover which is taxable /p p HELD THAT - The Department has no case that the materials covered under the omitted purchase were not converted into finished goods, which was not reflected in the sales turnover and which had escaped ....... + More p Refund to the Petitioner on the basis of ‘zero demand orders’ - DVAT Act - HELD THAT - The fact of the matter is that the only ground on which refund has been refused to the Petitioner is the passing of ‘zero demand orders’, which have been enclosed by the Respondents themselves to the additional affidavit filed by them. The Court is further informed that the copies of such orders were handed over in Court on the first date of hearing of the writ petition itself. /p p When repeatedly asked as to what is the purpose of passing such ‘zero demand’ orders, and then requiring the dealer to challenge such orde....... + More p Principles of natural justice - petitioner contends that the order is passed quite mechanically without adverting to the grounds raised and without any proper application of mind with respect to merits of the appeal - quantum of interim payment - HELD THAT - Even though we are convinced that the prima facie appreciation of merit is not reflected in the impugned order, we are not proposing to remit the matter for fresh consideration and for passing fresh orders, because we are of the opinion that the appeal itself can be heard on an early date. As an equitable relief, we think it appropriate to reduce the quantum of interim payment directed....... + More p Deemed Assessment - stock taking - TNVAT Act - HELD THAT - This Court is of the view that it will not serve any purpose in embarking upon the exercise of ascertaining the exact date on which impugned order was served on the writ petitioner. /p p The impugned order has been passed on the basis of the statement given by the writ petitioner dealer to the Enforcement Wing officials - The principles in the case of NARASUS ROLLER FLOUR MILLS VERSUS THE COMMERCIAL TAX OFFICER a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 258479 target blank 2015 (4) TMI 361 - MADRAS HIGH COURT /a comes to the aid of the writ petitioner....... + More p Revised assessment order - Section 27 of TNVAT Act - opportunity of personal hearing - HELD THAT - In the instant case, as this Court is convinced that on the peculiar facts and circumstances of this case i.e., lull between the first revisional notice on 27.02.2015 and reply thereto on 10.04.2015 besides further lull after production of 23 purchase bills in 2017 itself pursuant to notice dated 29.11.2017 and comparison of 23 purchase bills 1 ½ years after they were produced, the prayer for personal hearing has to be acceded to. /p p The impugned order is set aside solely on the ground of personal hearing - By consent of both sides, ....... + More p Best Judgement assessment - Form 'WW' - the writ petitioner did not file report from the Auditor being Auditor's statement in the prescribed form - Section 63A of TNVAT Act and Rule 16 of TNVAT Rules - HELD THAT - In the instant case, unlike TVL. NITHRA FURNITURE P. LTD., VERSUS THE ASSISTANT COMMISSIONER (CT) , CHENNAI. a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 278765 target blank 2015 (8) TMI 1467 - MADRAS HIGH COURT /a strong em /em /strong best judgment assessment was not revisited solely because of Form 'WW' issue. This becomes clear from the personal hearing notice issued by the res....... + More p Validity of assessment Order - grant of stay - case of petitioner is that either the mere filing of appeal or mere pendency of appeal does not amount to granting stay by the appellate authority - HELD THAT - A case is made out for issuing necessary directions to the 3rd respondent to dispose of the delay condonation petition and stay petition in Exts.P4(a) stay petition and P4(b) delay petition respectively. /p p Petition disposed off. /p p Validity of assessment order - benefit of Karasamadhan Scheme, 2019 - it is alleged that no statutory Forms were submitted by the petitioner company to avail the reduced rate of tax - HELD THAT - There is no cavil on the proposition that the declaration Form can be filed at a subsequent point of time and not necessarily along with the returns. It is also well established principle that the declaration Forms can be filed before the Appellate Authority also - If the Assessing Authority is satisfied that the assessee was prevented from sufficient cause which disenabled him to file the Forms in time, the same can be accepted in terms of the pr....... + More p Refund claim - Review of finalized assessment order - subsequent cancellation of the ‘C’ form issued to the dealer in Haryana in respect of the inter-state transaction, which was validly issued - suo motu an exercise of the powers of AVATO conferred under 74B (5) of the Delhi Value Added Tax 2004 - HELD THAT - The impugned order makes no mention of the date of cancellation of the said ‘C’ form. It is obvious that it has been cancelled subsequent to the assessments under the CST Act being finalised by the AVATO in the present case. Also, the ‘C’ form has not been cancelled because the firm in Haryana does....... + More p Disallowance of ITC - petitioner claimed refund - Jurisdiction of Court under Article 226 - rank perversity - alternative appeal remedy - HELD THAT - The petitioner ought to be directed to work out the remedies against Exts.P6 and P6(a) before the appellate authority. This Court after taking note of bare details exhibited in Exts.P1, P4, P5 and P6 was also of the view that without further examination the ground of perversity raised in the writ petition could be considered merits decided. But as rightly pointed out by the learned Government Pleader the exercise were for the limited purpose of finding out the ground of perversity, this Court....... + More p Penalty of removal from service - disagreement with the Inquiry Report - HELD THAT - The requirement of second show cause notice of proposed punishment has been dispensed with. The mandate now is only to apprise the delinquent of the Inquiry Officer’s report. There is no necessity of communicating proposed punishment which was specifically contemplated by clause (2) of Article 311 prior to 42nd Amendment. /p p The previous punishments could not be subject matter of the charge sheet as it is beyond the scope of inquiry to be conducted by the Inquiry Officer as such punishments have attained finality in the proceedings. The requirement....... + More p Dishonor of Cheque - insufficiency of funds - Section 138 of the Negotiable Instruments Act, 1881 - maintainability of complaint on the ground of time limitation - HELD THAT - It appears from the material on record that the trial Court will have to find out after appreciation of documents on record, whether the complaint filed by the first Respondent was within time or otherwise. Prima facie it appears that notice sent on residential address of the applicant was received by the complainant i.e. by first Respondent on 15th February 2018 and complaint was filed on 14th March 2018. Therefore, at the threshold it cannot be concluded that compl....... + More p Dishonor of Cheque - Plea that pleading not guilty was singed by the advocate on behalf of petitioner accused - whether advocate was property instructed - Section 138 of Negotiable Instruments Act, 1881 - repayment of debt - HELD THAT - The impugned order makes it abundantly clear that in case the Advocate is willing to sign on plea in that case only such application/prayer for exemption was granted. If the contention of the petitioner is accepted that the Advocate was not instructed to sign on plea, in that case it was open for the Advocate not to sign on plea. Since the Advocate for the petitioner has signed the plea and pleaded not guil....... + More p Dishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1881 - Company declared as sick unit - whether a company and its directors can be proceeded against for having committed an offence punishable under Section 138 of the Act after the company has been declared sick under the provisions of the SICA before the expiry of the period for payment of the cheque amount? - HELD THAT - The Apex Court in KUSUM INGOTS & ALLOYS LTD. VERSUS PENNAR PETERSON SECURITIES LTD. a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 104664 target blank 2000 (2) TMI 724 - SUPREME COURT /a has held that Section 22 only deals....... + More p Condonation of delay in filing appeal - Dishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1881 - power to try cases summarily - time limitation - HELD THAT - As rightly contended by the learned counsel for the second Respondent that, cases under Section 138 of the NI Act are required to be tried summarily and trial is required to be conducted as expeditiously as possible and endeavor shall be made to conclude the trial within six months from the date of filing of complaint. /p p The legislature intented to expedite the trial of the cases arising out of dishonor of cheque for “insufficiency of funds” in the acc....... + More p Grant of conditional leave to defend - whether on basis of the materials on record, whether their has been just and proper exercise of the discretion to grant conditional leave to defend by deposit of ₹ 30,00,000/after consideration of all material and relevant factors? - HELD THAT - The fact that there was commercial dealing between the parties was not in issue at all. According to the plaint of the respondent, commercial dealings between the parties ended on 03.06.2011. It stands to reason why outstanding payment in respect of the same came to be made by cheque as late as 01.03.2014. It does not appeal to logic or reason much less ....... + More p Unconditional stay of Arbitral award - stay of money decree - Proceedings pending before High Court - paymnet on completion of works contract - non-filing of injunction application in the proceedings under Section 34 of the Arbitration Act - HELD THAT - The Law Commission has categorically recommended that there should be no automatic stay of the arbitral award. While so recommending, the Law Commission report makes no exception for the Government. On the basis of the said report of the Law Commission, the old Section 36 was substituted in 2016, with retrospective effect from 23.10.2015. /p p The backbone of the submissions on behalf of th....... + More p Leave to appeal - Judgment of acquittal in a case under Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT - Learned counsel for the applicant-appellant has made sincere attempt to pursuade this Court to take a different view, however, keeping in view two positive findings of the Court, one with regard to the admission of the appellant that the cheque in question was handed over to him on 14/15.07.2016 whereas the complaint is dated 30.03.2016 and in Ex.D1 which is a report submitted in previous litigation between the parties that various blank signed cheques have been given by the accused to the applicant-appellant and his accomplices, this Court does not find any ground to grant leave to appeal. /p p Appeal dismissed. /p p Restraint on respondent Nos. 1 and 2 from interfering with the working and management of Hamdard Laboratories (India) and its allied institutions in any manner whatsoever - appellant has sought the above directions, inter alia, on the ground that respondent Nos. 1 and 2 are creating impediment in the working and management of Hamdard Laboratories (India) - right to operate bank accounts in terms of Wakf Deed of 1948. /p p HELD THAT - There is an inadvertent mistake in the judgment dated April 3, 2019 when the Court said that the parties will additionally continue with the arrangements arrived at in respect of the management of the Hamdard ....... + More p Appointment of sole arbitrator - disputes arose between the parties with respect to certain communication issued by the Respondent - University, whereby the purchase order in favour of the Petitioner, executed in furtherance of the MoU, was kept in abeyance - HELD THAT - On the joint request of the parties, we appoint Mr. Justice Pratap Hardas (Retd.) as the Sole Arbitrator, subject to the declarations being made under Section 12 of the Arbitration and Conciliation Act, 1996 with respect to independence and impartiality, and the ability to devote sufficient time to complete the arbitration within the period of 12 months. /p p Matter disposed off. /p p Dishonor of cheque - insufficiency of funds - Section 138 of Negotiable Instrument Act - HELD THAT - Upon careful perusal of the averments in the complaint and in particular para no. 22 there of, there are specific averments wherein it is stated that at the time the offence was committed accused no. 2 to 9 i.e. present petitioners were Directors and were in charge of and responsible for day to day affairs and management of accused no. 1 and therefore, they are liable for prosecution. /p p The petitioners have no where stated in the petition that they were not Directors of Respondent No. 1 on the date of commission of an alleged offence nor....... + More p Dishonor of Cheque - Rejection of leave to defend the summary suit preferred by the respondent/plaintiff - Order XXXVII Rule 3 (5) CPC - loan was gib ven without receipt of the same - HELD THAT - The fact remains that the appellant’s application and supporting affidavit filed under Order XXXVII Rule 3 (5) CPC for leave to defend neither refers to any so-called chit fund committee run by the respondent’s father, nor does it refer to the fact that the name of UTI Bank Ltd. had undergone a change in the year 2007 itself - which pleas have been raised for the first time before this Court. Nevertheless, the said affidavit states, in....... + More p Legislative competence of State to levy tax/fee on the import of rectified spirit, as it is a non-potable liquor i.e. alcohol not fit for human consumption - powers u/s 90 of the Jharkhand Excise Act, 1915 - effect of Notification dated 6th November, 2010 as published on 10th November, 2012 - doctrine of quid pro quo - whether notification is in the nature of legislation by the State on the subject of industrial alcohol? /p p HELD THAT - Alcohol can generally be classified into the following categories Isopropyl alcohol (or IPA or isopropanol), Methyl Alcohol (or Methanol) and Ethyl alcohol, (also known as Ethanol) - the first two categori....... + More p Dishonor of Cheque - cheque was returned due to “insufficient funds” and not "as time barred cheque" - Section 138 of the Negotiable Instruments Act - HELD THAT - Admittedly, the appellant-accused did not appear in the criminal appeal before the High Court. When the accused has not entered appearance in the High Court, in our view, the High Court should have issued second notice to the appellant-accused or the High Court Legal Services Committee to appoint an advocate or the High Court could have taken the assistance of amicus curiae. When the accused was not represented, without appointing any counsel as amicus curia....... + More p Maintainability of suit - Order 7 Rule 11(d) of the Civil Procedure Code - HELD THAT - The appellant(s) cannot claim any right merely on the basis of a self serving allotment letter pertaining to the concerned flat, purportedly given by the builder. Noticeably, contends learned counsel for respondent No.1 that the averments in the plaint(s) regarding allegation of fraud played upon the appellant(s) are vague and general. The same are baseless and unsubstantiated. /p p We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exerc....... + More p Demand of Bribe - illegal gratification or not - Offences punishable under Section 7 & 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 - Learned Spl. PP for the CBI has vehemently contended that since the FSL revealed that the hand-wash, pant pocket wash and wash of the bed-sheet turned pink, it proves beyond reasonable doubt that the bribe amount was indeed accepted by the respondent and the said evidence in itself is sufficient to prove the case of the prosecution beyond reasonable doubt against the respondent. /p p HELD THAT - V. Swaminathan the complainant deposed that the respondent was representing himself ....... + More p Maintainability of the plaint - Valuation - Undervaluation of the relief claimed in the suit - HELD THAT - Order VII Rule 11(b) of the CPC permits rejection of the plaint where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within the time to be fixed by the Court, fails to do so - The suit as aforesaid is for the reliefs of declaration and permanent injunction. /p p Section 8 of the Suits Valuation Act, 1887 provides that in suits other than those referred to in Section 7(v), (vi), (ix) and (x)(d), the value as determined for the computation of court fees and the value for the ....... + More p Appointment of a sole arbitrator - whether respondent No.2 a company established under the laws of Belgium, having its principal place of business at Nijverheldsstraat 3, 2530 Boechout, Belgium, could be impleaded in the proposed arbitration proceedings despite the fact that it is a non-signatory party to the agreement dated 1st May, 2014, executed between the applicant and respondent No.1 a company established under the Companies Act, 2013 merely because it (respondent No.2) is one of the group companies of which respondent No.1 also is a constituent? /p p HELD THAT - In the backdrop of the averments in the application and the corresponde....... + More p Winding up of petition - dishonor of cheque - insufficiency of funds - Section 138 of the Negotiable Instruments Act - HELD THAT - What is argued before the learned Single Judge and what Mr. Sawant in substance attempts to argue before us, though with no success, is that in winding up Petition it matters not that there are disputed questions of facts or that the Court will have to engage in a complex enquiry requiring evidence. This is not even a stateable principle in this branch of law. As the learned Single Judge correctly observed, summary suit and winding up petition share a broadly similar approach. In both, the Respondent or Defenda....... + More p Dishonor of Cheque - insufficiency of funds - case of petitioner is that the statutory notice under Section 138 of the Negotiable Instruments Act was neither addressed to the correct address nor served to the petitioner - existence of statutory presumption - HELD THAT - Perusal of the record clearly shows that the complainant even in the complaint had stated that the statutory notice was not delivered and had accordingly annexed with the complaint the returned envelope containing the statutory notice - Legal presumption of service of notice can only arise in case the notice is correctly addressed. If the notice is incorrectly addressed no ....... + More |
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